Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285

New South Wales Supreme Court

CITATION : Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285

HEARING DATE(S) : 14 April 2010

JUDGMENT DATE : 16 April 2010

JURISDICTION : Equity

JUDGMENT OF : Biscoe AJ

DECISION : 1. Declaration that purported removal of plaintiff as trustee of Hillcrest (Harding) Trust by second defendant is of no effect; 2. Declaration that purported appointment of first defendant as additional trustee of Trust is of no effect; 3. Order that defendants withdraw caveat AF76146Q from title of "Hillcrest", 7433 Castlereagh Highway, Ilford, NSW; 4. Declaration that caveat of no effect; 5. Defendants to pay plaintiff's costs; 6. Liberty to apply re costs within two working days; 7. Exhibits may be returned

CATCHWORDS : TRUSTS - proper construction of power of appointment and removal of trustee in trust deed - whether trustee effectively removed - whether new trustee effectively appointed - whether caveat lodged by the latter of no effect because it had no caveatable interest - whether caveator required leave of the Court to lodge a second caveat - CAVEATS - whether caveator had caveatable interest - whether caveator required leave of the Court to lodge a second caveat

Conveyancing Act 1919 LEGISLATION CITED : Real Property Act 1900 Trustee Act 1925

Fitzwood Pty Ltd v Unique Goal Pty Ltd (2002) 188 ALR 566 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 CASES CITED : Re Burton; Wily v Burton (1994) 126 ALR 557 Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd [2009] NSWSC 1486 Synergy Concepts Pty Ltd v Rylegrove Pty Ltd (in liq) (1997) 8 BPR 15,555 Taylor v Commonwealth Development Bank of Australia (1991) 11 BPR 21,033