THURLSTANE (AUST) PTY LTD and ORS v ANDCO NOMINEES PTY LTD [1997] NSWCA 317

THURLSTANE (AUST) PTY LTD and ORS v ANDCO NOMINEES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, POWELL and COLE JJA

27 October 1997, 27 October 1997

[1997] NSWCA 317

Equity — breach of fiduciary duty — trustee company.

Meagher JA These are two appeals from a judgment of Santow J brought by Mr Davidson and his cohorts. Mr & Mrs Davidson were divorced in 1989. That divorce involved a flurry of litigation, twice at first instance in the Family Court before Cook J and Ellis J; twice on appeal to the Full Family Court and once on a special leave application to the High Court.

Broadly speaking, two things can be said about this litigation: (i) That at every stage Mrs Davidson was the victor; and (ii) Mr Davidson has consistently fought against the implementation of the Family Court's orders.

The Family Court ordered Mr Davidson to transfer the matrimonial home to Mrs Davidson and to pay her the amount of $700,000. He has done the former, but not the latter. Mr Davidson was first an employee, and eventually the owner, of a company called Thurlstane (Aust) Pty Ltd, in which he owns 13,247 shares. These shares were transferred in October 1977 by him to a trust called the MAVK Trust. The trustee of that trust was originally a company called MAVK Pty Ltd and later became Lestato Pty Ltd. Mr Davidson was originally the appointor of the trust. Mr Smith later became an appointor and he terminated the trusteeship of Lestato and replaced it by Andco Nominees, which now becomes the trustee of the MAVK Trust.

Still Mrs Davidson came no closer to obtaining her $700,000. It was within these circumstances that she commenced litigation before Young J, who made the following order in her favour:

"Make orders pursuant to s71 of the Trustee Act 1925, vesting in the plaintiff the 13,247 ordinary shares in Thurlstane (Aust) Pty Ltd, now registered in the name of the defendant."