Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285

Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285

The purported removal of Hillcrest (Ilford) Pty Ltd as trustee was ineffective because cl 7(6) of the Trust Deed required approval by resolution of its directors and no such resolution existed. The purported appointment of Kingsford (Ilford) Pty Ltd was also ineffective because it likewise lacked director approval under cl 7(6) and, as a company solely controlled by Trevor Harding, its appointment was in favour of the person exercising the power, contrary to cl 7(5). Because Kingsford (Ilford) Pty Ltd was not validly appointed trustee, and in any event the appointment deed had not been registered so as to vest any relevant interest, it had no caveatable interest in the Property and the...

Jurisdiction
Australia
Judgment Date
16 April 2010
Procedural Posture
Equity Proceedings Concerning Construction of a Trust Deed, Removal and Appointment of Trustee, and Validity of a Caveat / Final Judgment
Outcome
Plaintiff successful; declarations and orders made against the defendants, with costs to the plaintiff.
Legal Topics
['construction of Trust Deed' 'appointment and Removal of Trustee' 'caveatable Interest' 'lodgement of Subsequent Caveat' 'trustee Act Vesting Provisions']
['trusts' 'real Property' 'equity'] ['construction of Trust Deed' 'appointment and Removal of Trustee' 'caveatable Interest' 'lodgement of Subsequent Caveat' 'trustee Act Vesting Provisions']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Construction of a Trust Deed, Removal and Appointment of Trustee, and Validity of a Caveat / Final Judgment

Legal Issues

  1. 1 ['Whether Hillcrest (Ilford) Pty Ltd was effectively removed as trustee of the Hillcrest (Harding) Trust without a resolution of its directors approving the removal.' 'Whether Kingsford (Ilford) Pty Ltd was effectively appointed as an additional or replacement trustee of the Trust.' 'Whether the appointment of Kingsford (Ilford) Pty Ltd contravened the prohibition on exercising the power of appointment in favour of the person exercising the power.' 'Whether Kingsford (Ilford) Pty Ltd had a caveatable interest in the Property when it lodged caveat number AF76146Q.' 'Whether s 74O of the Real Property Act 1900 required leave of the Court before lodgement of the Second Caveat.']

Ratio Decidendi

The purported removal of Hillcrest (Ilford) Pty Ltd as trustee was ineffective because cl 7(6) of the Trust Deed required approval by resolution of its directors and no such resolution existed. The purported appointment of Kingsford (Ilford) Pty Ltd was also ineffective because it likewise lacked director approval under cl 7(6) and, as a company solely controlled by Trevor Harding, its appointment was in favour of the person exercising the power, contrary to cl 7(5). Because Kingsford (Ilford) Pty Ltd was not validly appointed trustee, and in any event the appointment deed had not been registered so as to vest any relevant interest, it had no caveatable interest in the Property and the...

Court Disposition

Plaintiff successful; declarations and orders made against the defendants, with costs to the plaintiff.

Orders

  • ['Declaration that the purported removal of Hillcrest (Ilford) Pty Ltd as trustee of the Hillcrest (Harding) Trust by Donald Trevor Harding is of no effect.' 'Declaration that the purported appointment of Kingsford (Ilford) Pty Ltd as additional trustee of the Hillcrest (Harding) Trust is of no effect.' 'Order that...