Troy Douglas in his capacity as trustee for the Douglas Family Trust v Belmore 88 Pty Limited [2023] NSWSC 152

Supreme Court New South Wales

Medium Neutral Citation: Troy Douglas in his capacity as trustee for the Douglas Family Trust v Belmore 88 Pty Limited [2023] NSWSC 152 Hearing dates: 9 February 2023 Date of orders: 27 February 2023 Decision date: 28 February 2023 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Injunction continued but upon terms that provide security for the plaintiff's undertakings to damages, and which permit the payment out of Court of funds sufficient to obtain legal representation in the short to medium term. Directions made for the notification of the caveators and to allow the purchaser to be heard. Catchwords: EQUITY – Equitable remedies – injunctions – interlocutory injunctions – proceedings brought by beneficiary of development trust against the trustee for an account and for the distribution of profits from the trust – in a cross claim, the defendant trustee seeks recovery of a loan made to the beneficiary –loan agreement provides a restraint upon the sale of the plaintiff/beneficiary's residential property – plaintiff seeks to sell residential property which is heavily mortgaged in order to fund the litigation – defendant/cross claimant obtains interim restraint against the plaintiff upon the sale of the plaintiffs residential property – plaintiff enters a contract for sale of the property which is shortly due for completion – dispute about whether the sale is in breach of the Court's previous orders – doubts about the substance of the quality of the plaintiff's undertakings to damages – plaintiff has pressing need for funds to continue the litigation – four caveators currently not served with notice of the motion for continuation of the injunction – serious question to be tried conceded – whether upon consideration of the balance of convenience completion of the contract should be restrained. Legislation Cited: Civil Procedure Act 2005, s 100 Supreme Court Act 1970, s 66(4) Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) Category: Consequential orders Parties: Plaintiff/Respondent: Troy Pestano Douglas as trustee for the Douglas Family Trust Defendant/Applicant: Belmore 88 Pty Ltd ACN 154 892 565 Representation: Counsel: Defendant/Applicant: P. Afshar