Iscorp Investments Pty Ltd v Yohana [2011] NSWSC 1387

Supreme Court New South Wales

Medium Neutral Citation: Iscorp Investments Pty Ltd v Yohana [2011] NSWSC 1387 Hearing dates: 8 November 2011 Decision date: 11 November 2011 Jurisdiction: Equity Division Before: Rein J Decision: 1. Declare that any beneficial interest of the plaintiff in Lots 3 and 7 should be treated as exhausted by virtue of a liability to the defendant. 2. A similar declaration in respect of Lot 4 will be made on the expiry of 14 days if the plaintiff does not pay $224,349.81 within that time. 3. Mr Henrick Isaac, in addition to the plaintiff, ordered to pay the defendant's costs in relation to the statement of claim. 4. The plaintiff to pay the defendant's costs of the cross-claim. Catchwords: EQUITY - trustee's rights to indemnity for expenses incurred and rights to exoneration for liabilities incurred in respect of trust property - where the defendant holds the legal title to lots in a commercial building owed either solely by, or jointly with, the plaintiff - where the defendant, by way of cross-claim, seeks to be reimbursed or exonerated by the plaintiff for payments of expenses and mortgage repayments which are in excess of his appropriate share - whether an order for sale of the properties is necessary where the plaintiff's beneficial interest in the properties is clearly less than the amount to be paid to the defendant

PRACTICE AND PROCEDURE - costs - whether the sole director and sole shareholder of the plaintiff company should be ordered, in addition to the plaintiff company, to pay the defendant's costs of the proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Timothy O'Brien Pty Ltd v Mistral Vision Pty Ltd (2004) 2 DCLR(NSW) 86 Texts Cited: J D Heydon & M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed (2006) H A J Ford & W A Lee, Principles of the Law of Trusts, vol 2 Scott on Trusts, 4th ed (1988), vol 3A D Ong, Trusts Law in Australia, 3rd ed (2007) Category: Principal judgment Parties: Iscorp Investments Pty Ltd (plaintiff/cross-defendant) Youbert Yohana (defendant/cross-claimant) Representation: N Cotman SC; R Newton (defendant/cross-claimant) David Legal (defendant/cross-claimant) File Number(s): SC 2009/289992