Cochrane v Cochrane [2006] NSWSC 877

Cochrane v Cochrane [2006] NSWSC 877

The freezing orders and immediate affidavit of assets were not justified at this stage because the case was not strong enough for those orders, but the court would accept an undertaking not to dispose of property without notice and would require an affidavit of assets only if the first defendant did not file answering affidavits by the specified date. Trustees cannot defer their obligation to answer a beneficiary's evidence of possible trust loss until all beneficiary evidence is filed.

Jurisdiction
Australia
Judgment Date
28 August 2006
Procedural Posture
Equity Proceeding Concerning Trusts and an Application for Freezing Orders / Interlocutory Notice of Motion Before the Supreme Court of New South Wales, Equity Division
Outcome
Freezing orders were not made at this stage; the application was treated as premature, undertakings were accepted, costs were reserved, and procedural directions were made.
Legal Topics
['duty of Trustees to Account' 'freezing Orders' 'breach of Trust' 'relief for Trustees' 'beneficiary Claims Against Trustees']
['equity' 'trusts'] ['duty of Trustees to Account' 'freezing Orders' 'breach of Trust' 'relief for Trustees' 'beneficiary Claims Against Trustees']

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Procedural Posture

Equity Proceeding Concerning Trusts and an Application for Freezing Orders / Interlocutory Notice of Motion Before the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ["Whether freezing orders should be made in respect of the first defendant's assets at this stage." 'Whether the first defendant should be required to file an affidavit setting out all his assets.' "Whether a trustee may wait until all of a beneficiary's evidence is filed before answering allegations of possible loss to the trust fund."]

Ratio Decidendi

The freezing orders and immediate affidavit of assets were not justified at this stage because the case was not strong enough for those orders, but the court would accept an undertaking not to dispose of property without notice and would require an affidavit of assets only if the first defendant did not file answering affidavits by the specified date. Trustees cannot defer their obligation to answer a beneficiary's evidence of possible trust loss until all beneficiary evidence is filed.

Court Disposition

Freezing orders were not made at this stage; the application was treated as premature, undertakings were accepted, costs were reserved, and procedural directions were made.

Orders

  • ["Order 9 in the notice of motion for the first defendant to give an affidavit of assets was made, but only to come into effect if the first defendant had not by 10 October 2006 filed affidavits answering the first plaintiff's affidavits filed on 1 May 2006 and 31 July 2006." 'The hearing before the expedition judge...