Rudnicki v Adventura One Pty Ltd

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Rudnicki v Adventura One Pty Ltd

Citation:

[2017]  ACTSC 89

Hearing Date:

21 April 2017

DecisionDate:

21 April 2017  

Before:

Robinson AJ

Decision:

Injunctions Refused

Catchwords:

PRACTICE AND PROCEDURE – EX PARTE INJUNCTIONS

Cases Cited:

Bond Brewing v National Bank (1990) 1 ACSR 445

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

Texts Cited:

Spry, Equitable Remedies, (Thomson Reuters, Australia, 9^th ed, 2013)

Parties:

Edward Rudnicki (Plaintiff)

Marian Rudnicki (Plaintiff)

Danuta Rudnicki (Plaintiff)

Adventura One Pty Ltd (First Defendant)

Andrew Rudnicki (Second Defendant)

Representation:

Counsel

Mr D Hassall (Plaintiffs)

Solicitors

Dwyer Lawyers (Plaintiffs)

File Number:

SC 125 of 2017

ROBINSON AJ:

1. On the day upon which the proceedings were filed in the Registry, at the request of the Plaintiffs, the matter was listed before me for hearing of an interlocutory application for urgent relief sought by the plaintiffs on an ex parte basis.

1. At the conclusion of that interlocutory application, I declined ex parte relief and stated I would publish reasons later. These are my reasons.

Outline

1. For present purposes, it is not necessary to outline the facts in much detail. The proceedings concern the administration of a family trust, the Rudnicki Trust No.2. The undated trust deed is not elaborate nor is the business of the trust complicated. The trust appears to have come into existence in about 2013.

1. Without intending any disrespect, I will use the first names of the family members in describing the parts played by them.

1. The three plaintiffs, Marian, Danuta and Edward are husband, wife and son respectively.

1. The second defendant, Andrew, is another son.

1. The first defendant, Adventura One Pty Ltd is the trustee of the trust. Significantly, the trustee has one shareholder and one director and that is Andrew.

Rudnicki Trust No.2

1. Some aspects of this trust must be noted. First, although the four non-corporate parties to the proceeding are named beneficiaries, the term beneficiary under the deed also encompasses their respective spouses, children, relatives, companies, charities and other persons and entities. Thinking that all beneficiaries had been joined, this matter may have escaped the consideration of those who brought the proceedings. Second, there is an appointor and that is Andrew. Third, the trustee and the appointor can together, exercise a power of variation. Fourth, the trustee and the appointor can together, remove any beneficiary. Fifth, the appointor can change the trustee.

1. The business of the trust seems relatively straightforward. It purchased a property at [redacted for legal purposes], for, I am told, about $2.8M. Marian and Danuta contributed an initial $200,000 to this purchase and the ANZ bank appears to have provided the balance or a substantial amount of the remaining necessary financial accommodation. In order for the bank to advance this amount upon this ratio, it has taken substantial further security from the parties as well as guarantees…