Cihan v Cihan (No 2) [2022] NSWSC 962

Cihan v Cihan (No 2) [2022] NSWSC 962

The plaintiff substantially succeeded in the proceedings because he remained Trustee and Kadir was no longer the sole Nominator with unilateral power to appoint his own nominee as Trustee, so the usual inter partes costs order should be made against the defendants. The plaintiff also acted reasonably in his capacity as Trustee, his position was vindicated, and he was entitled to immediate indemnity for his costs from the Trust assets, subject to refunding any costs recovered from the defendants back into the Trust.

Jurisdiction
Australia
Judgment Date
19 July 2022
Procedural Posture
Costs Application in Equity Proceedings Concerning a Discretionary Family Trust / On the Papers After Judgment and Consent Declarations
Outcome
Costs orders made in favour of the plaintiff.
Legal Topics
['discretionary Family Trust' 'removal of Trustee' 'appointment of Nominators' 'inter Partes Costs' 'costs Out of Trust Assets' 'trustee Indemnity']
['equity' 'trusts' 'costs'] ['discretionary Family Trust' 'removal of Trustee' 'appointment of Nominators' 'inter Partes Costs' 'costs Out of Trust Assets' 'trustee Indemnity']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Concerning a Discretionary Family Trust / On the Papers After Judgment and Consent Declarations

Legal Issues

  1. 1 ["Whether the defendants should pay the plaintiff's costs of the proceedings." 'Whether the plaintiff should be indemnified for his costs and expenses out of the Cihan Family Trust assets.']

Ratio Decidendi

The plaintiff substantially succeeded in the proceedings because he remained Trustee and Kadir was no longer the sole Nominator with unilateral power to appoint his own nominee as Trustee, so the usual inter partes costs order should be made against the defendants. The plaintiff also acted reasonably in his capacity as Trustee, his position was vindicated, and he was entitled to immediate indemnity for his costs from the Trust assets, subject to refunding any costs recovered from the defendants back into the Trust.

Court Disposition

Costs orders made in favour of the plaintiff.

Orders

  • ["The defendants pay the plaintiff's costs of the proceedings." "The plaintiff's costs of the proceedings be paid out of the Cihan Family Trust on a solicitor-client basis."]