Equity

Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here

Ubiparipovic & Ors v Vucicevic & Ors [2018] NSWSC 1583 (19 October 2018)

EQUITY — charitable trusts – application for approval of the settlement of charitable trust proceedings – Separation of assets of the St George Serbian Orthodox Church and School Cabramatta (SGSOCC) under two cy–près schemes effecting a division of assets between two different church organisations. 

Dr Christos Mantziaris represented the representatives of the SGSOCC (Plaintiffs).

Reasons for the decision can be found here

Lever v Attorney General of NSW [2018] NSWSC 838 (29 May 2018)

EQUITY – Charitable trusts — private international law — validity of testamentary gift to a foreign executor applying the gift to a charitable purpose in a foreign jurisdiction — how the foreign charitable purpose is to be assessed — Hague Convention — evidence of foreign law.   

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Wright v Stevens [2018] NSWSC 548 (3 May 2018)

TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here

Willoughby City Council v Attorney General of NSW [2016] NSWSC 972

EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered

Dr Mantziaris appeared for the Attorney General (NSW).

Great Investments Ltd v Warner [2016] FCAFC 85

CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) 

EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution

EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice

CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted

Tim Castle appeared for the applicant.

Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road.

LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance

CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme

WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’  

Dr Christos Mantziaris and Steven Cominos appeared for RMS

Lambert Leasing Inc. v QBE Insurance Ltd (No 2) [2015] NSWSC 1196

EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise

Dr Chris Ward appeared for the plaintiffs

Luxcon Developments No. 2 Pty Ltd v Ratner [2014] NSWSC 861

EQUITY - Equitable remedies - Injunctions - Interlocutory injunctions - Whether an interlocutory injunction should be granted pending outcome of further proceedings - Whether defendant is entitled to set aside $1.5 million of the profits of sale of land - Serious question on determination of enforcement of joint venture agreement to be tried in further proceedings - Serious question to be tried on amount of net profits and percent of profit share owed to defendant - Balance of convenience favoured granting of interlocutory injunction.