NSW Caselaw
New South Wales Supreme Court
CITATION : Kira Holdings Pty Ltd v Daquino [2010] NSWSC 494
HEARING DATE(S) : 1 December 2009, 19 March & 27 May 2010
JUDGMENT DATE : 20 May 2010
JURISDICTION : Equity Division
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 27 May 2010
DECISION : Upon entry into joint venture, the trust property became the trustee's rights under the joint venture. On payment to trustee of agreed value, beneficiaries ceased to have any beneficial interest in the land. Upon distribution of proceeds in accordance with their instructions, the trust was extinguished. Defendant's caveat removed. Costs: Defendant pay plaintiffs' costs on indemnity basis, other than costs occasioned by adjournment on 1 December 2009.
CATCHWORDS : EQUITY – trusts and trustees – trustees – their appointment, dismissal, estate, etc – discharge of trusts – where only beneficiaries authorise trustee to enter into joint venture with third party to develop and sell trust property in return for payment of its undeveloped value, and then to distribute whole proceeds of payment to or upon direction of beneficiaries – whether beneficiaries retain beneficial interest in real property pending sale by developer – whether trust discharged and extinguished - PROCEDURE – Costs – whether costs should be ordered on indemnity basis
LEGISLATION CITED : (CTH) Family Law Act 1975, s 87 (NSW) Real Property Act 1900, s 74O
CATEGORY : Principal judgment
Brown v Heffer (1967) 116 CLR 344 Centennial Coal Company Ltd v Xstrata Coal Pty Ltd [2009] NSWSC 788 Hume v Monro (No 2) (1943) 67 CLR 461 CASES CITED : In Re Marquess of Abergavenny's Estate Act Trusts Marquess of Abergavenny v Ram & Anor [1981] 1 WLR 843 Kira Holdings Pty Ltd v Daquino [2010] NSWSC 201 McWilliam v McWilliams Wines Pty Ltd (1964) 114 CLR 656 Refina Pty Ltd v Binnie (Costs) (2009) NSWSC 1098 Swan Resources Ltd v Southern Pacific Hotel Corporation Energy Pty Ltd [1983] WAR 39
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