Pamplin v Irwin

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.