Katz v Grossman [2005] NSWSC 934

Katz v Grossman [2005] NSWSC 934

Linda Grossman was validly appointed as an additional trustee because, after Mrs Katz's death and the substantial delay in obtaining probate, there was no majority of members able and willing to appoint a new trustee within a reasonable time, enabling Mr Katz as continuing trustee to act under s.6(4)(b) of the Trustee Act 1925. Linda Grossman was not validly admitted as a member because her own acceptance of her membership application was not shown to have the consent or authority of both trustees. Nevertheless, after Ervin Katz's death there was no person nominated by the trust deed able and willing to appoint a new trustee within a reasonable time, so Linda Grossman as continuing...

Jurisdiction
Australia
Judgment Date
16 September 2005
Procedural Posture
Equity Division Proceeding Concerning Appointment of Trustees of a Superannuation Trust Fund / Judgment After Hearing
Outcome
Plaintiff's action dismissed.
Legal Topics
['appointment of New Trustee' 'construction and Application of S.6(4)(b) of Trustee Act 1925' 'membership of Superannuation Fund' 'costs Out of Trust Fund']
['trusts' 'superannuation' 'equity'] ['appointment of New Trustee' 'construction and Application of S.6(4)(b) of Trustee Act 1925' 'membership of Superannuation Fund' 'costs Out of Trust Fund']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning Appointment of Trustees of a Superannuation Trust Fund / Judgment After Hearing

Legal Issues

  1. 1 ["Whether Linda Ann Grossman was validly appointed as an additional trustee of the E Katz Employees' Trust Fund on 18 May 1999." 'Whether Linda Ann Grossman was validly admitted as a member of the Fund on 30 August 2003.' 'Whether Peter Anthony Grossman was validly appointed as a new trustee of the Fund on 5 December 2003.' 'Whether costs should be paid by one party or out of the Fund.']

Ratio Decidendi

Linda Grossman was validly appointed as an additional trustee because, after Mrs Katz's death and the substantial delay in obtaining probate, there was no majority of members able and willing to appoint a new trustee within a reasonable time, enabling Mr Katz as continuing trustee to act under s.6(4)(b) of the Trustee Act 1925. Linda Grossman was not validly admitted as a member because her own acceptance of her membership application was not shown to have the consent or authority of both trustees. Nevertheless, after Ervin Katz's death there was no person nominated by the trust deed able and willing to appoint a new trustee within a reasonable time, so Linda Grossman as continuing...

Court Disposition

Plaintiff's action dismissed.

Orders

  • ["The costs of both parties including the reserved costs should be paid out of the E Katz Employees' Superannuation Fund, those of the defendants on a trustee-indemnity basis." "The plaintiff's action is dismissed." 'An order is made for the costs of both parties in accordance with paragraph 58.']