In the matter of Eighth Avenue Austral Pty Ltd [2024] NSWSC 1262

In the matter of Eighth Avenue Austral Pty Ltd [2024] NSWSC 1262

The Declarations of Trust executed by Aspromonte in November 2023 created binding trusts over specified numbers of shares in Eighth Avenue Austral Pty Ltd for each plaintiff. The trust extended to the shares themselves, not merely to their benefits, and is sufficiently certain in its subject matter despite not individually identifying the shares. The plaintiffs are entitled to require Aspromonte to transfer the shares to them, either by operation of Saunders v Vautier or by specific performance of the trust terms.

Parties
First Plaintiff: SVVID Pty Ltd; Second Plaintiff: Michael Gerace and Melissa Gerace atf the M & M Gerace Superannuation Fund; Third Plaintiff: Raffaele Gerace and Cinzia Gerace atf the R & C Gerace Superannuation Fund; Fourth Plaintiff: Nick Papallo and Catrina Papallo atf the N & C Papallo Superannuation Fund; Fifth Plaintiff: MG Investment Holdings (Aust) Pty Ltd; Sixth Plaintiff: RT Mammone Holdings Pty Ltd; Seventh Plaintiff: Lomandra Grove Pty Ltd; First Defendant: Eighth Avenue Austral Pty Ltd; Second Defendant: Aspromonte Pty Ltd
Jurisdiction
Australia
Judgment Date
03 October 2024
Procedural Posture
Trusts/corporations / Principal Judgment – Declarations Sought Regarding Trust Over Shares and Orders for Transfer of Shares
Outcome
Parties are to provide short minutes of order giving effect to the judgment; exhibits to be returned; costs and form of order to be agreed or submitted.
Legal Topics
Declarations of Trust Over Shares, Certainty of Subject Matter for Trusts, Specific Performance, Transfer of Shares by Trustee
Equity Trusts Corporations Law Declarations of Trust Over Shares Certainty of Subject Matter for Trusts Specific Performance Transfer of Shares by Trustee

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Parties

SVVID Pty Ltd

First Plaintiff

Michael Gerace and Melissa Gerace atf the M & M Gerace Superannuation Fund

Second Plaintiff

Raffaele Gerace and Cinzia Gerace atf the R & C Gerace Superannuation Fund

Third Plaintiff

Nick Papallo and Catrina Papallo atf the N & C Papallo Superannuation Fund

Fourth Plaintiff

MG Investment Holdings (Aust) Pty Ltd

Fifth Plaintiff

RT Mammone Holdings Pty Ltd

Sixth Plaintiff

Lomandra Grove Pty Ltd

Seventh Plaintiff

Eighth Avenue Austral Pty Ltd

First Defendant

Aspromonte Pty Ltd

Second Defendant

Procedural Posture

Trusts/corporations / Principal Judgment – Declarations Sought Regarding Trust Over Shares and Orders for Transfer of Shares

Legal Issues

  1. 1 Whether declarations of trust over shares were binding
  2. 2 Whether there was an objective intention to create a trust
  3. 3 Whether the trust was sufficiently certain in its subject matter

Ratio Decidendi

The Declarations of Trust executed by Aspromonte in November 2023 created binding trusts over specified numbers of shares in Eighth Avenue Austral Pty Ltd for each plaintiff. The trust extended to the shares themselves, not merely to their benefits, and is sufficiently certain in its subject matter despite not individually identifying the shares. The plaintiffs are entitled to require Aspromonte to transfer the shares to them, either by operation of Saunders v Vautier or by specific performance of the trust terms.

Court Disposition

Parties are to provide short minutes of order giving effect to the judgment; exhibits to be returned; costs and form of order to be agreed or submitted.

Orders

  • Parties to submit agreed orders to give effect to judgment and as to costs by 4pm 8 October 2024, or, if not agreed, to provide their respective proposed orders and short submissions as to differences and costs; exhibits to be returned.