Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279 Hearing dates: 5 December 2022 Decision date: 21 December 2022 Before: Gleeson JA at [1]; Leeming JA at [2]; Kirk JA at [49]. Decision: 1. Notice of appeal filed 10 August 2022 dismissed as incompetent. 2. Summons seeking leave to appeal filed 9 September 2022 dismissed. 3. Direct the parties to file and serve any agreed orders as to the costs in this Court by 8 February 2023 or, in lieu of agreement, direct the respondents to file and serve short submissions not exceeding 4 pages in support of the orders they seek on or before 8 February 2023, and direct Gilmore Finance to file and serve short submissions not exceeding 4 pages in support of the orders it seeks by 22 February 2023, and direct the respondents to file and serve any submissions in reply not exceeding 2 pages by 1 March 2023 with a view to this Court resolving any dispute as to costs on the papers. Catchwords: APPEAL – competence – relief confined to removal of trustee – whether amount in issue exceeded $100,000 – Supreme Court Act 1970 (NSW) s 101(2)(r) – appeal dismissed as incompetent TRUSTS – application to remove trustee – sole director of trustee was also principal of law firm which provided legal and non-legal services to trustee – whether unitholder had given fully informed consent – unitholder had agreed to "commercial settlement" for director to provide legal and non-legal services at reduced rate – unitholder had benefit of independent legal advice – unitholder unable subsequently to complain of conflict of interest – leave to appeal refused Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 Beck v Henley [2014] NSWCA 201 Breen v Clough [2018] NSWCA 172 Condensing Vaporisers Aust Pty Ltd v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 95 Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557 In re Pauling's Settlement Trusts [1962] 1 WLR 86 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 Khanna v Woolworths Group Ltd [2022] NSWCA 94 Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 Maguire & Tansey v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40 Pawlowska v Zajglic [2011] NSWCA 118 Ramage v Waclaw (1988) 12 NSWLR 84 Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 Spellson v George (1992) 26 NSWLR 666 Weatherill v Bartlett [2017] NSWCA 175 Category: Principal judgment Parties: Gilmore Finance Pty Ltd (Applicant) Aesthete Pty Ltd atf the Real Money Unit Trust (First Respondent) Aesthete No. 3 Pty Ltd atf the Hospital Precinct Unit Trust (Second Respondent) Farshad Amirbeaggi (Third Respondent) Vashti Elizabeth Conway (Fourth Respondent) Kate Elizabeth Yates (Fifth Respondent) Representation: Counsel: M Hodge KC / S Aspinall (Applicant) DR Pritchard SC / AJ Macauley (First to third respondents) JP Knackstredt (Fourth to fifth respondents)