Teterin v Linrod Pty Ltd [2024] NSWSC 1635

Supreme Court New South Wales

Medium Neutral Citation: Teterin v Linrod Pty Ltd [2024] NSWSC 1635 Hearing dates: 25 – 28 November 2024 Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Equity Before: Pike J Decision: (1) Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs. (2) Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 28 January 2025. (3) In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 28 January 2025 any submissions and supporting material, such submissions not to exceed 3 pages. (4) Direct the parties to provide to my Associate by no later than 5pm on 4 February 2025 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers. Catchwords: EQUITY – trusts – discretionary family trust – beneficiary application for removal of trustee – whether trustee has breached fiduciary duties – where trust generates no income – where defendant beneficiary is the sole director and shareholder of trustee company and has been paying for trust expenses personally – determination that no breach of fiduciary duty in the circumstances – whether even if breach of duty, case for removal made out EQUITY – whether principal beneficiary under discretionary family trust disclaimed any interest, benefit, or entitlement in or under the trust – where principal beneficiary has been receiving aged pension since April 2002 – where a variation to the trust deed was executed – no effective disclaimer – finding of an intention to remain as principal beneficiary Legislation Cited: Trustee Act 1925 (NSW) ss 14DA and 70 Uniform Civil Procedure Rules 2005 (NSW) rr 7.11(2) and 42.19 Cases Cited: Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504 Chamberlin, Bennett (in their capacity as trustees of the estate of the late Spry) v Spry [2008] VSC 562 Chan v Zacharia (1984) 154 CLR 178 Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd (2017) 106 ATR 151; [2017] NSWCA 184 Commissioner of Taxation (Cth) v Ramsden [2005] FCAFC 39 Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 FCT v Cornell (1946) 73 CLR 394 Gillespie v Gillespie Cranes Nominees Pty Ltd (2022) 405 ALR 680 JPD as Guardian v DMS as Trustee [2022] QSC 181 Kanjian Holdings No. 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No. 3) [2021] NSWSC 839 Leerac Pty Ltd v Fay [2008] NSWSC 1082 Miller v Cameron (1936) 54 CLR 572 Owies v JJE Nominees Pty Ltd (2022) 22 ASTLR 89 Princess Ann of Hesse v Field [1963] NSWR 998 Re Gulbenkian's Settlements (No.2) Stephens & Anor v Maun & Ors [1970] Ch 408 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Re Smith [2001] 3 All ER 552 Rinehart v Welker (2012) 95 NSWLR 221 Samowitz v Wilson [2013] NSWSC 1194 Smith v Mitchelmores Trust Corp Ltd [2021] EWHC 1425 United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1 Texts Cited: Heydon and Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Lynton Tucker et al, Lewin on Trusts (Sweet & Maxwell, 20th ed, 2020) Category: Principal judgment Parties: David John Teterin (Plaintiff) Linrod Pty Ltd (First Defendant) Peter James Evans (Second Defendant) Norman Teterin (Third Defendant) Stephanie Helen Teterin (Fourth Defendant) Representation: Counsel: A Harding SC with N Condylis (Plaintiff) T O'Brien with F G Di Lizia (First and Fourth Defendants) S Clemmett (Second Defendant) N Simpson (Third Defendant)