Toyama Pty Ltd v Landmark Building Developments Pty Ltd;Landmark Building Developments Pty Ltd v Stanislaus Anthony Carroll & Anor (No 2) [2007] NSWSC 55

New South Wales Supreme Court

CITATION : Toyama Pty Ltd v Landmark Building Developments Pty Ltd;Landmark Building Developments Pty Ltd v Stanislaus Anthony Carroll & Anor (No 2) [2007] NSWSC 55

HEARING DATE(S) : 22/03/06, 19/05/06

JUDGMENT DATE : 9 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

DECISION : See paragraphs 44-48 of judgment.

CATCHWORDS : EQUITY – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Indemnity, lien and reimbursement – Trustees appointed to act as trustees for sale – Prior to completion of sale, trustees proposed to withhold an amount from proceeds of sale to cover legal costs in respect of proceedings threatened by beneficiary – Beneficiary objected to trustees' proposal – Trustees backed down and did not retain any moneys from proceeds of sale in respect of future costs or remuneration – Beneficiary pursued threatened proceedings – Trustees incurred substantial legal costs – Whether trustees entitled to order that beneficiary pay trustees' costs of proceedings brought by beneficiary on indemnity basis – Where proceeds of sale already distributed to beneficiaries – Order that beneficiary pay trustees' costs of proceedings brought by beneficiary other than costs incurred in breach of trust - EQUITY – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Remuneration – Allowance by the Court – Whether trustees entitled to remuneration for work in defending proceedings brought against them by beneficiary – Order that trustees entitled only to their proper remuneration in administration of trust for sale.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Toyama Pty Ltd v Landmark Building Developments Pty Ltd [2006] 197 FLR 74 NMFN Property Pty Ltd v Citibank Ltd (No 2) (2000) 109 FCR 77 Mead v Watson (2005) 23 ACLC 718 Naviera Mogor SA v Societe Metallurgique De Normandie (The "Nogor Marin") [1988] 1 Lloyd's Rep 412 Strathlorne Steamship Co Ltd v Andrew Weir & Co (1934) 50 Lloyd's List Law Rep 185 Toplis v Grane (1839) 5 Bing NC 636 Dugdale v Lovering (1875) LR 10 CP 196 CASES CITED : In Re Diplock; Diplock v Wintle [1948] 1 Ch 465 Balkan v Peck (1998) 43 NSWLR 706 Hardoon v Belilios [1901] AC 118 J W Broomhead (Vic) Pty Ltd v J W Broomhead Pty Ltd [1985] VR 891 Re Phillips [1938] 4 All ER 483 J H G Sunnucks, J G Ross Martyn, K M Garnett, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 16th ed, Stevens & Sons, London, 1982 Re Application of Sutherland (2004) 50 ACSR 297; 22 ACLC 1326 Foster v Spencer [1996] 2 All ER 672