Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301

New South Wales Supreme Court

CITATION : Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301

HEARING DATE(S) : 2-3 April 2009

JUDGMENT DATE : 24 April 2009

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

DECISION : Because Bonvale is neither a Partner nor an Associated Person, Mr Rodskog is not obliged to permit the Partnership Assets to be used as security for advances to Bonvale for purposes associated with Durham Green, being the facilities described in the 4 December Adelaide Bank letter of offer. Proceedings for declaration and mandatory order dismissed.

CATCHWORDS : EQUITABLE REMEDIES – Declarations – where declaration would quell present controversy, though potentially leaving some further issues to be resolved – where failure to intervene would enable to defendant to prevail by default – whether relief should be refused on grounds of hypotheticality, or lack of utility – held, Court should not decline relief – - EQUITABLE REMEDIES – Specific Performance – where order sought that defendant execute a consent to a security – where no contractual obligation to give a consent as distinct from giving the security – where ultimate form of security not established – whether order should be made – held it should not – Defences – Hardship – alleged hardship to defendant's ex-spouse – Adequacy of damages – where alleged that there would be no damage – Unclean hands – where alleged that one partner seeking relief has committed breaches of fiduciary duty as partner – where other partners seeking relief not implicated – - INSTRUMENTS – Construction – Partnership Deed – where Partners obliged to permit assets to be used a security for specified purposes in certain circumstances – the circumstance that the proposed Lender stipulates for a personal guarantee that defendant cannot be compelled to give does not detract from any obligation he might otherwise have to permit the Assets to be used as security – whether a refinance of existing facilities for the specified purpose is itself for the specified purpose – held, it is – - TRUSTS – Discretionary trusts – nature of interest of member of class of objects – - WORDS AND PHRASES – "Beneficiary" – whether a member of the class of objects of a discretionary trust is a "beneficiary of a trust" within the definition of "related person" in the Duties Act – held, it is not.