Fitzwood Pty Ltd v Unique Goal Pty Ltd - [2000] FCA 36

FEDERAL COURT OF AUSTRALIA
Fitzwood Pty Ltd v Unique Goal Pty Ltd [2000] FCA 36
CONTRACTS – sale of land – concluded agreement – exchange of parts – whether essential   for contract to become binding
TRUSTS – trustee – power of sale – power exercised for improper purpose – whether trustee is required to paid heed to the wishes of beneficiaries– removal of trustee – power to remove on resolution of unit holders – whether resolution must be passed at a meeting
Allen v Carbone (1975) 132 CLR 528 referred to
Dance v Goldingham [1873] 8 Ch App 902 applied
Domb v Isoz [1980] Ch 548 referred to
Eccles v Bryant & Pollock [1948] 1 Ch 93 referred to
Heavener v Loomes (1924) 34 CLR 306 referred to
In re Brockbank [1948] Ch 206 cited
Masters v Cameron (1954) 91 CLR 353
Park v Dawson (1965) NSWLR 298 applied
Rymark Australia Development Consultants Pty Ltd v Draper [1977] QdR 336 referred to
Sindel v Georgiou (1983) 154 CLR 661 referred to
FITZWOOD PTY LTD V UNIQUE GOAL PTY LTD, BRIAROAKS PTY LTD, MICHAEL DRAPAC and PINEROSS PROPERTY PTY LTD
V 754 of 1999
JUDGE:         FINKELSTEIN J
DATE:           31 JANUARY 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 754 of 1999

BETWEEN:

FITZWOOD PTY LTD
Applicant

AND:

UNIQUE GOLD PTY LTD,
BRIAROAKS PTY LTD,
MICHAEL DRAPAC and
PINEROSS PROPERTY PTY LIMITED
Respondents

JUDGE:

FINKELSTEIN J

DATE:

31 JANUARY 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Fitzwood Pty Ltd, is a beneficiary in the Mt Alexander Unit Trust. The trust is constituted by a deed dated 11 July 1994 between the first respondent, Unique Goal Pty Ltd, as trustee and certain named beneficiaries. The trust is what is known as a unit trust: each beneficiary holds units, each unit comprises an undivided part or share in the trust fund and each beneficiary’s interest in the trust fund is in proportion to the number of units held. Initially the trust fund was divided into 1300 units. There are now 1400 units and the applicant holds 600.
The unit trust was established to purchase a commercial property in Mt Alexander Road, Moonee Ponds for $4,750,000. The unitholders contributed $1,500,000 by way of application money for units in the trust fund to satisfy part of the purchase price and the balance was raised by the trustee on the security of the property.
On 22 or 23 December 1999 the trustee entered into a written contract to sell the Mt Alexander Road property to the fourth respondent, Pineross Property Pty Ltd (Pineross), for $6,150,000. The applicant seeks to set aside that contract. In the meantime it seeks an interlocutory injunction to restrain the completion of the contract. To understand the basis of the applicant’s claim it is necessary first to say a little about the structure of the unit trust.
In addition to the powers that are conferred upon a trustee by law, the trustee is given extensive powers to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fitzwood Pty Ltd v Unique Goal Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] FCA 36
Decision Date: 31 JANUARY 2000

CaseChat Overview and Summary

The case of Fitzwood Pty Ltd v Unique Goal Pty Ltd involved a dispute over the sale of a commercial property held by the Mt Alexander Unit Trust, with Fitzwood Pty Ltd as a beneficiary. The central issue was whether the trustee, Unique Goal Pty Ltd, had the authority to sell the property to Pineross Property Pty Ltd, and if so, whether the sale was conducted for an improper purpose. The court had to determine if the trustee had the power to sell the property, whether the sale was conducted in breach of trust, and if the trustee acted with the necessary consent from the unitholders. The court found that there were serious questions to be tried regarding the trustee's authority to sell the property and whether the sale was for an improper purpose, leading to the granting of an interlocutory injunction to prevent the completion of the sale pending the trial. The court's decision was based on the potential breach of trust and the need to protect the interests of the unitholders.

Orders