Claudio Grizonic v Suzanne Ranken Suttor & ors; Dawn Wade v Suzanne Ranken Suttor [2011] NSWSC 471

Supreme Court New South Wales

Medium Neutral Citation: Claudio Grizonic v Suzanne Ranken Suttor & ors; Dawn Wade v Suzanne Ranken Suttor [2011] NSWSC 471 Hearing dates: 10, 11 June & 17 September 2010 Decision date: 23 May 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Trustees entitled to moneys in court pursuant to trustees' indemnity. Moneys in court to be paid out to trustees. Judgment that defendant Suttor pay plaintiff Wade $38,813. Catchwords: PARTNERSHIP - dissolution and winding up - Wade claims to be creditor- whether debts incurred post dissolution by continuing partner carrying on partnership business necessary for winding up of partnership - assignment of debts at law under (NSW) Conveyancing Act, s 12 - plaintiff appointed agent for collection of certain debts - no absolute assignment of these debts - notification of certain assignments said to be given to creditor's solicitor - notice to solicitor is notice to client - notice by service of initiating processes. PAYMENTS INTO COURT - where funds paid in from sale of non-partnership asset pending outcome of accounting between partners - whether partnership creditor entitled to moneys paid in - fund solely to secure entitlements of partners on taking of partnership accounts - fund not to secure partnership liabilities - creditor has no proprietary entitlement to funds in court. TRUSTEES - Trustees appointed under Conveyancing Act s 66G to sell real property held in co-ownership by former partners - whether costs incurred by trustees in defence of proceedings unsuccessfully brought against them by beneficiary after trust terminated and property distributed incidental to administration of trust - termination of trust does not render defence of subsequent allegations of breach of trust other than incidental to administration - whether trustees disentitled to indemnity by failing to seek judicial advice - failure to seek advice does not disentitle - where trust property still identifiable and traceable - indemnity persists post termination of trust - trustees entitled to indemnity and lien over property. Legislation Cited: (NSW) Civil Procedure Act 2005, s 64(3) (NSW) Conveyancing Act 1919, s 12, s 66G (NSW) Partnership Act 1892, s 38 (NSW) Uniform Civil Procedure Rules 2005, r 14.17, r 42.25 (NSW) Trustee Act 1925, s 59 Cases Cited: Balkin v Peck (1998) 43 NSWLR 706 Bovaird v Frost [2009] NSWSC 917 Butchart v Dresser (1853) 4 De GM & G 542; 43 ER 619 Cameron v Renouf (No 2) [2009] WASC 84 Cheesbrough v Thompson (1866) 5 SCR (NSW) 366 Drummond v Drummond [1999] NSWSC 923 Fay v Moramba Services Pty Ltd [2010] NSWSC 725 Grizonic v Suttor [2008] NSWSC 914 Hardoon v Belilios [1901] AC 118 Hewett v Court (1983) 149 CLR 639 In re Bourne [1906] 2 Ch 427 In re Llewellin; Llewlelin v Williams (1887) 37 Ch D 317 IRC v Graham's Trustees (1971) SLT 46 Islamic Council of South Australia v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Magee v UDC Finance Ltd [1983] NZLR 438 Matthews v Ruggles-Brise [1911] 1 Ch 194 Martinali v Ramuz [1953] 1 WLR 1196 National Trustees Executors and Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 Pantzer v Wenkart (2006) 153 FCR 466 Re Beddoe, Downes v Cottam [1893] 1 Ch 547 Re Diplock; Diplock v Wintle [1948] 1 Ch 465 Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439 Shirlaw (Now Rogers) v Malouf (1989) 15 ACLR 641 Smith v Smith [1926] NZLR 311 Toyama Pty Ltd v Landmark Building Developments Pty Ltd (No 2) [2007] NSWSC 55 Trautwein v Richardson [1946] ALR 129 Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 Worrall v Harford (1802) 8 Ves Jun 4 Texts Cited: Ford & Lee, Principles of the Law of Trusts Category: Principal judgment Parties: 2003/087265: Claudio Grizonic (plaintiff) Suzanne Ranken Suttor (first defendant) Find a Flat Pty Ltd (second defendant) Dawn Wade (third defendant) Geoffrey McDonald (fourth defendant) Paul LeRoy (fifth defendant) 2009/287047 Dawn Wade (plaintiff) Suzanne Ranken Suttor (defendant) Representation: Counsel: A J Grant (Ms Suttor) J T Johnson (Trustees - LeRoy & McDonald) G C Jones (Ms Wade) Solicitors: M Gallego (Ms Suttor) Yates Beaggi Lawyers (Trustees) In person (Ms Wade) File Number(s): 2003/087265 2009/287047