Garawin Pty Ltd v 1A Eden Pty Ltd (No. 3) [2023] NSWSC 169

Supreme Court New South Wales

Medium Neutral Citation: Garawin Pty Ltd v 1A Eden Pty Ltd (No. 3) [2023] NSWSC 169 Hearing dates: 15 February 2023 Date of orders: 1 March 2023 Decision date: 01 March 2023 Jurisdiction: Equity Before: Slattery J Decision: Distribution of assets by the corporate trustee approved, provided $3 million in assets remains with the corporate trustee. Unless any party wishes to contend for a different order each party will be ordered to bear its own costs of these proceedings since the Court's first judgment. Costs of the Owners Corporation's motion should be treated as costs as between 1A Eden and the Owners Corporation in the defect proceedings. Catchwords: EQUITY – trusts and trustees – discretion of trustee – real property development joint venture conducted through a trustee company as trustee of the unit trust – plaintiff has a 50 per cent interest holding in the units in the unit trust – the defendants hold the other 50 per cent of the units in the unit trust - agreement to distribute profits in specie in the form of lots of the development – distribution commenced but not completed – building under development sued by the owners corporation in Technology and Construction List proceedings alleging defects in the construction – trust faced with unexpected external liabilities – further distribution suspended – judgment in March 2022 leaves caveats in place – trust deed requires corporate trustee to make provision for contingent liabilities – what orders should be made for distribution of trust assets to unit holders – owners corporation seeks by motion to restrain the distributions from the trust to leave less than $3.5 million – whether the Owners Corporation can be heard in these proceedings – whether an application for a freezing order by the Owners Corporation in the defect proceedings is a more appropriate vehicle for resolving the Owners Corporation's motion. Legislation Cited: Real Property Act 1900, s 74MA(2)(b) Cases Cited: Bauer Media Pty Ltd v Wilson [2018] VSCA 68 Deloughery v Watson [2010] NSWCA 148 Garawin Pty Ltd v 1A Eden Pty Ltd [2022] NSWSC 333 Garawin Pty Ltd v 1A Eden Pty Ltd (No. 2) [2022] NSWSC 1417 Category: Consequential orders Parties: Plaintiff: Garawin Pty Limited ACN 074380715 First Defendant: 1A Eden Pty Ltd ACN 162152794 Second Defendant: Zaarour Investments Pty Ltd Third Defendant: Joesandra Pty Limited atf The Sleiman Family Trust ACN 130 126 206 Fourth Defendant: Christopher Robert Zaarour Representation: Counsel: Plaintiff: D. Weinberger Second, Third and Fourth Defendants: A. Davis