In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703 Hearing dates: 1 November 2018 Decision date: 09 November 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Declaration made that the Applicant is the trustee of The Dean Superfund. Order made that the Applicant be joined as a defendant in each of proceedings 2014/229138 and proceedings 2018/99714. Catchwords: TRUSTS – appointment of trustee – where sole member of trust resolved to remove former trustee and resolved to appoint replacement trustee in accordance with express power contained in trust deed – whether declaration should be made as to validity of appointment of trustee of the trust – where vesting order under s 71 of the Trustee Act 1925 (NSW) sought in respect of unidentified property held by previous trustee subject to trust – whether vesting order should be made.

PRACTICE AND PROCEDURE – joinder of parties – where former trustee of trust made substantial loan to company in liquidation – whether replacement trustee of trust should be joined as a defendant in substantive proceedings. Legislation Cited: - Evidence Act 1995 (NSW) s 136 - Powers of Attorney Act 2003 (NSW) s 28 - Transfer of Land Act 1958 (Vic) ss 43, 77 - Trustee Act 1925 (NSW) ss 6, 9, 71 Cases Cited: - Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447 - John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 - Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042 - News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; 21 ACSR 635 - Statewide Developments Pty Ltd (in liq) (recs and mgrs apptd) v Azure Property Group (Holdings) Pty Ltd [2012] NSWSC 616; (2012) 84 NSWLR 133 Texts Cited: - J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, (8th ed, 2016, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Overdean Developments Pty Ltd (Applicant) BAD Nominees (NSW) Pty Ltd (Second Respondent) Leonardus Smits (Third Respondent) Peter Mahommed (Fourth Respondent) Representation: Counsel: A Katsoulas (Applicant) L Smits (Solicitor) (Second Respondent)