Bechara v Sotrip Pty Limited [2011] NSWSC 252

Bechara v Sotrip Pty Limited [2011] NSWSC 252

On the balance of probabilities, the trust deed was executed on 18 November 1998 and Sotrip Pty Limited acted as trustee of the Mudgeeraba Trust when acquiring the Railway Street property. The absence of an express trustee description in purchase or sale documents was not significant, and the stamp duty evidence did not establish that the deed was backdated or executed in 2001. Accordingly, when Sotrip Pty Limited sold the property in 2008, it was required to account for the proceeds to Australian Barter Currency Exchange Pty Limited as then trustee, and from 31 August 2009 to Sotrip NSW Pty Limited as replacement trustee.

Jurisdiction
Australia
Judgment Date
01 April 2011
Procedural Posture
Interlocutory Application for Declaratory Relief / Motion
Outcome
Declaratory relief granted; fourth respondent ordered to pay the applicants' costs of the motion.
Legal Topics
['whether Company Purchased Land as Trustee' 'replacement of Trustee and Entitlement to Trust Property' 'accounting for Proceeds of Sale' "bankrupt's Standing to Assert Interest in Property" 'execution and Dating of Trust Deed']
['trusts and Trustees' 'corporations' 'bankruptcy'] ['whether Company Purchased Land as Trustee' 'replacement of Trustee and Entitlement to Trust Property' 'accounting for Proceeds of Sale' "bankrupt's Standing to Assert Interest in Property" 'execution and Dating of Trust Deed']

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Procedural Posture

Interlocutory Application for Declaratory Relief / Motion

Legal Issues

  1. 1 ['Whether the Railway Street property was trust property of the Mudgeeraba Trust when Sotrip Pty Limited sold it in 2008.' 'Whether Sotrip Pty Limited acquired the Railway Street property in 1998 as trustee of the Mudgeeraba Trust.' 'Whether Australian Barter Currency Exchange Pty Limited and later Sotrip NSW Pty Limited became entitled to the property or proceeds as successor trustees.' "Whether Mr Rafidi's submissions undermined the applicants' case, including by reference to the absence of trustee description in transaction documents and the stamping date on the trust deed."]

Ratio Decidendi

On the balance of probabilities, the trust deed was executed on 18 November 1998 and Sotrip Pty Limited acted as trustee of the Mudgeeraba Trust when acquiring the Railway Street property. The absence of an express trustee description in purchase or sale documents was not significant, and the stamp duty evidence did not establish that the deed was backdated or executed in 2001. Accordingly, when Sotrip Pty Limited sold the property in 2008, it was required to account for the proceeds to Australian Barter Currency Exchange Pty Limited as then trustee, and from 31 August 2009 to Sotrip NSW Pty Limited as replacement trustee.

Court Disposition

Declaratory relief granted; fourth respondent ordered to pay the applicants' costs of the motion.

Orders

  • ['The court declares that when the property known as 35 and 37 Railway Street, Mudgeeraba was sold by the first respondent, Sotrip Pty Limited (In Liquidation), it was required to account for the proceeds of sale to Australian Barter Currency Exchange Pty Limited as the then trustee of the trust known as the...