Gilmore Finance Pty Ltd v Aesthete Pty Ltd

In the New South Wales Court of Appeal, Gilmore Finance Pty Ltd appealed against a decision concerning the removal of Aesthete Pty Ltd as trustee. The dispute centred on allegations of a conflict of interest arising from the sole director of the trustee also being the principal of a law firm that provided services to the trustee.

The Court of Appeal was required to determine two primary issues. Firstly, whether the appeal was competent, specifically in relation to the monetary threshold stipulated in section 101(2)(r) of the Supreme Court Act 1970 (NSW). Secondly, the Court considered whether a unitholder had provided fully informed consent to the arrangement that allegedly created the conflict of interest, thereby precluding a complaint about it.

The Court found the appeal to be incompetent, holding that the amount in issue did not exceed the jurisdictional limit. Regarding the substantive issue, the Court reasoned that the unitholder had received independent legal advice and had agreed to a "commercial settlement" for the director to provide services at a reduced rate. Consequently, the unitholder was deemed to have given fully informed consent and was unable to subsequently complain of a conflict of interest.

The Court of Appeal dismissed the notice of appeal as incompetent and refused leave to appeal. The parties were directed to file submissions regarding costs.