Frank Wheeler as Trustee for Avoca No4 Trust v. McGregor & 2 Ors [2003] NSWSC 912

New South Wales Supreme Court

CITATION : Frank Wheeler as Trustee for Avoca No4 Trust v. McGregor & 2 Ors [2003] NSWSC 912 HEARING DATE(S) : 30/09/03 & 02/10/03 JUDGMENT DATE : 30 September 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Interlocutory Ruling - the plaintiff has standing.

CATCHWORDS : PARTNERSHIP - identity of trustee where earlier trustee of same trust entered into partnership agreement - partnership conducted without written agreement but in accordance with unexecuted form of written agreement - one partner (a company) was identified by name "acting in its capacity as trustee of the Trust or the Trustee ... for the time being of the Avoca No.3 Trust" - that company was in fact trustee of Avoca No.4 Trust, and not of Avoca No.3 Trust - company later appointed plaintiff as new trustee of Avoca No.4 Trust - on the facts, found that the partner was trustee of Avoca No.4 Trust, not of Avoca No.3 Trust, the reference to Avoca No.3 Trust was a misnomer and the plaintiff as new trustee had standing to bring proceedings for winding-up partnership - on the construction of the Deed of Settlement of Avoca No.4 Trust clause 29 it was held that endorsement of the appointment on the Deed of Settlement was not essential for the validity of the appointment of a new trustee. CASES CITED : Lewis v Nortex Pty Ltd [2001] NSWSC 511 Frank Wheeler as Trustee for Avoca No4 Trust - Plaintiff PARTIES : Anne Margaret McGregor - First Defendant Doggen Pty Ltd as Trustee for McSurrey No2 Trust - Second Defendant Topitu Direct Pty Limited - Third Defendant FILE NUMBER(S) : SC 4206/2003 COUNSEL : J. Parker - Plaintiff J. Johnston & J. Baxter - Defendants SOLICITORS : Ebsworth & Ebsworth - Plaintiff The Argyle Partnership - Defendants