The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd [2015] NSWCA 225

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd [2015] NSWCA 225 Hearing dates: 26 March 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Before: Bathurst CJ at [1]; Macfarlan JA at [183]; Emmett JA at [184] Decision: Appeal allowed in part. Remit the appellant's claim for damages or equitable compensation arising out of the failure by the respondent to appoint a controller in accordance with cl 6.1(b) of the Security Trust Deed to a judge of the Equity Division for hearing. Appeal otherwise dismissed. Direct the parties to make submissions as to the costs of the appeal and the proceedings below within 14 days. Catchwords: EQUITY – trusts – trustees – breach of trust - construction of trust instrument – contract – construction - inconsistent clauses – whether a trust deed obliged the trustee to appoint a controller during the decision period

WAIVER – whether appellant waived the respondent's breach of trust

EQUITY – trusts – contracts - construction – whether it was necessary for the appellant to establish negligence – whether the evidence demonstrated that the respondent was negligent in failing to appoint a controller – whether exception to liability was made out

EQUITY – trusts – trustees – breach of trust – claim for breach of trust by beneficiary who is not the sole beneficiary of a trust – claim for breach of trust by a single beneficiary where a trust is subsisting with a number of beneficiaries

EQUITY – trusts – trustees – breach of trust – contract – breach of contract - damages – equitable compensation - evidence of loss – whether appellant established causation and loss sufficient to warrant a quantification hearing