El Sayed v El Hawach [2015] NSWCA 26

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: El Sayed v El Hawach [2015] NSWCA 26 Hearing dates: 10 February 2015 Decision date: 26 February 2015 Before: Beazley P; Gleeson JA; Leeming JA Decision: 1. Appeal dismissed.

2. Cross-appeal allowed.

3. Order 6 made on 20 December 2013 be set aside.

4. Vary order 7 made on 20 December 2013 by deleting the word "otherwise".

5. Vary order 8 made on 20 December 2013 by deleting the words "75% of".

6. Order that the appellants/cross-respondents pay the costs of the respondents/cross-appellants of the appeal and cross-appeal. Catchwords: TRUSTS AND TRUSTEES - "discretionary trust" - appointor purported to exercise powers inconsistently - standing - whether eligible beneficiaries of discretionary trust had standing to bring derivative action - where proceedings had been brought against eligible beneficiaries - where eligible beneficiaries claimed to have become trustee and appointor - whether special circumstances established - eligible beneficiaries had standing

TRUSTS AND TRUSTEES - fiduciary duties - whether purported appointment of eligible beneficiary who acted as trustee's solicitor as appointor a breach of duty - obligation to consider scope of fiduciary obligations - no breach established Legislation Cited: Supreme Court Act 1970 (NSW), s 75 Cases Cited: Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 Australian Securities and Investments Commission v Carey [No 6] [2006] FCA 814; 153 FCR 509 Barescape Pty Limited as trustee for The V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 9) [2012] NSWSC 984 Beach Petroleum NL v Kennedy [1999] NSWCA 408; 48 NSWLR 1 Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606 Bray v Ford [1896] AC 44 Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; 192 CLR 226 Deutsch v Deutsch [2012] VSC 227; 6 ASTLR 386 Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Highland v Labraga (No 2) [2005] NSWSC 1212 In re Coomber; Coomber v Coomber [1911] 1 Ch 723 In re Skeats' Settlement (1889) 42 Ch D 522 In the Matter of X (Trust) [2012] JRC 171 Kearns v Hill (1990) 21 NSWLR 107 Lewis v Condon [2013] NSWCA 204; 85 NSWLR 99 Pearson v Commissioner of Taxation [2001] FCA 1427; 116 FCR 357 Rigg v Sheridan [2008] NSWCA 79 Sharpe v San Paulo Railway Company (1873) LR 8 Ch App 597 Warman International Ltd v Dwyer [1995] HCA 18; 182 CLR 544 Texts Cited: P Finn, Fiduciary Obligations Law Book Company, 1977 G Thomas and A Hudson, The Law of Trusts Oxford University Press, 2nd ed, 2010 Category: Principal judgment Parties: Khaled El Sayed (1st Appellant and 1st Cross-Respondent) M E Asset Investments Pty Ltd (2nd Appellant and 2nd Cross-Respondent) Sayed El Hawach (1st Respondent and 1st Cross-Appellant) Victoria Lahoud (2nd Respondent and 2nd Cross-Appellant) Brady Street Developments Pty Ltd (3rd Respondent) Representation: Counsel: W Chan (Appellants and Cross-Respondents) R Horsley (Respondents and Cross-Appellants)