Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251

Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251

The trustee is justified in completing the contract for sale since the statutory trust under s 66G obliges the trustee to carry out the sale, the beneficiaries' opposition does not require the trustee to terminate the sale because their wishes are not consistent with the general interests of the trust, and there is no legal basis for unilateral rescission or termination of the contract by the trustee.

Jurisdiction
Australia
Judgment Date
05 October 2010
Procedural Posture
Application for Judicial Advice by Trustee / Ex Tempore Judgment
Outcome
Application granted; judicial advice given that the trustee would be justified in completing the contract for sale.
Legal Topics
["trustee's Duties" 'statutory Trust for Sale' 'court Advice to Trustee' 'contract for Sale of Land']
['equity' 'trusts and Trustees'] ["trustee's Duties" 'statutory Trust for Sale' 'court Advice to Trustee' 'contract for Sale of Land']

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Procedural Posture

Application for Judicial Advice by Trustee / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the trustee is justified in completing the contract for sale of trust property in the face of unanimous opposition from beneficiaries' "Whether the trustee must give effect to the beneficiaries' directions in these circumstances"]

Ratio Decidendi

The trustee is justified in completing the contract for sale since the statutory trust under s 66G obliges the trustee to carry out the sale, the beneficiaries' opposition does not require the trustee to terminate the sale because their wishes are not consistent with the general interests of the trust, and there is no legal basis for unilateral rescission or termination of the contract by the trustee.

Court Disposition

Application granted; judicial advice given that the trustee would be justified in completing the contract for sale.

Orders

  • ['Advise that the applicant/trustee Richard Albarran would be justified in carrying to completion the contract dated 5 July 2010 for sale of the land situate at and known as xxx Cedar Road, Prestons, NSW, being the land comprised in Folio Identifier 60/105XXXX.' 'Order that the costs of the application be paid out...