Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344

Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344

The loans, securities and causes of action were trust assets. The right of indemnity and equitable lien of the former trustee survived appointment of a new trustee but did not entitle the old trustee to retain possession of trust assets as against the new trustee; vesting of assets occurred by statute and former trustee’s rights remain enforceable against the assets, not by retention but by appropriate claim.

Jurisdiction
Australia
Judgment Date
11 November 2008
Procedural Posture
Interlocutory Application / Judgment on Application for Declarations and Related Orders
Outcome
Application granted in relevant respects
Legal Topics
["trustee's Right of Indemnity" 'equitable Liens' 'vesting of Trust Property' 'replacement of Trustee']
['equity' 'trusts and Trustees' 'corporations Law'] ["trustee's Right of Indemnity" 'equitable Liens' 'vesting of Trust Property' 'replacement of Trustee']

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Procedural Posture

Interlocutory Application / Judgment on Application for Declarations and Related Orders

Legal Issues

  1. 1 ['Whether loans, securities and causes of action are assets of the Reliance Discretionary Trust' 'Whether a former trustee is entitled to retain possession of trust assets as security for its right of indemnity against the trust assets after replacement by a new trustee']

Ratio Decidendi

The loans, securities and causes of action were trust assets. The right of indemnity and equitable lien of the former trustee survived appointment of a new trustee but did not entitle the old trustee to retain possession of trust assets as against the new trustee; vesting of assets occurred by statute and former trustee’s rights remain enforceable against the assets, not by retention but by appropriate claim.

Court Disposition

Application granted in relevant respects

Orders

  • ['Pursuant to Corporations Act 2001 s 471B, leave granted to Reliance Financial Services NSW Pty Ltd to institute and continue proceedings as per the application.' 'Declaration that Reliance Financial Services NSW Pty Ltd was appointed trustee of the Reliance Discretionary Trust on 26 June 2008, replacing Reliance...