Aspinall v Aqua Sports Pty Ltd [2018] NSWSC 706

Aspinall v Aqua Sports Pty Ltd [2018] NSWSC 706

The cross-vesting application was refused because the proceedings raised a discrete issue concerning the identity of the trustee and administration of a trust, falling clearly within the Supreme Court's Equity jurisdiction and capable of quick and efficient determination, whereas transfer would risk delay and further interlocutory steps. Aqua Sports Pty Limited was removed and independent trustees were appointed because the trustee company was deadlocked, had been unable to perform duties including considering income appointments, faced conflict and financial concerns, and its continuation was not in the interests of beneficiaries or proper trust administration. Conditions were imposed to...

Jurisdiction
Australia
Judgment Date
18 May 2018
Procedural Posture
Equity Proceeding Concerning Removal and Appointment of Trustees, With Application to Transfer Proceedings to the Family Court of Australia Under Cross Vesting Legislation / Principal Judgment on Summons and Cross Vesting Application; Orders Made
Outcome
Cross-vesting application refused; new trustees appointed in substitution for Aqua Sports Pty Limited; trust property vested in new trustees; limitations imposed on new trustees; balance of summons dismissed; plaintiff awarded costs out of trust property on the ordinary basis.
Legal Topics
['appointment and Removal of Trustees' 'court Supervision of Trustees' 'deadlock in Trustee Company' 'vesting of Trust Property in New Trustees' 'cross Vesting Transfer to Family Court of Australia' 'costs Out of Trust Property']
['equity' 'trusts and Trustees' 'civil Procedure' 'family Law'] ['appointment and Removal of Trustees' 'court Supervision of Trustees' 'deadlock in Trustee Company' 'vesting of Trust Property in New Trustees' 'cross Vesting Transfer to Family Court of Australia' 'costs Out of Trust Property']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Removal and Appointment of Trustees, With Application to Transfer Proceedings to the Family Court of Australia Under Cross Vesting Legislation / Principal Judgment on Summons and Cross Vesting Application; Orders Made

Legal Issues

  1. 1 ['Whether the Supreme Court proceedings should be transferred to the Family Court of Australia under s 5(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW).' 'Whether Aqua Sports Pty Limited should be removed as trustee of the Aspinall Trust and independent trustees appointed under s 70 of the Trustee Act 1925 (NSW).' 'Whether trust property should be vested in the new trustees under s 71 of the Trustee Act 1925 (NSW).' 'Whether limitations should be imposed on the new trustees to preserve issues in the Family Court proceedings.' 'Whether the plaintiff should receive costs out of the trust property and on what basis.']

Ratio Decidendi

The cross-vesting application was refused because the proceedings raised a discrete issue concerning the identity of the trustee and administration of a trust, falling clearly within the Supreme Court's Equity jurisdiction and capable of quick and efficient determination, whereas transfer would risk delay and further interlocutory steps. Aqua Sports Pty Limited was removed and independent trustees were appointed because the trustee company was deadlocked, had been unable to perform duties including considering income appointments, faced conflict and financial concerns, and its continuation was not in the interests of beneficiaries or proper trust administration. Conditions were imposed to...

Court Disposition

Cross-vesting application refused; new trustees appointed in substitution for Aqua Sports Pty Limited; trust property vested in new trustees; limitations imposed on new trustees; balance of summons dismissed; plaintiff awarded costs out of trust property on the ordinary basis.

Orders

  • ['Order pursuant to s 70 of the Trustee Act 1925 (NSW) that Blair Pleash and Joanne Freeman be appointed trustees of the Aspinall Trust in substitution for Aqua Sports Pty Ltd (ACN 078 971 945).' 'Order pursuant to s 71 of the Trustee Act 1925 (NSW) that all of the property held subject to the Aspinall Trust be...