Gandy v Gandy [No 2] - [2025] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GANDY -v- GANDY [No 2] [2025] WASC 207
CORAM:   HOWARD J
HEARD:   28 APRIL 2025 & 22 MAY 2025
DELIVERED          :   29 MAY 2025
FILE NO/S:   CIV 2286 of 2024
BETWEEN:   GLYNN TREVOR GANDY
First Plaintiff
GLYNN TREVOR GANDY as CO-TRUSTEE OF THE GANDY FAMILY TRUST
First Second Plaintiff
STEPHEN WALLACE MCCLOUD as CO-TRUSTEE OF THE GANDY FAMILY TRUST
Second Second Plaintiff
AND
KIMBERLY NEIL GANDY as CO-TRUSTEE OF THE GANDY FAMILY TRUST
Defendant

FILE NO/S: CIV 1299 of 2019
BETWEEN: KIMBERLY NEIL GANDY
Plaintiff
AND
GANDY TIMBERS PTY LTD
First Defendant
GANDYS TRANSPORT CO PTY LTD
Second Defendant
GLYNN TREVOR GANDY as trustee for GANDY FAMILY TRUST
First Third Defendant
STEPHEN WALLACE MCCLOUD as trustee for GANDY FAMILY TRUST
Second Third Defendant
GLYNN TREVOR GANDY
Fourth Defendant
STEPHEN WALLACE MCCLOUD as trustee for THE STONEDALE PASTORAL TRUST
Fifth Defendant
GANDYS TRANSPORT CO PTY LTD as trustee for THE GANDY FARM TRUST
Sixth Defendant
STEPHEN WALLACE MCCLOUD trading as MCCLOUD BUSINESS & TAXATION MANAGEMENT
Seventh Defendant
GANDY TIMBERS PTY LTD
First Plaintiff by counterclaim
GANDYS TRANSPORT CO PTY LTD
Second Plaintiff by counterclaim
GLYNN TREVOR GANDY
Third Plaintiff by counterclaim
STEPHEN WALLACE MCCLOUD as trustee for STONEDALE PASTORAL TRUST
Fourth Plaintiff by counterclaim
GANDYS TRANSPORT CO PTY LTD as trustee for THE GANDY FARM TRUST
Fifth Plaintiff by counterclaim
KIMBERLY NEIL GANDY
First Defendant by counterclaim
GLYNN TREVOR GANDY as trustee for GANDY FAMILY TRUST
First Second Defendant by counterclaim
STEPHEN WALLACE MCCLOUD as trustee for THE GANDY FAMILY TRUST
Second Second Defendant by counterclaim
KIMBERLY NEIL GANDY as trustee for GANDY FAMILY TRUST
Third Second Defendant by counterclaim

Catchwords:

Application for final relief - Orders sought for the perfecting of the vesting of land subject of trustees' resolution - Separation of commercial interests - Whether agreement for distribution of trust assets was preliminary or conditional - Application granted

Interlocutory injunction - Application to restrain dealing with dividends from shares said to be trust assets - Separation of commercial interests - Agreement for sale of trust assets, namely listed shares - Whether breach of sale agreement - Whether serious question to be tried - Assessment of balance of convenience - Adequacy of damages - Application dismissed

Legislation:

Trustees Act 1962 (WA)

Category: B

Representation:

CIV 2286 of 2024

Counsel:

First Plaintiff	:	Mr E M Heenan SC & Mr T E Ledger
First Second Plaintiff	:	No appearance
Second Second Plaintiff	:	No appearance
Defendant	:	Mr M L Bennett

Solicitors:

First Plaintiff	:	Pragma Lawyers
First Second Plaintiff	:	No appearance
Second Second Plaintiff	:	No appearance
Defendant	:	Bennett

CIV 1299 of 2019

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendant	:	Mr E M Heenan SC & Mr T E Ledger
Second Defendant	:	No appearance
First Third Defendant	:	No appearance
Second Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:

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.

Continue reading Gandy v Gandy [No 2]

Details

AGLC: Gandy v Gandy [No 2] [2025] WASC 207
Case: [2025] WASC 207
Decision Date: 29 MAY 2025

CaseChat Overview and Summary

The applicants, Mr and Mrs Gandy, sought final relief orders to perfect the vesting of land that was subject to a resolution by the trustees of a family trust. The dispute arose due to the separation of the applicants and the subsequent need to distribute the trust assets. The court was required to determine whether an agreement for the distribution of the trust assets was preliminary or conditional and to assess the adequacy of damages in the context of an interlocutory injunction. Additionally, the applicants sought an injunction to restrain dealing with dividends from shares that were part of the trust assets, which were allegedly subject to a sale agreement. The court had to decide whether there was a breach of the sale agreement and whether a serious question was to be tried.

The court considered the nature of the agreement for the distribution of the trust assets, determining that it was conditional rather than preliminary. This conclusion was based on the specific terms of the agreement and the context in which it was made. Regarding the interlocutory injunction, the court assessed the balance of convenience and the adequacy of damages. It was held that there was a serious question to be tried concerning the breach of the sale agreement, but the balance of convenience favoured the respondent. The court found that the applicants had not demonstrated that they would suffer irreparable harm if the injunction was not granted and that damages would be an adequate remedy.

The court granted the application for final relief, allowing the perfecting of the vesting of the land. However, it dismissed the application for an interlocutory injunction to restrain the dealing with dividends from the shares. The court found that the applicants had not established that there was a serious question to be tried regarding the breach of the sale agreement or that the balance of convenience favoured granting the injunction. The adequacy of damages was also considered, leading the court to conclude that damages would be an appropriate remedy.

In conclusion, the court granted the application for final relief but dismissed the application for an interlocutory injunction. The court determined that the agreement for the distribution of the trust assets was conditional and that the balance of convenience did not favour granting the injunction to restrain the dealing with dividends from the shares. The final orders reflected these decisions, allowing the vesting of the land to be perfected while denying the applicants' request for an injunction.

Orders