Meehan v Glazier Holdings Pty Ltd

(2002) 54 NSWLR 146; [2002] NSWCA 22

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Trusts
3. › Accounts and inquiries
4. › Order for accounts in common form
5. › Application to vary to wilful default basis
6. › Whether consent order for accounts including order for payment was a final order
7. › Whether final order could be varied
1. Equity
2. › Trusts
3. › Accounts and inquiries
4. › Wilful default
5. › What constitutes wilful default
6. › Whether failure to maintain adequate books and records is an instance of wilful default
7. › Requirement to establish at least one instance of wilful default
1. Practice and Procedure
2. › Judgments and orders
3. › Finality of orders
4. › Consent orders
5. › Whether order for taking accounts with order for payment of amount found due is a final order
6. › Power to vary entered final orders
7. › Supreme Court Rules Pt 40 r 9(4)
8. › Supreme Court Rules Pt 42 r 12

Quick Take

A consent order for the taking of accounts that also includes an order for payment of the amount found due is a final order that cannot be varied to change the basis of accounting from common form to wilful default. Practitioners seeking to preserve the ability to later seek accounts on a wilful default basis should ensure the initial order follows the normal Chancery procedure of ordering accounts with adjournment for further consideration, rather than including an immediate order for payment. Failure to maintain adequate books and records, while a breach of trust, does not without more constitute wilful default — wilful default requires that through breach of trust the trustee failed to obtain for the trust that which would have been obtained if duties had been discharged.