Donato v Thermo-Tec Products Pty Ltd [2000] NSWSC 236

Donato v Thermo-Tec Products Pty Ltd [2000] NSWSC 236

The trustee did not act unreasonably in attending the premises without notice or in later applying ex parte. Given his fears about the disclosure and safety of trust property and the defendants' exclusion of him from the premises with the aid of police without proper inquiry, it was understandable and appropriate for him to seek further orders from the Court. The fourth to seventh defendants were therefore ordered to pay the trustee's costs, and their motion for costs was dismissed.

Jurisdiction
Australia
Judgment Date
17 March 2000
Procedural Posture
Equity Proceedings for Removal of a Trustee; Cross Applications for Costs of an Ex Parte Injunction Application / Determination of Motions for Costs After Ex Parte Injunctions Granted on 9 January 1998
Outcome
Trustee's costs motion allowed; defendants' costs motion dismissed.
Legal Topics
['ex Parte Injunctions' 'costs of Interlocutory Application' 'trustee Access to Trust Property and Records' 'non Joinder of Trustee' 'opinion Evidence']
['equity' 'trusts' 'civil Procedure' 'costs' 'evidence'] ['ex Parte Injunctions' 'costs of Interlocutory Application' 'trustee Access to Trust Property and Records' 'non Joinder of Trustee' 'opinion Evidence']

Case Brief

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Procedural Posture

Equity Proceedings for Removal of a Trustee; Cross Applications for Costs of an Ex Parte Injunction Application / Determination of Motions for Costs After Ex Parte Injunctions Granted on 9 January 1998

Legal Issues

  1. 1 ['Whether the trustee acted unreasonably by attending the premises on 7 January 1998 without notice and with a large group of people to attempt to inspect or take possession of trust property.' 'Whether the trustee acted unreasonably in applying for ex parte orders on 9 January 1998 without further notice.' 'Whether the defendants or the trustee should pay the costs of the ex parte injunction application and the related costs motions.' 'Whether any procedural irregularity arising from the trustee not having been joined as a party prevented determination of his costs motion.']

Ratio Decidendi

The trustee did not act unreasonably in attending the premises without notice or in later applying ex parte. Given his fears about the disclosure and safety of trust property and the defendants' exclusion of him from the premises with the aid of police without proper inquiry, it was understandable and appropriate for him to seek further orders from the Court. The fourth to seventh defendants were therefore ordered to pay the trustee's costs, and their motion for costs was dismissed.

Court Disposition

Trustee's costs motion allowed; defendants' costs motion dismissed.

Orders

  • ['The fourth, fifth, sixth and seventh defendants are to pay the costs of the trustee, Schon Gregory Condon, of the ex parte application before Hamilton J on 9 January 1998.' "The fourth, fifth, sixth and seventh defendants are to pay the trustee's costs of the two motions relating to the costs of the ex parte...