PHILIP MACPHERSON ROBERTSON v. ROBERT SAMUEL ALLEN & ORS [2004] NSWSC 199

PHILIP MACPHERSON ROBERTSON v. ROBERT SAMUEL ALLEN & ORS [2004] NSWSC 199

Because Mr Boswell had been effectually appointed new trustee of the Leith Trust and Philrob Nominees had been removed, he was entitled in substance to the rights Philrob Nominees would have had as trustee, including the right to call for transfer of the shares. Equity would not require the unnecessary intermediate steps of compelling Philrob Nominees to demand transfer from the executors and then transfer the shares to Mr Boswell. The executors were therefore obliged to transfer the 48,002 shares directly to Mr Boswell.

Jurisdiction
Australia
Judgment Date
15 March 2004
Procedural Posture
Equity Proceedings Concerning a Will, a Trust and Transfer of Shares / Further Consideration of Claims Reserved in Orders Made on 26 September 2003, After the Plaintiff Filed a Second Further Amended Statement of Claim by Leave
Outcome
Declarations made that the appointment and removal of trustees were effectual and that the executors were obliged to comply with the fourth defendant's demand; transfer of the shares to the fourth defendant ordered; further consideration of claim 7 and liberty to apply reserved; limited costs orders made.
Legal Topics
['appointment and Removal of Trustee' 'transfer of Shares From Executors to New Trustee' 'saunders V Vautier' 'equity Regards as Done That Which Ought to Have Been Done' 'costs']
['wills, Probate and Administration' 'trusts and Trustees' 'equity'] ['appointment and Removal of Trustee' 'transfer of Shares From Executors to New Trustee' 'saunders V Vautier' 'equity Regards as Done That Which Ought to Have Been Done' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning a Will, a Trust and Transfer of Shares / Further Consideration of Claims Reserved in Orders Made on 26 September 2003, After the Plaintiff Filed a Second Further Amended Statement of Claim by Leave

Legal Issues

  1. 1 ["Whether the plaintiff's appointment of the fourth defendant and removal of the third defendant as trustee of the Leith Trust by deed of appointment of 3 October 2003 was effectual." 'Whether the new trustee of the Leith Trust was entitled to demand direct transfer from the executors of 48,002 shares in Multi Transit Company Pty Ltd before the time stated in cl 3 of the will.' "Whether the executors were obliged to comply with the fourth defendant's demand of 9 October 2003." 'What costs orders should be made after the first and third defendants opposed the claim.']

Ratio Decidendi

Because Mr Boswell had been effectually appointed new trustee of the Leith Trust and Philrob Nominees had been removed, he was entitled in substance to the rights Philrob Nominees would have had as trustee, including the right to call for transfer of the shares. Equity would not require the unnecessary intermediate steps of compelling Philrob Nominees to demand transfer from the executors and then transfer the shares to Mr Boswell. The executors were therefore obliged to transfer the 48,002 shares directly to Mr Boswell.

Court Disposition

Declarations made that the appointment and removal of trustees were effectual and that the executors were obliged to comply with the fourth defendant's demand; transfer of the shares to the fourth defendant ordered; further consideration of claim 7 and liberty to apply reserved; limited costs orders made.

Orders

  • ["I declare that the appointment by the plaintiff of the fourth defendant, and the removal by the plaintiff of the third defendant as trustee of the Leith Trust by the plaintiff's deed of appointment of 3 October 2003 was fully effectual according to its terms; and further declare that it was and is the duty of the...