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[2014] NSWSC 676
Supreme Court of NSW
2014-05-20
Slattery J, Re J
Original judgment source is linked above.
Judgment 1This judgment deals with the final issues in these proceedings. The Court gave its principal judgment in the proceedings on 30 September 2013 and its second and third judgments respectively on 27 February and 31 March 2014: Amir Ashrafinia v Mohammad Reza Ashrafinia; Parvaneh Karami Fakhrabadi v Mohammad Reza Ashrafinia [2013] NSWSC 1442; Amir Ashrafinia v Mohammad Reza Ashrafinia; Parvaneh Karami Fakhrabadi v Mohammad Reza Ashrafinia (No. 2) [2014] NSWSC 145; Amir Ashrafinia v Mohammad Reza Ashrafinia; Parvaneh Karami Fakhrabadi v Mohammad Reza Ashrafinia (No. 3) [2014] NSWSC 385. 2The parties advanced supplementary written and oral submissions on 20 May 2014 in respect of the remaining issues for determination. Mohammad moved on an Amended Motion filed in Court on 20 May. Events, matters and things are referred to in this judgment in the same way as they are in the earlier judgments. All four judgments should be read together. 3On 20 May there were still several issues to be resolved: (a) whether Mohammad should have an indemnity costs order against Amir; (b) whether Mr Hayes' fees as trustee for sale should be allowed; and (c) whether an independent trustee or whether Karami should be appointed as trustee of the Trust in place of Trading. Issue (b) was resolved by consent just before the Court gave judgment, leaving what appears to be a residual costs issue.
(a) Indemnity Costs Against Amir 4The Court's second judgment ordered Amir to pay Mohammad's costs of the 2008 proceedings on the ordinary basis: Amir Ashrafinia v Mohammad Reza Ashrafinia; Parvaneh Karami Fakhrabadi v Mohammad Reza Ashrafinia (No. 2) [2014] NSWSC 145 at [85], order (4). But the Court reserved for further consideration (at [70]) whether Mohammad's costs order against Amir for the 2008 proceedings should be assessed after 27 May 2011 on the indemnity basis, upon the basis of the offer of compromise served on Amir's lawyers that day. The Court's second judgment (at [70]) indicated that the evidence about the offer of compromise, its service and any response, were unclear. The Court's second judgment reserved for further consideration the question of whether or not indemnity costs would be awarded in the 2008 proceedings, and pointed out (at [70]) that the parties would have "an opportunity to advance any other evidence or submission relevant to this issue of indemnity costs" before the issue was determined. 5Mohammad took up the Court's invitation. On 4 April 2014 pursuant to the Court's directions he filed an affidavit and accompanying submission, together with various documents he claimed supported his claim for indemnity costs against Amir. 6Through his 3 April 2014 affidavit, Mohammad established that his solicitor, Mr Chris Wilkinson of Brown, Wright, Stein lawyers emailed the then solicitor for Amir, Ms Laura Piercy of Carroll & O'Dea, on 27 May 2011 with a letter of the same date, making the following offer of compromise, which the letter claimed was made in accordance with the Uniform Civil Procedure Rules ("UCPR") 2005, r 20.26. "Offer of compromise in respect of Amended Summons 1. We refer to the Amended Summons filed on 21 November 2008 ('Amended Summons'). 2. In accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005 we are instructed to make the following offer of compromise on behalf of Mohammad (first defendant) and the Company (second defendant): (a) In proceedings 2008/281524, the first and second defendants consent to orders in terms of prayers [3] and [4] of the Amended Summons filed on 21 November 2008. (b) Prayers [1], [2], and [5] of the Amended Summons filed on 21 November 2008 be dismissed. 3. The above offer is made exclusive of costs. 4. The above offer is an open offer. 5. The closing date for acceptance of the above offer is 10 June 2011." 7A reasonable time was allowed for Amir to accept this offer. And it represented a genuine compromise of the matters to which it was directed. 8Amir failed to gain any relief against Mohammad in the 2008 proceedings. In its principal judgment the Court found that in the 2008 proceedings that there was no joint venture between Mohammad and Amir, as Amir had alleged as the plaintiff in those proceedings: principal judgment at [114]. And as there was no joint venture, the Court found that there were no joint venture assets, but that the assets alleged to be part of the joint venture, were assets of the Trust: principal judgment at [123] to [141]. 9What was the effect of this offer of compromise? Clause 2(a) of the offer of compromise offered Mohammad's consent to orders in terms of prayers 3 and 4 of the Amended Summons filed on 21 November 2008 in the 2008 proceedings. These were orders that would have cancelled an issue of shares in Trading and would have permitted Amir's re-appointment to Trading's board. Paragraph 2(b) of the offer of compromise offer the dismissal, prayers 1, 2 and 5 of the Amended Summons. 10But the relief claimed in those paragraphs is fundamentally different from the relief finally claimed in the 2008 proceedings; so different indeed that the offer of compromise is essentially irrelevant to the litigation as conducted. The relief claimed in that 21 November 2008 Amended Summons was as follows: "1. A declaration that the notice of meeting of the second defendant dated 25 May 2007 was not validly served upon the plaintiff or upon Abbas Ashrafinia. 2. A declaration that the purported resolution of the alleged meeting of members of the second defendant purportedly held on 19 June 2007 is of no effect. 3. An order that the first and second defendants do all things necessary in order to cancel the issuance of new shares in the second defendant that were purportedly issued by resolution on 19 June 2007. 4. An order that the first and second defendants take all necessary steps to reappoint the plaintiff as a director of the second defendant. 5. An order that the first and second defendants be restrained from: (a) from entering 5/22 Rosyln Gardens, Elizabeth Bay, and (b) from interfering with the plaintiff's possession of such premises." 11The 2008 proceedings were ultimately fought out on the basis of the contents of the Amended Statement of Claim filed on 1 October 2009, which alleged the joint venture considered in detail in the principal judgment. In contrast, the Amended Summons in the 2008 proceedings only concerned a side issue which, as the Court's principal judgment shows, was barely the subject of any contest: principal judgment at [5] to [11], [105] to [141]. The peripheral relevance of the Amended Summons is explained in the principal judgment between [94] and [98]. And the complete sidelining of this issue is especially evident from paragraph [97] of the principal judgment as follows: "When Amir commenced the 2008 proceedings he first sought relief to challenge the validity of the 19 June 2007 general meeting of Trading and to restore him to its board. But such issues were soon sidelined. Trading's affairs and those of the Trust were paralysed by the wider issues between Mohammad and Amir litigated in the 2008 proceedings." 12The Court's jurisdiction to order indemnity costs based on offers of compromise arises from UCPR, r 42.13. UCPR, r 42.14 applies where an offer is not accepted so as to give the plaintiff an entitlement to an order for indemnity costs from the time of the offer, subject to the exercise of the Court's discretion under that rule. But Mohammad cannot bring himself within this rule or the discretion. First, Mohammad has not established that he has obtained "judgment on the claim concerned". He obtained judgment on quite a different claim. Nor for the same reason has he established that any judgment he has obtained is "no less favourable to the plaintiff that the terms of the offer". Moreover, even if he had established these matters this is a case in which the Court would "otherwise order" under UCPR, r 42.14(2), because the issue on which the offer was made was "sidelined" before the main hearing. 13There may be other technical objections to reliance upon the offer of compromise. But it is not necessary to consider them in addition to this matter of substance. 14In the circumstances therefore the Court declines to make an indemnity costs order in the 2008 proceedings in Mohammad's favour.
(b) Mr Hayes' Fees 15Karami took issue with the fees Mr Hayes charged and incurred as the trustee for sale of the Marsfield property. 16The Court appointed Mr Hayes as trustee for sale of the Marsfield property on 31 October 2013. Before he was appointed Mr Hayes gave affidavit evidence of his qualifications to take the appointment and the fees that he and his firm Hayes Advisory Pty Ltd would charge. It was indicated to the Court before his appointment that he expected that the overall fees of the engagement would be in his order of $20,000. 17But the task was more complicated than Mr Hayes expected. He engaged the law firm Collin Biggers and Paisley to provide legal advice to him. Apart from the costs of the present motion for a Court direction that his fees and expenses be deducted from the balance of the proceeds of sale, he seeks recovery of a total of $76,752.67, broken up as follows: (1) Mr Hayes' professional remuneration - $30,292.35; (2) General disbursements - $4,434.99; and (3) Solicitor's fees and expenses paid to Collins Biggers and Paisley - $42,025.33. 18Although the total costs are close to quadruple what Mr Hayes estimated before he was appointed, his own professional remuneration is about 50 per cent more than his estimate. Legal fees account for most of the increase. 19Karami took issue with Mr Hayes' fees. Trustee Act, s 59(4) authorises Mr Hayes to reimburse himself out of trust property for all expenses occurred in the execution of the Trust. Strictly he does not need the Court's advance authority for deducting the expenses he claims. But his own professional fees are a different matter and in light of Karami's objection he took the reasonable course of asking the Court to resolve the dispute about whether his professional and legal costs may be deducted before funds are paid into Court, rather than doing so at a later time. 20On 27 May the solicitors for each of Mr Hayes and for Karami informed the Court that agreement had been reached about Mr Hayes' fees. That agreement is included in the orders made below. The Court has considered the evidence about Mr Hayes' professional remuneration and expenses and will approve his professional fees. 21A residual question may arise in light of this settlement as to what order should be made in respect to Karami's costs of the motion opposing Mr Hayes' fees. It has come to the Court's attention that quite independently of the present motion Mohammad has filed a motion returnable before the duty judge on 6 June 2014, when I am on leave. That motion seeks that additional costs incurred by Karami's challenge to Mr Hayes' professional remuneration and other expenses should not be paid from Trust funds. That question should be determined immediately after the Court gives judgment. I will allow the parties a short time to consider these reasons and then put such submissions today as they are advised on that question. This issue needs to be determined so that this aspect of the proceedings can be completely finalised.
(c) Appointment of a Trustee 22The Court decided in the principal judgment (at [335]) that a new trustee, the NSW Trustee and Guardian, should be appointed to replace Trading as the trustee of the Trust. As the Court's previous judgments on this issue show, the NSW Trustee and Guardian declined to act as trustee of the Trust and on 14 October 2013 the Court vacated its appointment: see second judgment at [48] to [53]. Between October 2013 and May 2014 the parties have had an opportunity to advance the respective names of their preferred alternative trustees. 23The parties take starkly opposed positions on this issue. Mohammad seeks either to have himself appointed trustee, or in the alternative to have one of a number of independent trustees appointed. In contrast, Karami asks that she be appointed as trustee. Although the Court itself has the capacity to administer the trust, neither party advances this course. For the reasons which follow, the Court has decided that, notwithstanding its earlier published doubts about her fitness and capacity, Karami should be appointed as the trustee of the trust in place of Trading. 24Mohammad advances three alternative positions about the appointment of fresh trustees. First, he submits he should be appointed trustee of the Trust. Secondly, he submits that one of four possible independent professional trustees should be appointed as trustee. Thirdly, he submits that liquidators should be appointed to wind up the Trust. Each of these options presents problems. 25Mohammad is clearly unfit to be trustee. The Trust has potentially large claims against him, for breach of trust, as detailed in the principal judgment. And costs orders have more recently been made against him. His personal financial interests are to resist any future claims by the Trust. The Trust's interests are to pursue those claims against him. The Court is not at all confident he could understand and manage this conflict. 26The independent professional trustees that Mohammad nominated were unexceptional. But they were very expensive. They had all given consents to appointment. In order of Mohammad's preference these potential trustees were, listed with their associated hourly charge out rates: (1) Mr Giles Woodgate at $570 per hour; (2) Mr John Andrew Spring at $550 per hour; and (3) Dr Richard Fryer, who would need the assistance of a professional accounting practice to execute the office of trustee, which practice would in turn employ Mr Jake Sellinger from Bentleys at $515 per hour (although more junior staff from Bentleys charging $165 to $205 per hour would do most of the relevant work). 27Once again Dr Fryer's willingness to assist the Ashrafinia's family is highly commendable. The Court has already commented favourably upon his past ready assistance to the Ashrafinia family in the principal judgment (at [66], [122] and [248]). It is not unreasonable for Dr Fryer to qualify his offer to take up such an appointment on the basis that he is professionally assisted. 28The option of winding up the Trust could be pursued. The cost of appointing a liquidator from Ferrier Hodgson would be no less than these other listed accounting professionals: the Ferrier Hodgson partners' charge out rate is $580 per hour, and an accountant above the rank of junior accountant is charged out at $230 per hour. 29The small residual capital in this Trust strongly suggests that all these charge out rates are too expensive for the current circumstances of the Trust. The Trust balance sheet is reasonably straightforward; it will soon have net assets of only $300,000. 30On the asset side, Mr Hayes will soon have paid about $485,000 in cash into Court. The Trust also has two contingent assets. The first is the possibility of recovering $160,000 from Citibank on account of GST the bank deducted during the sale of the Oporto property. Secondly, Mohammad points to another contingent asset: a right to sue Citibank for selling the Oporto property without its accompanying dormant liquor licence. Both these contingent assets seem to be speculative. Considerable funds would need to be applied to legal and other recovery costs before these assets could be realised. A proper approach is to assess the Trust's net assets after the sale of the Marsfield property as no more than $485,000. 31But there is also uncertainty on the liability side of the balance sheet. The Trust has not lodged with the ATO any tax returns since the 2010 financial year. Acting prudently a new trustee would have to rectify this situation in the near term. The Trust may face a tax assessment of unpredictable quantum after these returns are lodged. And Karami has foreshadowed that if she cannot recover the costs orders in her favour from Mohammad, she will be making an application that some of her legal costs expended in preserving Trust assets should be paid out of the Trust. It is safe to assume from what Mohammad has said in his submissions on this application that presently expects he will be in no position to pay Karami's legal costs of these proceedings. Therefore, I infer it is likely Karami will make an application for the payment of her costs from the Trust. It is difficult to accept from what the Court knows of the course of these proceedings that Karami's legal costs could be much less than about $200,000. She has some prospects of succeeding in such an application. 32Mohammad's submissions to the Court were underscored by indications that if he were unsuccessful on the current motion that he would bring further proceedings against the estate. A continuing shadow of contingent legal expenses lies over the Trust. 33This calls for a conservative approach. I assume Karami will make an application to have her legal costs paid out of the Trust and that she succeeds in that application up to a figure little under $200,000. This will leave net assets of about $300,000 in the Trust. A trust fund of the order of $300,000 cannot sustain the accountancy and administration fees that will accompany the appointment of an independent trustee. The remaining capital of the trust would be consumed quickly were the Court to appoint an independent trustee. Merely to become acquainted with the Trust's affairs may well consume tens of thousands of dollars in professional fees. Appointing an independent trustee may quickly deplete much of the capital of the Trust. Other solutions must be considered. 34The Court asked the parties whether they wanted the Court itself to administer the Trust. Neither party said that they did. In any event, the Court could not administer this discretionary trust without very considerable cost to the Trust estate. In order for the Court to take on the task of administration of the estate a number of legal assessments and administrative steps would need to take place that would be a financial burden to the estate. First the Court would have to receive submissions about whether the Trust Deed conferred either a trust power or a mere power to distribute among the objects of this discretionary trust, in accordance with established authority: Re Gulbenkian's Settlement Trust [1970] AC 508 and McPhail v Doulton [1971] AC 424. The provision of this Trust Deed are summarised in the principal judgment (at [44] - [54]). There are indications in the deed that a trust power may have been intended. Especially if the Court concluded that the Trust Deed confers a trust power on the trustee then the Court could step in to administer the Trust and select eligible beneficiaries to take in execution of the trust power. Ordinarily the Court would direct representatives of the classes of beneficiaries to prepare a scheme of distribution: Re Denley's Trust Deed (1969) 1 Ch 373 at 388 and Re J. Bibby & Sons Ltd Pensions Trust Deed [1952] 2 All Eng R 483 at 486 and Schmidt v Rosewood Trust Limited [2003] 2 AC 709 at [42]. In the process of takeing these steps the Court's execution of the Trust will require the expenditure of considerable further legal costs. An estate with capital of no more than about $300,000 can ill afford such further expense. 35Winding up the Trust was also suggested, as Mohammad's default position. He nominated registered liquidators that had consented to an appointment for this purpose. Their fees have been identified. The process of winding up the Trust would also consume a relatively large proportion of its capital and would not free the Trust from further legal disputation. And Mohammad has made his position clear that if the Trust is wound up, he is content for the capital to be used to purchase an apartment for Karami and then after her death for the capital to be shared equally between himself and Amir. 36The Court is reluctant to wind up this Trust. The Court's jurisdiction over trusts and trustees is generally supported in the assumption that the Court will prefer to uphold and not to wind-up trusts, save in exceptional circumstances: Horvarth Corporate Pty Limited v Huie [1999] NSWSC 583, Young J at [24] - [26]. The Court's reluctance to wind a Trust up is stronger in a case such as this, where there is a surprisingly high level of consensus about how the capital of the Trust should be deployed in the short term. Both Mohammad and Karami submit that the capital of the Trust should be used in the short to medium term to acquire living accommodation for Karami. It is only in the longer term that the parties disagree about what might happen to the Trust's capital. Karami is only 60; and what might happen to the Trust later is a distant issue. No object of this discretionary trust comes to Court seeking to contradict the idea that in the short term at least the remaining limited Trust capital should be well used for Karami's accommodation. 37Karami offers herself for appointment as trustee. A number of considerations favour her appointment. Mohammad opposes it. 38Several factors favour Karami's appointment: (1) she is prepared to act on a voluntary basis, unlike any other candidate for appointment; (2) she already has a reasonable acquaintance with the affairs of the Trust and has a demonstrable (and successful) track record in the 2011 proceedings of seeking to preserve Trust property and to prevent breaches of trust; (3) she would not have any immediate conflict of interest in appointment to the position as trustee, and, (4) there is general consensus that the Trust property in the medium term should be used for her benefit, in any event. These factors favour Karami's appointment. 39But the Court has expressed reservations about her appointment in the principal judgment: "325. Azadeh and Karami are not suitable for appointment as trustees. The Court is not confident that either of them would administer the trust impartially. I doubt they could ever set aside their antipathy towards Mohammad in their administration of the trust. Karami believes Mohammad has betrayed the whole family. Azadeh is convinced that Mohammad was responsible for an assault that she suffered and that he only deserves her condemnation. Her attitude is manifest one of in her descriptions of him as "the crazy cancer in our family which we are trying to get rid of". 326 In my view the only hope of suitable future administration of this trust is for the appointment of an independent trustee. This is in my view would be a suitable case for the appointment of the NSW Trustee and Guardian. But Karami does not want the NSW Trustee and Guardian appointed. She seeks to put forward evidence of other persons who are willing to take on that role. As the Trust's assets have been much depleted by litigation and by the actions of Abbas, Mohammad and Amir, it is useful briefly to explore whether it is possible to appoint some independent trustee or trustees, who are prepared to serve in that role at a lower costs to the Trust than the NSW Trustee and Guardian. So, I will allow a very short opportunity for that to occur. But it will not be long. The Trust must very soon either pay Mr Russell's fees or arrange for the Marsfield property to be sold. I will allow only 14 days for the parties to find another Trustee and during that same period to propose a mechanism for the payment of Mr Russell's fees." 40What has changed? In the seven months since the Court gave the principal judgment the NSW Trustee and Guardian has declined appointment. No object of this discretionary trust has been able to identify a suitable independent trustee who will not charge substantial fees to the estate. The presently anticipated net assets of the Trust are just capable of buying Karami Sydney apartment accommodation, but no more. Costs orders have been made which effectively disqualify Amir and Mohammad from appointment as trustees because of the conflict of interest. And Karami has continued to indicate a steady purpose in seeking the stable future administration of the Trust. Moreover, Karami has a pressing need for stable accommodation due to the effects of a work injury on her overall health. Whilst the Court still has some reservations that Karami bears antipathy towards Mohammad, the appointment should nevertheless be made. The various applications which have been made since the time of the principal judgment have demonstrated that Karami acts upon sound legal advice, whatever may be her personal antipathies. 41Now that the Trust fund has greatly contracted, Karami also has a strong incentive to put aside any antipathy she may hold towards other family members and to administer what remains in the Trust conservatively to reduce the risk of her conduct further depleting its limited capital by generating conflict. The sale of the Marsfield property means that she must be accommodated somewhere. She is currently living in premises rented by Azadeh. She needs to use all available Trust capital for her accommodation. 42But Mohammad objects to her appointment. He raises some familiar and some new grounds of objection. Upon analysis these are not persuasive. 43Mohammad says Karami is ineligible for appointment. He submits that as primary beneficiary he has given notice to Karami (and other family members) under the Trust Deed making them Ineligible Appointees as defined, so that Karami cannot now be appointed as a trustee. There is some basis for this submission in the Trust Deed and in the events which have occurred. The appointor under the Trust may appoint any person "other than an Ineligible Appointee as a new or additional Trustee": Trust Deed, clause 23.1. An "Ineligible Appointee" is defined in the Trust Deed to mean a "person whom the trustee from time to time either revocably or irrevocably determines to be an Ineligible Appointee": Trust Deed, clause 1.1. 44Mohammad relies upon a notice to this effect that Messrs Brown, Wright, Stein lawyers sent to Boulton Julian Squire solicitors on 16 March 2009. The covering letter between those lawyers describes the notice as being from "Ashrafi Persian Trading Company Pty Ltd as trustee for the Ashrafi Investment Trust". The attached notice declares that Trading as trustee of the Trust "hereby revocably determines pursuant to clause 1.1 of the deed...that the following persons or entities are an Ineligible Appointee under the Trust Appointee". The notice lists all family members other than Mohammad. The notice also prescribes as Ineligible Appointees all companies associated with those listed persons. Surprisingly the two appointors under the Trust, Mohammad Ali Chogasteh and Hooshang Ramahni are also comprehensively included in the list of ineligible persons. 45The Court is not prepared to accept that this notice is evidence of any resolution of Trading. It is a notice of what is said to be a resolution of Trading. It is couched in the form of resolution itself, containing the words "hereby revocably determines". But I am not prepared to infer in Mohammad's favour, in the absence of Trading's corporate records that any such resolution was ever passed. As the Court's principal judgment shows (at [159] to [174]), Trading's records are so deficient that the Court cannot confidently draw any inference in it or Mohammad's favour that records were kept regularly or that resolutions were passed. 46Mohammad had a number of other objections. He points out that Karami gave evidence in Farsi via an interpreter, cannot comprehend legal documents in English, and has had a limited education. Whilst these observations are accurate, Karami still in my view represents the best of the available trustee appointment options. The Court's earlier judgment bracketed her with Azadeh in circumstances where the possibility of appointing an independent trustee seemed to be open. Now that opportunity is closed, the Court is still not prepared to appoint Azadeh. But when considering the issue of Karami's appointment, the Court nevertheless regards her, as was stated in the principal judgment, as the most credible and honest of all the family witnesses in the proceedings: "29. Family members may generally be ranked in the following order of credibility (from the most reliable down to the least reliable): Karami, Amir, Azadeh, Abbas and Mohammad. At the more dependable end of this spectrum the Court could accept most of Karami's evidence. Despite a bitter separation from Abbas and with some qualifications concerning her evidence about him, her narrative seemed to be consistent, restrained and the family account least infected with invective. Amir too generally gave a good account of events that was supported by the available objective materials. Although he was intensely bitter about Mohammad's past conduct towards him, Amir's account of Mohammad's conduct I have found to be largely correct." 47Mohammad advances other submissions against Karami's appointment. But I do not find any of them persuasive. In these submissions Mohammad makes groundless allegations of unprofessional conduct against Karami's lawyers. Mohammad fears that Trust funds will be diverted to Azadeh. But Karami understands the need to administer the Trust fairly, and to take professional advice as required. 48Mohammad also makes a number of other irrelevant submissions. He says that as primary beneficiary he can seek orders for the distribution of Trust funds. But the Court has declined to execute this Trust. Instead the Court will appoint a Trustee who will have the discretion to consider the future disposition of the fund in accordance with the Trust Deed. The new trustee will decide whether or not the Trust will seek to recover the monies Mohammad owed the Trust. As the Court's second judgment explained (at [56] to [59]) the related issues of Mohammad's just allowance claim may perhaps only become a relevant question if the Trust chooses to pursue Mohammad further for loss of profits. 49A sale to a non-corporate trustee such as Karami may be appointed under the Trust Deed: clauses 16 and 19. And due to Trading's paralysis it is expedient for the Court to do this. For the reasons stated, the Court will appoint Karami as trustee under Trustee Act, s 70 and will make orders vesting the Trust's property in her under Trustee Act, s 71. 50This judgment concludes all the matters contested consequent upon the Court's principal judgment. It is now appropriate for the Court to make orders for the return of exhibits. The usual order for that purpose is made among the orders below.
Conclusions and Orders 51The Court has considered three matters in this judgment. It has determined two of them. The other resolved by consent. Mohammad's costs orders against Amir in the 2008 proceedings will remain as orders to be assessed on the ordinary basis. The Court is not satisfied that orders should be made on the indemnity basis. The parties have now agreed that Mr Hayes' fees as the trustee for the sale of the Marsfield property should all be approved, both his own fees and the professional fees of those of the solicitors he has engaged. But questions of Karami's costs on the application about Mr Hayes' fees may arise. Finally the Court has decided that Karami will be appointed as the trustee of the Trust. The Court makes the following orders in the proceedings:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2014