Pamplin v Irwin [2024] NSWCA 213

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pamplin v Irwin [2024] NSWCA 213 Hearing dates: 30-31 July 2024 Decision date: 28 August 2024 Before: Bell CJ at [1]; Leeming JA at [2]; Griffiths AJA at [150] Decision: 1. Appeal allowed in part. 2. Set aside order 5(a)(ii) made on 9 April 2024. 3. Direct the parties to supply an agreed calculation of the amount which should replace $451,000 in order 3 made on 9 February 2024 in accordance with this Court's reasons, or in the absence of agreement, direct the appellants and the respondent to file and serve within 14 days of today the amounts for which they contend and submissions not exceeding five pages, with a view to the amount being determined by this Court on the papers. 4. Cross-appeal dismissed. 5. The appellants to pay the respondent's costs of the appeal. 6. The cross-appellant to pay the cross-respondents' costs of the cross-appeal. Catchwords: EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling's spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Conveyancing Act 1919 (NSW), ss 23C, 54A Succession Act 2006 (NSW), ss 104, 111 Cases Cited: Catchpole v The Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch) Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 Falkner v Bourke (1990) 19 NSWLR 574 Fielden v Christie-Miller [2015] EWHC 87 (Ch) Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73 Irwin v Pamplin (No 5) [2024] NSWSC 484 Public Trustee v Smith [2008] NSWSC 397; 1 ASTLR 488 Texts Cited: C Mitchell, Paul Matthews, Jonathan Harris and Sinead Agnew, Underhill & Hayton Law of Trusts and Trustees (20th ed) Lynton Tucker, Nicholas Le Poidevin and James Brightwell, Lewin on Trusts (20th ed) Category: Principal judgment Parties: Marie Dawn Pamplin (First Appellant/First Cross-Respondent) Lionel Joseph Pamplin (Second Appellant/Second Cross-Respondent) Mircon Pty Ltd (Third Appellant/Third Cross-Respondent) Dennis G Pamplin Pty Ltd (Fourth Appellant/Fourth Cross-Respondent) Halcrows Investments Pty Ltd (Fifth Appellant/Fifth Cross-Respondent) NMOS Pty Ltd (Sixth Appellant/Sixth Cross-Respondent) Mircorp International Pty Ltd (Seventh Appellant/Seventh Cross-Respondent) OSCO (Australia) Pty Ltd (Eighth Appellant/Eighth Cross-Respondent) Ann Margaret Irwin (Respondent/Cross-Appellant) Representation: Counsel: N C Hutley SC, G George (Appellants/Cross-Respondents) M Condon SC, P Sharp (Respondent/Cross-Appellant)