Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003

Supreme Court New South Wales

Medium Neutral Citation: Glenella One Pty Ltd v Duncan (No 3) [2015] NSWSC 1003 Hearing dates: 21 July 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Stay of proceedings lifted only for the purpose of determining the present application; Joanne Thomas added as a defendant to the proceedings; injunction granted as sought in notice of motion Catchwords: INJUNCTIONS – application to restrain parties from disposing of trust assets or purporting to appoint replacement trustee – where evidence establishes reasonable basis for apprehending purported appointment without power such as to place trust assets at risk Cases Cited: Glenella One Pty Ltd v Duncan [2015] NSWSC 165 Glenella One Pty Ltd v Duncan (No 2) [2015] NSWSC 441 Category: Procedural and other rulings Parties: Glenella One Pty Ltd (plaintiff) Andrew Duncan (first defendant/applicant) Joanne Thomas (first respondent) Morten Weaver (second respondent) Representation: Counsel: G McGrath SC (first defendant/applicant)

Solicitors: Owen Hodge Solicitors File Number(s): 2014/163175 Publication restriction: None

Judgment 1. HER HONOUR: Before the court is an ex parte application for an injunction brought by Mr Andrew Duncan, the first defendant in these proceedings. The proceedings were stayed by Schmidt J earlier this year pending the determination of an application in proceedings in the Family Court which raise common issues of fact: Glenella One Pty Ltd v Duncan [2015] NSWSC 165; and see Glenella One Pty Ltd v Duncan (No 2) [2015] NSWSC 441. It is appropriate to lift the stay only to the extent necessary to determine the present application. 2. The basis for the application today is set out in the affidavit of Katie Louise Howard sworn 9 July 2015 and two affidavits sworn by the same deponent on 21 July 2015, together with further information provided in written submissions dated 14 April 2015, evidently provided in support of an application to vacate the stay to which I have referred. 3. The urgency of today's application is revealed in correspondence annexed to one of Ms Howard's affidavits sworn today. The correspondence reveals that assets in which Mr Duncan claims an interest, currently held by a trust established by deed dated 18 February 2004 and known pursuant to cl 2.1 of the deed as the "Turtle Trust", appear to be at risk. 4. The risk emerges from the fact that one of the primary beneficiaries under the trust deed, Mr Morton George Weaver, has evidently asserted in correspondence that the trustee of the Turtle Trust is Ms Joanne Thomas. Ms Thomas is understood to be Mr Weaver's current girlfriend. Mr Duncan is the brother of Mr Weaver's ex-partner, Ms Jane Duncan, who is deceased. 5. The assertion in correspondence (dated yesterday) that the new girlfriend, Ms Thomas is the trustee of the Turtle Trust is alarming since, according to the material before me, the present state of affairs is that probably no person or entity has power to appoint a trustee of the trust and Mr Weaver certainly does not have that power. The trustee was White Turtle Pty Limited but that company is now in liquidation, with the result that its office as trustee is determined and vacated in accordance with cl 8.8 of the deed. 6. Upon that event, the trust provides that the power to appoint a new trustee vests in Mr Weaver and Ms Duncan jointly during their lifetime and, on and from the death of either of them, the remaining appointer. Ms Duncan died, evidently by her own hand, in the middle of March this year, with the result that Mr Weaver is the "second appointer" within the meaning of cl 7.1 of the deed. However, he also is unable to exercise that power by reason of his having been declared bankrupt. 7. It may be that in those circumstances no person or entity has power under the deed to appoint a replacement trustee and that a trustee will have to be appointed by the Court. But in any event it is clear enough from the material I have seen that Mr Weaver does not have that power. In my view, his correspondence in which he asserts that the trustee is now Ms Thomas accordingly reveals reasonable grounds to apprehend risk to the security of the assets of the trust so far as Mr Duncan's interests are concerned. That apprehension is reinforced by a consideration of the litigious context in which that assertion is made. 8. For those reasons I am persuaded that it is appropriate to grant the relief sought in the notice of motion filed in court today. 9. As a matter of logic it is necessary first to lift the stay granted by Schmidt J to the extent necessary to determine the notice of motion filed in court today and, secondly, to order that Ms Thomas be joined as a defendant to the proceedings. Otherwise, the orders I will make are those set out in the form of order handed up by Mr McGrath SC, as amended by me in my handwriting. I will direct Mr McGrath to have those orders engrossed, following which the orders will be made in court or in chambers by me later today.