Woodward v Woodward [2014] NSWSC 481

Woodward v Woodward [2014] NSWSC 481

The plaintiff established to the interlocutory standard a reasonably arguable case that the June 2013 distributions were made in breach of trust or were not genuine exercises of trustee discretion, including because the capital distribution to the Rungdee Trust prima facie contravened clause 9(c) of the trust deed. There was evidence of a risk that funds might be moved to Thailand, and the defendants adduced no evidence showing the balance of convenience opposed preservation orders. Zelotde Pty Ltd should be joined because the claim against it was not shown to be summarily dismissible and no procedural unfairness was asserted, but it was given leave to seek to vacate or vary the orders...

Jurisdiction
Australia
Judgment Date
28 April 2014
Procedural Posture
Interlocutory Applications / Decision on Plaintiff's Interlocutory Application for Preservation of Trust Funds and Joinder of Zelotde Pty Ltd
Outcome
Interlocutory relief granted subject to confirmation that the parties' solicitors were prepared to hold the funds; Zelotde Pty Ltd joined as third defendant.
Legal Topics
['trust Assets' 'breach of Trust' 'distributions of Income and Capital' 'interlocutory Injunctions' 'joinder of Parties' 'balance of Convenience']
['equity' 'trusts' 'civil Procedure'] ['trust Assets' 'breach of Trust' 'distributions of Income and Capital' 'interlocutory Injunctions' 'joinder of Parties' 'balance of Convenience']

Case Brief

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Procedural Posture

Interlocutory Applications / Decision on Plaintiff's Interlocutory Application for Preservation of Trust Funds and Joinder of Zelotde Pty Ltd

Legal Issues

  1. 1 ['Whether Zelotde Pty Ltd, as trustee for the Rungdee Trust, should be joined as the third defendant.' "Whether the plaintiff had made out a prima facie case that distributions of income and capital from the Woodward Family Trust involved breach of trust or were not genuine exercises of the trustee's discretion." "Whether interlocutory orders should be made to preserve monies paid out of the Woodward Family Trust's account pending determination of the dispute." 'Whether Zelotde Pty Ltd or the existing defendants would suffer procedural unfairness from joinder after the interlocutory hearing.']

Ratio Decidendi

The plaintiff established to the interlocutory standard a reasonably arguable case that the June 2013 distributions were made in breach of trust or were not genuine exercises of trustee discretion, including because the capital distribution to the Rungdee Trust prima facie contravened clause 9(c) of the trust deed. There was evidence of a risk that funds might be moved to Thailand, and the defendants adduced no evidence showing the balance of convenience opposed preservation orders. Zelotde Pty Ltd should be joined because the claim against it was not shown to be summarily dismissible and no procedural unfairness was asserted, but it was given leave to seek to vacate or vary the orders...

Court Disposition

Interlocutory relief granted subject to confirmation that the parties' solicitors were prepared to hold the funds; Zelotde Pty Ltd joined as third defendant.

Orders

  • ['Order that Zelotde Pty Ltd, as trustee for the Rungdee Trust, be joined in these proceedings as the third defendant.' "Grant leave to the third defendant to apply on seven days' notice to the plaintiff for an order vacating the order that it be joined as a third defendant, and vacating or varying any of these...