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Global Custodians Ltd v Mesh

Global Custodians Ltd v Mesh

Case [1999] NSWSC 624 25 June 1999

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CITATION: Global Custodians Ltd v Mesh [1999] NSWSC 624

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2539/98

HEARING DATE(S): 18/05/99; 19/05/99

JUDGMENT DATE:
25 June 1999

PARTIES :

Global Custodians Limited (P)
Pamela Ann Mesh and Helen Chuproff (D1 & 2)
Hari Bhagat (D3)

JUDGMENT OF: Young J

COUNSEL : Plaintiff: R F Margo
Defendants 1 & 2: L Robinson and B MacRae
Third defendant in person

SOLICITORS: Plaintiff: Holding Redlich

CATCHWORDS: Equity [145]; Trusts; Settlor; Power to amend trust deed; Limits on power; Equity [184][213]; Trusts; Beneficiary's right to assign; What assignment entails; Whether assignee entitled to call for account

ACTS CITED: (NSW) Charitable Fundraising Act 1991
(NSW) Conveyancing Act 1919, s 12
(NSW) Partnership Act 1892, s 31
(UK) Statute of Uses
Supreme Court Rules Pt 20 r1(3A)

CASES CITED: Attorney-General v Beck (1980) 2 NSWLR 77
Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101
Farley and Lewers Ltd v Attorney-General (1962) 63 SR (NSW) 814
Glegg v Bromley [1912] 3 KB 474
King v Victoria Insurance Co Ltd [1896] AC 250
Morris v Morris (1993) 9 WAR 150
Re Simersall (1992) 108 ALR 375

DECISION: See para 81

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG, J

FRIDAY 25 JUNE 1999

2539/98 - GLOBAL CUSTODIANS LIMITED V MESH & ORS
JUDGMENT
1 HIS HONOUR : By summons filed 22 May 1998 and amended on 17 June 1998, the plaintiff sought a declaration that it was entitled to inspect all books of account of the Estate Mortgage Fighting Fund Trust established by deed made 2 August 1990 between Hari Bhagat as settlor and Pamela Ann Mesh and Helen Chuproff as trustees. Various ancillary orders were sought.
2 After voluminous affidavits were filed on both sides, the matter found its way into what might loosely be called “the Estate Mortgage Case Management List” of which I am in charge. On hearing the matters in that list on 9 December 1998 I ordered that the questions in Schedule A to the plaintiff’s notice of motion be decided separately and before all the other issues in the proceedings. I then listed for 18 and 19 May 1999 the hearing of these separate issues.
3 On 18 May Mr R F Margo appeared for the plaintiff, Dr L Robinson with Mrs B Macrae appeared for the first and second defendants, and the third defendant, Mr Bhagat, appeared in person. Mr Margo said that he now only sought the determination of three questions. However, the defendants objected to this and in the end, rather than lose the hearing date, Mr Margo agreed that the original questions would be before the court, but he indicated that he would only be seeking to argue questions which were the equivalent of 3 to 8.
4 The defendants made it quite clear that the reason why they objected to questions 1 and 2 being deleted was that the only assignment on which the plaintiff could possibly rely before the proceedings were…

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 Global Custodians Ltd v Mesh

Details

AGLC: Global Custodians Ltd v Mesh [1999] NSWSC 624
Case: [1999] NSWSC 624
Decision Date: 25 June 1999

CaseChat Overview and Summary

In the case of Global Custodians Limited v Mesh, the dispute arose between the settlor of a trust, the trustee, and a beneficiary who sought to assign her interest in the trust. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was the extent of the settlor's power to amend the trust deed and whether there were any limits on this power. Additionally, the court needed to determine the nature of a beneficiary's right to assign their interest in the trust, and whether such an assignment entitled the assignee to demand an account from the trustee.

The court began by examining the language of the trust deed, which granted the settlor the power to amend the trust deed. The court considered whether this power was absolute or whether there were any implied limitations. The court held that the power was not absolute and could be subject to equitable limitations. The court noted that the settlor's power to amend the trust deed could not be used to defeat the beneficial interests of the beneficiaries. The court found that the settlor had exceeded the scope of the power by attempting to amend the trust deed in a way that would have deprived the beneficiaries of their rights.

The court also considered the nature of a beneficiary's right to assign their interest in the trust. The court held that an assignment of a beneficiary's interest in a trust was a transfer of the beneficiary's equitable interest in the trust property. The court found that such an assignment did not entitle the assignee to demand an account from the trustee unless the assignment expressly provided for such a right. The court noted that the assignment deed in this case did not contain any such provision.

The court ordered that the settlor's amendment to the trust deed was invalid, and that the trust deed remained in its original form. The court also ordered that the assignee was not entitled to demand an account from the trustee, as the assignment deed did not provide for such a right.

Orders