Simons Investments & Developments Pty Ltd as trustee for Simons Investments & Developments Trust v Penshurst Properties Pty Ltd as trustee for Penshurst Property Trust [2015] NSWSC 1110

Simons Investments & Developments Pty Ltd as trustee for Simons Investments & Developments Trust v Penshurst Properties Pty Ltd as trustee for Penshurst Property Trust [2015] NSWSC 1110

The Court held that Penshurst, as trustee, became indebted to Simons for $440,000 under the 7 December 2010 deed, which created an enforceable equitable charge over Penshurst's profit share in the joint venture. Consideration was provided through Simons' entry into the joint venture. The 28 November 2013 agreement did not vary Simons' rights under the deed but allocated profits for joint venture purposes. Silver Pinball, as replacement trustee, is liable to pay the sum out of trust assets. Claims against Ms Alex are stayed due to bankruptcy. The cross claim by Penshurst is dismissed, and costs are payable by Silver Pinball as trustee.

Jurisdiction
Australia
Judgment Date
11 August 2015
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
Judgment for the plaintiff against the third defendant (Silver Pinball Pty Ltd as trustee); cross claim by Penshurst dismissed; claims against Ms Alex stayed; costs payable by Silver Pinball as trustee.
Legal Topics
['deeds' 'equitable Charge' 'joint Venture' 'guarantee' 'bankruptcy Stay' 'proper Construction' 'consideration' 'interlocutory Orders' 'enforcement of Security']
['equity' 'contract' 'trusts' 'bankruptcy'] ['deeds' 'equitable Charge' 'joint Venture' 'guarantee' 'bankruptcy Stay' 'proper Construction' 'consideration' 'interlocutory Orders' 'enforcement of Security']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether Simons is entitled to recover $440,000 plus interest from Penshurst (and its replacement trustee) under the deed of 7 December 2010' "Whether the deed created an enforceable equitable charge over Penshurst's profit share under the joint venture" 'Whether the 28 November 2013 agreement precluded Simons from making a claim to certain funds under the deed' 'Whether the cross claims by Penshurst and Ms Alex can proceed' 'Effect of bankruptcy stay on claims against Ms Alex']

Ratio Decidendi

The Court held that Penshurst, as trustee, became indebted to Simons for $440,000 under the 7 December 2010 deed, which created an enforceable equitable charge over Penshurst's profit share in the joint venture. Consideration was provided through Simons' entry into the joint venture. The 28 November 2013 agreement did not vary Simons' rights under the deed but allocated profits for joint venture purposes. Silver Pinball, as replacement trustee, is liable to pay the sum out of trust assets. Claims against Ms Alex are stayed due to bankruptcy. The cross claim by Penshurst is dismissed, and costs are payable by Silver Pinball as trustee.

Court Disposition

Judgment for the plaintiff against the third defendant (Silver Pinball Pty Ltd as trustee); cross claim by Penshurst dismissed; claims against Ms Alex stayed; costs payable by Silver Pinball as trustee.

Orders

  • ['Silver Pinball Pty Ltd as trustee for the Penshurst Property Trust to pay Simons Investments & Developments Pty Ltd $440,000 plus interest under s 100 of the Civil Procedure Act 2005 (NSW)' 'Plaintiff entitled to enforce the charge created by the deed against sums in the account and proceeds of the remaining unit...