Lea v Mo-Mont Pacific & Ors [2016] NSWSC 809

Lea v Mo-Mont Pacific & Ors [2016] NSWSC 809

The amended statement of claim disclosed an arguable cause of action because, although the plaintiff as a discretionary object had no proprietary interest in the trust assets, she could seek to enforce the trustee's obligation properly to exercise discretionary powers; her allegations and evidence concerning lack of fair and proper consideration, absence of good faith in distributions, and removal of the trustee and appointor raised factual and legal matters for trial. The defendants' submissions addressed only part of the claim and did not justify strike out or dismissal.

Jurisdiction
Australia
Judgment Date
15 June 2016
Procedural Posture
Equity Proceeding Concerning Discretionary Trust Administration and Removal of Trustee and Appointor / Defendants' Notice of Motion to Strike Out the Amended Statement of Claim and Dismiss the Proceedings
Outcome
Defendants' notice of motion dismissed with costs.
Legal Topics
['pleadings' 'strike Out Application' 'summary Dismissal' 'discretionary Trust' "discretionary Object's Rights" 'removal of Trustee' 'removal of Appointor']
['practice and Procedure' 'equity' 'trusts'] ['pleadings' 'strike Out Application' 'summary Dismissal' 'discretionary Trust' "discretionary Object's Rights" 'removal of Trustee' 'removal of Appointor']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Discretionary Trust Administration and Removal of Trustee and Appointor / Defendants' Notice of Motion to Strike Out the Amended Statement of Claim and Dismiss the Proceedings

Legal Issues

  1. 1 ["Whether the plaintiff's amended statement of claim should be struck out pursuant to UCPR r 14.28." 'Whether the proceedings should be dismissed pursuant to UCPR r 13.4.' "Whether a discretionary object has an arguable right to enforce the trustee's obligation properly to exercise discretionary powers despite having no legal or equitable interest in trust assets." 'Whether the claims for removal of the trustee and appointor and for relief concerning trust distributions raised matters appropriate for trial.']

Ratio Decidendi

The amended statement of claim disclosed an arguable cause of action because, although the plaintiff as a discretionary object had no proprietary interest in the trust assets, she could seek to enforce the trustee's obligation properly to exercise discretionary powers; her allegations and evidence concerning lack of fair and proper consideration, absence of good faith in distributions, and removal of the trustee and appointor raised factual and legal matters for trial. The defendants' submissions addressed only part of the claim and did not justify strike out or dismissal.

Court Disposition

Defendants' notice of motion dismissed with costs.

Orders

  • ["The defendants' notice of motion be dismissed with costs." "The matter is stood over into the Registrar's list on Monday 20 June 2016 for the purpose of fixing a hearing date."]