Mercanti v Mercanti [2017] HCA 1

Mercanti v Mercanti [2017] HCA 1

Given that the prospects of special leave cannot be said to be insubstantial and that the balance of convenience strongly favours maintaining the existing injunctions, interlocutory orders restraining the respondents from exercising powers over the MMF Trust are to be continued pending the hearing and determination of the special leave application, or further order.

Parties
Applicant: Jason Dean Mercanti; First Respondent: Tyrone Kane Mercanti; Second Respondent: Parradele Pty Ltd; Third Respondent: Slondia Nominees Pty Ltd; Fifth Respondent: Michael Mercanti
Jurisdiction
Australia
Judgment Date
05 January 2017
Procedural Posture
Application for Interlocutory Injunctions / Pending Special Leave to Appeal to the High Court
Outcome
Interlocutory injunctions granted
Legal Topics
Interlocutory Injunctions, Fraud on a Power, Stay of Proceedings, Trust Variation, Appointments Under Trust Deed
Equity Trusts Practice and Procedure Interlocutory Injunctions Fraud on a Power Stay of Proceedings Trust Variation Appointments Under Trust Deed

Case Brief

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Parties

Jason Dean Mercanti

Applicant

Tyrone Kane Mercanti

First Respondent

Parradele Pty Ltd

Second Respondent

Slondia Nominees Pty Ltd

Third Respondent

Michael Mercanti

Fifth Respondent

Procedural Posture

Application for Interlocutory Injunctions / Pending Special Leave to Appeal to the High Court

Legal Issues

  1. 1 Whether interlocutory injunctions should be granted pending application for special leave to appeal
  2. 2 Whether varying a trust deed to appoint a beneficiary as Appointor and Guardian with intention to advance inheritance constitutes a fraud on a power

Ratio Decidendi

Given that the prospects of special leave cannot be said to be insubstantial and that the balance of convenience strongly favours maintaining the existing injunctions, interlocutory orders restraining the respondents from exercising powers over the MMF Trust are to be continued pending the hearing and determination of the special leave application, or further order.

Court Disposition

Interlocutory injunctions granted

Orders

  • First respondent restrained from exercising powers as Appointor or Guardian of the MMF Trust until determination of the application for special leave to appeal and any appeal, or further order.
  • Second respondent restrained from acting as Trustee of the MMF Trust, including dealing with assets or incurring liabilities, until determination of the application for special leave to appeal and any appeal, or further order.