Sayour v Elliott [2018] NSWSC 59

Sayour v Elliott [2018] NSWSC 59

The funds deposited into accounts styled as trust accounts for the Sayour Family Trust were impressed with a trust on creation. Jamil Sayour, having transferred trust funds out without authority, committed a breach of trust. The estate of Jamil Sayour must account for and restore these funds to the appointed trustee. There was no evidence satisfactorily establishing that the withdrawal constituted a gift; thus, the funds remained trust property recoverable by the trustee.

Jurisdiction
Australia
Judgment Date
07 February 2018
Procedural Posture
Equity Trusts / Principal Judgment Following Separate Determination of Primary Claim
Outcome
Declarations and judgment in favour of the second plaintiff (Broadway Plaza Pty Ltd atf Sayour Family Trust); order for payment of trust funds to second plaintiff; judgment for shortfall and an additional sum; costs reserved.
Legal Topics
['misappropriation of Trust Funds' 'declaratory Relief' 'resulting and Constructive Trust' 'gift Vs. Trust Issue' 'tracing of Trust Property']
['equity' 'trusts and Trustees'] ['misappropriation of Trust Funds' 'declaratory Relief' 'resulting and Constructive Trust' 'gift Vs. Trust Issue' 'tracing of Trust Property']

Case Brief

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Procedural Posture

Equity Trusts / Principal Judgment Following Separate Determination of Primary Claim

Legal Issues

  1. 1 ['Whether funds deposited by Jamil Sayour into designated accounts were trust money held for the Sayour Family Trust' 'Whether there was a misappropriation of trust funds by Jamil Sayour' 'Whether the funds paid to Jamil Sayour’s accounts were a gift or remained trust property' 'Whether the estate of Jamil Sayour is liable to account for, or restore, trust money withdrawn from the Sayour Family Trust']

Ratio Decidendi

The funds deposited into accounts styled as trust accounts for the Sayour Family Trust were impressed with a trust on creation. Jamil Sayour, having transferred trust funds out without authority, committed a breach of trust. The estate of Jamil Sayour must account for and restore these funds to the appointed trustee. There was no evidence satisfactorily establishing that the withdrawal constituted a gift; thus, the funds remained trust property recoverable by the trustee.

Court Disposition

Declarations and judgment in favour of the second plaintiff (Broadway Plaza Pty Ltd atf Sayour Family Trust); order for payment of trust funds to second plaintiff; judgment for shortfall and an additional sum; costs reserved.

Orders

  • ['Declare the sum of $5,000,000 deposited by the late Jamil Moustafa Sayour to Bank of Sydney Ltd on or about 9 February 2015 was held on trust for the second plaintiff as trustee of the Sayour Family Trust.' 'Declare that the money standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term...