Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328

Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328

The second Defendant would not be justified in conducting the defence of proceedings, as allegations pertain personally to the first Defendant and not the trustee. The second Defendant would be justified in prosecuting the cross-claim as amended for determination of beneficial ownership, as this falls within trust management. The second Defendant would not be justified in paying costs of either Defendant out of trust property for defence or cross-claim at this stage.

Parties
Plaintiff: Elizabeth Hargrave; First Defendant: Paul Schumann; Second Defendant: Gnitekram Marketing Pty Limited
Jurisdiction
Australia
Judgment Date
17 November 2010
Procedural Posture
Application Under Trustee Act S 63 / Judicial Advice—final Determination
Outcome
Orders made under Trustee Act s 63 for judicial advice to trustee.
Legal Topics
Trustee Advice, Trust Management, Beneficial Ownership Determination, Payment of Trust Costs
Equity Trusts Trustee Advice Trust Management Beneficial Ownership Determination Payment of Trust Costs

Case Brief

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Parties

Elizabeth Hargrave

Plaintiff

Paul Schumann

First Defendant

Gnitekram Marketing Pty Limited

Second Defendant

Procedural Posture

Application Under Trustee Act S 63 / Judicial Advice—final Determination

Legal Issues

  1. 1 Whether the second Defendant as trustee should conduct the defence of proceedings
  2. 2 Whether the second Defendant should prosecute the cross-claim regarding beneficial interest
  3. 3 Whether payment of costs out of the trust estate for defence or cross-claim is justified

Ratio Decidendi

The second Defendant would not be justified in conducting the defence of proceedings, as allegations pertain personally to the first Defendant and not the trustee. The second Defendant would be justified in prosecuting the cross-claim as amended for determination of beneficial ownership, as this falls within trust management. The second Defendant would not be justified in paying costs of either Defendant out of trust property for defence or cross-claim at this stage.

Court Disposition

Orders made under Trustee Act s 63 for judicial advice to trustee.

Orders

  • Second Defendant would not be justified in conducting the defence of proceedings.
  • Second Defendant would be justified in prosecuting the cross-claim as amended to determine identity of beneficial interest in Tenterfield Property.