Hallani v Hallani (No 2) [2013] NSWSC 790

Hallani v Hallani (No 2) [2013] NSWSC 790

The defendant was not entitled to relief under s 85 because, even if his transfer of funds to Lebanon could be characterised as subjectively honest, he deliberately transferred the money without notice to the plaintiff with the intention of placing it within his father's practical control and excluding the plaintiff, had no reasonable grounds for believing the conduct was honest, acted unreasonably, and had done nothing concrete to rectify the breach or show that he ought fairly to be excused.

Jurisdiction
Australia
Judgment Date
06 June 2013
Procedural Posture
Equity Proceedings Concerning Breach of Trust and Relief From Trustee Liability / Separate Determination of Whether the Defendant Should Be Granted Relief Under S 85 of the Trustee Act 1925 NSW Following Earlier Judgment
Outcome
Relief under s 85 was declined; judgment was entered for the plaintiff for $148,676.36 inclusive of interest, with costs.
Legal Topics
['breach of Trust' 'relief From Liability of Trustee' 'trustee Accounting' 'pre Judgment Interest' 'costs Follow the Event']
['equity' 'trusts and Trustees' 'civil Procedure'] ['breach of Trust' 'relief From Liability of Trustee' 'trustee Accounting' 'pre Judgment Interest' 'costs Follow the Event']

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Procedural Posture

Equity Proceedings Concerning Breach of Trust and Relief From Trustee Liability / Separate Determination of Whether the Defendant Should Be Granted Relief Under S 85 of the Trustee Act 1925 NSW Following Earlier Judgment

Legal Issues

  1. 1 ["Whether the defendant should be granted relief under s 85 of the Trustee Act 1925 NSW for breach of trust by transferring trust money to Lebanon beyond the plaintiff's practical control." "Whether subsequent events or documents concerning property purchase or education expenses justified a different view of the defendant's breach or satisfied his obligation to account." 'Whether interest should be awarded on the amount for which the defendant was liable.']

Ratio Decidendi

The defendant was not entitled to relief under s 85 because, even if his transfer of funds to Lebanon could be characterised as subjectively honest, he deliberately transferred the money without notice to the plaintiff with the intention of placing it within his father's practical control and excluding the plaintiff, had no reasonable grounds for believing the conduct was honest, acted unreasonably, and had done nothing concrete to rectify the breach or show that he ought fairly to be excused.

Court Disposition

Relief under s 85 was declined; judgment was entered for the plaintiff for $148,676.36 inclusive of interest, with costs.

Orders

  • ["Decline to excuse the defendant's breach of trust, in whole or part, under the Trustee Act 1925 NSW, s 85." 'Order that the defendant pay to the plaintiff the sum of $148,676.36.' "Order that the defendant pay the plaintiff's costs of the proceedings." 'Order that exhibits and subpoenaed material may be returned...