Jaken Properties Australia Pty Ltd v Naaman

(2023) 112 NSWLR 318; [2023] NSWCA 214

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Equity
2. › Fiduciary duty
3. › Whether fiduciary duty owed by successor trustee to former trustee
4. › Former trustee's entitlement to indemnity from trust assets
5. › Whether vulnerability of former trustee sufficient to ground fiduciary obligation
6. › Whether analogy with duty owed by mortgagee with surplus after exercising power of sale
7. › Rothmore Farms Pty Ltd (in liq) v Belgravia Pty Ltd [2005] SASC 117 considered
1. Equity
2. › Trusts
3. › Trustee's right of indemnity
4. › Nature of former trustee's equitable proprietary interest in trust assets
5. › Whether interest survives retirement of trustee
6. › Whether successor trustee subject to fiduciary obligation in respect of that interest
1. Equity
2. › Knowing receipt and knowing assistance
3. › Barnes v Addy principles
4. › Whether third parties liable for knowing receipt or knowing assistance
5. › Whether predicate breach of fiduciary duty established
1. Real Property
2. › Conveyancing Act 1919 (NSW), s 37A
3. › Alienation of property with intent to defraud creditors
4. › Whether refinancing transaction constituted alienation of property
5. › Whether bank a necessary party to proceedings seeking to void transactions

Quick Take

Former trustees in NSW seeking to protect their right of indemnity from trust assets cannot rely on fiduciary duty claims against successor trustees; they must instead rely on equitable proprietary remedies, caveats, s 37A of the Conveyancing Act, and interlocutory relief.