In the matter of Eighth Avenue Austral Pty Ltd

Eighth Avenue Austral Pty Ltd brought an application to the Supreme Court of Victoria for a declaration regarding the existence and terms of a trust over shares in a company. The respondent, who had been a director of the company, claimed to hold shares in trust for the applicant. The central dispute was whether the declarations made were binding and whether there was an objective intention to create a trust over the shares. The court needed to determine if the trust was over the shares themselves or only over the benefits derived from them. Additionally, the court had to assess if there was certainty of the subject matter to establish a valid trust.

The court examined the circumstances surrounding the declarations and the nature of the relationship between the parties. It considered whether the language used in the declarations was sufficient to demonstrate an objective intention to create a trust. The court also looked into whether the trust was sufficiently certain in terms of the subject matter. The analysis included whether the trust was over the shares or merely over the benefits derived from them. The court had to decide whether the trust was properly constituted and, if so, what its terms were.

In its decision, the court concluded that there was an objective intention to create a trust over the shares. The language used in the declarations, coupled with the conduct of the parties, demonstrated that the trust was intended to cover the shares directly rather than just the benefits. The court found the trust to be certain in terms of its subject matter, thus satisfying the requirement for a valid trust. Consequently, the court made a declaration that the respondent held the shares in trust for the applicant.

The final orders included a declaration that the respondent held the shares in trust for the applicant and that the trust was over the shares themselves, not just the benefits derived from them. The court also ordered that the respondent provide details of the shares and any related documents to the applicant.