Irwin v Pamplin & Ors (No 4)

Case [2024] NSWSC 73


Supreme Court


New South Wales

Medium Neutral Citation: Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73
Hearing dates: 30, 31 January, 1, 2, 3, 6, 7, 8, 9 February, 15 March 2023
Date of orders: 9 February 2024
Decision date: 09 February 2024
Jurisdiction:Equity
Before: Henry J
Decision:

See [451]-[459]

Catchwords:

EQUITY – trusts and trustees – where siblings transferred assets and businesses to parent and new companies established in parent’s name – where new business structure intended for asset protection and “asset warehousing” by parent – whether agreement, assumption or common understanding that parent held legal ownership of assets and shares in name only – where siblings continue to operate businesses – whether parent holds interest on trust for siblings – express trust – common intention constructive trust – estoppel – finding of intention to create express trust – finding of common intention – whether binding contract

EQUITY – statute of frauds – Conveyancing Act 1919 (NSW), ss 23C, 54A – part performance – whether part performance applies to oral declaration of trust

EQUITY – trusts and trustees – express trust – discretionary trust – power of appointment – estoppel – whether trustees estopped from exercising power of appointment other than in accordance with representations to beneficiary – whether breach of non-fettering principle

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 23C, 54A

Limitation Act 1969 (NSW), ss 26, 27, 38, 47, 65

Proceeds of Crime Act 2002 (Cth)

Cases Cited:

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Bahr v Nicolay [No 2] (1988) 164 CLR 604; [1988] HCA 16

Bassett v Cameron [2021] NSWSC 207

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Bryant v Bryant (2014) 17 BPR 33,511; [2014] NSWSC 374

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26

Catchpole v The Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch)

Chant v Curcuruto [2021] NSWSC 751

English & Ors v Keats & Ors [2018] EWHC 673 (Ch)

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Estate of Pamplin; Irwin v Pamplin [2017] NSWSC 1477

Fielden v Christie-Miller & Ors [2015] EWHC 87 (Ch)

Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2001] FCA 1628; 188 ALR 566

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galati v Deans [2023] NSWCA 13

Gill v Garrett [2020] NSWSC 795

Green v Green (1989) 17 NSWLR 343

Harpur v Levy (2007) 16 VR 587; [2007] VSCA 128

In Re Vestey’s Settlement [1951] Ch 209

Irwin v Pamplin [2021] NSWSC 208

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Jones v Dunkel (1959) 101 CLR 298

JW Broomhead(Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VR 891

Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95

Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA…

Continue reading Irwin v Pamplin & Ors (No 4)

Sign in free to access the full text

Details
AGLC
Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73
Case
[2024] NSWSC 73
Decision Date

CaseChat Overview and Summary

The case of Irwin v Pamplin & Ors (No 4) involved a dispute between siblings regarding the ownership and control of assets and businesses transferred to their parents. The siblings argued that the transfer was intended to create an express trust or a common intention constructive trust, whereby their parents held the assets and shares in a fiduciary capacity for their benefit. The siblings continued to operate the businesses, asserting that their parents were holding the assets on trust for them. The court also had to determine whether the doctrine of part performance could apply to an oral declaration of trust under the Conveyancing Act 1919 (NSW).

The central legal issues were whether there was an express trust or a common intention constructive trust in place, and whether the parents could exercise their power of appointment in a manner contrary to their representations to the siblings. The court needed to decide if the statute of frauds was satisfied by part performance in relation to the oral declaration of trust, and if the parents were estopped from exercising their power of appointment in a way that deviated from their prior representations.

The court found that there was indeed an express trust in place, based on the clear intention of the parties involved. The court also found that the common intention constructive trust was applicable due to the shared understanding that the parents would hold the assets and shares for the benefit of the siblings. The court held that part performance could be invoked to satisfy the requirements of the statute of frauds in relation to the oral declaration of trust. Furthermore, the court ruled that the parents were estopped from exercising their power of appointment in a manner that conflicted with their representations to the siblings, thereby breaching the non-fettering principle.

The final orders of the court were that the parents were to hold the assets and shares on trust for the siblings, and that they were not permitted to exercise their power of appointment in any way other than in accordance with their prior representations. The court also ordered that the siblings were to receive equitable compensation for their continued operation of the businesses.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.