Daily Banking: Wednesday, 27 May 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.
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Daily Banking

Executive Summary (One Minute Read)
The Trust Company (RE Services) Ltd (NSWSC) - equity - trusts and trustees - construction of trust instrument - judicial advice given
Stephens v Chee (QSC) - equity - trusts and trustees - trustees advised to bring proceedings against companies for repayment of money to trust
Gerrard v Wang (WASC) - contract for sale of land - termination of contract for repudiation by purchaser - purchaser liable to pay damages to vendors for breach of contract
CFC Consolidated Pty Ltd v Cooper (WASC) - contract - restraint of trade - search order refused
Summaries With Link (Five Minute Read)
The Trust Company (RE Services) Ltd [2015] NSWSC 617
Supreme Court of New South Wales
Darke J
Equity - trusts and trustees - company was responsible entity of trust registered as managed investment scheme under Ch 5C Corporations Act 2001 (Cth) - plaintiff sought opinion advice and direction of Court pursuant to 63(1) Trustee Act 1925 (NSW) as to whether it was justified in proceeding on basis that on true construction of clause of trust terms in Constitution of Trust it may only give Issuer Realisation Notice (Notice) under clause if it had received notice from ordinary unit holder or Paperlinx LLC under clause - construction of constitution of trust - held: plaintiff justified in proceeding on basis it may only give an Issuer Notice under clause if it had received notice from Paperlinx Limited or Paperlinx LLC - advice given.
Trust
Stephens v Chee [2015] QSC 138
Supreme Court of Queensland
P McMurdo J
Equity - trusts and trustees - trustees brought ‘Beddoe’ application seeking Court’s advice whether to bring proceedings, and an order indemnifying them from trust’s assets for costs incurred - trustees also sought order they should not provide trust’s documents to one of the beneficiaries, who would be principal defendant in proposed litigation - ss96 & 63(1) Trusts Act 1973 - held: trustees advised that proceedings could and ought to be brought against companies for repayment of money to trust according to subject trust’s account - trustees directed to seek further advice on proceedings after completion of disclosure if proceedings not determined earlier - Court not prepared to make order sought in relation to documents - Court found it preferable that costs burden  fall upon parties who stood to gain from the litigation.
Stephens
Gerrard v Wang [2015] WASC 173
Supreme Court of New South Wales
Contract for sale of land - damages - repudiation - plaintiffs were vendors who claimed damages for defendant’s failure to complete contract for purchase of their land - because of defendant’s failure to perform contractual obligation plaintiffs had terminated contract and sold land for price less than price defendant bound to pay - held: plaintiffs’ claim established existence and validity of contract, breach of contract by failure to pay the purchase price, and termination of the contract for failure to perform - defendant liable to plaintiffs for breach of contract - judgment for vendors.
Gerrard
CFC Consolidated Pty Ltd v Cooper [2015] WASC 185
Supreme Court of Western Australia
Mitchell J
Contract - restraint of trade - claim arising out of termination of employment contract between plaintiff and defendant - plaintiff claimed defendant breached restraint of trade provision of contract - plaintiff sought search orders under O52B Rules of the Supreme Court 1971 enabling search of defendant’s residence for documents - held: Court not satisfied there was a strong prima facie case that defendant had breached restraint of trade clause in employment contract or that plaintiff would suffer serious loss or damage if search order not made - Court not satisfied there was real possibility defendant might destroy important evidentiary material - Court not prepared to make search order - alternative injunctive relief granted.
CFC