Universal Holidays Pty Limited v Tseng [2008] FCA 1011

Universal Holidays Pty Limited v Tseng [2008] FCA 1011

There is insufficient direct or circumstantial evidence to establish the existence of the Garrett Family Trust as a separate trust; all references to the Garrett Family Trust in documents refer to the Andrew Garrett Family Trust. Accordingly, Andrew Morton Garrett's application to be joined as a party to this action as trustee of the Garrett Family Trust is dismissed.

Parties
Applicant: Universal Holidays Pty Limited; First Respondent: Shu Mu Tseng; Second Respondent/first Cross Respondent: Evajade Pty Limited and Andrew Morton Garrett in their capacities as trustees of the Andrew Garrett Family Trust No 2; Third Respondent/second Cross Respondent: Stephen Duncan in his capacity as trustee of the bankrupt estate of Averil Gay Garrett; Fourth Respondent/cross Claimant: Peter Ivan Macks in his capacity as trustee of the bankrupt estate of Andrew Morton Garrett; Fifth Respondent/third Cross Respondent: Beringer Blass Wine Estates Limited; Fourth Cross Respondent: Andrew Morton Garrett and Joseph Nicolazzo in their capacities as trustees of the Andrew Garrett Family Trust No 3; Fifth Cross Respondent: Andrew Morton Garrett; Sixth Cross Respondent: Margaret Joyce Baker; Seventh Cross Respondent: Michael Cowan Garrett and Frances Jane Wilde; Eighth Cross Respondent: Andrew Kenneth Sandow; Sixth Respondent/ninth Cross Respondent: Andrew Morton Garrett in his capacity as trustee for the Andrew Garrett Family Trust
Jurisdiction
Australia
Judgment Date
03 July 2008
Procedural Posture
Application to Be Joined as a Party (joinder/cross Claim, Trusts Context) / Interlocutory Application, Determination and Orders
Outcome
Application dismissed; cross-claimants awarded costs against Andrew Morton Garrett.
Legal Topics
Joinder of Parties, Existence of Trusts, Legal Professional Privilege, Costs Orders
Equity and Trusts Bankruptcy and Insolvency Civil Procedure Joinder of Parties Existence of Trusts Legal Professional Privilege Costs Orders

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Parties

Universal Holidays Pty Limited

Applicant

Shu Mu Tseng

First Respondent

Evajade Pty Limited and Andrew Morton Garrett in their capacities as trustees of the Andrew Garrett Family Trust No 2

Second Respondent/first Cross Respondent

Stephen Duncan in his capacity as trustee of the bankrupt estate of Averil Gay Garrett

Third Respondent/second Cross Respondent

Peter Ivan Macks in his capacity as trustee of the bankrupt estate of Andrew Morton Garrett

Fourth Respondent/cross Claimant

Beringer Blass Wine Estates Limited

Fifth Respondent/third Cross Respondent

Andrew Morton Garrett and Joseph Nicolazzo in their capacities as trustees of the Andrew Garrett Family Trust No 3

Fourth Cross Respondent

Andrew Morton Garrett

Fifth Cross Respondent

Margaret Joyce Baker

Sixth Cross Respondent

Michael Cowan Garrett and Frances Jane Wilde

Seventh Cross Respondent

Andrew Kenneth Sandow

Eighth Cross Respondent

Andrew Morton Garrett in his capacity as trustee for the Andrew Garrett Family Trust

Sixth Respondent/ninth Cross Respondent

Procedural Posture

Application to Be Joined as a Party (joinder/cross Claim, Trusts Context) / Interlocutory Application, Determination and Orders

Legal Issues

  1. 1 Whether the Garrett Family Trust has ever existed as a separate trust from the Andrew Garrett Family Trust
  2. 2 Whether Andrew Morton Garrett should be joined as a party as trustee of the Garrett Family Trust
  3. 3 Admissibility issues regarding legal professional privilege

Ratio Decidendi

There is insufficient direct or circumstantial evidence to establish the existence of the Garrett Family Trust as a separate trust; all references to the Garrett Family Trust in documents refer to the Andrew Garrett Family Trust. Accordingly, Andrew Morton Garrett's application to be joined as a party to this action as trustee of the Garrett Family Trust is dismissed.

Court Disposition

Application dismissed; cross-claimants awarded costs against Andrew Morton Garrett.

Orders

  • Andrew Morton Garrett's application to be joined as a party to this action in his capacity as the sole trustee of the Garrett Family Trust be dismissed.
  • Paragraphs 3, 6 and 7 of the notice of motion of 11 February 2008 be dismissed.