Fischer v Nemeske Pty Ltd [2016] HCA 11

Fischer v Nemeske Pty Ltd [2016] HCA 11

The resolution and accounting entries did not effect a valid advance or application of capital to Mr and Mrs Nemes under cl 4(b), as they did not alter the beneficial ownership or vest property out of the trust; consequently, no debt was owed, the charge deed was ineffective, and the appeal should be allowed.

Parties
Appellants: Robert William Fischer & Ors; Respondent: Nemeske Pty Ltd; Respondents: Lorand Loblay and Karen Loblay (executors of the estate of Emery Nemes); Respondents: Fourth to Twelfth Respondents
Jurisdiction
Australia
Judgment Date
06 April 2016
Procedural Posture
Appeal / High Court Judgment
Outcome
Appeal allowed
Legal Topics
Trustee Powers, Power of Advancement, Distribution of Trust Capital, Beneficiary Entitlement
Trusts Equity Trustee Powers Power of Advancement Distribution of Trust Capital Beneficiary Entitlement

Case Brief

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Parties

Robert William Fischer & Ors

Appellants

Nemeske Pty Ltd

Respondent

Lorand Loblay and Karen Loblay (executors of the estate of Emery Nemes)

Respondents

Fourth to Twelfth Respondents

Respondents

Procedural Posture

Appeal / High Court Judgment

Legal Issues

  1. 1 Whether the trustee validly exercised the power to advance and apply capital under cl 4(b) of the trust deed
  2. 2 Whether the resolution and account entries conferred a debt enforceable by Mr and Mrs Nemes against the trustee
  3. 3 Whether an action for money had and received is maintainable against the trustee

Ratio Decidendi

The resolution and accounting entries did not effect a valid advance or application of capital to Mr and Mrs Nemes under cl 4(b), as they did not alter the beneficial ownership or vest property out of the trust; consequently, no debt was owed, the charge deed was ineffective, and the appeal should be allowed.

Court Disposition

Appeal allowed

Orders

  • Nemeske Pty Ltd as trustee is not indebted to the executors of the estate of Emery Nemes
  • The resolution of 23 September 1994 is of no effect