Frank Wheeler as Trustee for Avoca No4 Trust v. McGregor & 2 Ors [2003] NSWSC 912

Frank Wheeler as Trustee for Avoca No4 Trust v. McGregor & 2 Ors [2003] NSWSC 912

Crackup Pty Ltd was in fact trustee of Avoca No 4 Trust, not Avoca No 3 Trust, when the partnership arrangement was made, so the reference to Avoca No 3 Trust was a misnomer. Exhibit E established that Frank Wheeler had been appointed new trustee of the Avoca No 4 Trust. Clause 29(2) did not make endorsement on the Deed of Settlement essential to the validity of that appointment. The plaintiff therefore had standing to bring the proceedings as new trustee of the partner referred to as Avoca No 4 Trust.

Jurisdiction
Australia
Judgment Date
30 September 2003
Procedural Posture
Proceedings for Winding Up Partnership / Interlocutory Ruling on the Plaintiff's Standing
Outcome
The plaintiff has standing.
Legal Topics
['standing' 'appointment of New Trustee' 'construction of Trust Deed' 'misnomer in Partnership Agreement' 'identity of Partner']
['partnership' 'trusts' 'equity'] ['standing' 'appointment of New Trustee' 'construction of Trust Deed' 'misnomer in Partnership Agreement' 'identity of Partner']

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Procedural Posture

Proceedings for Winding Up Partnership / Interlocutory Ruling on the Plaintiff's Standing

Legal Issues

  1. 1 ['Whether the reference to Avoca No 3 Trust in the definition of Partner Two was a misnomer and should be understood as referring to Avoca No 4 Trust.' 'Whether Frank Wheeler was validly appointed as new trustee of the Avoca No 4 Trust.' 'Whether clause 29(2) of the Deed of Settlement made endorsement of the appointment on the deed essential to the validity of the appointment of a new trustee.' 'Whether the plaintiff had standing to bring the proceedings as new trustee of the partner referred to as Avoca No 4 Trust.']

Ratio Decidendi

Crackup Pty Ltd was in fact trustee of Avoca No 4 Trust, not Avoca No 3 Trust, when the partnership arrangement was made, so the reference to Avoca No 3 Trust was a misnomer. Exhibit E established that Frank Wheeler had been appointed new trustee of the Avoca No 4 Trust. Clause 29(2) did not make endorsement on the Deed of Settlement essential to the validity of that appointment. The plaintiff therefore had standing to bring the proceedings as new trustee of the partner referred to as Avoca No 4 Trust.

Court Disposition

The plaintiff has standing.

Orders

  • ['The plaintiff has standing to bring the proceedings as New Trustee of the Partner referred to as Avoca No 4 Trust.' 'The proceedings will continue on that basis.']