Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10)

Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd was heard in the Supreme Court of Victoria. The dispute centred on the validity of a unit trust, the establishment of express trusts, the assets of the unit trust, the impact of an ipso facto clause, fiduciary duties, and claims relating to loans, guarantees, property, proprietary estoppel, and administration of justice. The court was required to determine whether the plaintiffs had discharged the onus of proof on several issues, whether a unit trust was validly established, whether express trusts were created, whether certain properties and proceeds were assets of the unit trust, whether an ipso facto clause caused the previous trustee to cease being a trustee, whether fiduciary duties were breached, and the nature of the disputed transactions.

The court examined the evidence presented by both parties, considering whether the onus of proof was discharged in light of the parties' inconsistent claims. It was held that evidence advanced by the parties that was consistent with an abandoned claim could not be ignored in determining whether the onus was discharged. The court applied the principles from Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading, Rhesa Shipping Co SA v Edmunds, and Eumeralla Estate Pty Ltd v Chen in its analysis. The court found that the plaintiffs had not discharged the onus of proof on certain issues, leading to the dismissal of some claims. The court also examined the validity of the unit trust, the establishment of express trusts, and the assets of the unit trust, applying relevant case law and statutory provisions.

In terms of the fiduciary duties, the court found that a fiduciary relationship existed between the two brothers, but that the accountant brother had breached his fiduciary duty by forging loan transaction documents. Compensation was awarded for the breach. The court also found that the disputed transactions did not constitute loan agreements or investments in units in a unit trust, and dismissed the related claims. Regarding the proprietary estoppel claim, the court found that the parents had promised the transfer of property to the accountant son and his wife, and that the son and wife had acted to their detriment in reliance on the promise. Compensation was awarded to the son and wife. The court also found that the corporate trustee had breached its duties by transferring funds to the personal bank account of the director and ordered the appointment of new independent trustees. Finally, the court referred the matter to ASIC, the Deputy Commissioner of Taxation, and the DPP due to evidence of dishonest behaviour relating to corporations and their tax affairs.

The court made orders appointing new trustees over the unit trust, the corporate trustee, and the family trust, as well as receivers and managers of the unit trust, the corporate trustee, and the family trust. The new trustees were also ordered to take possession of the assets of the trusts and to manage them in accordance with their duties as trustees. The court also ordered the removal of caveats and directed the parties to compensate each other for certain costs.