Pamplin v Irwin - [2024] NSWCA 213

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pamplin v Irwin [2024] NSWCA 213
Hearing dates: 30-31 July 2024
Decision date: 28 August 2024
Before: Bell CJ at [1];
Leeming JA at [2];
Griffiths AJA at [150]
Decision:
1. Appeal allowed in part.
2. Set aside order 5(a)(ii) made on 9 April 2024.
3. Direct the parties to supply an agreed calculation of the amount which should replace $451,000 in order 3 made on 9 February 2024 in accordance with this Court’s reasons, or in the absence of agreement, direct the appellants and the respondent to file and serve within 14 days of today the amounts for which they contend and submissions not exceeding five pages, with a view to the amount being determined by this Court on the papers.
4. Cross-appeal dismissed.
5. The appellants to pay the respondent’s costs of the appeal.
6. The cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

Catchwords:
EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling’s spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Conveyancing Act 1919 (NSW), ss 23C, 54A
Succession Act 2006 (NSW), ss 104, 111

Cases Cited:
Catchpole v The Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch)
Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Falkner v Bourke (1990) 19 NSWLR 574
Fielden v Christie-Miller [2015] EWHC 87 (Ch)
Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73
Irwin v Pamplin (No 5) [2024] NSWSC 484
Public Trustee v Smith [2008] NSWSC 397; 1 ASTLR 488

Texts Cited:
C Mitchell, Paul Matthews, Jonathan Harris and Sinead Agnew, Underhill & Hayton Law of Trusts and Trustees (20th ed)
Lynton Tucker, Nicholas Le Poidevin and James Brightwell, Lewin on Trusts (20th ed)

Category: Principal judgment
Parties: Marie Dawn Pamplin (First Appellant/First Cross-Respondent)
Lionel Joseph Pamplin (Second Appellant/Second Cross-Respondent)
Mircon Pty Ltd (Third Appellant/Third Cross-Respondent)
Dennis G Pamplin Pty Ltd (Fourth Appellant/Fourth Cross-Respondent)
Halcrows Investments Pty Ltd (Fifth Appellant/Fifth Cross-Respondent)
NMOS Pty Ltd (Sixth Appellant/Sixth Cross-Respondent)
Mircorp International Pty Ltd (Seventh Appellant/Seventh Cross-Respondent)
OSCO (Australia) Pty Ltd (Eighth Appellant/Eighth Cross-Respondent)
Ann Margaret Irwin (Respondent/Cross-Appellant)
Representation:
Counsel:
N C Hutley SC, G George (Appellants/Cross-Respondents)
M Condon SC, P Sharp (Respondent/Cross-Appellant)
Solicitors:
Hitch Advisory (Appellants/Cross-Respondents)
Mersal & Associates (Respondent/Cross-Appellant)

File Number(s): 2024/77227
Publication restriction: Nil
Decision under appeal

Court or tribunal:

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 Pamplin v Irwin

Details

AGLC: Pamplin v Irwin [2024] NSWCA 213
Case: [2024] NSWCA 213
Decision Date: 28 August 2024

CaseChat Overview and Summary

In *Pamplin v Irwin*, the New South Wales Court of Appeal considered a dispute between siblings concerning assets transferred to their parent, who was the sole director and shareholder of a trustee company operating ongoing businesses. The primary judge had found that the siblings were shadow directors of the trustee and that the parent held the assets on trust for the siblings. The primary judge also found that the trustee was estopped from making distributions that favoured one sibling’s spouse, that certain distributions were unpaid and owing, and that these unpaid distributions should attract interest, with credit to be given for tax paid.

The appeal raised several legal issues, including whether the primary judge erred in finding that the assets were held by the parent on trust for the siblings, and whether the primary judge erred in concluding that the trustee was estopped from making distributions with less than a 50% share to one sibling, thereby breaching the non-fettering principle. Further issues concerned whether the primary judge erred in finding that certain distributions were not paid and were owing, and whether these unpaid distributions should attract interest, with credit for tax paid.

The Court of Appeal allowed the appeal in part. It set aside an order concerning the calculation of a sum of money and directed the parties to agree on a revised calculation or, failing agreement, to provide submissions for the Court to determine the amount. The Court dismissed the cross-appeal. The reasoning behind these orders, particularly concerning the estoppel and the non-fettering principle, and the treatment of unpaid distributions and interest, is detailed within the Court’s reasons. The Court ordered the appellants to pay the respondent’s costs of the appeal and the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside order 5(a)(ii) made on 9 April 2024.

3. Direct the parties to supply an agreed calculation of the amount which should replace $451,000 in order 3 made on 9 February 2024 in accordance with this Court’s reasons, or in the absence of agreement, direct the appellants and the respondent to file and serve within 14 days of today the amounts for which they contend and submissions not exceeding five pages, with a view to the amount being determined by this Court on the papers.

4. Cross-appeal dismissed.

5. The appellants to pay the respondent’s costs of the appeal.

6. The cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

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.

Medium Neutral Citation:	Pamplin v Irwin [2024] NSWCA 213
Hearing dates:	30-31 July 2024
Decision date:	28 August 2024
Before:	Bell CJ at [1]; Leeming JA at [2]; Griffiths AJA at [150]
Decision:	1. Appeal allowed in part. 2. Set aside order 5(a)(ii) made on 9 April 2024. 3. Direct the parties to supply an agreed calculation of the amount which should replace $451,000 in order 3 made on 9 February 2024 in accordance with this Court’s reasons, or in the absence of agreement, direct the appellants and the respondent to file and serve within 14 days of today the amounts for which they contend and submissions not exceeding five pages, with a view to the amount being determined by this Court on the papers. 4. Cross-appeal dismissed. 5. The appellants to pay the respondent’s costs of the appeal. 6. The cross-appellant to pay the cross-respondents’ costs of the cross-appeal.
Catchwords:	EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling’s spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 100 Conveyancing Act 1919 (NSW), ss 23C, 54A Succession Act 2006 (NSW), ss 104, 111
Cases Cited:	Catchpole v The Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch) Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 Falkner v Bourke (1990) 19 NSWLR 574 Fielden v Christie-Miller [2015] EWHC 87 (Ch) Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73 Irwin v Pamplin (No 5) [2024] NSWSC 484 Public Trustee v Smith [2008] NSWSC 397; 1 ASTLR 488
Texts Cited:	C Mitchell, Paul Matthews, Jonathan Harris and Sinead Agnew, Underhill & Hayton Law of Trusts and Trustees (20th ed) Lynton Tucker, Nicholas Le Poidevin and James Brightwell, Lewin on Trusts (20th ed)
Category:	Principal judgment
Parties:	Marie Dawn Pamplin (First Appellant/First Cross-Respondent) Lionel Joseph Pamplin (Second Appellant/Second Cross-Respondent) Mircon Pty Ltd (Third Appellant/Third Cross-Respondent) Dennis G Pamplin Pty Ltd (Fourth Appellant/Fourth Cross-Respondent) Halcrows Investments Pty Ltd (Fifth Appellant/Fifth Cross-Respondent) NMOS Pty Ltd (Sixth Appellant/Sixth Cross-Respondent) Mircorp International Pty Ltd (Seventh Appellant/Seventh Cross-Respondent) OSCO (Australia) Pty Ltd (Eighth Appellant/Eighth Cross-Respondent) Ann Margaret Irwin (Respondent/Cross-Appellant)
Representation:	Counsel: N C Hutley SC, G George (Appellants/Cross-Respondents) M Condon SC, P Sharp (Respondent/Cross-Appellant) Solicitors: Hitch Advisory (Appellants/Cross-Respondents) Mersal & Associates (Respondent/Cross-Appellant)
File Number(s):	2024/77227
Publication restriction:	Nil
Decision under appeal	Court or tribunal: