Katz v Grossman [2005] NSWSC 934

New South Wales Supreme Court

CITATION : Katz v Grossman [2005] NSWSC 934

HEARING DATE(S) : 29 August 2005

JUDGMENT DATE : 16 September 2005

JUDGMENT OF : Smart AJ at 1

DECISION : Plaintiff's action dismissed. Costs out of Superannuation Fund (see paras 58 &59)

CATCHWORDS : Appointment of new Trustee - Construction and application of s.6(4)(b) of Trustee Act 1925

LEGISLATION CITED : Trustee Act 1925 (NSW). Wills, Probate and Adminstration Act 1898 (NSW)

PARTIES : Daniel Frank Katz v Linda Ann Grossman & Peter Anthony Grossman

FILE NUMBER(S) : SC 03731/2004

B.W. Rayment QC & V.F. Kerr for plaintiff COUNSEL : D. E Grieve QC & J.M Baxter for defendants

Streeter Commercial Lawyers for plaintiff SOLICITORS : Dennis & Co for defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SMART AJ

16 September 2005

03731/04 Daniel Frank KATZ v Linda Ann GROSSMAN & Peter Anthony GROSSMAN JUDGMENT 1. This is a contest between a brother and a sister over the control of a superannuation trust fund established at the behest of their late father Ervin Katz. The assets of the fund exceed $1 million. Peter Grossman is the husband of Linda Ann Grossman.

2. By a deed of settlement dated 25 March 1965 a superannuation trust fund was established by E. Katz Manufacturing Jewellers Pty Ltd ("the company") with Marta Baumel and Ervin Katz as trustees. The fund was originally known as the "E Katz Manufacturing Jewellers Pty Limited Employees Superannuation Fund" and is now known as the E. Katz Employees Trust Fund (Fund). In the 1965 deed it was recited that the fund was established by the company "with a view to making provision for benefits for such present and future employees and their dependants as shall be eligible." By clause 2(f) "employee" includes every male or female person employed by or for the time being an officer or director of the company.