In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703

In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703

Clause 26 of the trust deed permitted the sole member of The Dean Superfund to remove the trustee and appoint a new trustee by written resolution, and Overdean consented to act, so Overdean was validly appointed trustee. A vesting order and delivery up orders were refused because the property was not sufficiently identified and contested interests, including possible third party interests, could not be determined on the interlocutory application. Because Nominees as trustee had made a substantial loan to BLE and Overdean had replaced Nominees as trustee, Overdean's legal rights could be directly affected in the substantive proceedings and it should be joined as a defendant.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Interlocutory Application in Equity Corporations List / Procedural and Other Ruling Before Substantive Proceedings Listed for Hearing
Outcome
Declaration made that Overdean Developments Pty Ltd is the trustee of The Dean Superfund; Overdean ordered to be joined as a defendant in proceedings 2014/229138 and 2018/99714; costs reserved.
Legal Topics
['appointment and Removal of Trustee' 'vesting Order Under Trustee Act 1925 (nsw) S 71' 'joinder of Parties' 'irrevocable Power of Attorney' 'delivery Up of Certificates of Title']
['trusts' 'corporations' 'civil Procedure'] ['appointment and Removal of Trustee' 'vesting Order Under Trustee Act 1925 (nsw) S 71' 'joinder of Parties' 'irrevocable Power of Attorney' 'delivery Up of Certificates of Title']

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Procedural Posture

Interlocutory Application in Equity Corporations List / Procedural and Other Ruling Before Substantive Proceedings Listed for Hearing

Legal Issues

  1. 1 ['Whether Overdean Developments Pty Ltd was validly appointed trustee of The Dean Superfund after removal of BAD Nominees (NSW) Pty Ltd.' 'Whether a vesting order should be made under s 71 of the Trustee Act 1925 (NSW) in respect of property said to be held by the former trustee subject to the trust.' 'Whether Overdean Developments Pty Ltd should be joined as a defendant in proceedings 2014/229138 and 2018/99714.' 'Whether orders should be made concerning termination of the power of attorney or delivery up of certificates of title and other documents.']

Ratio Decidendi

Clause 26 of the trust deed permitted the sole member of The Dean Superfund to remove the trustee and appoint a new trustee by written resolution, and Overdean consented to act, so Overdean was validly appointed trustee. A vesting order and delivery up orders were refused because the property was not sufficiently identified and contested interests, including possible third party interests, could not be determined on the interlocutory application. Because Nominees as trustee had made a substantial loan to BLE and Overdean had replaced Nominees as trustee, Overdean's legal rights could be directly affected in the substantive proceedings and it should be joined as a defendant.

Court Disposition

Declaration made that Overdean Developments Pty Ltd is the trustee of The Dean Superfund; Overdean ordered to be joined as a defendant in proceedings 2014/229138 and 2018/99714; costs reserved.

Orders

  • ['Declare that Overdean Developments Pty Ltd (ACN 109 387 457) is the trustee of The Dean Superfund (ABN 97 710 854 397).' 'Order that Overdean Developments Pty Ltd be joined as a defendant in each of proceedings 2014/229138 and proceedings 2018/99714.' 'The costs of this application be reserved.']