Kanjian v Kanjian - [2019] NSWSC 166

Supreme Court

New South Wales

Medium Neutral Citation: Kanjian v Kanjian [2019] NSWSC 166
Hearing dates: 20, 21 and 25 February 2019
Date of orders: 25 February 2019
Decision date: 25 February 2019
Jurisdiction: Equity
Before: Lindsay J
Decision:
Receivers and Managers, on terms, appointed to manage trust property pending determination of disputation about beneficial ownership, and control, of the third defendant corporate trustee

Catchwords: EQUITY – Trusts and trustees – Court’s supervision of – Appointment of receivers and managers of trust property where management of corporate trustee deadlocked pending determination of competing entitlements to disputed share in trustee corporation.
Legislation Cited: -
Cases Cited: -
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff: Loris Sarkis Kanjian
First Defendant: Ken Kanjian
Second Defendant: Kanjian Holdings No. 1 Pty Ltd
Third Defendant: Sahab Holdings Pty Ltd
Fourth Defendant: Sonia Kanjian (by NSW Trustee as tutor)
Representation:
Counsel:
Plaintiff: M Condon SC
First Defendant: RR Stitt QC and M Davis
Second Defendant: JC Kelly SC (on 20-21 February 2019) and J Taylor, Solicitor (on 25 February 2019)
Third Defendant: -
Fourth Defendant: J Brouwer Solicitor
Solicitors:
Plaintiff: Keypoint Law
First Defendant: McMahons Lawyers
Second Defendant: Uther Webster & Evans
Third Defendant: -
Fourth Defendant: NSW Trustee

File Number(s): 2018/00258352

Judgment – Ex Tempore

On Appointment of Receivers and Managers

Effective management of the third defendant, a corporate vehicle of the Kanjian family, is critically impeded by a fundamental breakdown of personal relationships within the family. The critical division is between the first defendant (the eldest son of the family) on the one hand and, on the other hand, the rest of the family.
The plaintiff (Loris) and the fourth defendant (Sonia) are an elderly married couple, husband and wife respectively.
There are four (adult) children of the marriage. In descending order of age, they are the first defendant (Ken), Victor, Phillip, and Marianne.
By a notice of motion filed in these proceedings (commenced by statement of claim, and made the subject of a statement of cross-claim by the first defendant), the plaintiff seeks orders for the appointment of qualified persons as receivers and managers of the third defendant (or, in the alternative, for the removal of the third defendant as trustee of family trusts and the appointment of the same qualified persons as replacement trustees) so as to permit an orderly conduct of third party proceedings, recently commenced against the company by Senses Northbridge Pty Ltd (“Senses”), affecting the following properties held on trust by the third defendant:

land known as 59-67 Strathallen Avenue Northbridge held on trusts known as "the Metropole Trust".

land known as 69 Strathallen Avenue Northbridge, held on trusts known as "the Kanjian Family Trust".

The property the subject of the Metropole Trust includes land in Concord Road North Strathfield as well as the land known as 59-67 Strathallen Avenue in Northbridge.
The proceedings instituted by Senses affect each of the properties at Northbridge, one the subject of the Metropole Trust and the other the subject…

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: [2019] NSWSC 166
Decision Date: 25 February 2019

CaseChat Overview and Summary

The case of Kanjian v Kanjian involved a dispute between the parties over a share in a corporate trustee company. The parties were in deadlock regarding the management of the trust property, and the court was asked to appoint receivers and managers to oversee the trust property. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the court had the jurisdiction to appoint receivers and managers of the trust property in the circumstances, and whether it was appropriate to do so. The court considered the relevant statutory provisions and case law in determining the appropriate course of action.

The court found that it did have the jurisdiction to appoint receivers and managers in the circumstances, as the deadlock between the parties had resulted in the inability to manage the trust property effectively. The court also found that it was appropriate to appoint receivers and managers to ensure the protection of the trust property and the interests of the beneficiaries. The court noted that the appointment of receivers and managers was a last resort, and that the court would prefer to see the parties resolve their dispute through other means where possible.

The court made orders appointing receivers and managers of the trust property, and directed the parties to cooperate with them in the management of the property. The court also made orders for the parties to provide information and documents to the receivers and managers, and to attend meetings as required. The court noted that the orders were without prejudice to any other proceedings that the parties may wish to bring.

Orders