Legal Research
Cases
Irwin v Pamplin (No 5)

Irwin v Pamplin (No 5)

Case [2024] NSWSC 484 2 May 2024

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Irwin v Pamplin (No 5) [2024] NSWSC 484
Hearing dates: 5, 15 and 27 March; 4, 5, 9 April 2024
Date of orders: 9 April 2024
Decision date: 02 May 2024
Jurisdiction: Equity
Before: Parker J
Decision:
See [162]

Catchwords:
EQUITY – remedies – declaration of express trust over half interest in shares, units in unit trust and properties – consequential orders – transfer of shares and units – appointment of trustees for sale of properties – accounts and inquiries – income derived from trust assets – potential for tracing – form of orders for account and inquiry
JUDGMENTS AND ORDERS – variation – slip rule – reasons for judgment – form of declaration of trust – starting date for calculation of pre-judgment interest on unpaid distributions from discretionary trust
CIVIL PROCEDURE – injunctions – consequential on final orders – order for transfer of shares and units in unit trust – injunction against dealing with shares and units pending transfer – order for payment of monies – asset preservation order pending satisfaction – stay pending appeal

Legislation Cited:
Civil Procedure Act2005
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adams v Bank of New South Wales [1984] 1 NSWLR 285
Application of Henley [2013] NSWSC 975
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201
Baker v David [2015] NSWCA 235
Beck v Henley [2014] NSWCA 201
Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
Brady v Stapleton (1952) 88 CLR 322
Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464
Glazier v Australian Men's Health (No 2) [2001] NSWSC 6
Irwin v Pamplin [2021] NSWSC 208
Irwin v Pamplin (No 2) [2021] NSWSC 1026
Irwin v Pamplin (No 4) [2024] NSWSC 73
Juul v Northey [2010] NSWCA 211
Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139
Rowe v National Australia Bank Ltd [2019] WASCA 140
Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482
Shun Sheng Pty Ltd v Lei (No 3) [2024] NSWSC 72

Texts Cited:
AG Nevill & AW Ashe, Equity Proceedings with Precedents (New South Wales) (1981, Butterworths)
Campbell JC, “Access by trust beneficiaries to trustees’ documents information and reasons” (2009) 3 J Eq 97
H.W.Seton, Judgments and Orders (7th ed, 1912, Stevens and Sons Limited)

Category: Consequential orders
Parties:
Main proceedings
Ann Margaret Irwin (Plaintiff)
Marie Dawn Pamplin (First Defendant)
Lionel Joseph Pamplin (Second Defendant)
Mircon Pty Limited (Third Defendant)
Dennis G Pamplin Pty Limited (Fourth Defendant)
Halcrows Investments Pty Limited (Fifth Defendant)
NMOS Pty Limited (Sixth Defendant)
The Peak on Andrew Pty Limited (Seventh Defendant)
Mircorp International Pty Limited (Eighth Defendant)
OSCO (Australia) Pty Limited (Ninth Defendant)

Notice of Motion filed 10 November 2023
Ann Margaret Irwin (Applicant)
Marie Dawn Pamplin (First Respondent)
Lionel Joseph Pamplin (Second Respondent)
Mircon Pty Limited (Third…

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 Irwin v Pamplin (No 5)

Details

AGLC: Irwin v Pamplin (No 5) [2024] NSWSC 484
Case: [2024] NSWSC 484
Decision Date: 02 May 2024

CaseChat Overview and Summary

Irwin v Pamplin (No 5) involved a dispute over the establishment of an express trust over various assets, including shares, units in a unit trust, and properties. The parties were Irwin and Pamplin, and the case was heard in the Federal Court of Australia. The primary legal issue was whether an express trust should be declared over half of the shares, units, and properties, and what form the consequential orders should take, including the transfer of shares and units, appointment of trustees, and sale of properties. Additionally, the court considered how to handle income derived from the trust assets and the potential for tracing.

The court found that an express trust should be declared over the specified assets, with certain trustees appointed to manage the sale of the properties. The court also addressed the form of the declaration of trust, specifying the starting date for calculating pre-judgment interest on unpaid distributions from the discretionary trust. Furthermore, the court granted consequential injunctions, ordering the transfer of shares and units, and prohibiting dealings with them until the transfer was completed. Orders for the payment of money and asset preservation pending satisfaction were also issued, along with a stay pending appeal.

The court's reasoning was based on the clear intention of the parties to establish an express trust and the need to ensure that the trust was properly administered. The orders for transfer and sale were intended to protect the interests of the beneficiaries and ensure the assets were managed effectively. The injunctions and asset preservation orders were designed to prevent dissipation of the trust assets during the pendency of the appeal. The final orders included declarations of trust, consequential orders for the transfer of assets, injunctions, and preservation of assets pending satisfaction.

Orders