Fay v Moramba Services Pty Ltd [2008] NSWSC 424

Fay v Moramba Services Pty Ltd [2008] NSWSC 424

Assuming that Uniform Civil Procedure Rules, rule 7.11 applied, the plaintiffs advanced no sufficient reason to dispense with the requirement that Leerac Pty Ltd be joined if it was a necessary party. Clause 17 of the trust deeds was not a reason to avoid joinder: if valid, the plaintiffs should not be permitted to evade its operation by obtaining dispensation, and if invalid or not attracted it would not justify dispensation. The motion was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
11 April 2008
Procedural Posture
Procedural Motion in Equity Division Expedition List Concerning Joinder of a Trustee in Proceedings Relating to Trusts / Ex Tempore Judgment on Plaintiffs' Motion Filed 4 April 2008, Before a Hearing Set Down to Commence on 19 May 2008
Outcome
Motion dismissed with costs
Legal Topics
['joinder of Parties' 'necessary Parties' 'proceedings Relating to Trusts' 'dispensation From Uniform Civil Procedure Rules, Rule 7.11' 'trust Deed Clause Purporting to Exclude a Beneficiary Who Sues the Trustee']
['civil Procedure' 'trusts and Trustees'] ['joinder of Parties' 'necessary Parties' 'proceedings Relating to Trusts' 'dispensation From Uniform Civil Procedure Rules, Rule 7.11' 'trust Deed Clause Purporting to Exclude a Beneficiary Who Sues the Trustee']

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Procedural Posture

Procedural Motion in Equity Division Expedition List Concerning Joinder of a Trustee in Proceedings Relating to Trusts / Ex Tempore Judgment on Plaintiffs' Motion Filed 4 April 2008, Before a Hearing Set Down to Commence on 19 May 2008

Legal Issues

  1. 1 ['Whether the proceedings were proceedings relating to a trust so as to attract Uniform Civil Procedure Rules, rule 7.11.' 'Whether there was sufficient reason under (NSW) Civil Procedure Act 2005, s 14 to dispense with any requirement under Uniform Civil Procedure Rules, rule 7.11 that Leerac Pty Ltd, as trustee of the inter vivos trusts, be joined as a party.' 'Whether the existence of clause 17 of the trust deeds, which purported to deprive a beneficiary of benefits if it sued the trustee other than for wilful default, justified dispensing with joinder of Leerac Pty Ltd.']

Ratio Decidendi

Assuming that Uniform Civil Procedure Rules, rule 7.11 applied, the plaintiffs advanced no sufficient reason to dispense with the requirement that Leerac Pty Ltd be joined if it was a necessary party. Clause 17 of the trust deeds was not a reason to avoid joinder: if valid, the plaintiffs should not be permitted to evade its operation by obtaining dispensation, and if invalid or not attracted it would not justify dispensation. The motion was therefore dismissed with costs.

Court Disposition

Motion dismissed with costs

Orders

  • ["The plaintiffs' motion filed on 4 April 2008 was dismissed with costs."]