El Sayed v El Hawach [2015] NSWCA 26

El Sayed v El Hawach [2015] NSWCA 26

Eligible beneficiaries, who claimed to be trustee and appointor, had standing to seek court determination given the trustee's unwillingness to act and the existence of special circumstances. Appointment of Mr Hawach as appointor did not constitute a breach of fiduciary duty because there was no real conflict between his interests and duties and no evidence he exercised powers to benefit himself improperly.

Jurisdiction
Australia
Judgment Date
26 February 2015
Procedural Posture
Appeal / Final Judgment Appeal and Cross Appeal
Outcome
Appeal dismissed. Cross-appeal allowed.
Legal Topics
['discretionary Trust' 'fiduciary Duties' 'appointor Powers' 'standing' 'derivative Action']
['equity' 'trusts and Trustees'] ['discretionary Trust' 'fiduciary Duties' 'appointor Powers' 'standing' 'derivative Action']

Case Brief

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Procedural Posture

Appeal / Final Judgment Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether eligible beneficiaries of a discretionary trust had standing to bring derivative action' 'Whether appointment of an eligible beneficiary as appointor was a breach of fiduciary duty']

Ratio Decidendi

Eligible beneficiaries, who claimed to be trustee and appointor, had standing to seek court determination given the trustee's unwillingness to act and the existence of special circumstances. Appointment of Mr Hawach as appointor did not constitute a breach of fiduciary duty because there was no real conflict between his interests and duties and no evidence he exercised powers to benefit himself improperly.

Court Disposition

Appeal dismissed. Cross-appeal allowed.

Orders

  • ['Order 6 made on 20 December 2013 set aside.' 'Order 7 made on 20 December 2013 varied by deleting the word ‘otherwise’.' 'Order 8 made on 20 December 2013 varied by deleting the words ‘75% of’.' 'Appellants/cross-respondents to pay costs of the respondents/cross-appellants of the appeal and cross-appeal.']