Aesthete Pty Ltd atf The Real Money Unit Trust [2022] NSWSC 769

Supreme Court New South Wales

Medium Neutral Citation: Aesthete Pty Ltd atf The Real Money Unit Trust [2022] NSWSC 769 Hearing dates: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order pursuant to section 7B of the Court Suppression and Non publication Orders Act 2010 on the grounds set out in sections 8(1)(a) and 8(1)(e) of that Act, that the publication or disclosure of the confidential affidavit sworn 9 March 2022 of Timothy Randolph Price, the content of confidential exhibit TRP1 to that affidavit which has been marked as confidential exhibit A on this application and the transcript of the hearing of the plaintiff's summons and amended summons to any person other than the Court and its staff, the Trustees, the Trustees' legal representatives and any other person to whom Trustees regard it as necessary to provide access is prohibited. 2. Order that the plaintiffs be advised pursuant to s 63 of the Trustee Act 1925 (NSW) that, in respect of Supreme Court of New South Wales proceeding 2016/257478 (Gilmore Finance Pty Ltd v Aesthete Pty Ltd), the plaintiffs (being the first and second defendants in that proceeding) would, on the basis of the joint opinion of Senior and Junior Counsel briefed in the proceeding, be justified in defending the proceeding to the conclusion of the trial which is listed between 14 and 22 March 2022 but limited 2to the defence of those discrete claims and issues in the proceeding that relate to the plaintiffs as trustees and/or the removal of the plaintiffs as trustees (and not the misleading and deceptive conduct or misrepresentation claims in which the third defendant, Mr Farshad Armirbeaggi, also has an interest in defending, and is currently intending to continue to defend); and with the proviso that the plaintiffs have in place arrangements for the funding of their defence or continued defence of the proceeding in circumstances where there are no assets presently available to call upon to fund the proceeding. Catchwords: EQUITY – trusts and trustees – judicial advice – whether jurisdiction under s 63 Trustee Act 1925 (NSW) engaged – whether Court should exercise discretion to provide advice – where allegations of breach of duty against trustees and director of trustees – whether trustees should incur the expense of defending claims if there is another party with a personal interest in defending the same claims Legislation Cited: Trustee Act 1925 (NSW) ss 63, 85 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, s 236 Cases Cited: Application of Aesthete Pty Ltd [2019] NSWSC 965 Frost v Fallon [2011] NSWSC 591 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Category: Principal judgment Parties: Aesthete Pty Ltd as trustee for The Real Money Unit Trust (First Plaintiff) Aesthete No. 3 Pty Ltd as trustee for The Hospital Precinct Unit Trust (Second Plaintiff) Gilmore Finance Pty Ltd (Beneficiary) Representation: Counsel: A Fernon SC (Plaintiffs) R Marshall SC (Beneficiary) Solicitors: YPOL Lawyers (Plaintiffs) File Number(s): 2022/00060853 Publication restriction: Nil