Supreme Court
New South Wales
Medium Neutral Citation: Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321 Hearing dates: 21 March 2014 Decision date: 24 March 2014 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Decline to give judicial advice. Summons dismissed.
Catchwords: EQUITY - trusts and trustees - applications to the court for advice and authority - advice sought as to whether trustees justified in defending proceedings which impugn their appointment and resorting to trust assets to fund defence - whether impugned trustees have standing to seek advice - held, they do - where there appear to be reasonable prospects of defence succeeding - where dispute is in substance dispute between beneficiaries - whether advice should be given - held, unfair and unjust to permit trustees to have recourse to trust fund - held, advice declined. Legislation Cited: (NSW) Trustee Act 1925 s 63 Cases Cited: Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220
Application of Frost and Fallon [2011] NSWSC 591
Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441
Arena Management Pty Ltd (Rec & Mgr Apptd) v Campbell St Theatre Pty Ltd [2011] NSWCA 128
Armitage v Nurse [1998] Ch 241
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Frost v Bovaird [2012] FCAFC 60; 203 FCR 95
Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (In Liq) [2009] NSWCA 145
Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66
Maloof v Uncle's Joint Pty Ltd [2014] NSWSC 210
Miller v Cameron (1936) 54 CLR 572
National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268
Re Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247
Re Lenyco Pty Ltd [2010] NSWSC 1094Category: Principal judgment Parties: Uncle's Joint Pty Ltd ACN 148 176 792 (First Applicant)
Darren Adam Pernice (Second Applicant)Representation: Counsel:
Mr P Herzfeld (Applicants)
Solicitors:
Stacks/The Law Firm (Southern Highlands)
File Number(s): 2014/ 86483
Judgment
The applicants Uncle's Joint Pty Ltd and Darren Adam Pernice are defendants in other proceedings in this court - respectively, proceeding 2013/360586 and proceeding 2013/360672 (together, "the trust proceedings") - in which Frances Rita Maloof (Frances), Tiba Clementine Maloof (Tiba) and Sarah Mariel Maloof (Sarah) (together, "the plaintiffs"), contend that each applicant has not been duly appointed as and is not the trustee of, respectively, the CJ Maloof Family Trust ("the CJM Trust") and the Einasleigh Trust. By this application, the applicants seek advice pursuant to (NSW) Trustee Act 1925, s 63, as to whether they would be justified in defending the claims against them in the trust proceedings; and, if so, whether they would be justified in using the resources of the relevant trust to do…
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- AGLC
- Application of Uncle's Joint Pty Ltd ACN 148 176 792 and Anor [2014] NSWSC 321
- Case
- [2014] NSWSC 321
- Decision Date
CaseChat Overview and Summary
The court considered the matter of whether the trustees had standing to seek advice, which they found they did, as they were in fact the trustees of the trust. However, the court also needed to consider whether it was appropriate to give advice in this case. The court held that it was not fair and just to permit the trustees to have recourse to the trust fund for this purpose. The court found that there appeared to be reasonable prospects of the trustees successfully defending the proceedings against them. However, the court also noted that the dispute was in substance a dispute between the beneficiaries and not between the trustees and the beneficiaries. Given these circumstances, the court declined to give advice to the trustees.
The court declined to give advice to the trustees on the basis that it would be unfair and unjust to permit the trustees to have recourse to the trust fund. The court found that the dispute was in substance a dispute between the beneficiaries, and not between the trustees and the beneficiaries. The court held that it would be inappropriate to give advice in these circumstances. The court did not make any orders in relation to the proceedings, as it declined to give advice to the trustees. Instead, the court left the matter to be resolved between the beneficiaries.
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Background
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Evidence
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Ratio Decidendi
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