Irwin v Pamplin (No 5)

[2024] NSWSC 484

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 Respondent)
Dennis G Pamplin Pty Limited (Fourth Respondent)
Halcrows Investments Pty Limited (Fifth Respondent)
NMOS Pty Limited (Sixth Respondent)
The Peak on Andrew Pty Limited (Seventh Respondent)
Mircorp International Pty Limited (Eighth Respondent)
OSCO (Australia) Pty Limited (Ninth Respondent)

Notice of Motion filed 21 February 2024
Ann Margaret Irwin (Applicant)
Marie Dawn Pamplin (First Respondent)
Lionel Joseph Pamplin (Second Respondent)
Mircon Pty Limited (Third Respondent)
Dennis G Pamplin Pty Limited (Fourth Respondent)
Halcrows Investments Pty Limited (Fifth Respondent)
NMOS Pty Limited (Sixth Respondent)
The Peak on Andrew Pty Limited (Seventh Respondent)
Mircorp International Pty Limited (Eighth Respondent)
OSCO (Australia) Pty Limited (Ninth Respondent)

Notice of Motion filed 15 March 2024
Marie Dawn Pamplin (First Applicant)
Lionel Joseph Pamplin (Second Applicant
Mircon Pty Limited (Third Applicant)
Dennis G Pamplin Pty Limited (Fourth Applicant)
Halcrows Investments Pty Limited (Fifth Applicant)
NMOS Pty Limited (Sixth Applicant)
The Peak on Andrew Pty Limited (Seventh Applicant)
Mircorp International Pty Limited (Eighth Respondent)
OSCO (Australia) Pty Limited (Ninth Applicant)
Ann Margaret Pamplin (Respondent)

Representation:

Counsel:
Main proceedings
M Condon SC/ P Sharp (Plaintiff)
G George (Defendants)

Notice of Motion Filed 10 November 2023
M Condon SC/ P Sharp (Applicant)
G George (Defendants)

Notice of Motion Filed 21 February 2024
M Condon SC/ P Sharp (Applicant)
G George (Defendants)

Notice of Motion filed 15 March 2024
G George (Applicants)
M Condon SC/ P Sharp (Respondent)

Solicitors:
Mersal Lawyers (Plaintiffs)
Hitch Advisory (Defendants)

Notice of Motion filed 10 November 2023
Mersal Lawyers (Applicant)
Hitch Advisory (Respondents)

Notice of Motion filed 21 February 2024
Mersal Lawyers (Applicant)
Hitch Advisory (Respondents)

Notice of Motion filed 15 March 2024
Hitch Advisory (Applicants)
Mersal Lawyers (Respondent)

File Number(s):

2018/179474

Publication restriction:

Nil

JUDGMENT

1. These are complex trust proceedings concerning the ownership of assets built up by members of a family. The assets include shares in proprietary companies some of which operate, or have in the past operated, substantial businesses; extensive property holdings; and units in a unit trust established for the purpose of a property development. The claims in the proceedings were largely, but not completely, disposed of in a judgment delivered by Henry J immediately before her retirement in February this year. This judgment deals with the remaining claims, and with three other applications consequent upon her Honour’s judgment.

2. The proceedings have a long and complicated procedural history that includes two interlocutory judgments on applications in 2021 which, by coincidence, came before me. In March of that year, I delivered a judgment on a contested application by the plaintiff for interlocutory injunctions: Irwin v Pamplin [2021] NSWSC 208 (“J1”). In the course of the interlocutory hearing, issues were raised about the form of the plaintiff’s statement of claim which resulted in an amended version being filed in July. In August, I made orders, over the opposition of the defendants, for the separate determination of specified parts of the relief claimed by the plaintiff: Irwin v Pamplin (No 2) [2021] NSWSC 1026 (“J2”).

3. It was the separate determination proceedings which came before Henry J and resulted in her recent judgment to which I have referred. The hearing took place in January and February last year (with a further date in March) and judgment was delivered on 9 February this year: Irwin v Pamplin (No 4) [2024] NSWSC 73 (“J4”).

4. Her Honour dealt with most, but not all, of the prayers for relief which had been reserved for separate determination. She made final orders, including the grant of declarations and a permanent injunction, and otherwise adjourned the separate determination proceedings to the Registrar for further directions: see J4 at [457].

5. The plaintiff was largely successful. I was told by counsel that a summons for leave to appeal, and an accompanying white book, has been filed on behalf of the defendants (leave is required because not all of the claims for final relief were dealt with in Henry J’s judgment: see Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139). A cross-application for leave to appeal has been foreshadowed on behalf of the plaintiff.

6. In November last year, after the hearing before Henry J had taken place, but before the delivery of judgment, the plaintiff applied by way of notice of motion for further interlocutory orders concerning the proposed sale, by the defendants, of some of the properties which were the subject of the claims in the proceedings. Following the delivery of Henry J’s judgment, the notice of motion was amended so as to seek further orders restraining the defendants from dealing with their assets. I will refer to this motion as the “asset restraint application”.

7. At the same time as the asset restraint application was amended, an application was made by the plaintiff by way of separate notice of motion for amendment of certain parts of the judgment of Henry J on the ground of mistake. The motion was referred to by the parties as the “slip rule” application.

8. The asset restraint motion came before me in the Duty List, initially on 5 March and then again on 15 March. It became apparent that the convenient course was to deal, as well, with the slip rule application and with the matters left undecided by the February judgment. The defendants also made their own application by way of notice of motion for a stay of the February orders, and of any further orders I might make, pending the determination of their appeal proceedings.

9. The upshot was that there were five matters to be determined. They were:

1. the claims for relief by the plaintiff which were the subject of the separate determination order but had not been dealt with in the February judgment;

2. the remaining claims for relief by the plaintiff in the proceedings which had not been the subject of the separate determination order;

3. the plaintiff’s asset restraint application;

4. the plaintiff’s slip rule application; and

5. the defendants’ stay application.

10. There were some shifts of position, and late service of evidence, which made it impractical to finalise the matters in the Duty List. Further hearings took place on 27 March and 4 April. On 5 April I announced my conclusions and handed down draft orders for the parties to consider. I finalised the orders at a further hearing on 9 April. In this judgment, I now set out my reasons for those orders.

11. The slip rule application was not confined to the orders made in the February judgment. The plaintiff also sought certain variations to the reasons for judgment on the ground that those reasons contained errors. But I was not sure about the power to vary reasons for judgment, as distinct from orders.

12. An application under the slip rule to vary orders which have been entered is usually made to the judge who made the orders in question. There is no doubt that where that judge is no longer available to deal with the application, the power may be exercised by another judge. But I was not taken to any authority which considers the variation of the first judge’s reasons for judgment.

13. The absence of authority is not surprising. Reasons are different from orders. They represent the judge’s own expression of the grounds for making the order which the judge has made. They are personal to the judge. While they may later be corrected by the judge if they do not properly express the grounds upon which he or she acted, it is difficult to accept that such corrections can be made by another judge.

14. In any event, the corrections proposed appeared to be largely, if not entirely, typographical ones which were fairly obvious from a reading of the judgment as a whole. Republishing the reasons might have been neater but hardly seemed necessary.

15. When I expressed these reservations, counsel for the plaintiff did not press the application so far as the reasons for judgment were concerned. It is therefore only necessary to deal with the application for variation of the February orders.

16. The parties to the proceedings are identified, and the background was summarised, at J1 [2]-[18]. That summary, although it dealt with the position as it stood in March 2021, is sufficient for the purposes of the present judgment:

The plaintiff is Ann Margaret Irwin. For convenience and without disrespect I will refer to her and the other individuals who come into this judgment by their given names. Ann brings the proceedings as the administrator of the estate of the late Adrian Dennis Pamplin (“Adrian”), who died in August 2013 at the age of 47. Adrian never married or had children. Ann has been found by the Court to have been his de facto spouse as at the date of his death.

Adrian was a bikie and belonged to a bikie group known as the Nomads. He and his younger brother Lionel Joseph Pamplin (“Lionel”) – who was also a member of the Nomads – were involved in a variety of business activities and property investments. But when Adrian died he had few, if any, assets to his name.

Adrian's father predeceased him but he was survived by his mother, Marie Dawn Pamplin (“Marie”). She is the legal owner of most, if not all, of the properties and companies with which Adrian was concerned during his lifetime. Those properties and companies are now controlled by her and Lionel.

Ann believes that the assets were put into Marie's name to protect them from possible law enforcement action and that Adrian was the real owner of a half share of them. The approximate value of the assets is not identified in the evidence but it appears to run into millions of dollars.

This case is the second stage in a campaign of litigation between Ann, on the one hand, and Marie and Lionel on the other, over Adrian's estate. The first stage in the litigation concerned succession to the estate. Adrian died intestate. There was a dispute between Ann and Marie about who would inherit his estate. In November 2017, Lindsay J ruled in favour of Ann: Estate of Pamplin, Irwin v Pamplin [2017] NSWSC 1477. This resulted in the appointment of Ann as administrator.

In the present case Ann seeks to recover for the benefit of Adrian's estate a half share of the assets from Marie, Lionel and the companies controlled by them. Ann began the proceedings in June 2018 pursuant to directions given by Lindsay J after he delivered judgment the preceding year. Marie is the first defendant in the proceedings and Lionel is the second defendant.

Ann's case is essentially based on an alleged agreement between Marie, Adrian and Lionel. Under the agreement, Adrian and Lionel's existing business ventures and property assets were to be transferred to Marie who would also hold any future assets generated by ongoing business ventures and property transactions. Marie would hold the assets for the benefit of Adrian and Lionel, who would act as shadow directors of the companies. Marie would hand over the assets if asked to do so. Although it is not pleaded as part of the initial agreement, Adrian and Lionel in fact provided guarantees to support the ongoing business activities and property purchases.

The case for Ann is that this agreement gave rise to a trust under which the relevant assets were held by Marie on trust for Adrian and Lionel in equal shares. She also contends that the assets of the companies were directly held on trust in the same terms.

The background to the agreement, which does not appear to be controversial, is that Adrian and Lionel had attracted the attention of law enforcement authorities as a result of their involvement with the Nomads. In about 1991 Adrian was charged with drug offences. He was later convicted and spent some time in gaol. It appears that from about 1994 onwards Adrian was aware that he was under investigation by the NSW Crime Commission, hence the desire to have his and Lionel's assets warehoused by Marie.

The assets which are the subject of the claim are all either directly or indirectly owned by Marie. First, there is a company called Dennis G Pamplin Pty Limited ("DGP"). It is the fourth defendant. All of the shares in the company are held by Marie.

DGP is the trustee of a discretionary family trust known as the Dennis G Pamplin Family Trust (“DGP Family Trust”). As trustee for that trust, DGP owns a portfolio of properties. One is at Dural in the outer north-western suburbs of Sydney; four are at Windsor; four are at Garland Valley (a rural area about 100 kilometres northwest of Sydney); and one is at Airlie Beach in Queensland.

DGP also owns the shares in a company called The Peak on Andrew Pty Ltd ("POA"). It is the seventh defendant. POA owns a commercial site in Adelaide which apparently forms part of a unit trust structure.

The second key asset owned by Marie is a company called Halcrows Investments Pty Limited (“Halcrows”). It is the fifth defendant. Again Marie owns all of the shares in it. It is the trustee for a trust known as the Halcrows Discretionary Trust. The trust deed is not in evidence, but I assume from the name of the trust that it too is a discretionary family trust. As trustee, Halcrows owns one property at Little Cattai Creek near the Hawkesbury River north-west of Sydney.

The third asset owned by Marie is a company called Mircon Pty Limited (“Mircon”). It is the third defendant. Again, Marie owns all of the shares in the company. It has a subsidiary called Mircorp International (“Mircorp”), which is the eighth defendant. I was told that Mircon (and perhaps Mircorp) used to operate an earth moving business. That business was sold in 2017 and it appears that the companies may have no remaining assets.

Fourthly, Marie owns all of the shares in a company called NMOS Pty Limited (“NMOS”). It is the sixth defendant. It has a wholly-owned subsidiary, OSCO (Australia) Pty Limited (“OSCO”), which is the ninth defendant. The business of these companies was not identified in submissions and again it seems that they may not currently be active. I was informed that the companies have no remaining assets.

Fifthly, Marie owns four properties in her own name. I understand one to be her home at Dural, and the other three are located at Kenthurst in the Hawkesbury area. These properties include a house where Adrian and Ann lived before Adrian's death.

In summary, Marie, or the companies owned by her, own a total of sixteen properties among other assets. That is, ten owned by DGP as trustee for the DGP Family Trust, one owned by Halcrows as trustee for the Halcrows Discretionary Trust, and four owned directly by Marie. The remaining property is the commercial property in Adelaide owned by POA. …

17. The claims made by Ann, as presented to Henry J, can be categorised as follows. First, there was a contention that Marie held on trust for Adrian’s estate half of the business and investment assets put into her name by Adrian and Lionel, or later acquired by her as a consequence (defined in the pleadings as the “Venture Assets”). The trust alleged was an express, or, alternatively, a resulting, implied or constructive, trust. I will call this the “Trust Claim”.

18. The Trust Claim focussed on the shares in the various companies, and the units in the unit trust, owned by Marie. Ann’s second claim focussed on the income and assets of the companies themselves, including the income and assets of the DGP Family Trust. Essentially, the contention was that Adrian’s estate was entitled to a half share of that income and of those assets as well. The contention was put in several different ways, including estoppels formulated in various ways and a claim in contract. For convenience, I will refer to this as the “Estoppel Claim”.

19. Thirdly, Ann made a claim in her own right as a beneficiary of the DGP Family Trust. She alleged that DGP, as trustee, had resolved to distribute to her several hundred thousand dollars in income but that the monies had never been paid. She sought judgment against DGP for those allegedly unpaid amounts. I will refer to this as the “Debt Claim”.

Trust Claim

20. The Venture Assets which were the subject of Ann’s claim consisted of specified property transferred to Marie in 2002, or later acquired by her, up to the date of Adrian’s death in 2013. The assets were made up of:

1. shares in nine companies, to which I will refer as the “Pamplin Companies”, namely:

1. Micron Pty Limited (“Mircon”) (J1[15]; J4 [16]);

2. A & L Pamplin Earthmoving and Contracting Pty Limited (“ALPEC”) (J4 [72]-[77]);

3. Dennis G Pamplin Pty Limited (“DGP”) (J1 [11]-[13]; J4 [17]);

4. Halcrows Investments Pty Limited (“Halcrows”) (J1 [14]; J4 [18], [177]-[178]);

1. NMOS Pty Limited (“NMOS”) (J1 [16]; J4 [21], [194]-[196]);

2. OSCO (Australia) Pty Limited (“OSCO”) (J1 [16] incorrectly states that OSCO is a subsidiary of NMOS; in fact the shares in OSCO are now held by Marie; see J4 [21], [189]-[193];);

3. The Peak on Andrew Pty Limited (“POA”) (J1[13]; J4 [19], [170]-[175]);

4. X-Distribution Pty Limited (“X-Dist”) (J4 [36], [181]-[183]); and

5. Corell Holdings Pty Limited (“Corell”) (J4 [36], [184]-[187]);

2. units in the Peak Unit Trust (J1 [13]; J4 [170]); and

3. four properties (“Pitt Town Properties”) at or near Pitt Town in the Hawksbury area (see [89] below).

21. ALPEC, X-DIST and Corell had been wound up, or the shares in them had otherwise been disposed of, before the trial took place (in fact, well before: see [74] below). I will refer to these three companies as the “Former Pamplin Companies”.

22. Marie’s shares in POA and her units in the Peak Unit Trust were transferred to DGP (as trustee of the DGP Unit Trust) in 2018: J4 [175]. At the time the hearing took place, the shares in Mircon, DGP, Halcrows, NMOS and OSCO remained in the ownership of Marie, and I understand that they still do. I will refer to POA and the five companies whose shares are retained by Marie as the “Extant Pamplin Companies”.

23. In the February judgment, her Honour upheld Ann’s claim to an interest in the Venture Assets as defined. She found that the relevant shares and units “together with the financial benefits Marie derived from them, as well as the Pitt Town Properties that Marie acquired in her name” were subject to a trust for Adrian and Lionel in equal shares (J4 [313]-[315], [452]).

24. The Trust Claim succeeded on an express trust basis. Her Honour also would have sustained the claim on a constructive trust basis, and (so far as some of the shares were concerned) a resulting trust basis (J4 [332], [335]).

25. Her Honour granted declaratory relief in order (1) as follows:

Declare that the first defendant holds on express trust for the late Adrian Pamplin a one-half share in the Venture Assets (as defined below).

For the purpose of these orders, Venture Assets means:

(a) the shares that are or were owned by the first defendant (and the profits derived therefrom) in:

[the nine Pamplin Companies were specified];

(b) the land located on Pitt Town Road, Kenthurst comprised in Folio Identifiers [numbers specified] (Pitt Town Properties); and

(c) the units that are or were held by the first and fourth defendants (and the profits derived therefrom) in the Peak Unit Trust established 17 March 2008.

I will refer to the trust so declared as the “Declared Trust”.

Variation of declaration under slip rule

26. One aspect of the slip rule application (which was relatively uncontroversial) concerned the form of the declaration made by her Honour in the February judgment.

27. The chapeau referred only to Marie, as first defendant, holding assets on trust. But it was clear from the wording of sub-paragraphs (a), (b) and (c) that the intent was to cover not only assets held by Marie on trust at the time the declaration was made, but also assets previously acquired by her, but which had been disposed of by that point.

28. Moreover, sub-paragraph (c) referred to DGP holding units in the Peak Unit Trust on the terms of the Declared Trust. Presumably this was because the units had originally been held by Marie on trust and would have been impressed with the terms of that trust upon their transfer to DGP.

29. Counsel proposed variations to the order to make it clear that the Declared Trust extended to shares and units held either now or in the past by Marie, and to shares and units now held by DGP as transferee from Marie. I did not understand this to be contested. In any event, and without intending any disrespect to her Honour, I thought that the clarification would be desirable.

30. I decided to give effect to these variations by making changes to the wording of the chapeau, so that it would declare both Marie and DGP (as the case might be) to have been, and to be, trustees. I also added a reference in sub-paragraph (b) to Marie owning the Pitt Town Properties, for consistency with sub-paragraphs (a) and (c).

31. With these variations, the declaration covered all of the shares held by Marie, whether or not still held (sub-paragraph (a)), and the units in the Peak Unit Trust, whether held by Marie, as they were in the past, or by DGP, as they now are (sub-paragraph (c). But it did not cover the shares in POA following the transfer of those shares to DGP, and this appeared to me to have been an accidental omission. That was not conceded by counsel for the defendants, but I considered the shares in POA were in the same position as the units in the Peak Unit Trust. I therefore added a new sub-paragraph (d) to cover the POA shares in DGP’s hands.

32. Another alteration which I decided to make was to refer expressly in (b) to the trust extending to the profits derived from the Pitt Town Properties. Again, I considered that profits derived from the Properties were in the same position as profits derived from the shares and units for which express provision had been made.

33. In an affidavit filed in the proceedings before me, Marie stated that she was never a shareholder of Corell. Instead, the shares in Corell were held by DGP. But there was no application to vary her Honour’s declaratory order in this regard, and I will pass it by.

34. The result was a variation to the form of the declaratory order so that it read:

Declare that the first defendant and the fourth defendant, as the case may be, held or holds on express trust for the late Adrian Pamplin a one-half share in the Venture Assets (as defined below).

For the purpose of these orders, Venture Assets means:

(a) the shares that are or were owned by the first defendant (and the profits derived therefrom) in:

[the nine Pamplin Companies were specified];

(b) the land located on Pitt Town Road, Kenthurst comprised in Folio Identifiers 1/538582, 1/653836, 3/259725 and 2/587185 (Pitt Town Properties) that is or was owned by the first defendant (and the profits derived therefrom);

(c) the units that are or were held by the first and fourth defendants (and the profits derived therefrom) in the Peak Unit Trust established 17 March 2008; and

(d) the shares that are or were owned by the fourth defendant in the seventh defendant, The Peak on Andrew Pty Ltd (ACN 130 181 074) (and the profits derived therefrom).

Transfer of shares and units

35. Following the delivery of the February judgment, Ann’s solicitors gave notice in correspondence that she wished to have half of the shares and units the subject of her Honour’s declaration, to the extent still held by Marie or DGP, transferred to her as administrator of Adrian’s estate. The request relied upon the “rule” in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 (as to the “rule” terminology, see Beck v Henley [2014] NSWCA 201 at [32]-[33]). The request was refused, and counsel for Ann therefore sought orders from the Court requiring the transfers to be made.

36. Initially, the application was opposed. It was submitted that the Declared Trust was a trust for Adrian and Lionel together. Accordingly, so the submission ran, Lionel’s consent was required to terminate the Trust. The rule in Saunders v Vautier could not apply, in effect distributively, to Adrian’s half interest.

37. Counsel for Ann accepted that the rule prevented the distribution of a half interest in the Pitt Town Properties to Adrian’s estate, but contended that the rule did apply to a half interest in the shares in the Extant Pamplin Companies or to the units in the Peak Unit Trust. Counsel referred me to Application of Henley [2013] NSWSC 975 at [46] and [69]-[76]. It is not however necessary to go into the distributive application of the rule.

38. In my view, the argument from counsel for the defendants was not consistent with the form of the declaratory order which her Honour made. That order dealt only with a half share of the Venture Assets, which her Honour declared to have been, and to be, held for Adrian’s estate. It may have followed from her Honour’s findings that the other half of the Venture Assets belonged in equity to Lionel, but no order to that effect had been sought on Ann’s behalf and there had been no cross-claim by Lionel. Her Honour’s order did not deal with the other half interest at all.

39. In the end, counsel for the defendants did not pursue any objection to the transfer of the shares in the Extant Pamplin Companies or the units in the Peak Unit Trust. I was informed that in each case Marie holds an even number of securities, and, accordingly, no practical difficulty arises with transferring half of each of the holdings.

40. Counsel for Ann also sought orders requiring the Extant Pamplin Companies to register the transfers of the shares (and for POA as trustee of the Peak Unit Trust to register the transfer of the units). But I was not prepared to go this far.

41. Having been found to be trustees, Marie and DGP could properly be ordered to take any steps reasonably required of them to transfer the shares in question. This would include the making of any necessary transfer application. But the Companies had not themselves been found to be trustees, or to be under any obligation (which might override express provisions of their constitution) to register transfers requested by Marie or DGP as shareholders. In my view, they were not amenable to the orders sought.

42. What I have said should not be taken as any encouragement to the directors of the Companies, and those advising them, to decline to register the transfers unless there is a proper reason for doing so. If the directors were to obstruct the transfer of the shares simply to frustrate the Court’s orders, they (and the Companies) would be guilty of contempt.

Accounts and inquiries

43. One of the claims for relief in Ann’s statement of claim was for orders in the nature of inquiries and accounts concerning income derived from the Venture Assets. The drafting of the orders sought made it clear that Ann’s claim extended into assets held by the Extant Pamplin Companies, and perhaps others, into which such profits might be traced. The Companies were named as accounting parties in those orders.

44. Ann’s entitlement to this relief was one of the claims which was made the subject of the order for separate determination. But her Honour noted that she was not asked to make accounting or inquiry orders and therefore did not do so. She went no further than making the declaratory order to which I have referred.

45. In the letter following the February judgment which sought transfer of the shares in the Extant Pamplin Companies and the units in the Peak Unit Trust, Ann’s solicitors stated that she was also entitled to an account from the defendants, and that they were obliged to provide her with copies of all records “recording the profits referable to” those shares and units. The letter requested that they do so forthwith. The letter also requested an undertaking that “none of the parties identified” in her Honour’s orders dispose of any assets worth more than $2,000 without prior notice.

46. In an affidavit filed for the purposes of the proceedings before me, Marie objected to any of the Venture Assets being transferred to “Ann and Lionel” before “an accounting” was completed. She went on to identify various matters which, she suggested, would need to be addressed as part of any such “accounting”. She had made loans to Pamplin Companies which would need to be repaid. She had financed the acquisition and ongoing development of the Pitt Town Road Properties and was continuing to do so. She had received no director’s fees from the Pamplin Companies and “intended to seek payment of such fees”. She had funded the defences of those Companies and would be seeking reimbursement. She also identified, as a matter needing to be addressed, her “entitlement to receive properties from the developments undertaken by the corporate defendants since 2002”.

47. Lionel, in an affidavit he made for the purposes of the proceedings before me, took a similar position. He stated there should be no transfer of any of the Venture Assets to Ann until there had been an accounting. He had lent monies for the acquisition of some of the Assets. He had also acted as a director of some of the Companies, and provided management services, for which he had not received recompense. He had also done work on some of the properties held by the Companies for which he had not been remunerated.

48. Lionel also asserted that Adrian, during his lifetime, had incurred losses in dealing with money and assets of the Pamplin Companies. Those dealings had involved “breaches of trust”. The losses would be the subject of a claim for compensation by Lionel against Adrian’s estate.

49. Lionel went on to say that any accounting should take place in two stages. The first stage would involve determining the value of assets transferred by Adrian and him to Marie between 1989 and May 2002 (the commencement date of the arrangement found by Henry J). Only after this had been done should the “terms and basis for an accounting” be considered for the period from May 2002 onwards.

50. Before me, counsel for Ann pressed on with an application for accounts and inquiries. The form of the orders sought went through several iterations. In final form, the proposed order was that the Court “inquire into and certify” certain specified matters.

51. The matters were defined in the proposed orders by reference to the nine companies identified in her Honour’s declaratory orders (defined as the “Corporate Entities”); two trusts, namely the DGP Family Trust and the Peak Unit Trust (defined as the “Trust Entities”); and the Pitt Town Properties. In the case of the Corporate Entities, the matters for inquiry and certification by the Court were whether the Corporate Entities “earned profits or other financial benefits”, and if so “what was done with those profits or other financial benefits”. This was to include “the amount thereof”; “to whom it [sic] was paid”; “the bank account(s) into which it [sic] was paid”; and “what thereafter happened with those funds”. Equivalent provisions were made with respect to the Trust Entities and the Pitt Town Properties.

52. Counsel also sought detailed orders covering the initial stage of the inquiry and certification process. Marie and DGP were to serve statements of account specifying the relevant matters. The statements were also to include other details of relevant transactions, assets, gains and losses, and expenditure on “professional assistance such as a solicitor, accountant, valuer or real estate agent and any authority to pay the amounts so expended”. In addition, each of Mircon, Halcrows, NMOS and OSCO were to serve “an affidavit describing” the “profits or other financial benefits earned by them” and the other matters which were to be the subject of the inquiry and certification.

53. As well, these companies, together with Marie and DGP, were to prepare a folder containing a very extensive array of supporting documents. The documents were to include financial statements, tax returns, assessments, dividend records, rental agreements, among many other items, “or other evidence of transactions shown in the accounts, as may be appropriate”. Upon service of the statements and affidavits of account and the supporting folder, Ann was to have liberty to examine Marie viva voce or upon interrogatories “in respect of” the accounts. Thereafter, Ann was to file and serve her notice of surcharges, falsifications, and objections to those accounts.

54. In the course of argument, I raised with counsel for Ann the fact that, on her Honour’s findings, Adrian was, jointly with Lionel, in effective control of all of the Venture Assets up until the date of his death. I suggested that this might limit his ability to complain about, or obtain an account concerning, transactions during that period. Counsel responded by limiting the inquiry and certification sought to the period from 23 August 2013 onwards. The significance of this date is that Adrian died either on that date or the following day (his precise date of death is unclear): J4 [234].

55. Upon further reflection, I am not sure that it was necessary for the accounts and inquiries to be limited to this period. Certainly, the fact that Adrian was in control of the Venture Assets during his lifetime would prevent an account being taken for this period on a wilful default basis (but no application was made for the account to be taken on a wilful default basis anyway). Whether it would have prevented an ordinary account of administration (Glazier v Australian Men's Health (No 2) [2001] NSWSC 6 at [36]-[42]) being taken is another question, although, as the assets were in Marie’s hands with the consent of Adrian, the costs of that part of the account would in the ordinary course have come out of the trust assets. But it is not necessary to consider this further, as counsel made it clear that instructions had been obtained to limit the accounting and inquiry orders to the period nominated.

56. In his submissions, counsel for the defendants laid heavy emphasis on the extensive nature of the accounting orders sought. Counsel suggested that the ensuing proceedings would take years, and that the outcome, in terms of what, if anything, would have to be paid to Ann, was completely uncertain.

57. Counsel did not just object to the width of the orders sought. Counsel contested whether an account should be ordered at all in the present proceedings. Counsel emphasised that no order for an account can be made unless it is first established that the defendant is an accounting party. Counsel submitted that this involved demonstrating that the defendant would actually be required to make payment, not merely that there was a possibility of being required to make payment.

58. Counsel also submitted that the Court had no power to make accounting orders on what he characterised as a “summary” basis. In counsel’s submission, Ann had obtained what she wanted through the declaratory order. There was no evidence before the Court about what had happened since 2013. The appropriate course was for Ann to exercise her rights as beneficiary, including her right to obtain information about the affairs of the Declared Trust since 2013, and then, if the circumstances justified doing so, commence fresh proceedings alleging wilful default. In those proceedings the Court would first determine what, if any, breaches there might have been, and grant any relief in tailored form. The same was so for any inquiry.

59. I was referred by both parties to the decision of the Privy Council, given by Dr Lushington in Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464. The appeal arose out of a partnership suit between members of a Hindu banking family. The dispute centred on two banking businesses (referred to in the report as “cootees”) which has been managed by one of the family members (“Ramchund”) until his death in 1828. The objective of the suit, which was brought by Ramchund’s brother, and continued, after the brother’s death, by his sons, was to obtain an account of Ramchund’s dealings as manager of the cootees in question.

60. The defendants in the suit were the sons of Ramchund. It was contended for the plaintiffs that they were the heirs and representatives of Ramchund, and, in that capacity, were liable for his actions as manager of the cootees and any debts which might result.

61. This was, however, disputed. The defendants alleged that there had been a formal separation between them and their father in 1823 which extinguished any family interest in Ramchund’s shares of the cootees in question. Later, Ramchund made a will in favour of another family member. The defendants’ position was that they had not benefitted from Ramchund’s management of the cootees and were not his legal personal representatives, at least as that term was understood in English law.

43. For their part, the plaintiffs disputed the validity of the deeds which effected the separation, and the will. The plaintiffs asked for the validity of these instruments to be tried as issues in the proceedings.

44. The case however did not go to trial. Instead, a decree for an account was made in favour of the plaintiffs against the defendants as sought. It appears to have been thought permissible to order an account, in effect on an interlocutory basis, without having decided the questions which arose as to the defendants’ ultimate liability, including the validity of the deeds and the will.

45. In delivering the decision of the Judicial Committee, Dr Lushington stated (at 196-197; 472):

… it must be remembered that the Decree cannot stand unless it be first clearly proved that the Appellants [defendants] are, if anything should be found due to the Respondents [plaintiffs] arising from the acts and dealings of Ramchund, liable to answer that demand; we cannot make a Decree, ordering them to account, without first determining that they are liable to pay if anything be found due.

A Decree for an account is not, as appears to have been assumed, a mere direction to inquire and report. [197] It proceeds, and must always proceed, upon the assumption that the party calling for it is entitled to the sum found due. It is a Decree affirming his rights, only leaving it to be inquired into, how much is due to him from the party accounting.

65. Dr Lushington went on to observe that neither the residuary legatee in Ramchund’s will (Hurry Doss), nor the executors, “if there be any”, were parties to the suit. He observed (at 197; 472):

… assuming the law to be as contended, that the Appellants are the representatives of Ramchund, their father, Will or no Will, and as such might in some events be called on to account, yet as the Will may, notwithstanding the Decree, be a valid Will, and as Hurry Doss may be in possession, or the executor may be in possession, of the assets of the Testator, certainly they must be considered to be necessary parties to this suit, for if the Will be valid they must be primarily accountable.

In these circumstances, the Court at first instance had been mistaken in assuming that ordering an account could be done without deciding the underlying rights and obligations of the parties. The decree was reversed.

66. I do not think that Doss assists the argument of counsel for the defendants. The actual decision was based on a lack of parties, which is not a concern in the present case. Dr Lushington did not say that making a decree for an account was dependent on the court being satisfied that some amount would ultimately be found due. His Lordship described the decree as establishing an entitlement to receive payment “if anything be found due”. The decision, together with other authorities, was considered by Murphy JA and Sofronoff AJA in Rowe v National Australia Bank Ltd [2019] WASCA 140 at [74]-[89]. Their Honours concluded that a plaintiff seeking an account will not necessarily have to allege that a sum will ultimately be found due, and often will not know whether that is the case or not.

67. There is undoubtedly a declaratory element to a decree for an account. Such a decree determines who the accounting parties are, and what they are obliged to account for. As Dr Lushington expressed it, such a decree is an affirmation of the plaintiff’s rights and entitlements in this regard. As with other forms of decree or order in equity (see Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [50]-[57]) the decree represents a final determination of the defendant’s obligations to the plaintiff, albeit that there will be a further stage of accounting proceedings to work out the precise state of accounts between the plaintiff and the defendant. In using the term “final” I am speaking of finality for the purposes of the proceedings at first instance. Whether a decree for an account is final so as to give rise to a right of appeal, as distinct from requiring leave, is another question (Cf Juul v Northey [2010] NSWCA 211 at [194]).

68. But while a decree for an account may have a declaratory element, it also requires the accounting party to account in accordance with the obligation so declared. It is more than a mere declaration. Indeed, in the usual case, a declaration is probably not necessary at all, the declaratory element being subsumed within the decree for an account which is really the substantive relief sought.

69. It is not necessary to consider whether it might be proper, in cases where the court is satisfied that the trustees will comply with their obligations as determined by the court, merely to make a declaration. The present is far from such a case. As will be seen below, Ann’s claims have been vigorously contested by Marie and Lionel. They appear to have done nothing to comply with the trust obligations recognised by the Court. There is every reason for the Court to proceed to a formal decree. The fact that appeal proceedings are pending only reinforces the desirability of dealing finally, for the purposes of first instance proceedings, with all of Ann’s claims for relief.

70. There is a further feature of her Honour’s declaratory order that I should mention. That order does not merely deal with the Venture Assets held by Marie and DGP. It refers also to profits derived from those Assets. In one sense, the declaration determines the entitlement to profits. But it is not until an account is undertaken that it will be possible to identify what those profits were, and whether they have found their way into traceable assets held by Marie or DGP. This in my view was another reason why orders for account should be made now.

71. In evaluating the parties’ submissions on the form of the orders to be made, it is important to remember what the subject matter of the Declared Trust is. The Trust, in accordance with her Honour’s declaration, covers shares in the Pamplin Companies and units in the Peak Unit Trust. It does not extend to those entities’ underlying assets.

72. Furthermore, the relevant profits can only be those derived from the shareholdings in the Pamplin Companies and the units in the Peak Unit Trust. The obvious forms of profit would be a gain on the sale or realisation of the relevant securities (which would be relevant, if at all, in the case of the Former Pamplin Companies), or dividends or distributions paid on the securities. As all of the Companies were proprietary companies, there is no reason to think that the dividends will have been extensive. In fact, I was not referred to any evidence that there had been dividends paid at all since 2013. Nor was I referred to any evidence of distributions having been paid from the Peak Unit Trust.

73. It follows that no question can arise of the Court making orders against the Extant Pamplin Companies for the provision of information for the purposes of the account, as sought by counsel for Ann. On her Honour’s orders, the proceedings against those parties are at an end. None of their assets have been declared to be held on trust, and no order for account will be made against them. It seems to me that, to the extent that there will be ongoing accounting proceedings, the parties to those proceedings will be Ann on the one hand and the parties found liable to account, Marie and DGP, on the other. It may be that, for the purposes of the proceedings, subpoenas might be issued to other Pamplin Companies, but that is a different matter.

74. According to an affidavit of Marie filed in the proceedings before me, ALPEC was de-registered in September 2005 and X-DIST was de-registered in January 2013. Marie stated that at the time X-DIST was de-registered, she had already disposed of her shares in that company. All of this happened before Adrian’s death, and thus before the beginning of the accounting period. Corell was de-registered in June 2014, but, according to Marie, this de-registration followed a liquidation. It thus seems unlikely that any of the shareholdings in any of the Former Pamplin Companies will play any practical part in the account.

75. In these circumstances, some of the concerns expressed by Marie and Lionel about the accounting process are overstated. Claims by Marie or Lionel for repayment of loans made to the Pamplin Companies, or for remuneration for services rendered to those companies, will not form part of the account. Nor will claims by those Companies against the estate of Adrian. It will of course be possible for Marie to make a claim for just allowances as trustee, but the focus of that claim will be the extent to which Marie should be remunerated in her capacity as shareholder. So too for DGP. Any such claims are likely to be limited in scope.

76. The account will of course involve going into the liabilities incurred by Marie in acquiring the Pitt Town Properties and the income derived from, and expenditure on, those Properties. Again, there will be a potential for a claim for just allowances, but the focus will be on Marie’s contribution, if any, to the value of the Properties. Any contribution Lionel may have made might give rise to a claim, but, if so, it will be a claim against Marie as registered proprietor and will (if it can now be pursued) stand outside the account.

77. Nor is there any reason to assume that the account, when conducted, will necessarily be conducted inefficiently. Properly used, the process can be a very effective way of identifying and deciding the issues. Indeed, it is not clear how much scope there will be for dispute at all.

78. For these reasons, the taking of the account may be a more confined exercise than the submissions by counsel for the defendants suggested. But whether this proves to be so or not, I regard the making of an accounting order as part of Ann’s entitlement. The fact that the account may prove lengthy and expensive is not a sufficient reason to refuse it.

79. I do not however propose to make any orders for the conduct of the account at this stage. I have already indicated that the orders sought, particularly for discovery, are too wide. Moreover the Rules (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”)) contain specific provisions for accounting and inquiry proceedings in this Division (Part 46, Division 2). The process is initiated by a motion to proceed (r 46.11), and the Court may then give directions, including as to the representation of parties (rr 46.13, 46.14). I think it is best to leave this until later, and to concentrate at this stage on making the final orders for account and inquiry which will define the scope of the subsequent proceedings.

80. In this regard, I encountered some difficulties in formulating the orders. Those difficulties resulted from the fact that Ann has foreshadowed potential claims to trace any profits which Marie and DGP may have made from their shareholdings in the Pamplin Companies into other assets, which may potentially be in the hands of other parties. If any such traceable assets are identified, Ann will have an entitlement to elect whether to take those assets in satisfaction of her entitlement (which she would presumably do if the asset in question has increased in value) or to seek a money judgment representing the sum expended, plus interest (if the asset has not increased in value).

81. The problem is that it is not until the account has been taken, or at least begun, that it will be possible to identify the assets and parties who may be affected by potential tracing claims. The practical difficulty which this causes, in formulating the orders, is to what extent the uncertainty should be dealt with by orders for account and to what extent by orders for inquiry.

82. On this question, I referred counsel to H.W.Seton, Judgments and Orders (7th ed, 1912, Stevens and Sons Limited), volume 2, chapter 41, especially at 1075, 1088, 1115 and 1119. In response, counsel referred me to AG Nevill & AW Ashe, Equity Proceedings with Precedents (New South Wales) (1981, Butterworths) at 21-26 and 227-233. Perhaps not surprisingly, I did not find in either of these sources any precedent order which was immediately applicable to the present case. I therefore did my best to formulate the orders for myself from first principles.

83. In doing so, I paid particular attention to two basic features of the remedy of account. The first is that, while, often, defendants are obliged to account for sums of money received by them, and the eventual order takes the form of a judgment for a monetary sum, this need not necessarily be the case. Trustees who hold assets can be obliged to account in specie. Brady v Stapleton (1952) 88 CLR 322 is an example, where the trust property consisted of shares. In such cases, trustees account, not by paying a sum of money, but by transferring the relevant property. And if it is possible to have an account entirely in specie, then it must be possible to have a hybrid order where the accounting party is ultimately obliged both to transfer assets in specie and to pay a specified sum of money.

84. The second feature of the procedure is one mentioned by Campbell JA, writing extrajudicially. A fiduciary’s obligation is not merely to account for money or assets, but also to provide information (Campbell JC, “Access by trust beneficiaries to trustees’ documents information and reasons” (2009) 3 J Eq 97 at 142-146). The accounting procedure itself usually involves a system of vouching or something equivalent, whereby trustees produce documents supporting the income and expenditure figures in their statements of account. But in addition, the Court has power to make orders which permit them to be interrogated about what they have done with assets they have received and why.

85. Taking these features of the accounting remedy into account, it seemed to me that, to the extent that Marie and DGP continue to hold assets which represent the traceable proceeds of profits derived from the shareholdings in the Venture Assets, those tracing claims should be within the scope of the account. It would be possible in the course of the account to investigate whether Marie and DGP, as accounting parties, retain any such traceable assets, and no further order for an inquiry is necessary. The form of the accounting orders I made reflected this.

86. But where the assets in question have been alienated to a third party, the position is different. Such a third party will not, except coincidentally, be a party to the accounting proceedings. If any order is to be made against such a third party, that third party will need to be joined in due course. It seemed to me that to this extent the question of tracing would fall outside the scope of the account by Marie and DGP, and ought to be the subject of a separate inquiry. The orders for inquiry which I made reflected that distinction.

87. It may of course prove unnecessary for there to be any such inquiries. For this reason, my orders provided for any inquires to take place at Ann’s election. At one point, counsel for Ann suggested that the orders should expressly state that the election was to take place after the conclusion of the accounts against Marie and DGP. But I saw no advantage in being prescriptive about this. It may be that, at least in part, any inquiries could be conducted alongside the accounting proceedings, although I have not thought through the procedural implications of this. The convenient course was to leave the question to be dealt with as part of the directions under the Rules.

88. Counsel for the plaintiff also asked me to make a formal order reserving for further consideration the orders to be made on completion of the accounts and inquiries. I have made such an order, which makes express what would probably have been implicit in any event, namely, that until the account has taken place it will not be possible to identify whether the accounting parties would be required to transfer assets, or pay sums of money, or both. The same is so for the inquiries.

Appointment of trustees for sale of Pitt Town Properties

89. At J4 [197], Henry J recorded that the first of the Pitt Town Properties (the property has a three-digit street number and her Honour referred to it as “XX5”) was acquired in 2005. A second (“XX2”) followed in 2007. A third (“XX7”) was acquired in 2010. XX2 was later sub-divided into two separate titles each with its own street number: I will refer to it in its subdivided form as “XX2” and “XX2A”. Title searches in evidence before me show that the two subdivided properties were refinanced in 2014 and the subdivision probably happened then, or shortly beforehand.

90. In passing, I note that at J1 [17] (quoted at [16] above) I referred to the Pitt Town Properties as consisting of three properties at Kenthurst and one at Dural. This is incorrect: the four Pitt Town properties are all at Kenthurst and the Dural property is separate. The mistake probably arose because the sub-division had been overlooked.

91. So far as the Pitt Town Properties were concerned, Ann’s statement of claim sought a declaration that a half share of them was held by Marie on trust for Adrian, and an order that those half shares be transferred to Ann. As with the shares and units making up the other Venture Assets, Henry J granted the declaration sought but did not make any consequential orders for transfer. The NAB mortgages (referred to below) would probably have made transfer orders impracticable. In their letter following the February judgment, Ann’s solicitors foreshadowed that she sought to have the Properties sold.

92. The response by Marie and Lionel was similar to their response to the request for transfer of the Extant Pamplin Company shares. Lionel stated that the Pitt Town Properties are contiguous, and had been purchased with a view to an overall redevelopment, which was still incomplete. He stated that he had “expended substantial personal time and effort” on the redevelopment. In his view, the “immediate or near immediate sale” of any one or more of the Properties would result in them being sold at under market value. It would also give rise to capital gains tax and duty liabilities. Lionel also stated that he was living at XX5 with his daughter and agreed with Marie that he would continue to do so “until at least the completion of the development”.

93. Marie stated that she had incurred expenditure of $78,000 on the redevelopment of the properties and would “seek repayment”. Marie also pointed out that XX2A had been mortgaged as security for DGP’s liabilities to the National Australia Bank (“NAB”) in connection with the purchase and development of some other properties owned by DGP at South Windsor (see [112] below).

94. In fact, it seems that all of the Pitt Town Properties are mortgaged to NAB. XX5 and XX7 were acquired with NAB loan finance and the original 2005 and 2010 mortgages remain on the title. XX2 (in its unsubdivided form) was likewise mortgaged to NAB when acquired in 2007. Following the subdivision, XX2 and XX2A are now both encumbered by the same 2014 mortgage. Presumably, therefore, both of them secure DGP’s South Windsor property facility. The mortgages over XX5 and XX7 appear, at least initially, to have been obtained as security for other NAB facilities.

95. Initially, counsel for Ann sought an order that the “real property found to be held on trust” be transferred to her. But, having conceded that the rule in Saunders v Vautier was not available, counsel did not press that request. Instead, counsel sought orders appointing trustees for sale of the Pitt Town Properties pursuant to s 66G of the Conveyancing Act 1919 (NSW) (“CA”), followed by the distribution of half the proceeds to Ann. Counsel submitted that the Court’s power under s 66G was engaged because co-ownership for relevant purposes includes co-ownership in equity as well as at law: CA s 66F(1).

96. Counsel also sought a further order that the trustees for sale recoup the amounts required to discharge the NAB mortgages out of Marie’s share of the proceeds. Counsel asserted that the liabilities secured under the mortgages were those of Marie and they should not fall on Ann’s share.

89. Counsel for the defendants did not, in the end, dispute the Court’s power to make orders under s 66G. Nor did counsel raise any issue as to the qualifications or suitability of the trustees for sale proposed on Ann’s behalf.

90. But counsel did contend that the points raised by Lionel and Marie meant that any such orders should be refused, at least at this stage of the proceedings. Counsel submitted, in particular, that even if the February judgment was not disturbed on appeal, the ultimate entitlements of the parties in the Properties had not been determined. The proposed order that the NAB mortgage liabilities be recouped from Marie’s share of the proceeds was a clear illustration of this. Counsel submitted that it was a mere assertion to say that the liabilities were Marie’s; that was a disputed matter and would have to be determined in the proper way before the Court could make any such order.

91. As already noted, orders under s 66G were not sought in Ann’s statement of claim. They should have been. Such orders may involve the determination of substantive questions of ownership or entitlement in the subject property. If such substantive questions do arise then there will have to be pleadings: Baker v David [2015] NSWCA 235, at [25]-[27]. A s 66G order is in my view a final order, at least in the sense in which I have used “final” in this judgment.

92. But I did not understand counsel for the defendants to have claimed that they were prejudiced by the failure to plead a claim for s 66G orders. It is not easy to see what prejudice there could have been. As already noted, orders for transfer of half shares in the properties were pleaded. Such orders, and the declaratory orders sought, clearly raised the existence of competing interests or entitlements in the Properties as potential issues in the proceedings.

93. The Court has general power under s 66G(1) to make an order appointing trustees for sale of property, and vesting that property in those trustees. Subsection (3) applies where the entirety of the property is vested at law in the co-owners. This subsection allows the appointment of a company, or between two and four individuals, as trustee, or trustees, for sale. Subsection (2) applies where the “entirety of the property is vested in trustees”. In that event, those trustees shall be appointed as trustees for sale unless the Court decides to order otherwise.

94. Subsection (3) does not appear to be applicable. The properties are vested at law exclusively in Marie. At the same time, as already noted, the February orders deal only with a half share of the Properties, so it would seem that subsection (2) is not engaged either. But in the absence of any point being taken about this, I proceeded on the basis that the Court’s general power under subsection (1) was wide enough to permit the making of the vesting orders sought on Ann’s behalf.

95. Lionel’s complaint that sale of the properties would lead to unfavourable commercial consequences is problematic as a matter of standing. As already noted, the declaratory orders made by Henry J dealt only with Adrian’s half share of the Venture Assets. No order was sought or made about equitable entitlements in the other half share. In the light of her Honour’s decision, Marie might, without the need for a formal cross-claim, have acknowledged that, in consequence of her Honour’s reasoning, she is trustee of the other half of the Assets for Lionel. But no such acknowledgment appears to have been given and the February judgment is challenged by Marie.

96. But even if the complaint had been made by Marie rather than Lionel, it would have had no substance. A plaintiff co-owner is entitled to an order under s 66G virtually as of right. Except in an extreme case, the court takes the view that it is for the plaintiff to judge the commercial wisdom of forcing a sale. Clearly, the fact that the making an order will put an end to Lionel’s occupation of one of the properties is not itself a valid basis for opposition. Lionel did assert that he had entered into occupation for the purpose of completing the redevelopment under an arrangement with Marie. But he did not assert a right of occupation on the basis of some sort of enforceable agreement or proprietary estoppel.

97. Marie’s objections are of more substance. In fact, on Henry J’s findings (J4 [200], [202] and [207]), the deposits for the contracts to purchase the properties came from DGP. But there was no resulting trust claim by DGP. The question then is whether Marie entered into the borrowings with NAB, in effect constructively, as trustee for the Declared Trust. If so, the liability would be a liability of that Trust. Marie would be entitled to resist the transfer of the property to Ann unless Ann first discharged the mortgage.

98. There was a related point. In general, it is a fundamental principle that one cannot have “little bits of accounts” (see Adams v Bank of New South Wales [1984] 1 NSWLR 285 at 296C). In the present context, what that meant is that the amount, if any, for which Marie has a charge over the assets of the Declared Trust could not be determined until the whole of the account was complete. Similar observations applied to the alleged expenditure by Marie on the development project. If undertaken as trustee of the Declared Trust this too would have given rise to a potential entitlement to recoupment out of the assets of the Trust.

99. In these circumstances, I agreed with counsel for the defendants that the question could not be dealt with summarily. Still less could it be dealt with on a mere assertion from Ann’s lawyers. It would plainly have to be worked out in a proper way.

100. In fact, under the orders which I was going to make, whether the NAB borrowings secured on the Pitt Town Properties were liabilities of the Declared Trust was going to be determined anyway as part of the account. The account was to commence on from a date after the mortgages on XX5 and XX7 were granted, but the issue so far as the relevant borrowings were concerned would still have to be determined for the purpose of deciding whether interest payable from 2013 onwards was properly chargeable by Marie to the Trust.

101. But this did not mean that it was not possible to make an order for sale of the Pitt Town Properties now. Marie’s entitlement was not an entitlement to ownership or occupation of the Properties. It was only an entitlement to a charge, which could be satisfied out of the proceeds of the Properties. If, as seems likely, the trustees for sale complete their task before Marie’s entitlements have been determined through the account, then appropriate arrangements can be made to ensure that sufficient funds are retained from the proceeds to cover any such entitlements.

102. For these reasons, I decided to make s 66G orders as sought. But I declined to make any order for the recoupment of the monies paid to discharge the NAB mortgages out of Marie’s share of the proceeds.

Post-judgment injunctions

111. The interlocutory application which resulted in my judgment of March 2021 sought orders, among other things, restraining Marie from dealing with, encumbering, or alienating the shares which were the subject of Ann’s claim. I made orders accordingly. On Ann’s behalf, further orders had been sought to restrain the Pamplin Companies from dealing with their underlying assets. But I refused this part of the application, on the ground that Ann’s limited prospects of success (as they then appeared) did not justify that degree of restraint over the Companies’ ability to deal with their own assets.

112. The bringing of the asset restraint application in November last year was prompted by Ann’s solicitors becoming aware that a significant part of DGP’s property holdings had been put up for sale. The proposed sales involved four residential properties at South Windsor. Their estimated value was $2.55 million. Ann’s position was that she was not opposed to the sale of the properties for fair value but was concerned that the proceeds might be dissipated so as to frustrate her claims in the proceedings (which, as already mentioned, were then the subject of Henry J’s reserved judgment). The application sought orders that DGP pay the net proceeds of sale into Court. Orders were also sought that DGP and POA provide information about some earlier property sales.

113. When the asset restraint application was amended following the delivery of the February judgment, the relief being claimed underwent an expansion. Ann now sought the extension of the orders I had made concerning Marie’s shareholdings in the Pamplin Companies “until further order”. And, among other things, a further order was sought, apparently in final form, against Marie to prevent her from dealing with the shareholdings without Ann’s consent. In place of the orders concerning the proceeds for sale for the South Windsor properties, Ann sought orders restraining each of the Extant Pamplin Companies from dealing with any of their “assets and profits” without Ann’s consent, except “to meet their ordinary business expenses (other than the payment of legal costs)”.

114. In so far as it concerned half of Marie’s (and DGP’s) shares in the Pamplin Companies, and units in the Peak Unit Trust, the application was orthodox. Henry J had declared that Ann was the beneficial owner of those shares. An application had been foreshadowed for an order requiring those shares to be transferred. There was a clear justification for orders to protect the interest declared by the Court. In the end, I did not understand the grant of such injunctions, to protect the plaintiff’s interest until the transfers were affected, to be contentious.

115. This reasoning did not extend to the underlying assets of the Pamplin Companies. As already mentioned, the orders made by her Honour did not establish that Ann had any beneficial interest in the underlying assets, as distinct from Marie’s and DGP’s shares in the Companies themselves. In the end, this aspect of the application was not pressed.

116. What was pressed however, was a contention that the South Windsor properties should not be sold and the proceeds dissipated to defeat the judgment which Ann had obtained against DGP. In that form, the application was not an application for an injunction in aid of a claimed, or determined, proprietary interest. Rather it was a claim for an asset preservation order in aid of a judgment. It therefore belongs to the Debt Claim part of the case, and I will deal it with it under that heading below.

Stay pending appeal

117. The defendants’ stay application sought a stay of the orders for transfer of the half of the shares in the Pamplin Companies and the units in the Peak Unit Trust (the making of which was not opposed) and a stay of any orders for account or inquiry which I might make (and which, in the event, I did make). The application was for a stay pending the determination of the defendants’ appeal proceedings.

118. I indicated however to counsel for the parties that if I was to grant a stay, I would be inclined to grant it for an interim period, to allow a full application for a stay pending the determination of the appeal proceedings to be made to a Judge of Appeal. The reasons for this are explained in some detail in Shun Sheng Pty Ltd v Lei (No 3) [2024] NSWSC 72, and I will not repeat them. In essence, whether a stay should be granted pending the determination of the appeal proceedings seemed to me to be tied up with questions of case management in the Court of Appeal.

119. Neither party demurred to this approach. I did not understand that staying the transfer orders was contentious. Clearly, that is the sort of order which would attract a stay.

120. But the orders for account and inquiry are not in the same category. Commencement of accounting or inquiry proceedings before appeal proceedings are determined may result in some wasted costs if the appeal is successful but does not raise any possibility of the appeal being rendered nugatory. It is no different, in principle, from taking steps to assess the amount due under an order for costs. On my understanding, such steps would rarely if ever be stayed merely because the costs order was the subject of an appeal.

121. Having said that, I did not, as explained above, make any actual orders for the conduct of the account. It will be a matter for Ann’s legal representatives to arrange a directions hearing to commence the process. Whether they choose to do so at this point is a matter for them. If they decide to proceed now, and an application for a stay is pressed, it can be dealt with before a Judge of Appeal along with the other aspects of the stay application.

Estoppel Claim

122. The application which led to my March 2021 judgment included interlocutory injunctions in aid of the Estoppel Claim as then formulated. For reasons I gave at J1 [37]-[55], I made restraining orders against Marie, both on her own behalf, and as officer and shareholder of DGP. Those orders prevented her from: exercising powers of appointment over the income or capital of the DGP Family Trust; transferring any assets of the Trust at the direction of any beneficiary; delegating any of her powers to anyone else; and exercising any power to appoint a new trustee, or to vary the terms of the Trust, or to wind it up.

123. In the February judgment, Henry J rejected the Estoppel Claim so far as it sought orders restricting dealings by the Pamplin Companies with their own assets: J4 at [356]-[359]. But her Honour upheld the Estoppel Claim so far as the DGP Family Trust was concerned: J4 at [386]. She concluded (at J4 [387]):

Accordingly, and for these reasons, I am satisfied that it is appropriate to grant relief in this case of the nature sought by Ann in relation to DGP in its capacity as the trustee of the DGP Trust. The effect of this will not be to compel DGP to exercise its power in a particular way in the future but to disable it from doing in respect of 50% of its assets.

124. The order made by her Honour to reflect this conclusion was order (2):

Order that the fourth defendant, Dennis G Pamplin Pty Ltd, as trustee for the Dennis G Pamplin Family Trust (DGP Trust), be restrained from dealing with the income and capital of the DGP Trust other than in a manner that would cause less than 50% of the income and capital of the DGP Trust to be distributed to the estate of the late Adrian Pamplin, or as the estate may direct.

Post-judgment injunctions

125. Initially, counsel for Ann sought both to continue the March 2021 orders, and to impose further restrictions on DGP dealing with the assets of the Trust. But I could see no justification for this. The injunction granted by her Honour was a final one. I had to proceed on the basis that it gave full effect to her Honour’s reasoning on the Estoppel Claim. There was no further or remaining claim for relief which would justify some wider restriction, and such an order would have been an impermissible grant of “free standing” injunctive relief (cf Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [16]). In the end, counsel for Ann did not press the application.

Stay pending appeal

126. Counsel for the defendants asked me to make an order staying the order made by her Honour in the February judgment. But this was opposed. Counsel for Ann took two points.

127. First, counsel submitted that the application was belated. It should have been made as soon as the February judgment was delivered, or at least once the appeal proceedings had been instituted. Instead, a stay was not formally sought until 15 March. No explanation was offered for the delay.

128. Secondly, no undertaking had been offered as a condition for the grant of the stay which was sought. If I had acceded to the application and granted a stay of Henry J’s order, Ann would have been left with no extant order at all to protect the entitlements which she had been found to have by Henry J.

129. I considered that both of these points were well taken. In particular, I it would have required undertakings at least as onerous as the March 2021 orders for me to have granted the stay. In the circumstances, I was not prepared to do so. This will not, of course, prevent the defendants from reconsidering their position and renewing their application in the appeal proceedings.

Debt claim

130. It was, and is, common ground that DGP, as trustee of the DGP Family Trust, made seven distributions to Ann, one for each financial year from 2005-2006 to 2011-2012. The distributions totalled $451,000. Their details were set out by her Honour at J4 [416]. For five of the distributions, the distribution was identified as having been made on a date shortly before the end of the relevant financial year. The other two were only identified as having been made “in” the relevant financial year.

131. The issue was whether those distributions had in fact been paid out to Ann, or were still owing. Her Honour dealt with the issue at J4 [426]-[450].

132. The distribution amounts were recorded as income of Ann in tax returns lodged for her by accountants acting for the “Pamplin Group”. The defendants relied on those tax returns, and also some evidence of cash payments having been made by Adrian to Ann. This evidence, however, did not persuade her Honour that the monies had been paid out. She concluded that Ann was entitled to an order for payment of $451,000 “plus interest” (J4 [456]).

133. Her Honour made the following order:

Order the fourth defendant, Dennis G Pamplin Pty Ltd, to pay to the Plaintiff the sum of $451,000 plus interest pursuant to s 100 of the CivilProcedure Act 2005 (NSW) calculated in accordance with the rates set out in Practice Note SC Gen 16 from 8 June 2018 to 9 February 2024.

134. Her Honour’s judgment did not go into the reasons for the interest calculation in the order. But the date from which interest was to be paid under the order, 8 June 2018, corresponded with the date on which the proceedings had been commenced.

Variation of order for payment under slip rule

135. Counsel contended that the selection of the 8 June 2018 date was a slip on her Honour’s part. Section 100 of the Civil Procedure Act2005 (“CPA”) empowers the Court to include, in a judgment or order for payment of money, interest calculated from the time the cause of action arose, at such rate as the Court may determine. Counsel submitted that, in the present case, the cause of action accrued, in the case of each distribution, on the date of the distribution, or in the case of the financial years for which no date was specified, on the last day of the year (30 June).

136. Counsel for the defendants submitted that no justification for the exercise of the Court’s power under the slip rule had been established. In particular, counsel argued that the award of interest under CPA s 100 is discretionary, and therefore, as I followed the argument, even if satisfied that a slip had been made, I could not, under the slip rule, substitute my own exercise of the discretion. In reply, counsel for Ann acknowledged, as I understood them, that the slip rule was not available to correct an error in the exercise of discretion. But counsel submitted that the award of interest under s 100 is not a discretionary matter, or at least is not for practical purposes a discretionary matter.

137. It is true that pre-judgment interest is nearly always awarded, in a debt claim, from the accrual of the cause of action (that is, from when the debt become payable). But the practice is not invariable and under s 100 the Court quite clearly retains a discretion. I did not, however, rest my decision on the application solely on this point. In my view, there were wider considerations which were determinative in any event.

138. Where a right of appeal against a judgment is available, it is always open to a party who claims that there is an error in the judgment to seek to correct the alleged error on appeal. It is well recognised that the Court’s power to reconsider its orders under the Rules should not be used except in clear cases where the point can be dealt with in a summary way, thus saving the parties the cost of having to take it on appeal: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13]. The same, it seems to me, should apply to the slip rule. Especially, in my view, should that be so in a case where the slip rule application is made to a judge different from the judge whose judgment the application seeks to correct.

135. It is not uncommon, in the operation of discretionary trusts, for distributions to be paid out at some point after the end of the financial year. Indeed, in the frequently occurring case of distributions made at or immediately before the end of the financial year which allocate a percentage of the year’s income to a particular beneficiary, it will only be after the end of the financial year that the amount of the distribution can be calculated and paid out. Experience also shows that even if the distribution has been recorded in the ledger account for the beneficiary, the funds may not be paid out for a long period afterwards. In such cases it may be that, expressly or impliedly, it has been agreed between the beneficiary and the trustee that no pay-out will be required unless demanded.

136. I think it is plain that her Honour made a conscious decision to award interest from the date the proceedings were commenced. The evidence and arguments (if any) which bore on that decision were not clear from the judgment. Having regard to the considerations I have mentioned, there would have been room for debate about when the cause of action accrued, quite apart from the exercise of discretion. Appeal proceedings had already been instituted. In these circumstances, for me to go into the issue at first instance, effectively afresh, was very unlikely to be the efficient course. I therefore declined the application.

Asset preservation order

141. As already mentioned, when the matter came before me in the Duty List, counsel for Ann quickly recognised that they could not justify broad restraints on DGP from dealing with assets which it owned as trustee of the DGP Family Trust (or restraints on the other Pamplin Companies dealing with their assets). Counsel limited the application for asset restraint orders to restraints on dealings with the Venture Assets prior to the transfer of those assets to Ann, and orders in aid of the payment order made by Henry J on the Debt Claim. It is the latter part of the application with which I am now concerned.

142. In substance, what counsel for Ann was seeking was an asset preservation order to prevent the frustration of the payment order by the dissipation of DGP’s assets. There was no dispute that an asset preservation order can be made in aid of a judgment once given; indeed, that is really the paradigm case for such an order.

143. I acceded to the application on an interim basis and thereafter I continued the order, again on an interim basis, on each of the further hearing days. In doing so, I was influenced by DGP’s attitude towards the payment order. From the answers to questions which I asked of counsel for the defendants, it became clear that DGP had not taken, and did not intend to take, any steps to comply with it. The evidence led by DGP instead focused on discharging, or rearranging, DGP’s bank liabilities (and exhibited particular solicitude for the plight of Marie and Adrian as guarantors). At the same time, DGP had taken no steps to seek a stay of the order.

144. It should be emphasised that the Court did not merely direct the entry of judgment against DGP, to be enforced according to the usual processes for enforcement of a monetary judgment. The Court made an order that DGP pay the judgment sum to Ann. The Court has jurisdiction over the administration of trusts, which allow the Court to order the trustee to take any step which may be required in execution of the trust: UCPR r 54.3.

145. In this context, the Court’s order authorised and required DGP, as trustee, to satisfy the debt out of the assets of the DGP Family Trust. For this purpose, the debt to Ann ranked equally with all other unsecured creditors of DGP as trustee (including DGP’s banks, to the extent that their loans were not secured on assets of the Trust, and guarantors who, having discharged debts of DGP, might seek recoupment).

146. It is not necessary to go into whether it amounted to contempt for DGP to fail to pay the judgment debt (compare Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 at [102]-[201]). On any view, I did not think it was proper for a company simply to ignore the effect of the Court’s judgment while at the same time not making any attempts to have its operation stayed, especially when the company was a trustee. It seemed to me that this, of itself, was a circumstance which justified the making of an asset preservation order.

147. Initially, I made an order in a conventional form requiring DGP not to dispose of or deal with assets beyond a nominated figure calculated by reference to the judgment and interest (then estimated at $550,000). I also ordered that if there were any surplus proceeds from the South Windsor property sales, they should be deposited into a controlled monies account up to the figure specified in the order. That was what happened, and the ultimate question was whether the restraint should be continued in the form of an order requiring DGP not to deal with the funds in that account.

148. Counsel for the defendants urged me to discharge, or at least not to continue, the order. Counsel relied on further evidence from Marie concerning DGP’s relationship with its banker, NAB. According to that evidence, following delivery of the judgment, NAB declined to renew DGP’s facilities, even though the banker-customer relationship had been of long standing. The reason given on behalf of NAB was that the bank officers felt that Marie and Lionel had not kept them properly informed about the allegations in the proceedings. This was contested by Marie, but the bank’s position was final.

149. Counsel submitted that DGP’s financial position was at best awkward, and DGP needed access to the proceeds of the South Windsor sales in order to sustain itself. According to evidence given by Marie, the other assets held by DGP do not generate any significant income. But I did not find this submission persuasive. There was a lack of information about DGP’s overall financial position. I agreed with counsel for Ann, who submitted that on an application such as this, the evidence led by the parties should be weighed according to their ability to produce evidence on the matter in issue. Counsel for the defendants did not advance any good reason for why evidence comprehensively addressing DGP’s assets and liabilities had not been put before the Court.

150. Counsel for the defendants raised another point. This concerned Henry J’s decision to make the payment order in the first place. Counsel referred me to entries in the financial statements for the Trust which showed, balancing the distribution credits, equivalent debits. Counsel submitted that on the face of the financial statements, the distributions in question had been paid out (whether before or after the distribution date). Counsel’s submission, as I followed the argument, was that the decision to make the payment order had been clearly erroneous.

151. On the face of it, it does seem strange that the parties apparently spent so much time at the trial arguing about what was shown in Ann’s tax returns. As I understand the principles of trust accounting, income which is the subject of a resolution for a distribution in favour of a beneficiary is treated as income of that beneficiary for the year whether the amount is paid out or not. The real question relates to the state of the beneficiary’s loan account, i.e. whether the accrual is matched by cash distributions paid either before or after the accrual is made. Although the financial statements may be some prima facie evidence of this, they are far from conclusive.

152. It seems to me that the real inquiry posed by Ann’s claim would have involved drilling down into the financial statements to identify the evidence in support of the debits which matched the distribution credits. I was not taken to any evidence or submissions at the trial which undertook this task. But I thought in any event that there was a broader reason to reject the submission by counsel.

153. Where an asset preservation order is sought in support of a claim which has not yet been determined by the Court, it is necessary for the plaintiff to demonstrate a prima facie case. But once the Court has decided the issue in the plaintiff’s favour, that condition is satisfied by the judgment. It seems to me that the circumstances would need to be extraordinary for the Court to go behind that judgment. The case presented by counsel for the defendants may support an appeal against her Honour’s order, but I do not think that it goes far enough to justify the Court effectively ignoring the benefit of the victory which Ann had.

154. For these reasons, on 9 April I made orders extending the asset preservation orders I had previously made on an interim basis. As those orders had been made in aid of enforcement of a final judgment, the extension was not merely until further order, but until the payment order made by Henry J had been fully satisfied.

Stay pending appeal

155. Belatedly, counsel for the defendants asked me to stay enforcement of the payment order pending the determination of the appeal. Counsel for Ann resisted this on the same grounds as they resisted a stay of the injunction granted by her Honour in aid of the Estoppel Claim: namely, that the application was belated, and no undertaking had been offered to protect Ann’s position in the meantime.

156. I have already commented upon DGP’s failure to take steps either to comply with the payment order or to have it stayed. It is also true that no undertaking was offered. But despite that, the asset preservation order which I made, and then continued, did provide effective protection for Ann. In the circumstances, I considered that the appropriate course was to grant a temporary stay so the issue could be addressed on what counsel for Ann characterised as a “full throated” application before a Judge of Appeal.

Orders

157. The upshot so far as the main proceedings are concerned was that the relief granted by Henry J had been confined to Marie and no relief had been granted against Lionel or the Pamplin Companies other than DGP. Nor did I grant any relief against those parties. I considered that in the circumstances I should make an order formally dismissing the claims against them. Similarly, Ann did not succeed in all of the claims that she made against Marie and DGP, and I considered that I should make an order otherwise dismissing the claims against Marie and DGP to record that fact.

158. Similarly, my orders dealt with all of the prayers for relief in the three applications before the Court. Accordingly, I ordered that the three notices of motion be otherwise dismissed.

159. It was not practicable on 9 April to deal with questions of costs. Instead, I reserved those questions until after delivery of this judgment. If the parties cannot agree on the costs orders to be made, I will hear further argument.

160. It seems to me that the March 2021 interlocutory orders have now run their course. Those orders were intended to operate until final orders had been made. So far as the Estoppel Claim is concerned that happened when her Honour delivered the February judgment. So far as the Trust Claim is concerned, it came to an end with the orders for transfer and for accounts and inquiries which I made on 9 April.

161. It would probably have been best practice to have made an order formally discharging the March 2021 orders at that point. I did not actually make such an order on 9 April but would now do so if the parties consider it necessary.

162. The orders made by the Court on 9 April on the main proceedings were:

1. Order that within 7 days of the making of this order the first defendant take all steps reasonably required for her to register in the name of the plaintiff half of the shares held by her in the following companies:

1. the third defendant, Mircon Pty Ltd (ACN 057 994 126);

2. the fourth defendant, Dennis G Pamplin Pty Ltd (ACN 100 582 750);

3. the fifth defendant, Halcrows Investments Pty Ltd (ACN 162 286 697);

4. the sixth defendant, NMOS Pty Ltd (ACN 114 971 916); and

5. the ninth defendant, OSCO Pty Ltd (ACN 142 349 853).

2. Order pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW), that Liam Bailey and Christopher Palmer of O’Brien Palmer (the Trustees), be appointed as trustees for the sale of the land located on Pitt Town Road, Kenthurst comprised in the following Folio Identifiers:

1. 1/538582;

2. 1/653836;

3. 3/259725; and

4. 2/587185 (together, the Pitt Town Properties).

3. Order that the Pitt Town Properties vest in the Trustees subject to incumbrances affecting the whole of the respective properties but free from incumbrances (if any) affecting any undivided share therein to be held by the Trustees on the statutory trust for sale under Div 6 of Pt 4 of the Conveyancing Act 1919 (NSW).

4. Order that the fourth defendant take all steps reasonably required for it to register in the name of the plaintiff half of its shares and units, as the case may be, in the following companies and unit trusts:

1. the seventh defendant, The Peak On Andrew Pty Ltd (ACN 130 181 074); and

2. The Peak Unit Trust established 17 March 2008 (Peak Unit Trust).

5. Order that the first defendant account to the plaintiff for half of the profits derived by her, including assets held by the first defendant into which such profits are traceable, from her ownership after 23 August 2013 of:

1. her shares and units, as the case may be, in the following companies and unit trusts:

1. the third defendant, Mircon Pty Ltd (ACN 057 994 126);

2. A and L Earthmoving and Contracting Pty Ltd (ACN 003 897 783);

3. the fourth defendant, Dennis G Pamplin Pty Ltd (ACN 100 582 750);

4. the fifth defendant, Halcrows Investments Pty Ltd (ACN 162 286 697);

5. the sixth defendant, NMOS Pty Ltd ACN (114 971 916);

6. the seventh defendant, The Peak On Andrew Pty Ltd (ACN 130 181 074);

7. the ninth defendant, OSCO Pty Ltd (ACN 142 349 853);

8. X-Distribution Pty Ltd (ACN 089 505 573);

9. Corell Holdings Pty Ltd (ACN 108 382 832); and

10. The Peak Unit Trust.

2. the Pitt Town Properties.

6. Order that, at the election of the plaintiff, there be an inquiry as to whether any of the assets specified in order 5, or any proceeds of sale thereof, or any profits derived therefrom, have been transferred to any person other than the first defendant, and, if so, whether in such circumstances that that person is liable to account to the plaintiff for any such assets proceeds or profits (including assets held by that person into which such assets, proceeds or profits may be traceable).

7. Order that the fourth defendant account to the plaintiff for half of the profits, including assets held by the fourth defendant into which such profits are traceable, derived by it from its ownership after 23 August 2013 of the following share and unit holdings:

1. the seventh defendant, The Peak On Andrew Pty Ltd (ACN 130 181 074);

2. The Peak Unit Trust.

8. Order that, at the election of the plaintiff, there be an inquiry as to whether any of the assets specified in order 7, or any proceeds of sale thereof, or any profits derived therefrom, have been transferred to any person other than the fourth defendant, and, if so, whether in such circumstances that that person is liable to account to the plaintiff for any such assets proceeds or profits (including for assets held by that person into which such assets, proceeds or profits may be traceable).

9. Reserve for further consideration the question of any amounts to be paid or assets to be transferred to the plaintiff following the accounts and inquiries referred to in Orders 5, 6, 7 and 8.

10. Order that plaintiff’s claims against the first defendant and the fourth defendant otherwise be dismissed.

11. Order that the plaintiff’s claims against the second, third, fifth, sixth, seventh, eighth and ninth defendants be dismissed.

12. Costs of the proceedings since 9 February 2024 reserved.

163. The orders made by the Court on 9 April on the Notice of Motion filed 10 November 2023 were:

1. Order that the first defendant, by herself, her servants and agents, be restrained from:

1. transferring

2. alienating,

3. charging;

4. encumbering;

5. disposing of;

6. in any way diminishing the value of; or

7. otherwise dealing with,

the shares specified in order (1) of today’s date in the principal proceedings, until those shares have been registered in the name of the plaintiff pursuant to that order.

2. Order that the first defendant, by herself, her servants and agents, be restrained from:

1. transferring

2. alienating,

3. charging;

4. encumbering;

5. disposing of;

6. in any way diminishing the value of; or

7. otherwise dealing with,

the Pitt Town Properties as defined in order (2) of today’s date in the principal proceedings, until the appointment of trustees for sale provided for in that order takes effect.

3. Order that the fourth defendant, by itself, its servants and agents, be restrained from:

1. transferring

2. alienating,

3. charging;

4. encumbering;

5. disposing of;

6. in any way diminishing the value of; or

7. otherwise dealing with,

the shares and units specified in order (4) of today’s date in the principal proceedings, until those shares (and units as the case may be) have been registered in the name of the plaintiff pursuant to that order.

4. Notes that the fourth defendant has paid the sum of $850,872 into a controlled monies account (the controlled monies account).

5. Order that the sum of $609,171 be retained in the controlled monies account until further order.

6. Notes that the fourth defendant is at liberty to disburse the balance in the controlled monies account of $300,872, as it determines.

7. Order that the motion otherwise be dismissed.

8. Costs of the motion reserved.

164. The orders made by the Court on 9 April on the Notice of Motion filed 21 February 2024 were:

1. Order that order (1) of 9 February 2024 be varied in the following manner:

In the chapeau, adding after the words “the first defendant”, the words “and the fourth defendant, as the case may be, held or”;

In paragraph (b), adding at the end the words “that is or was owned by the first defendant (and the profits derived therefrom);

After paragraph (c), adding a new paragraph as follows:

“(d) the shares that are or were owned by the fourth defendant in the seventh defendant, The Peak on Andrew Pty Ltd (ACN 130 181 074) (and the profits derived therefrom)”.

2. The motion be otherwise dismissed.

3. Costs of the motion reserved.

165. The orders made by the Court on 9 April on the Notice of Motion filed 15 March 2024 were:

1. Order that the operation of order (3) of 9 February 2024 and orders (1) to (4) of today’s date in the principal proceedings be stayed until 14 days after reasons have been delivered for the orders made today, subject to any order made by the Court of Appeal in the meantime.

2. Order that the motion otherwise be dismissed.

3. Costs of the motion reserved.

**********

Decision last updated: 02 May 2024