Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd

Preliminary Observations 14Before addressing the facts in more detail, I should add some final preliminary observations. First, I should record that there was no allegation that Mr Hawach was in a personal fiduciary relationship with Mr El Sayed or that he owed an equitable duty to him. I do not suggest that such an allegation should necessarily have been made. But on several occasions during the hearing when I raised the issue, counsel for Mr El Sayed reiterated to me that the foundation of the cross-claim was the supposed agreement or understanding between Mr Hawach and Mr El Sayed made in 2008 and that no fiduciary duty owed by Mr Hawach to Mr El Sayed was relied on. They were, in effect, businessmen who dealt with each other on an equal footing. I should also record that there was no pleaded allegation that Mr Hawach engaged in misleading or deceptive conduct or made any material misrepresentation of fact to Mr El Sayed. The estoppel depended on the proof of certain representations and Mr El Sayed's reliance on them, but that is a different matter. 15Secondly, the hearing was marred by complaints on Mr Hawach's side that he and his wife had received, and were continuing to receive, threats from persons who were associated with Mr El Sayed. On several occasions during the hearing, it was necessary for the Court's security officers to be notified and to attend; as did detectives from the New South Wales Police Force. On one occasion when Mr Hawach was in the witness box and named one of the persons whom he said was making threats, a large man, casually dressed and generously tattooed, suddenly and momentarily entered the court, looked menacingly at Mr Hawach, glanced at me, and then left again. It is not possible for me to resolve the allegations that threats were made to Mr Hawach or his family. Nor is it appropriate for me to do so. I have not relied on them in reaching my conclusions.

JSR Land - Victoria Lahoud 16I should now return to the facts and start at the beginning. In 2001 Mr Hawach was the solicitor for Jack's Spares & Repairs Pty Ltd (JSR), which owned land at 130-132 Woodville Road, Merrylands (JSR Land). In 2002, JSR gave an option to purchase the JSR Land to K & K El Sayed Pty Ltd (K & K), which was controlled by Mr El Sayed. K & K exercised its option but never completed the purchase. In November 2007, a liquidator was appointed to K & K and it was wound up. 17Mr Hawach had lent money to JSR, the amount of which was approximately $200,000 by 2008. In March 2008, he lodged a caveat on the JSR land to protect the interest that he claimed as a result of the monies advanced by him. Mr Hawach then began negotiations with the mortgagee, St George Bank, to purchase the land. Contracts with St George Bank were exchanged on 12 December 2008. The purchase price was $810,000. Completion occurred on 13 March 2009. The purchaser was Mr Hawach's wife, Victoria Lahoud. Mr Hawach caused the JSR land to be purchased by his wife knowing that its development was only commercially feasible in conjunction with the development of adjoining land owned by K & K known as 128 Woodville Road and 16 Brady Street (K & K Land).

K & K Land - BSD 18The K & K Land consisted of two parcels, namely 128 Woodville Road and 16 Brady Street. K & K had purchased the former in 2002 for $420,000 and the latter in 2004 for $500,000. The mortgagee was the National Australia Bank (NAB). Mr El Sayed had originally hoped to acquire the adjoining JSR Land and to consolidate and redevelop the aggregated site into a mixed residential and commercial complex. That is why K & K exercised the option over the JSR Land. Unfortunately for Mr El Sayed, K & K's insolvency led to default under its mortgage to the NAB and the bank exercised its power of sale over the K & K Land. K & K lost its investment of almost $1 million. Subsequently, in about April 2009, Mr Hawach negotiated the purchase of the K & K Land from the NAB for the price of $475,000. The purchaser was BSD, of which, as I have said, Victoria Lahoud was the sole director. Exchange of contracts took place on 8 May 2009 and completion occurred on 31 July 2009. The transfer to BSD was not registered until December 2009.

Brady Street Developments Pty Ltd 19By 2008 it was apparent that Mr El Sayed's dreams were dashed. There was then no longer any prospect that K & K would ever own, or be in a position to develop, the JSR Land and the K & K Land. It had lost control, lost its investment and gone into liquidation. BSD was incorporated on 24 December 2008. Its function has only ever been to act as trustee of the BSD Trust. That trust is constituted by a deed dated 24 December 2008 and was established at Mr Hawach's suggestion for the purpose of developing the JSR Land and the K & K Land when it became clear that K & K was unable to do so. 20In due course, in March 2010, BSD entered into a construction contract with AK Property Group NSW Pty Ltd. That company is or was controlled by Mr El Sayed's son, Ahmed, who signed the contract on its behalf. On 21 March 2010, Victoria Lahoud transferred the JSR Land to BSD for a consideration of $500,000. From that date BSD held the aggregate site, being the JSR Land and the K & K Land, for the BSD Trust pursuant to the trust deed dated 24 December 2008.

Deed of Trust 21The trust deed is described in large bold letters as 'DISCRETIONARY TRUST DEED'. It was prepared by Osman Fayad, an accountant sometimes used by Mr El Sayed. Mr Fayad was the settlor and appointor named in the schedule. The named beneficiaries were Victoria Lahoud and Mr El Sayed's son, Ahmed. The trustee was BSD. The classes of eligible 'beneficiaries' included the spouses, children and extended families of each named beneficiary. The deed provides, among other things, that the trustee has an absolute discretion to decide whether to distribute any part of the income of the trust fund for a financial year and an absolute discretion to exclude a named beneficiary or a member of a class of beneficiaries. There was no allegation that Mr El Sayed (who had the benefit of advice from his accountant Mr Fayad) did not understand the essential character of the trust deed, or that he was misled in relation to it. 22The powers which the trust deed gives to the appointor, if one is appointed, lie at the heart of the breach of fiduciary complaint. The appointor's powers are referred to in the 'Overview' at the beginning of the trust deed, and in the following provisions: 3 The trustee may at any time nominate one or more persons (except the settlor) as an additional class of eligible beneficiaries under this deed. The trustee may do so by signing a statement to that effect. However, the trustee must not do so without the consent of the appointor. 4 The trustee may at any time, with the consent of the appointor, delete a class of eligible beneficiaries from the Schedule to this deed. The trustee may do so by signing a statement to that effect. 45 The appointor may remove a trustee at any time by signing a statement to that effect. 46 The appointor may appoint an additional or replacement trustee at any time by a written statement to that effect. If there is no appointor, the first named beneficiary who is still alive may exercise this power. 49 The appointor may appoint a person as an additional or replacement appointor. The appointor may do so by deed. 50 Where an appointor has appointed an additional appointor (second appointor) pursuant to the power set out in clause 49, that appointor may remove the second appointor at any time. That appointor may do so by deed. 51 The appointor may appoint a person as a replacement by will. The will is effective for this purpose unless the appointor has revoked the power to appoint an appointor prior to the appointor's death. 53 The trustee may vary this deed at any time before the vesting date, even to the extent of revoking all the trusts it establishes, but only with the consent of the appointor. The trustee must do so by executing another deed. That deed may reserve this power of variation. (emphasis added) 23It is obvious from a review of those provisions that if a person is named as appointor in the schedule, he or she may, in theory at least, be singularly influential in the affairs of the trust. In a given case, the exercise of the appointor's powers may operate to the advantage or disadvantage of a named beneficiary or a class of eligible objects. It has been said in the family context, that the appointor is 'normally the person who has the greatest immediate interest in the affairs of the trust' and that the trust deed almost invariably gives him the power to appoint and remove the trustee: Hon. Justice Peter Nygh and Andrew Cotter-Moroz 'The Law of Trusts in the Family Court' (1992) 6 Australian Journal of Family Law, 4 at 5. In that context, the husband is often the appointor while the trustee may be the husband, the wife, a trustee company in which both have an interest or 'an individual such as an accountant or relative who may in other ways be beholden to the person with ultimate control over the trust': ibid. 24In this case however, at the time of his appointment on 24 December 2008, there was, in my view, no intention whatsoever that Mr Fayad be the person with the 'greatest immediate interest in the affairs of the trust' or that he exercise ultimate control. On the contrary, it was probably assumed that he would be beholden to Victoria Lahoud, the sole director of the trustee, and therefore effectively to Mr Hawach. I suspect that Mr Fayad simply adopted a standard form of discretionary trust and that little thought, if any, was given by him or Mr Hawach or Mr El Sayed to the potentially decisive control that an appointor could exercise - if one were named in the schedule. The reliable evidence goes no further than to suggest that Mr Fayad named himself as appointor in the schedule. But having done so, I do not accept his contention that he was doing so to protect Mr El Sayed's interests. And having done so, there was no reason to think, initially at least, that he would act otherwise than with complete impartiality if and when called upon to exercise any of the powers given to him. 25I therefore reject the contention that Mr Fayad's appointment of himself as appointor, 'weighs very strongly' in support of the conclusion that the trust was established for the benefit of Mr El Sayed - regardless of whether there was any financial contribution from Mr El Sayed. In 2008, there was no mistrust at all between Mr Hawach and Mr El Sayed or between Mr Hawach and Mr Fayad. They were mutual members of the Lebanese community in western Sydney and had many shared friends and acquaintances. The mistrust occurred later - in 2011. In a real and practical sense, Mr Hawach was, and effectively always had been, the person with 'the greatest immediate interest in the affairs of the trust'. 26The origin of the trust deed lies in the conversations between Mr Hawach and Mr El Sayed in 2008. By that stage, Mr El Sayed was desperate and practically destitute. Mr Hawach stated that he was considering buying out the banks and doing the development himself. Mr El Sayed said words to the effect 'What about me? I have put a lot of money and time into buying the first blocks. I need to stay in to get something back'. Mr Hawach's response was to this effect: 'One way would be for you and your son to do the building work. And I would be prepared to sell you a share in the investment if you can get some money to put in'. 27Mr El Sayed said he could get a million dollars. I suspect that Mr Hawach was justifiably sceptical that this could be achieved but he conceived a scheme that provided the flexibility to recognise any financial contribution by Mr El Sayed, if one were forthcoming. The substance of what he said to Mr El Sayed was as follows: What I want to do is set up a trust to own the land and do the development. I'll put my wife in charge of it and our two families can be beneficiaries. But you will only get a distribution if you can put money in. If you do not, your family will get nothing except the building contract. 28I am satisfied that Mr El Sayed's response was to this effect: 'That seems reasonable. I can get my accountant, Osman Fayad to prepare the trust deed'. In due course, Mr Fayad did so. In his evidence, he stated, disingenuously, that he did not take instructions from Mr Hawach or his wife. But I am quite satisfied that he was aware of the understanding between Mr Hawach and Mr El Sayed - despite his prevarication and insistence to the contrary in the witness box. I accept the following evidence by Mr Hawach of his conversations with Mr Fayad in relation to the establishment of the trust: A. Well, I said: I want a company incorporated. I want to incorporate a company in my wife's name. I want her to be trustee... [He said] let me prepare the trust. That way I can get the ABN both for the company and the trust. I said: That's fine. A. Then [Mr Fayad] said to me: I spoke to Khaled El-Sayed... He said [he] was going to put in a million dollars, then the deal is going to be 50/50. I said: If they don't put money in they will get nothing. Until such time they put any money in they're going to get none. He said: In that case, I make it a discretionary trust in that way instead of a unit trust. I said: That's fine. I said: Make sure no-one from the El-Sayed family has anything to do with the company because they haven't upfront put any money and if they don't put any money they're going to get nothing. 29The position from Mr Hawach's perspective was summarised in the following evidence: Q. Mr Hawach, am I right in understanding that as you understood it, your agreement with Mr El-Sayed was that he would be entitled to an interest under the trust if he were able to produce some money to invest in the Brady Street Development project? A. Yes, your Honour. Q. And that the vehicle of the discretionary trust was adopted by his accountant and at your suggestion or after discussion with Osman Fayad because that would provide the flexibility to enable Mr El-Sayed's family to have an interest if they managed to make an investment? A. That's correct, your Honour. Q. You created or you participated in the creation of that trust structure at a time when it wasn't clear whether or not Mr El-Sayed would be able to produce any money to invest? A. That's correct, your Honour. Q. But the trust structure preserved the opportunity for him to do so and if he did so he would get an interest in the trust? A. Indeed, your Honour. Q. In due course? A. That's correct, your Honour. Q. But not having done so, I take it you and your wife treated the trust as for all intents and purposes your own? A. Absolutely, your Honour. Q. And therefore you adopted a degree of informality in relation to the dealings in it and the accounting of those dealings? A. Yes, your Honour.

No Contribution from Mr El Sayed 30Contracts for the purchase of the JSR Land from St George Bank in the name of Mr Hawach's wife were exchanged on 12 December 2008, almost two weeks before the trust deed was executed. When completion of the purchase of the JSR land occurred in March 2009, there was no contribution by Mr El Sayed to the balance of the purchase price. A month later, in about April 2009, when Mr Hawach had successfully concluded negotiations with NAB for the purchase of the K & K Land for $475,000, he asked Mr El Sayed to provide the deposit for that land. Mr El Sayed was unable or unwilling to do so. Victoria Lahoud then provided the deposit of $50,000 and Mr Hawach caused the property to be acquired in the name of BSD. I am not convinced that Mr Hawach then reiterated to Mr El Sayed that, as he could not come up with any money, he would get nothing. But I have no doubt that Mr El Sayed knew that this was the unfortunate consequence of his inability to make a financial contribution to the purchase of either the JSR Land or the K & K Land.

The $255,000 Sum 31In fact, the only asserted financial contribution by Mr El Sayed towards the purchase of either the JSR Land or the K & K Land is the disputed sum of $255,000, which was said to be a contribution towards the purchase of the K & K Land. But the evidence relied upon to support this contention was ragged and unconvincing and I do not accept it. It was given by Mr El Sayed and his son Ahmed. They were both implausible on this issue, and Ahmed was particularly so. The 'contribution' was said to be represented by a bank cheque for $255,559.99 dated 5 March 2010 drawn on Arab Bank Australia in favour of ANZ Banking Group Limited. This is strange because completion of the purchase of the K & K Land had taken place eight months earlier on 31 July 2009. 32Ahmed El Sayed's evidence on this topic was clearly a reconstruction which, in my view, served no useful purpose other than to cast doubt on his own credibility. He swore an affidavit dealing with the sum of $255,000 on the weekend before the last two days of the hearing. I would not allow his affidavit but in the usual way of things, the gist of it emerged during his cross-examination. He said that his company, AK Property Group Pty Ltd was the source of the funds. Allegedly, it 'lent' the sum of $255,000 to his father in March 2010, who made the funds available to Mr Hawach. He said that the moneys were still outstanding and owing by his father to his company. 33However, Ahmed did not mention the topic of the $255,000 cheque in his earlier affidavit sworn on 1 March 2013, although he had the opportunity to do so. Indeed, his father had dealt with that topic in his own affidavit of the same date. And both affidavits were prepared by the same solicitors. Ahmed said that he had been thinking about the money owed by his father for a long time - yet he did not tell the company's liquidator about the asset constituted by the supposed loan. He said he told the accountant about the loan - yet it was not recorded in the accounts of the company. I am satisfied that there was no such loan. 34I prefer the more plausible explanation given by Abdul Hamdan, who had a clear recollection and whom I thought was telling the truth. He was extensively cross-examined and impressed me more than most other witnesses. He had learned from Mr El Sayed that Mr Hawach had bought 'all of the Brady Street properties from the bank' but was having trouble getting construction finance from the Arab Bank. Mr Hawach told him that he needed $255,000 'to settle with the Arab Bank', which required the removal of an encumbrance in favour of ANZ Banking Group as a condition of its proposed construction finance facility. Mr Hawach promised Abdul Hamdan that if he could get the money, he would give him the formwork job on the site. This was an attractive proposition for Abdul Hamdam who was in a position to assist because he was owed approximately $300,000 by Ahmed El Sayed's company, AK Property Group Pty Ltd, from an earlier project at Fairfield. 35Abdul Hamdan requested the $255,000 from Ahmed El Sayed and explained that the money was for Mr Hawach, so that the project could go ahead. Ahmed El Sayed agreed and the two of them went to the Arab Bank and procured a bank cheque in the form and precise amount that Mr Hawach had requested. It was clear that Abdul Hamdan had a financial incentive to assist Mr Hawach. And Ahmed El Sayed probably did as well, as the prospective builder. Abdul Hamdan added that he was also motivated by the fact that he knew Mr Hawach to be a good person. He personally delivered the bank cheque to Mr Hawach. I believe him. I do not accept that Khaled El Sayed is entitled to claim any 'ownership' of the sum of $255,559.99 constituted by the bank cheque dated 5 March 2010. I have reached the firm view that it does not represent a contribution by him to the project, let alone to the acquisition of any part of the land. I have regrettably concluded that his evidence to the contrary reflected his desperation.

The Alleged Estoppel 36As I have already intimated, I am quite satisfied that there is no sound factual basis for the estoppel on which Mr El Sayed relies. He may possibly have laboured under the assumption for which he contends, or something like it, but I doubt it very much. If he did, it was unreasonable for him to do so. The effect of his supposed assumption was that Mr Hawach was in reality, just 'helping' him with a development that had originally been his brainchild and in which he (not Mr Hawach or his family) had the beneficial interest, even though Mr El Sayed contributed no money and took no risk. He insisted that it was agreed that Mr Hawach would only get out of the project the return of his $810,000 with interest, or perhaps such other sum as he contributed. Sometimes Mr El Sayed said his 'share' was 100%. At other times, it was 50%. Confusingly, his pleading put it in the alternative - 100% or 50%. 37Overall, Mr El Sayed's contentions about his 'agreement' with Mr Hawach were inconsistent, incoherent and implausible. I reject the suggestion that Mr Hawach entered into the arrangements simply to get his money back with interest. Mr Hawach did not put in all of the money, take all of the risk and then deny himself any entitlement to the profits of the project. The evidence and the probabilities did not support Mr El Sayed's central contention. His evidence gave me no reason to be confident in its accuracy. Among many examples, he answered 'no' when asked whether there was any discussion about who would be a beneficiary of the trust. Later however, he gave different, contradictory evidence. In fact, counsel for Mr El Sayed conceded (with mild understatement) that the conversations between Mr Hawach and Mr El Sayed (which he labelled a 'course of dealing') did not by themselves 'constitute a sufficient basis to constitute an agreement (or convey a representation) to the effect that BSD would acquire and hold the properties on trust for Mr El Sayed'. His case depended on arguable inferences, inexact proofs and indefinite testimony arising from other less direct, more circumstantial evidence.

The Other Evidence 38That other evidence included statements supposedly made by Mr Hawach in the presence of third parties. One of those was Noel Dona, who was a paralegal at Robert Wehbe & Partners in 2011. That firm acted for a business called 'Sydney Property Sales' which was involved in the sale of units in the completed development. Mr Dona said that he recalled Mr Hawach saying on one occasion 'I have no financial interest in this development'. This is a slender reed that does not advance the case. To start with, it was denied by Mr Hawach who was not in the least bit evasive or defensive on this issue. I believed him. And the alleged statement was well after the event. In any event, it is technically correct - a member of a class of discretionary objects does not have a vested financial interest in the trust property, as Mr Hawach well knew. And furthermore, there may have been many legitimate reasons why Mr Hawach might not have wanted to speak frankly in 2011 to a paralegal (or solicitor) on the topic of his indirect ownership of an interest in the development. 39Another category of evidence relied on was Mr Hawach's supposed acquiescence in the assumption by Mr El Sayed of project responsibility in connection with the development. But the exercise of some form of project responsibility does not necessarily or rationally equate to beneficial ownership of the project. I have already explained the way in which I think this conduct should be characterised: see paragraphs [7] - [10] above. It is true that it is unusual in a conventional relationship of owner and builder for the builder to take as active a role as Mr El Sayed did. But this was not a conventional relationship. Owner and builder were potential beneficiaries under a discretionary trust. And Mr El Sayed deluded himself into thinking that, even without making a financial contribution, he was entitled to an interest. He should have known better. And as I said in paragraph [8], Mr Hawach took advantage of him and was prepared to entrust significant responsibility to him. 40The fact that Mr Hawach and Victoria Lahoud permitted Mr El Sayed to sign an agency agreement on behalf of BSD does not assist. Mr Hawach did not insist on formality in most of his dealings. In fact, he tended to be somewhat loose and informal, except when it came to an entitlement to a beneficial interest in the project which he had funded. The same applies to Mr Hawach's conduct in making Mr El Sayed a signatory of the Arab Bank construction finance account and the payment of invoices by him. This happened to be convenient. And it was consistent with Mr El Sayed's role in overseeing the construction. But it does not infer beneficial ownership in the account or the project. Mr Hawach used, and to some extent abused, Mr El Sayed as much as he could, but the latter was never given, and never acquired, any legal rights to a beneficial interest in the project. Unfortunately, Mr El Sayed allowed himself to become carried away. But he had no sound basis for thinking that he was the true owner of the project, or a co-developer with Mr Hawach. 41A further category of evidence concerned the setting of sale prices for the units. This was effectively done by Joe Chiha. Mr Hawach may well have been prepared to cede to Mr El Sayed a certain amount of responsibility in relation to this task. However, the evidence was far from conclusive as to the respective roles of Mr Hawach, Mr Chiha and Mr El Sayed. And Mr El Sayed's involvement in the setting of sale prices could not lead necessarily to the reasonable conclusion that, by allowing him to do so, Mr Hawach was conveying to Mr El Sayed that he was entitled to a 100% beneficial interest, or any beneficial interest, in the development. I repeat what I said in paragraph [39]. In any event, these events were late in the day, as the project was nearing completion, and years after the initial discussions. By this stage of the sequence of events, there could have been no credible reliance and no detriment. The same applies to the suggestion that Mr Chiha participated in 'numerous' discussions with Mr Hawach and Mr El Sayed on '10, 12, 15 times' about 'who was the owner and who was the developer of the Brady Street Development'. That evidence seemed to me to be rehearsed and implausible. Mr Hawach may well have said that he was the solicitor and that Mr Chiha should address his questions to Mr El Sayed, but it may have suited him to say so and, if so, it is hardly determinative of the issue of beneficial ownership.

Miscellaneous Credit Findings 42For completeness, I should make the following further findings of fact relating to the credibility of Mr El Sayed and Mr Hawach. I have already explained why I have rejected Mr El Sayed's account of the arrangements discussed with Mr Hawach in 2008. Mr El Sayed's evidence was not only unsatisfactory and implausible, some aspects of it seemed to be knowingly false. Among several examples, his evidence about giving $100,000 in cash to Mr Hawach towards a debt owed to the National Australia Bank was not credible. Nor was his evidence about borrowing $80,000 from AK Property Group Pty Ltd. Indeed, even his son Ahmed denied this contention. And his strident and defensive insistence that he did not own land in Lebanon, together with his behaviour when giving this evidence, gave me the clear impression that he was not telling the truth. 43On the other hand, the attack on Mr Hawach's credibility was less convincing. I thought Mr Hawach was honest when explaining that, after preparing his first affidavit, he formed the view that he needed to come forward and give further evidence of other matters in which he had provided legal services to Mr El Sayed, in addition to the Metromix matter, which he had mentioned in his first affidavit. I accept his explanation of the nature and possible benefits of the building contract that was awarded to AK Property Group Pty Ltd. I did not think that the indignation of the cross-examiner was really justified on this issue. The contract was large and by its nature provided the flexibility and opportunity for useful employment and potential profit, depending on the good fortune, skill and expertise of Mr El Sayed and his son Ahmed. AK Property Group Pty Ltd could have chosen not to accept the contract at the price offered. I reject the suggestion that Mr Hawach believed that it was 'a bad deal' for the El Sayed family. The position was not nearly so black and white.

Breach of Fiduciary Duty 44I should now turn to the other remaining live issue on the cross-claim. The breach of fiduciary duty issue arises out of the circumstances in which Mr Fayad resigned as appointor of the trust and Mr Hawach made himself the appointor in Mr Fayad's place. One of the primary obligations of a fiduciary is embodied in Lord Herschell's famous aphorism: It is an inflexible rule of a court of equity that a person in a fiduciary position ... is not, unless otherwise expressly provided ... allowed to put himself in a position where his interest and duty conflict. Bray v Ford [1896] AC 44 at 51. 45The resignation of Mr Fayad and the appointment of Mr Hawach were effected by the deed dated 28 September 2011. Mr Hawach was the trust's solicitor and had acted in that role since its inception. Victoria Lahoud's unchallenged evidence was that she was advised by Michael Zaiter (BSD's accountant) that she should remove Mr Fayad as appointor. BSD had become the subject of an audit for GST by the Australian Taxation Office, and Mr Fayad's own conduct in issuing inappropriate BAS statements, or possibly also invoices, had brought about the audit. For that reason, Mr Hawach had lost trust and confidence in Mr Fayad and no longer wanted him to have anything to do with the trust. 46Victoria Lahoud asked Mr Zaiter if he would be the appointor but he was unwilling. She then decided, no doubt in conjunction with her husband, that he should be the appointor. Mr Zaiter arranged for the deed of resignation and appointment to be drawn up by other solicitors and sent to Mr Hawach's office, for Mr Hawach to arrange for execution. Mr Hawach did not give legal advice on the removal of Mr Fayad or on his own appointment. And he did not draft or advise on the form of the deed. He only 'procured the due execution of the deed' to give effect to a decision already made. Admittedly, he instigated the decision because of his dissatisfaction with Mr Fayad, but the decision was formally made by his wife as the sole director of BSD, on advice from BSD's accountant. However, although Mr Hawach was not acting as the trust's solicitor in causing the deed to be executed, the fact remains that, in the result, he brought about a situation where he placed himself in a position of distinct possible conflict. 47Mr El Sayed contends that Mr Hawach breached his fiduciary duty as solicitor to the trust by causing the deed to be executed. I do not think this is a correct analysis. Mr El Sayed's original complaint rested on a surer footing. It related only to the appointment of Mr Hawach as appointor. This was reflected in the terms of the further amended cross-claim which, until amendment during addresses, only sought an order that 'the purported appointment on or about 28 September 2011 of [Mr Hawach] as appointor of the Brady Street Development Trust, be declared void'. As the hearing drew to a close, I reluctantly allowed an amendment in these terms: An order that the deed dated 28 September 2011 be declared void. 48The difference is material. As Mr El Sayed's claim was originally framed, he only sought to set aside the appointment of Mr Hawach as appointor. This would have left a vacuum, to be filled, if it is necessary to do so, in such manner as the law of trusts or the provisions of the trust deed require. No complaint was originally made about the resignation of Mr Fayad and no relief was originally sought designed to reinstate him to the role of appointor. 49This is explicable because the evidence did not support the conclusion that Mr Fayad resigned in circumstances of duress, or misrepresentation, or without knowing what he was doing. And there was no pleaded allegation to that effect. I have no hesitation in rejecting Mr Fayad's evidence that he did not read the deed or know what he was signing. At the hearing, he was evasive and clearly partial, to the point where I gained the impression that he (like some other witnesses) felt under some pressure to give evidence that he thought might be favourable to Mr El Sayed. Absent corroboration, I am not prepared to accept Mr Fayad's highly unsatisfactory evidence. One thing that was clear however, is that the last thing Mr Fayad now wants, is to be reinstated to the position of appointor of the trust. Although he made many contradictory statements, he explained that when he executed the deed, he just wanted to 'sign the document and move on'. 50In truth, the historical focus of Mr El Sayed's complaint has never been the resignation of Mr Fayad. His concern has been Mr Hawach's appointment. And his contention has been that, by reason of his appointment as appointor, Mr Hawach placed himself in a position of conflict, in breach of his fiduciary duty. It has never been alleged that Mr Hawach's conduct in causing Mr Fayad to resign was a breach of fiduciary duty or amounted to any other wrong. The position was expressed with clarity in the further amended cross-claim, prior to its eleventh hour amendment during addresses, as follows: 85B On or about 28 September 2011, Mr Hawach purported to procure his own appointment as appointer of the Brady Street Development Trust. Particulars The Cross-Defendants allege that on 28 September 2011, Osman Fayad executed a Deed of Resignation, which had the effect of causing his resignation as appointer of the Brady Street Development Trust, and the appointment of Mr Hawach as the replacement appointer. 85C At that time, Mr Hawach and his wife and various members of his family were eligible beneficiaries under the Brady Street Development Trust. 85D Holding the position of appointer under the Brady Street Development Trust conferred on Mr Hawach the direct power to determine the trustee of the Brady Street Development Trust, and thereby confer on Mr Hawach indirect power to control distributions under the Brady Street Development Trust. 85E By reason of the matters pleaded in paragraph 85B to 85D above, Mr Hawach: (a) put himself in a position in which there was conflict between his personal interests and his duty to BSD (as trustee of the Brady Street Development Trust); (b) used his fiduciary position to procure a personal advantage; and (c) thereby breached the fiduciary duty pleaded in paragraph 85A above. 85F If (which the Cross Claimant does not admit) the appointment of Mr Hawach as appointer was valid, the appointment is voidable at the election of the BSD (as trustee of the Brady Street Development Trust), by reason of the matters pleaded in paragraph 85E above. 85G Special circumstances justify Mr El Sayed taking proceedings to challenge the validity of the appointment of Mr Hawach as appointer, comprising the following matters: (a) BSD is not willing to take action to seek a declaration as to the invalidity of the appointment of Mr Hawach as appointer; (b) Mr Hawach has the day to day management of BSD; (c) Mr Hawach's wife is the sole shareholder and director of BSD. (emphasis added) 51If I conclude that a breach of fiduciary duty has occurred, it will be because Mr Hawach has caused himself to become the appointor under the trust deed, not because he caused Mr Fayad to resign. The appointment of Mr Hawach may arguably be voidable but I do not see a sound basis for reversing Mr Fayad's resignation. One does not necessarily follow from the other. In the circumstances that prevailed in September 2011, Mr Hawach was justified in seeking and obtaining the resignation of Mr Fayad as appointor. The real issue, in my view, is whether Mr Hawach crossed the line in procuring his own appointment as Mr Fayad's replacement and whether Mr El Sayed has standing to bring a claim to set aside that appointment. In that respect, the first thoughts of the drafter of the further amended cross claim appear to be more sound than those which led to the late amendment, with its attendant object of invalidating the deed as a whole. In the circumstances, I propose to revoke the leave to amend referred to in paragraph [47] above.

Beneficiary - Discretionary Trust 52I should deal with one other matter before proceeding. The nature of Mr Hawach 's 'interest' in the trust is relevant to the analysis of the suggested conflict between Mr Hawach's duty as the solicitor for the trust, his role as appointor pursuant to the trust deed and his interest as a member of a class of eligible objects of the trust. And it is relevant to the question whether Mr El Sayed has standing to bring a claim to invalidate the appointment of Mr Hawach as appointor under the trust deed. 53As is well known, the expression 'beneficiary' when used in the context of a discretionary trust is a misnomer. As Gummow and Hayne JJ explained in Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 at [125], the use of the word 'beneficiary' is inapt insofar as it suggests the existence of any beneficial interest. Such a person is 'an eligible object' of the trust. The Hon. Justice Paul Brereton AM RFD set out the following analysis, which I adopt, in an address to the National Family Law Conference on 19 October 2010 entitled 'A Trustee's Lot is Not a Happy One - Discretionary Trusts and Self-Managed Superannuation Funds': Thus, a discretionary trust does not have beneficiaries in the traditional sense, whose interests together aggregate the beneficial ownership of the trust property. Instead, there is a class of persons, usually described in wide terms, who are the objects of a power to appoint either income or corpus or both to selected members of the class. The members of the class are objects of a power, rather than beneficiaries in the strict sense. They do not have a proprietary legal or equitable interest in the trust fund. They have no beneficial interest in the trust property, and they are not persons for whose benefit the trust property is held by the trustee; at the highest they are members of a class of persons for the benefit of some one or more of whom the trustee may in due course hold property if it so determines. At best, they are potential beneficiaries, not beneficiaries. In terms accepted by French CJ in Spry, no object of such a trust has any fixed or vested entitlement, and the trustee is not obliged to distribute to anyone; the default distribution gives the default beneficiary no more than a contingent remainder. (emphasis added) 54To the same effect is a statement frequently made in this area of the law, that the object of a bare power of appointment has no proprietary interest in the trust but only a 'mere expectancy or hope of consideration by the trustee': Gartside v Inland Revenue Commissioners [1968] AC 553 at 607; [1968] 1 All ER 121; Kennon v Spry at [156] - [161]. See also Jacob's Law of Trusts in Australia, 7th ed. (2006) at [314] and [2315]; Spellson v George (1987) 11 NSWLR 300 at 316 (Powell J). 55That is not to say, however, that a person such as Mr Hawach, who is an object of a power of appointment and a member of an eligible class of potential beneficiaries, does not have an 'interest' sufficient for the invocation (against him) of the rule that obliges fiduciaries to avoid any realistic possible conflict between their duty and their interest. That is a different question. Mr Hawach's 'interest' as a member of one of the classes of eligible objects under the trust entitles him at a practical level to endeavour to maximise the pecuniary value to him or his family of any decision taken or transaction effected relating to the trust: Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 at [179] - [180]; (2012) 200 FCR 296. His 'interest' may not be vested, and may be contingent on the exercise by the trustee of a discretionary power, but it is sufficient to give him an incentive to bring about a result that he perceives will advance his personal interest. That is sufficient, in my view, to trigger a possible conflict and give rise, in a given situation, to a breach of fiduciary duty. 56From 28 September 2011, Mr Hawach became subject to fiduciary duties in two separate capacities - as solicitor for the trustee and as appointor under the trust. The potential for conflict with his personal interest arose because many of the powers of an appointor (like those of a solicitor) are fiduciary in character and are not to be exercised solely for the appointor's own benefit. The decision In re Skeat's Settlement; Skeats v Evans (1889) 42 Ch D 522 at 526-527 (Kay J) is often cited for this proposition but an extensive collection of academic writings on the subject is set out in Harris v Rothery [2013] NSWSC 1275 at [166]. See also John Glover, 'A Challenge to established law on discretionary trusts? - Re Richstar Enterprises', (2007) 30 Australian Bar Review 70 at 76-78 and Thomas & Hudson, The Law of Trusts, Oxford University Press, (2004), p672. 57It is, I think, quite apparent that Mr Hawach's interest and his duties are not congruent. In any given situation, his powers as appointor under the trust deed, his duties as solicitor for the trustee and his personal interest as a member of one of the classes of eligible objects, may be a source of conflict. His personal interest might cause or contribute to him exercising his powers as appointor under the trust deed, or his duties as solicitor for the trustee, in a manner designed to advantage him or his family. On the particular facts of this case, I do not think that the possibility of any such conflict is remote or fanciful. By making himself appointor, Mr Hawach heightened the risk and breached one of the primary obligations of a fiduciary. 58For those reasons, I do not think, as a matter of principle, that Mr Hawach should have allowed himself to become appointor under the trust. However, notwithstanding that view, there is an anterior question as to whether, by reason of his limited 'interest' in the trust, Mr El Sayed has standing to bring a claim to invalidate the appointment of Mr Hawach as appointor. I have concluded that he does.

Standing 59The premise of the objection to Mr El Sayed's standing is that his claim to invalidate the appointment of Mr Hawach as appointor is a claim brought on behalf of the trust. It is well recognised that for sound practical reasons, such a claim should be brought by the trustee, not by a beneficiary (let alone by the object of a discretionary power), unless special circumstances apply: Ramage v Waclaw (1988) 12 NSWLR 84 at 91-3; Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2003) 216 CLR 109 at [55] - [56] (Gleeson CJ, Gummow and Hayne JJ); Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 436-437. 60Whether, for the purposes of standing, a mere object of a discretionary power should be treated in the same way as a beneficiary, is a controversial question. In the article to which I referred in paragraph [56] above Dr John Glover made the following unqualified statement at p77 concerning the standing of an object of a discretionary power to challenge an appointor's exercise of power to remove or appoint a trustee: A discretionary object has standing to obtain injunctive relief to prevent such unlawful appointments. (emphasis added) 61I am bound by the recent decision of the Court of Appeal in Lewis v Condon [2013] NSWCA 204, in which it was held that an object of a discretionary power had standing in an appropriate case. I should note however that the submissions in this case on behalf of BSD and Victoria Lahoud included the following seemingly justifiable criticism of that decision: ... it appears that in New South Wales a discretionary beneficiary may have standing to bring a derivative action where special circumstances have been established. That question was a ground of appeal in Lewis v Condon; Condon v Lewis, and the appeal succeeded on that ground. In allowing the appeal on that ground, the Court of Appeal directly applied the case law on beneficiaries' standing to bring derivative proceedings without adverting directly to the point on which the primary judge had made his ruling, namely, that that case law applied to a beneficiary, but did not apply in the case of an object of a discretionary power. The Court of Appeal's judgement may therefore be binding, at least in very similar cases, but the ratio decidendi is somewhat lacking. (emphasis added) 62Nonetheless, even if the Court of Appeal's decision is distinguishable and I am not strictly bound by it, I have reached the conclusion that Mr El Sayed should not be prevented from seeking appropriate declaratory relief together with a consequential order that Mr Hawach's appointment as appointor of the trust be set aside. In addition to concluding that there are special circumstances for the purpose of the principle explained in Lewis v Condon, the jurisdiction to grant declaratory relief pursuant to Section 75 of the Supreme Court Act is, in my view, sufficiently wide and discretionary. In fact, there is no legal restriction on the power to grant a declaration, so long as the jurisdiction is 'exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making': Ibeneweka v Egbuna [1964] 1 WLR 219 at 225 (Lord Radcliffe); Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43 at 51 (Street CJ). A 'proper sense of responsibility' generally means that the question must be real and not theoretical; that the person raising it has a real interest; and that there is someone who has a true interest to oppose it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-8 (Gibbs J). 63In this case, there is a genuine dispute. The issue is real not theoretical. There are two opposing protagonists with an active interest in the resolution by the court of the issue. The parties desire a judicial determination and there is practical utility in doing so. I can see no sound practical reason, in the unique circumstances of this case, why I should refrain from exercising my discretion to grant the declaration sought Mr El Sayed and to make consequential orders, if I am otherwise satisfied that I should do so. Even though Mr El Sayed is merely the object of a discretionary power, he has a sufficiently 'real' or 'true' interest to merit the exercise of discretion. This is clearly a case, if ever there were one, where there are justifiable special circumstances. BSD cannot be expected to bring this claim. I reject the defence to cross-claim based on the supposed lack of standing of Mr El Sayed. He is entitled to declarations and orders invalidating the appointment of Mr Hawach as appointor pursuant to the trust deed.

The Summons 64Finally, I should return to where I started in paragraph [1], namely the plaintiff's claim that BSD remains the trustee of the BSD Trust. As the evidence unfolded at the hearing, it became clear that there was no sound basis for disputing BSD's position as trustee. In particular, there was no factual support for the contention that was initially advanced that the deed dated 28 September 2011 was not duly executed by Mr Fayad or regularly witnessed. The effect of the deed was that Mr Fayad ceased to be appointor. Its validity means that the 2012 deed which Mr Fayad later executed, no doubt at the request of Mr El Sayed, or with his encouragement, which purported to remove BSD as trustee and appoint the second cross-claimant in its place, is wholly ineffective. Mr Hawach became the appointor in September 2011 and BSD remained the trustee.

Conclusion 65For those reasons, the plaintiff is entitled to succeed. The first cross-claimant is entitled to limited relief on his cross-claim but the result may well be pyrrhic as there would appear to be no necessity for the appointment of a substitute appointor upon the invalidation of Mr Hawach's appointment. The claim of the second cross-claimant wholly fails. I therefore make the following declarations and orders: (1)A declaration that the deed titled 'Deed of Resignation, Appointment and Acknowledgement' dated 28 September 2011, made by Osman Fayad, Sayed El-Hawache and Brady Street Developments Pty Ltd, is valid and effective. (2)A declaration that the deed titled 'Deed of Variation', between Osman Fayad, Khaled El Sayed and M E Asset Investments Pty Ltd, is invalid and of no effect. (3)A declaration that the plaintiff remains the trustee of the Brady Street Developments Trust. (4)An order that the caveat number AH153940Q, lodged by M E Asset Investments Pty Ltd over certain land owned by the plaintiff be removed. (5)I revoke the leave to amend the further amended cross-claim by which I permitted a claim that the deed dated 28 September 2011 be declared void. (6)I set aside the appointment of Sayed El-Hawach as appointor pursuant to the trust deed dated 24 December 2008. (7)I otherwise dismiss the cross-claims by Khaled El Sayed and M E Asset Investments Pty Ltd. (8)I order the defendants and cross-claimants to pay 75% of the costs of the proceedings of the plaintiff and cross-defendants. 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: 07 January 2014