Sayour v Elliott (No 2) [2018] NSWSC 146

Sayour v Elliott (No 2) [2018] NSWSC 146

The second plaintiff was kept from substantial trust money misappropriated by the deceased; interest is awarded to compensate from the date of misappropriation at the rate prescribed by Practice Note SC Gen 16. Costs follow the event as the plaintiffs were substantially successful, and should be assessed forthwith without apportionment.

Parties
First Plaintiff: Moustafa Sayour; Second Plaintiff: Broadway Plaza Pty Ltd atf Sayour Family Trust; Third Plaintiff: Fatima Sayour; First Defendant: Catharine Elliott; Second Defendant: Sayour Holdings Pty Ltd; Third Defendant: JS 75 Pty Ltd
Jurisdiction
Australia
Judgment Date
20 February 2018
Procedural Posture
Consequential Orders (other Than Costs) / Post Judgment/orders on Interest and Costs
Outcome
Orders for interest and costs in favour of second plaintiff; judgment for pre-judgment interest; credits for estate recovery; costs on ordinary basis assessable forthwith.
Legal Topics
Costs, Pre Judgment Interest, Trusts, Misappropriation of Trust Funds
Equity Costs Pre Judgment Interest Trusts Misappropriation of Trust Funds

Case Brief

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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

Procedural Posture

Consequential Orders (other Than Costs) / Post Judgment/orders on Interest and Costs

Legal Issues

  1. 1 Whether pre-judgment interest should be awarded to the second plaintiff against the estate for misappropriated trust moneys
  2. 2 From what date and at what rate should pre-judgment interest be awarded
  3. 3 Whether costs should be awarded on the ordinary or indemnity basis, and whether apportionment is appropriate

Ratio Decidendi

The second plaintiff was kept from substantial trust money misappropriated by the deceased; interest is awarded to compensate from the date of misappropriation at the rate prescribed by Practice Note SC Gen 16. Costs follow the event as the plaintiffs were substantially successful, and should be assessed forthwith without apportionment.

Court Disposition

Orders for interest and costs in favour of second plaintiff; judgment for pre-judgment interest; credits for estate recovery; costs on ordinary basis assessable forthwith.

Orders

  • Judgment for the second plaintiff against the estate of the late Jamil Moustafa Sayour for interest in the sum of $928,057 on the principal sum of $5,303,080 for the period from 9 February 2015 to 7 February 2018.
  • To the extent that any amount recovered by the second plaintiff from Bank of Sydney Ltd account no 811414 and term deposits 1145895 and 1162098 exceeds the sum of $5,303,080 there be credit for such recovery against the liability under interest.