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Re Nilant

Re Nilant

Case [2004] WASC 7 23 January 2004

Trustee Duties

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Management of Trust Property

Directions to Trustees

Trusts & Equity

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NILANT & ANOR [2004] WASC 7

Reported Decision:	(2004) 28 WAR 81
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 7
Case No:	CIV:1955/2003	Heard:	18 SEPTEMBER 2003
Coram:	BARKER J	Delivered:	23/01/04
No of pages:	21	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	CHARLES PHILIPPE LOUIS NILANT OREN ZOHAR
Catchwords:	Trustees Application under Trustees Act 1962 (WA) and Corporations Act 2001 (Cth) Power of Court Whether Court has power to order that trustee pay trust funds to third party creditor of beneficiary
Legislation:	Corporations Act 2001 (Cth), s 436A, s 439A, s 447A, s 447D Supreme Court Act 1935 (WA), s 16(1)(d) Supreme Court Act 1970 (NSW), s 23 Trustee Act 1925 (NSW), s 63 Trustees Act 1962 (WA), s 89(1), s 90(1), s 92(1)
Case References:	Carter v Carter [1896] 1 Ch 62 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 Duke of Northumberland v Attorney-General [1905] AC 406 Featherby v Grljusich, unreported; SCt of WA; Library No 980238; 1 May 1998 Nevin v The Beneficiaries of The Bremer Bay Estate Trust [2002] WASC 24 Perpetual Trustees WA Ltd as Executor of the Will of Goyder (Dec) v Goyder, unreported; SCt of WA (Commissioner Martin); Library No 990138, 24 March 1999 Re Aldex Distributors Pty Ltd; Ex parte Butterell (1994) 12 ACLC 489 Re Global Finance Group Pty Ltd (In Liq) (Supervisor Appointed) and Global Mortgage Investments Pty Ltd (In Liq); Ex parte Read and Herbert (As Liquidators of Global Mortgage Investments Pty Ltd and as Liquidators of Global Finance Group Pty Ltd) [2002] WASC 63; (2002) 26 WAR 385 Re J S Mitchell (Dec) (1913) 30 WN (NSW) 137 Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 Palmer v McAllister (1991) 4 WAR 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NILANT & ANOR [2004] WASC 7 CORAM : BARKER J HEARD : 18 SEPTEMBER 2003 DELIVERED : 23 JANUARY 2004 FILE NO/S : CIV 1955 of 2003 MATTER : Trustees Act 1962 (WA)

and

Corporations Act 2001

(Cth)

BETWEEN : CHARLES PHILIPPE LOUIS NILANT

OREN ZOHAR

Plaintiffs

Catchwords:

Trustees - Application under Trustees Act 1962 (WA) and Corporations Act 2001 (Cth) - Power of Court - Whether Court has power to order that trustee pay trust funds to third party creditor of beneficiary

Legislation:

Corporations Act 2001 (Cth), s 436A, s 439A, s 447A, s 447D

Supreme Court Act 1935 (WA), s 16(1)(d)
Supreme Court Act 1970 (NSW), s 23
Trustee Act 1925 (NSW), s 63
Trustees Act 1962 (WA), s 89(1), s 90(1), s 92(1)

(Page 2)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiffs : Mr N P Gentilli

Solicitors:

Plaintiffs : Jackson McDonald

Case(s) referred to in judgment(s):

Carter v Carter [1896] 1 Ch 62
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Duke of Northumberland v…

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 Re Nilant

Details

AGLC: Re Nilant [2004] WASC 7
Case: [2004] WASC 7
Decision Date

CaseChat Overview and Summary

The plaintiffs, Charles Philippe Louis Nilant and Oren Zohar, as voluntary administrators of Smartworld Corporation Pty Ltd, sought an order from the Supreme Court of Western Australia under the Trustees Act 1962 (WA) or the Corporations Act 2001 (Cth) that they be permitted to transfer funds held in trust for Smart America Development Corporation, a subsidiary of the company, to Morestar Nominees Pty Ltd as trustee of the Smartworld Creditors' Trust. The plaintiffs sought this order to satisfy a debt of over A$8,000,000 owed by Smart America to the company. Barker J examined various sections of the Trustees Act 1962 (WA) and the Corporations Act 2001 (Cth) but found that none of these provisions authorised the Court to make an order of the type sought by the plaintiffs. Specifically, s 89(1) of the Trustees Act 1962 (WA) did not permit the Court to confer a power on the trustee in the best interests of the persons beneficially interested under the trust, as the proposed transaction would benefit the creditors of the Smartworld Creditors' Trust, but not Smart America, the relevant beneficiary. Similarly, s 90(1) of the Trustees Act 1962 (WA) did not apply, as neither the plaintiffs nor Smart America were persons to which any of the provisions of s 90(1) applied. Additionally, s 92(1) of the Trustees Act 1962 (WA) did not permit the Court to make a direction authorising the payment of the funds held on trust for Smart America to the Smartworld Creditors' Trust, as such a direction would not respect the management or administration of the property subject to the trust. Finally, s 447A and s 447D of the Corporations Act 2001 (Cth) did not authorise the Court to make any "directions" in terms of the order the plaintiffs sought. The plaintiffs made their application as trustees of the funds they held for Smart America and not as administrators of the company. Therefore, Barker J dismissed the application as the Court did not have the power to make an order of the type the plaintiffs sought.

Orders