Moran v DJ Moran Nominees Pty Limited [2007] NSWSC 1258

New South Wales Supreme Court

CITATION : Moran v DJ Moran Nominees Pty Limited [2007] NSWSC 1258

HEARING DATE(S) : 1 November 2007 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Bergin J

EX TEMPORE JUDGMENT DATE : 1 November 2007

DECISION : Plaintiff's motion is dismissed with costs.

CATCHWORDS : Construction of agreement - no matter of principle.

Shane Moran - first plaintiff PARTIES : Kerry Lyn Jones - second plaintiff DJ Moran Nominees Pty Limited - defendant

FILE NUMBER(S) : SC 50202/2006

COUNSEL : J Stoljar/JK Taylor - plaintiffs AJ Meagher SC/KM Richardson - defendant

SOLICITORS : S Moran & Co - plaintiffs Johnson Winter & Slattery - defendant

- 12 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

1 NOVEMBER 2007

50202/06 SHANE MORAN & ORS v D J MORAN NOMINEES PTY LIMITED JUDGMENT

1 This is an application brought by the plaintiffs, Shane Moran and Kerry Jones, for costs of these proceedings and costs of the Motion seeking costs of the proceedings. 2 The history to the proceedings has been set out in a chronology which details the history prior to the commencement of proceedings. The first plaintiff was employed with the Moran Health Care Group of companies and was appointed as the Chief Executive Officer of that group in 1991. For reasons that I do not know, the first plaintiff's employment was terminated with that group in 2001. 3 A discretionary trust known as the Moran Family Trust (the Family Trust) had been established under which the two plaintiffs, being brother and sister, were discretionary beneficiaries. The defendant, D J Nominees Pty Limited (Nominees) is trustee of the Family Trust and also of a unit trust known as the Moran Unit Trust (the Unit Trust). The Family Trust holds 62 units in the Unit Trust. 4 On 28 August 2002, amendments were made to the Family Trust Deed excluding the plaintiffs as beneficiaries to whom distributions could be made. A couple of months later, the first plaintiff sought access to records of the Unit Trust and from that date, until commencement of these proceedings, the first plaintiff had not achieved access to any documents pursuant to his requests. 5 On 18 December 2006, the proceedings were commenced and the Commercial List Summons contained a Schedule seeking various documents. That Schedule was in the following terms: 1. Deed constituting the Moran Unit Trust (" MUT ") dated 15 November 1983 and any deed or other document which directly or indirectly amends or supplements the said Deed;