In the matter of Inavas Pty Ltd (Costs) [2017] NSWSC 1640

In the matter of Inavas Pty Ltd (Costs) [2017] NSWSC 1640

Although the costs were incurred because of the trustee's or Mr Rafidi's delinquency and ordinarily should not deplete the trust fund, the Court was satisfied that they could properly be paid from the trust fund because Mr Rafidi was impecunious, he was the sole person beneficially entitled to the trust fund, the lawyers would otherwise go unpaid for work done to reconstitute the trust for his benefit, and he consented to the payment.

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Application for Costs to Be Paid Out of Trust Property / Costs Determination Following Vesting Orders Made on 28 September 2017
Outcome
Application granted; plaintiff's costs fixed at $12,791 to be paid out of the trust fund.
Legal Topics
['costs Paid Out of Trust Property' 'trustee Act Costs Power' 'vesting of Trust Assets' 'impecunious Beneficiary']
['equity' 'corporations' 'trusts' 'costs'] ['costs Paid Out of Trust Property' 'trustee Act Costs Power' 'vesting of Trust Assets' 'impecunious Beneficiary']

Case Brief

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Procedural Posture

Application for Costs to Be Paid Out of Trust Property / Costs Determination Following Vesting Orders Made on 28 September 2017

Legal Issues

  1. 1 ["Whether the plaintiff's costs of the proceedings should be paid out of the trust property." 'Whether it was proper to make a costs order affecting the trust fund where the new trustee had not been given notice but had no beneficial interest and the sole beneficially entitled person consented.']

Ratio Decidendi

Although the costs were incurred because of the trustee's or Mr Rafidi's delinquency and ordinarily should not deplete the trust fund, the Court was satisfied that they could properly be paid from the trust fund because Mr Rafidi was impecunious, he was the sole person beneficially entitled to the trust fund, the lawyers would otherwise go unpaid for work done to reconstitute the trust for his benefit, and he consented to the payment.

Court Disposition

Application granted; plaintiff's costs fixed at $12,791 to be paid out of the trust fund.

Orders

  • ["Pursuant to (NSW) Trustee Act, s 93, the plaintiff's costs of the proceedings fixed in the sum of $12,791 be paid to Hall Partners, solicitors, out of the funds vested in Netwealth Investments Limited as trustee of the Netwealth Superannuation Master Fund, account number 1076790, pursuant to order (1) made on 28...