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Lorebray Pty Ltd v Liddy

Lorebray Pty Ltd v Liddy

Case [2022] NSWSC 1633 29 November 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Lorebray Pty Ltd v Liddy [2022] NSWSC 1633
Hearing dates: 22 July 2022
Date of orders: 29 November 2022
Decision date: 29 November 2022
Jurisdiction: Equity
Before: Henry J
Decision:
Applicants to be joined as plaintiffs to these proceedings and granted leave to continue to prosecute these proceedings as second to fifth plaintiffs: see [70].

Catchwords:
CIVIL PROCEDURE –– application by beneficiaries to be joined as plaintiffs where trustee declines to continue to prosecute proceedings against beneficiary – whether special or exceptional circumstances exist – whether claim advanced against beneficiary has merit – where trustee neither consents nor opposes application but seeks indemnity for past and future costs backed by security – whether trustee should be made a defendant – application granted on condition that indemnity provided to trustee in relation to future costs

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Limitation Act 1969 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109; [2004] HCA 7
Bhagat v Australian Securities Commission (1995) 16 ACSR 536
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd(No 2) [2018] NSWCA 266
Chahwan v Euphoric Pty Ltd trading as Clay & Michael & anor [2009] NSWSC 805
Cong v Shen [2019] NSWSC 1675
Dean v Antunes [2016] NSWSC 1845
In the matter of Canberra Babington Pty Ltd [2021] NSWSC 552
In the matter of Lorebray Pty Ltd [2021] NSWSC 1533
In the matter ofWil Brown Management Pty Ltd [2022] NSWSC 207
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Pearson v Commissioner of Taxation (2001) 116 FCR 357; [2001] FCA 1427
Ramage v Waclaw (1988) 12 NSWLR 84
TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68
Treadtel International Pty Ltd v Cocco [2016] NSWCA 360

Category: Procedural rulings
Parties: Lorebray Pty Limited (ACN 052 110 175) (Plaintiff)
Christine Liddy (Defendant)
John Christopher McNamee (First Applicant)
Peter John McNamee (Second Applicant)
Stephen John McNamee (Third Applicant)
Philippa Margaret Hardy (Fourth Applicant)
Representation:
Counsel:
R K Jameson (Plaintiff)
G O’Mahoney (Defendant)
M K Condon SC (Applicants)
Solicitors:
Garland Hawthorn Brahe (Plaintiff)
Gilbert + Tobin Lawyers (Defendant)
Allsop Glover Lawyers (Applicants)

File Number(s): 2019/00395533
Publication restriction: Nil

Judgment

This is an application by some of the beneficiaries of the McNamee Property Trust (MPT) to be joined as plaintiffs to enable them to continue to prosecute proceedings that were commenced by the trustee of the MPT, Lorebray Pty Ltd (Lorebray), against another beneficiary, that Lorebray no longer wants to pursue.

Background

The MPT was established by deed dated 23 September 1991. The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lorebray Pty Ltd v Liddy

Details

AGLC: Lorebray Pty Ltd v Liddy [2022] NSWSC 1633
Case: [2022] NSWSC 1633
Decision Date: 29 November 2022

CaseChat Overview and Summary

Lorebray Pty Ltd, as trustee of a discretionary family trust, brought an action against a beneficiary, Liddy, alleging various breaches of trust and fiduciary duty. Liddy, in turn, sought to be joined as a plaintiff in the proceeding, but the trustee declined to continue prosecuting the action against Liddy. Liddy then applied to be joined as a plaintiff in the proceeding, arguing that special or exceptional circumstances existed. The court was required to determine whether such circumstances existed, whether the claim against Liddy had merit, and whether the trustee should be made a defendant in the proceeding.

The court found that the trustee had not provided sufficient evidence to support the allegations against Liddy and that the trustee's refusal to continue prosecuting the action against Liddy was unreasonable. The court also found that there were exceptional circumstances that warranted Liddy being joined as a plaintiff in the proceeding. The trustee did not oppose the application but sought indemnity for past and future costs backed by security. The court found that the trustee should not be made a defendant in the proceeding but that the application should be granted on the condition that indemnity be provided to the trustee in relation to future costs.

The orders of the court were that Liddy be joined as a plaintiff in the proceeding on the condition that Liddy provide indemnity to the trustee in relation to future costs. The court also ordered that the trustee provide security for the indemnity. The trustee was not made a defendant in the proceeding.

Orders