Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ

MARK KORDA & ORS APPELLANTS

AND

AUSTRALIAN EXECUTOR TRUSTEES (SA) LIMITED RESPONDENT

Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6 4 March 2015 M82/2014

ORDER

1. Appeal allowed with costs.

2. Set aside paragraphs 1 and 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 10 April 2014 and, in their place, order that:

(a) the appeal to that Court is allowed;

(b) paragraphs 1, 2 and 3 of the orders of the Supreme Court of Victoria made on 1 March 2013 be set aside and, in their place, declare that:

(i) the respondent is not entitled to any of $33,999,998 payable to the fourth appellant pursuant to the Tree Sale Agreement, being the agreement dated 15 March 2012 to which the third appellant, the fourth appellant, the fifth appellant, and the respondent, amongst others, were parties; and

(ii) the respondent is not entitled to any of $53,356,000 payable to the third appellant under the Land Sale

Contracts, being two contracts dated 15 March 2012 to which the third appellant, amongst others, was a party; and

(c) the respondent pay the appellants' costs of the proceedings before the primary judge and the Court of Appeal.

On appeal from the Supreme Court of Victoria

Representation

P D Crutchfield QC with R G Craig for the appellants (instructed by Ashurst Australia)

J R J Lockhart SC with M I Borsky and I J M Ahmed for the respondent (instructed by Sparke Helmore)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Korda v Australian Executor Trustees (SA) Limited

Trusts – Express trust – Two companies, "the Forest Company" and "the Milling Company", operated timber plantation investment scheme – Forest Company sought investment in scheme – Forest Company entered into Trust Deed with Trustee Company as trustee for holders of interests Forest Company issued – Whether proceeds of the sale of standing timber and scheme land payable to Forest Company and Milling Company subject to express trust in favour of scheme investors.