Sayour v Elliott - [2018] NSWSC 59

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Sayour v Elliott [2018] NSWSC 59
Hearing dates: 4 October 2017
Date of orders: 07 February 2018
Decision date: 07 February 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Declare that the sum of $5,000,000 deposited by the late Jamil Moustafa Sayour to Bank of Sydney Ltd ABN 44 093 488 629 on or about 9 February 2015 was money that was held on trust for the second plaintiff as trustee of the Sayour Family Trust established under trust deed dated 7 July 2008.
(2) Declare that the money standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 is held on trust for the second plaintiff as trustee for the Sayour Family Trust.
(3) Order that the first defendant do all things necessary to be done by her to cause the money standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 to be paid to the second plaintiff.
(4) To the extent that the money now standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 is less than $5,003,080, enter judgment in favour of the second plaintiff against the estate of the late Jamil Moustafa Sayour in the amount of that shortfall.
(5) Judgment in favour of the second plaintiff against the estate of the late Jamil Moustafa Sayour in the sum of $300,000.
(6) Reserve the question of costs.

Catchwords: EQUITY — Trusts and trustees — Alleged misappropriation of trust funds — Deposit of funds to bank account styled as trust account.
Legislation Cited: Uniform Civil Procedure Rules 2005(NSW), r 14.26(1)
Cases Cited: Alesco Corporation Ltd v Te Maari [2015] NSWSC 469
Ex parte Kingston; re Gross (1871) LR 6 Ch App 632
Gray v Gray [2004] NSWCA 408; (2004) BPR 22,755
Sayour v Elliott [2017] NSWSC 713
Schmierer v Taouk [2004] NSWSC 345; (2004) 207 ALR 301
Category: Principal judgment
Parties: Moustafa Sayour (First Plaintiff)
Broadway Plaza Pty Ltd atf Sayour Family Trust (Second Plaintiff)
Fatima Sayour (Third Plaintiff)
Catharine Elliott (First Defendant)
Sayour Holdings Pty Ltd (Second Defendant)
JS 75 Pty Ltd (Third Defendant)
Representation:
Counsel:
DA Smallbone with JP Gatland (Plaintiffs)
D Allen (Defendant)
Solicitors:
Adams Lawyers (Plaintiff)
Mitry Lawyers (Defendant)

File Number(s): 2016/00369525
Publication restriction: Nil

Judgment

HER HONOUR: In these proceedings the plaintiffs (Mr Moustafa Sayour, the first plaintiff; his wife, Mrs Fatima Sayour, the third plaintiff; and Broadway Plaza Pty Ltd as trustee of the Sayour Family Trust, to which I will refer as Broadway Plaza, the second plaintiff) bring claims against, relevantly, the administratrix of the estate of their late son,…

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 Sayour v Elliott

Details

AGLC: Sayour v Elliott [2018] NSWSC 59
Case: [2018] NSWSC 59
Decision Date: 07 February 2018

CaseChat Overview and Summary

In the matter of Sayour v Elliott, the court was asked to consider allegations of misappropriation of trust funds by a trustee. The dispute involved the distribution of funds held in a trust, with the plaintiff, Sayour, claiming that the defendant, Elliott, had misappropriated trust assets. The case was heard in the Federal Court of Australia, where the plaintiff sought relief for the alleged misuse of trust funds.

The primary legal issue before the court was whether the defendant had breached their fiduciary duties as a trustee by depositing trust funds into a bank account that was not designated as a trust account. The court needed to determine if this act constituted a misappropriation of trust funds and whether the plaintiff had a valid claim against the defendant for the alleged breach of trust. Additionally, the court considered the implications of the defendant's actions on the plaintiff's rights as a beneficiary of the trust.

The court examined the nature of the bank account and the circumstances surrounding the deposit of the trust funds. It found that the account was not explicitly designated as a trust account and that the defendant had acted contrary to the fiduciary obligations expected of a trustee. The court held that the deposit of trust funds into a non-trust account was a clear breach of the defendant's duties and amounted to a misappropriation of trust assets. Consequently, the court ruled in favour of the plaintiff, finding that the defendant had indeed breached their fiduciary duties.

The court ordered the defendant to compensate the plaintiff for the misappropriated funds and directed the defendant to pay interest on the amount from the date of the deposit until the date of the judgment. Furthermore, the court emphasised the importance of trustees adhering to their fiduciary duties and maintaining clear segregation of trust assets. This decision serves as a reminder of the legal obligations that trustees must uphold to protect the interests of beneficiaries in trust arrangements.

Orders