Batmor Mortgages Pty Ltd v Salvatore Arcuri [2017] NSWSC 84

Batmor Mortgages Pty Ltd v Salvatore Arcuri [2017] NSWSC 84

Mr Arcuri and Ms Dib were validly removed as trustees in accordance with the trust deed and decisions of the unitholders; Mr Arcuri is not entitled to remuneration as trustee as there was no valid agreement, no relevant professional service rendered, and no support for a share of trust benefits for mere assumption of liability; the Powers/Bigzy mortgage debt merged in a judgment debt and was repaid, entitling the Plaintiffs to discharge and related orders.

Parties
First Plaintiff and First Cross Defendant: Batmor Mortgages Pty Ltd; Second Plaintiff and Third Cross Defendant: Gregory Huxley; Third Plaintiff and Second Cross Defendant: Pace Cassidy Buckley; First Defendant and First Cross Claimant: Salvatore Arcuri; Second Defendant: Bigzy Corp Pty Ltd; Fifth Cross Defendant: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
10 February 2017
Procedural Posture
Equity Proceeding / Final Judgment
Outcome
Declarations and orders granted in favour of Plaintiffs; trustee status, remuneration and mortgage discharge resolved
Legal Topics
Removal and Appointment of Trustee, Trustee Remuneration, Mortgage Discharge, Trust Administration
Trusts Law Removal and Appointment of Trustee Trustee Remuneration Mortgage Discharge Trust Administration

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Parties

Batmor Mortgages Pty Ltd

First Plaintiff and First Cross Defendant

Gregory Huxley

Second Plaintiff and Third Cross Defendant

Pace Cassidy Buckley

Third Plaintiff and Second Cross Defendant

Salvatore Arcuri

First Defendant and First Cross Claimant

Bigzy Corp Pty Ltd

Second Defendant

Westpac Banking Corporation

Fifth Cross Defendant

Procedural Posture

Equity Proceeding / Final Judgment

Legal Issues

  1. 1 Was Salvatore Arcuri validly removed as trustee of the Trust and replaced by Ms Joanne Dib?
  2. 2 Was Ms Dib validly removed as trustee of the Trust and replaced by Batmor Mortgages Pty Ltd?
  3. 3 Is Salvatore Arcuri entitled to remuneration from Trust assets?

Ratio Decidendi

Mr Arcuri and Ms Dib were validly removed as trustees in accordance with the trust deed and decisions of the unitholders; Mr Arcuri is not entitled to remuneration as trustee as there was no valid agreement, no relevant professional service rendered, and no support for a share of trust benefits for mere assumption of liability; the Powers/Bigzy mortgage debt merged in a judgment debt and was repaid, entitling the Plaintiffs to discharge and related orders.

Court Disposition

Declarations and orders granted in favour of Plaintiffs; trustee status, remuneration and mortgage discharge resolved

Orders

  • Batmor Mortgages Pty Ltd is declared the valid trustee of the Residential Trust.
  • Salvatore Arcuri was validly removed as trustee on 22 October 2013.