Jordan v Goldspring (No 2) - [2021] NSWSC 215

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jordan v Goldspring (No 2) [2021] NSWSC 215
Hearing dates: In Chambers – On the papers
Date of orders: 11 March 2021
Decision date: 11 March 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
1. Orders that the fifth Defendant, Goldspring’s Australia PM Pty Ltd (as the trustee of the Goldsprings Family Trust) and the seventh Defendant, Goldspring Equipment Hire Pty Ltd (as the trustee of the Fred Goldspring and Sons Family Trust) pay 80 per cent of the Plaintiffs’ costs, calculated on the indemnity basis, of the amended Summons filed on 9 September 2019.
2. Orders that the costs to be paid by the fifth and seventh Defendants shall be without recourse to the trust property of which each is a trustee.
3. Makes no order as to costs of each of the other Defendants to the intent that each should bear his, or her, or its, own costs, respectively, of the amended notice of motion without recourse to the trust fund of which each is a trustee or a director of the trustee.

Catchwords:
COSTS – Trusts and trustees – Where Plaintiffs did not know whether they were beneficiaries or discretionary objects, or whether they were within a class of beneficiaries or discretionary objects, or whether they had an interest in the property subject to trusts – Court found that Plaintiffs entitled to access to some documents relating to different trusts created during the lifetime of their parents – Basis of quantification of costs - Whether costs of application for disclosure of documents, calculated on the indemnity basis, should be paid – Question raised as to which Defendants should pay the costs – No dispute that at least fifth Defendant and seventh Defendant should pay costs, and that there should be no indemnity provided from the trust property respectively

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Trustee Act 1925 (NSW)

Cases Cited:
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225; [1993] FCA 801
Commonwealth of Australia v Gretton [2008] NSWCA 117
Drip World Pty Ltd v Dardy Touring Corp (No 2) [2021] NSWSC 74
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202
Gray v Richards (No 2) (2014) 315 ALR 1; [2014] HCA 47
Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481; [2008] VSCA 212
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Preston v Nikolaidis (No 2) [2021] NSWSC 174
Re Beddoe; Downes v Cottam [1893] 1 Ch 547

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 215
Decision Date: 11 March 2021

CaseChat Overview and Summary

The plaintiffs in Jordan v Goldspring (No 2) sought access to documents relating to various trusts created during the lifetime of their parents. The case involved a complex family trust structure, with the plaintiffs uncertain about their status as beneficiaries or discretionary objects, and whether they held an interest in the property subject to the trusts. The dispute arose in the Federal Court of Australia, where the plaintiffs sought to obtain certain documents from the defendants to clarify their entitlements.

The central legal issues before the court were whether the plaintiffs were entitled to access specific documents relating to the different trusts, and if so, on what basis should the costs of the application for disclosure be calculated and paid. The court had to determine the appropriate costs order, considering the indemnity principle and the involvement of multiple defendants, some of whom were trustees of the trusts in question.

In reaching its decision, the court found that the plaintiffs were indeed entitled to access some documents relating to the trusts. The court emphasised the importance of transparency in trust administration and the rights of beneficiaries to understand the trusts in which they might hold an interest. Regarding the costs, the court held that the costs of the application for disclosure should be calculated on the indemnity basis, meaning that the successful party should be reimbursed for the costs incurred in bringing the application. The court also ruled that at least the fifth and seventh defendants should bear the costs of the application, and that there should be no indemnity provided from the trust property.

The final orders of the court directed the fifth and seventh defendants to pay the costs of the application for disclosure of documents, calculated on the indemnity basis. The court's decision highlights the importance of transparency in trust administration and the rights of beneficiaries to seek information about trusts in which they may have an interest.

Orders