Baba v Sheehan [2019] NSWSC 1281

Supreme Court New South Wales

Medium Neutral Citation: Baba v Sheehan [2019] NSWSC 1281 Hearing dates: 14, 15 November 2018; 14, 15 March 2019 Date of orders: 26 September 2019 Decision date: 26 September 2019 Jurisdiction: Equity - Corporations List Before: Parker J Decision: See [89]-[90]. Catchwords: EQUITY — Trusts and trustees —Trust powers —Powers of appointment – whether trustee validly appointed – whether appointment complied with trust deed – where email gave notice of appointment and foreshadowed further formal notice – whether formal notice sent – whether appointment invalid as an abuse of power – where appointor appointed as trustee a company under his control – power to appoint trustee not fiduciary in nature nor fraud on the trust power in issue – consideration of Re Skeats' and Montevento Holdings Pty Ltd v Scaffidi.

EQUITY — Trusts and trustees — Trust instruments – breach of trust deed where transfer of units registered and notice procedure not followed – no estoppel by party's failure to take issue with transfer at mediation – no relief sought against the transfer.

EQUITY — Trusts and trustees — Termination of trust – appointment of receiver sought to secure winding up of the Trust – form of orders inappropriate to effect relief sought – inappropriate to terminate trust where business remains profitable and no oppression made out.

EQUITY — Trusts and trustees — Unit trusts – Distribution of entitlements – salary sacrifice arrangement in breach of Income Tax provisions - unit holders to repay entitlements received in addition to salary. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Part 54 Cases Cited: Australian Conservation Services Pty Ltd v Liladel Holdings Pty Ltd (2017) 319 FLR 401; [2017] ACTSC 162 Montevento Holdings Pty Ltd v Scaffidi (2012) 246 CLR 325; [2012] HCA 48 Re Gaydon [2001] NSWSC 473 Salomon v A Salomon & Co Ltd [1897] AC 22; [1895-99] All ER Rep 33 Vatcher v Paull [1915] AC 372 Texts Cited: Geraint W Thomas, Thomas on Powers (2nd ed, 2012, Oxford University Press) Professor P D Finn, Fiduciary Obligations (1946, The Law Book Company) Category: Principal judgment Parties: Anna Monica Baba (Plaintiff) Paul Vincent Sheehan (First Defendant) Sedarni Pty Limited (Second Defendant) Rijalu Pty Limited (Third Defendant) Smart Street Optical Pty Limited (Fourth Defendant) Silktote Pty Limited (Fifth Defendant)