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Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited: Alsop Wilkinson (A Firm) v Neary & Ors [1996] 1 WLR 1220
Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321
Frost and Another v Bovaird and Others (2012) 203 FCR 95; [2012] FCAFC 60
Hillier v Martin (No 7) [2021] FCA 1221
Rattigan v Hanly [2020] NSWSC 1722

Category: Procedural rulings

Parties: Monique Therese Coorey (First Plaintiff)
Fiona Mary Coorey (Second Plaintiff)
Moruben Nominees Pty Ltd ACN 001 923 002 (First Defendant)
Moruben Nominees Pty Ltd ACN 000 222 480 (Second Defendant)
Rodney John Coorey (Third Defendant)
Mark Anthony Coorey (Fourth Defendant)
Marina Anne Coorey (Fifth Defendant)
Samyia Pty Ltd ACN 168 684 624 (Sixth Defendant)

Representation: Counsel:
J Clarke SC with T Kane (Plaintiffs)
G George (Defendants)
Solicitors:
Rush Legal (Plaintiffs)
Hitch (Defendants)

File Number(s): 2025/00483354

Publication restriction: Nil

JUDGMENT

Introduction

1. Before me are two notices of motion. The defendants move to strike out certain paragraphs of the plaintiffs’ statement of claim. The plaintiffs in their motion seek orders requiring trust funds used to defend the proceedings to date to be paid into Court and interlocutory relief which would prevent that from continuing. Both motions were heard together.

2. The substantive proceedings are a dispute between five siblings who are the children of the late John and Therese Coorey (the Coorey s****iblings). The dispute concerns the administration of two family trusts, the Coorey Family Trust Fund (CFTF) and the J&J Coorey Trust (JJCT) (the family trusts).

3. The plaintiffs, Fiona and Monique Coorey, are two of the five Coorey siblings. The defendants comprise the other three siblings, Rodney, Mark and Marina Coorey (the sibling defendants), as well as the trustee of the family trusts, Moruben Nominees Pty Ltd ACN 001 923 002 (the Trustee), and other corporate entities associated with those trusts, namely Moruben Nominees Pty Ltd ACN 000 222 480 (Moruben Investments) and Samyia Pty Ltd (Samyia) (the corporate defendants). Like the parties in submissions, I will refer to the individual defendants by their first name only.

4. Each of the five Coorey siblings are directors of the Trustee, Moruben Investments and Samyia. The shares in Moruben Investments and Samyia are held by the Trustee and by the Coorey Siblings. On about 1 July 1996, Rodney was appointed as manager of the Trustee and Moruben Investments, and the deed of appointment authorised Rodney to make decisions about trust assets and distributions on the condition that 60% of shareholders agreed. A large part of the dispute in these proceedings concerns Rodney’s conduct in this position.

5. The substantive proceedings were commenced by Statement of Claim filed on 12 December 2025. The relief sought includes the removal of the sibling defendants as directors of the Trustee, or the removal of the Trustee as trustee of the family trusts. The plaintiffs also seek the removal of the sibling defendants as directors of Moruben Investments and Samyia, or orders that those companies be wound up on the just and equitable ground. The plaintiffs also seek declaratory relief including with respect to the terms of the family trusts. Other relief is sought against both the sibling and the corporate defendants.

6. The relief sought is based in part on allegations that Rodney engaged in an improper use of company funds and mismanaged trust property, and that such conduct was condoned by the other controlling directors, Mark and Marina. The plaintiffs also make allegations concerning the approach taken by the Trustee and corporate defendants to distributions. The causes of action relied upon include breaches of contractual and fiduciary duty by Rodney, breaches of fiduciary duty by the other sibling defendants, breaches of duty by the Trustee and oppression. This is only a short summary of the underlying allegations in the Statement of Claim but is sufficient for present purposes.

Strike out motion

7. The Statement of Claim runs to some 167 paragraphs and the defendants’ written submissions made various complaints about it. However, Mr George, who appeared for the defendants, in oral submissions focused on [70]. That paragraph contains the following allegation:

“70 At all material times following John’s death, until about 2019, in order to give effect to the wishes of John and Therese, and consistent with the Coorey Siblings being provided for equally by John, and then Therese (as set out in paragraphs 42 and 43 above), the Coorey Siblings operated under an arrangement with respect to dealings with funds and assets received from Coorey Family Property (in particular, distributions from the Trusts, dividends from Moruben Investments, funds received with respect to the NSW Partnership Properties, and funds held by Samyia), whereby:

a. each of the Coorey Siblings had equal shares in the NSW Partnership Properties and equal interests (through the Trusts and Moruben Investments) in the Managed Properties;

b. subject to moneys distributed and paid to Therese while she was alive and subject to the following, all other funds distributed by the Trusts were to be distributed to the Coorey Siblings and Samyia in a manner which legally minimised taxation payable in respect of those funds;

c. the tax effective approach to the distributions by the Trusts included distributions to the Coorey Siblings who were liable to pay income tax at a lower rate in a particular year, as well as distributions to Samyia who was liable to pay income tax at the corporate tax rate;

d. over time, the funds and assets paid and applied for the benefit of the Coorey Siblings (or Mark’s wife and children on his behalf) would then be rebalanced and equalised, by way of payments, gifts or other transfers, as between the Trusts and the Coorey Siblings (or Mark’s wife and children on his behalf) or between the Coorey Siblings (or Mark’s wife and children on his behalf) individually so that they were ultimately shared in equal amounts between them (the Equal Sharing of Funds Arrangement); and

e. the rebalancing and equalisation arrangements comprising the Equal Sharing of Funds Arrangement, which involved the paying, gifting or transferring of amounts or assets as between the Trusts and the Coorey Siblings (or Mark’s wife and children on his behalf) or between the Coorey Siblings (or Mark’s wife and children on his behalf) individually to ensure that funds, assets and benefits were ultimately shared between them in equal shares, was recorded by or on behalf of the Coorey Siblings in ongoing and updated spreadsheets.”

8. What follows is some five pages of particulars. It is not necessary to set them out in this judgment. In oral argument, Mr George clarified that the defendants make no complaint as to subparagraphs 70(a)-(c) and confined the complaint to 70(d)-(e).

9. The Equal Sharing of Funds Agreement (the ESOFA), which is a defined term in [70](d) extracted above, is then pleaded in paragraph 116 (further or in the alternative) as giving rise to, amongst other matters, the existence of a partnership between the Coorey siblings and/or to fiduciary duties being owed by them to each other. The pleading then alleges breaches of both the partnership and these duties by departing from the ESOFA.

10. It is also alleged that the failure to perform the ESOFA gives rise to a breach by the sibling defendants of the duties they owe as directors of the Trustee and also of the other corporate defendants. Breaches of the ESOFA are also part of the plaintiffs’ pleaded oppression case.

11. The defendants relied on r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) as a basis for striking out paragraphs of the pleading, either on the basis that it disclosed no cause of action or was embarrassing.

12. I do not accept that the pleading of the ESOFA discloses no cause of action. I have set out above the way the ESOFA is said to fit into some of the causes of action in the Statement of Claim. Claims for breach of a partnership agreement, breach of fiduciary duty and oppression are recognised causes of action. Whether or not they are made out is a matter for final hearing. It may be that, as Mr George submitted, an agreement between the siblings as to how the Trustee should make distributions could not bind the Trustee in its consideration of how to perform its duties. But, even assuming that is the case, it does not seem to me to mean that the causes of action upon which the plaintiffs rely that I have identified above will necessarily fail. Conduct in breach of the ESOFA may still be oppressive or be relevant to the relief granted on an oppression claim and may also give rise to breaches of partnership obligations and/or of fiduciary duties owed by the sibling defendants.

13. Nor do I accept that the pleading or particulars given in relation to the ESOFA are embarrassing. In my view, the body of paragraph 70 itself affords the defendants a sufficient basis to understand what the ESOFA is said to be. The allegation is that the Coorey siblings had an arrangement of a certain kind as between themselves as to how the trust assets should be distributed – in general terms, equally. Nor do I accept that the particulars are confusing. It may be that some of them could be described not as particulars but as evidence, but sometimes these categories blur into each other and I would not strike out the pleading on this basis.

14. There was also, as I understand it, a complaint about prolixity. I do not regard the Statement of Claim itself as prolix: it deals in narrative form with events over an extended period of time and sets out a variety of different causes of action. On 4 February 2026, the defendants’ solicitors sent a request for particulars comprising of a letter of some 38 pages. That was met with a letter of about the same length dated 18 March 2028, together with 18 categories of documents. In the context of the request that was made, I do not think this response is excessively lengthy or that it renders the pleading itself prolix. Mr George took me to some of the documents provided that were in the nature of ledgers in the period 2016 – 2018 recording distributions that had been made to beneficiaries. He submitted that they did not support the existence of the ESOFA. Whether or not that is right, I do not understand why it would make the allegation of the existence of the ESOFA embarrassing or liable to be struck out.

15. Part of the defendants’ submissions on this topic involved a complaint about the declaration claimed at [167] of the pleading (but not sought at the beginning of the Statement of Claim). This paragraph seeks a declaration that “each of the Coorey siblings are bound to observe and perform the terms and conditions of the Equal Sharing of Funds Agreement”. Ultimately Mr Clarke SC, who appeared for the plaintiffs, indicated that he did not press this paragraph and so I will say no more about it. I will not make any formal order for the pleading to be amended to reflect Mr Clarke’s instructions and will leave that to the parties.

16. There are a variety of other complaints about the pleading in the written submissions of the defendants. I do not regard them as having any merit. However, I will not deal with them in these reasons because Mr George in oral submissions indicated that if I was against him on his submissions about paragraphs 70(d)-(e), then I would dismiss the defendants’ motion.

17. Accordingly, I will make orders dismissing the defendants’ motion.

Plaintiffs’ motion

18. Orders 1 and 2 of the plaintiffs’ motion are in the following terms:

“1. An order that the third, fourth and fifth defendants not use or receive, or cause the first defendant to use, funds of the Coorey Family Trust Fund or the J&J Coorey Trust for the purpose of defending this proceeding, until further order.

2. An order that, to the extent one or more of the third, fourth or fifth defendants have used or received, or have caused the first defendant to use, funds from the Coorey Family Trust Fund or the J&J Coorey Trust to defend these proceedings to date (including to pay the fees or disbursements of Hitch Pty Ltd), within 14 days of the making of these orders, such funds are to be paid into Court pending the determination of these proceedings, or any appeal therefrom, whichever is the later.”

19. The plaintiffs’ motion sought similar orders in respect of the second and sixth defendants. However, Mr Clarke indicated that in light of solicitors’ correspondence suggesting that the funds of these companies had not been used for the purposes of this litigation, it was not necessary for him to press these prayers for relief. He expressly reserved his clients’ position to re-agitate these prayers for relief if the position changed.

20. The plaintiffs’ application has been made because the solicitors for the defendants have made it clear in correspondence that trust funds have been used to fund the proceedings, and that they proposed to continue that at least until the conclusion of their strike out application. Precisely what funds have been used and by whom is not revealed in the evidence.

21. It was common ground that there was power to make both orders, and this is clearly correct.

22. Mr Clarke’s essential submission was that these proceedings (in so far as they concern the Trustee) are what is sometimes called a “beneficiary dispute” – that is, ordinary hostile litigation during the pendency of which the trustee’s costs are not to be paid out of the trust estate. It seems to me that this submission is broadly correct. The expression “beneficiaries dispute” derives from the judgment of Lightman J in Alsop Wilkinson (A Firm) v Neary & Ors [1996] 1 WLR 1220 at 1224 (Alsop Wilkinson). There is a well-established line of authority in Australia that picks up this expression (see for example Application of Uncle*’*s Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321 at [24]-[25]; Hillier v Martin (No 7) [2021] FCA 1221 at [45], [59] (Hillier); Frost and Another v Bovaird and Others (2012) 203 FCR 95; [2012] FCAFC 60 at [68]). As Hallen J explained in Rattigan v Hanly [2020] NSWSC 1722 at [65]-[66], this expression is used to identify cases where a trustee has no prima facie entitlement to use trust funds to meet legal costs incurred in defending a claim pending its final resolution. The rationale for this is that a trustee is not entitled to rely upon a right of indemnity out of trust assets to advance only the trustee’s personal interests or those of only some of the beneficiaries. It is open to a trustee who wishes to use trust funds to defend litigation during its pendency to apply to Court for the exercise of what Lightman J described as an “exceptional jurisdiction” for orders reversing this prima facie position: Alsop Wilkinson at 1226. That has not been done here. The authorities I have referred to indicate that a trustee who wishes to defend proceedings without taking this course should do so without having recourse to trust assets. After the proceedings have concluded (and depending, amongst other matters, on their outcome) the trustee may be entitled to indemnity out of trust assets for its legal costs.

23. Mr George’s primary submission was that these orders should not be made because the pleading should be struck out. As is apparent, I have rejected this submission.

24. Mr George also submitted that the present case was not a “beneficiaries dispute” in the sense discussed in the authorities I have referred to. I reject that submission. The reality of these proceedings is that they are a contest between two sets of beneficiaries. The sibling defendants are the controlling directors of the Trustee and, together with the plaintiffs, the “principal beneficiaries” of the family trusts. The relief claimed is, in part, directed at replacing the Trustee or re-constituting its board. Much of the substance of the complaints of the plaintiffs concerns the management and control of trust property by Rodney as manager and also by the sibling defendants in their capacity as directors of the Trustee. The use of trust funds by the Trustee to defend the proceedings would serve either to advance its personal interests or to advance the interests of one set of beneficiaries over the other. In these circumstances, in my judgment this is the kind of litigation in which the authorities I have referred to indicate it is inappropriate for trust funds to be used by a trustee to defend proceedings during their pendency.

25. It was also common ground that it was not necessary for the plaintiffs to give the usual undertaking as to damages. Mr Clarke referred me to the decision of Hillier, where Charlesworth J made an order in the nature of order 2. Her Honour at [70]-[76] found that such an order was not in the nature of an interlocutory injunction, and rejected a submission that the usual undertaking was necessary. Much of her Honour’s reasoning may support a similar conclusion in relation to order 1 of the orders sought by the plaintiffs here. However, in circumstances where it has been accepted that the usual undertaking is not required, I do not think it is necessary to consider this further. One purpose of the usual undertaking is to afford protection to strangers to the litigation. But I have been unable to see how there could be any persons not parties to this litigation (and not discretionary objects of either trust who are, in substance, represented by the Trustee) whose interests could be affected by the making of the orders sought by the plaintiffs. Accordingly, I am prepared to accept what is common ground between the parties.

26. There is a question also, which Charlesworth J discusses, as to whether it is necessary to identify a serious question to be tried and consider the balance of convenience. These matters were not canvassed before me in any real detail. To the extent they are necessary to consider, they all favour the grant of the relief sought by the plaintiffs. The allegations in the Statement of Claim raise serious questions to be tried. The balance of convenience is all one way. There was no evidence or submission that any of the sibling defendants lacked the means necessary to defend the litigation in its entirety if the Trustee did not itself use trust funds for that purpose. Whether the Trustee has any recourse to funds that are not trust funds was not explored. But whatever the position, on the evidence before me there is nothing to suggest the proceedings will not be properly defended if the Trustee plays no substantive part in them.

27. It is necessary to say something about the form of the orders sought by the plaintiffs. Both are in terms directed at the sibling defendants and not at the Trustee. So far as order 1 is concerned, there is a difficulty with this because the basis of the jurisdiction that is invoked is that it would be a breach of trust if the Trustee were itself to use trust funds to defend the proceedings. The trust deeds, as is commonly the case, permit the Trustee to make distributions to discretionary objects in certain circumstances. It is also possible (although the evidence before me does not establish the position either way) that there are existing unpaid present entitlements which could legitimately be met by a payment of trust funds. Order 1 as framed would prevent both these things and I do not think that is appropriate. Whether these possibilities will arise has not been the subject of evidence before me. It may, for example, be that future distributions made for the purpose of advancing the interests of the sibling defendants at the expense of the plaintiffs might amount to a breach of trust (and/or afford additional grounds for seeking the removal of the Trustee). But I do not think, on the evidence before me, that it would be appropriate to grant injunctive relief in a form which would anticipate not only that something of this nature is on the cards, but also that, if it occurred, it would necessarily be a breach of trust.

28. Mr Clarke as I understood it sought to draw support for order 1 from the reasons of Charlesworth J in Hillier, and in particular her Honour’s observations at [90]-[94]. Her Honour there rejected a submission that the respondent in that case, Mrs Martin, could permissibly have received trust funds in the form of a distribution and used them for the purposes of defending the proceedings. However, I do not think on analysis that these paragraphs support order 1 as the plaintiffs have framed it. Charlesworth J was proceeding on a common assumption that the rights and obligations of Mrs Martin were the same as if she was the trustee (see at [60] and at [93]). I would understand her Honour’s observations at [90]-[94] to have been made in that context. This is not the position in the present proceedings.

29. For these reasons, it seems to me that order 1 is too broadly framed, and that the appropriate form of order is one which would restrain the Trustee from using trust funds to defend these proceedings.

30. The form of order 2, on one view, suffers from the same vice. However, order 2 is directed to past events and it was open to the defendants to attempt to justify the use of some or all of the trust funds in these proceedings to date by adducing evidence to explain them as the product of legitimate trust distributions by the Trustee to beneficiaries (or perhaps as the satisfaction of existing legitimate unpaid present entitlements). This they have not done. In these circumstances I do not propose to adjust order 2 in the way that I have adjusted order 1. No difficulty was raised by the defendants about identifying the quantum of the funds to be paid into Court pursuant to this order.

31. I will, however, adjust order 2 to avoid any suggestion that it operates to require the payment into Court of the specific trust funds that have been used in the proceedings thus far. No order was sought against the defendants’ solicitors of this nature, and the intention behind order 2 is for the trust funds to be restored by the Trustee and the sibling defendants by the payment into Court of the equivalent of the amount by which they have been depleted.

32. There is a suggestion in the evidence that the Trustee is contemplating seeking judicial advice. It is no more than a suggestion. The orders that I propose to make will not prevent such an application being made. Otherwise, their effect on any application for advice will depend on what advice is sought. If the advice sought includes advice that the Trustee is justified in using trust funds to defend these proceedings before their conclusion, then it would be necessary for the Trustee also to make an application to vary or discharge order 1. I would not wish it to be thought that I am inviting the Trustee to make an application for advice of this nature – but thought it appropriate to make clear the effect on such an application of the orders I propose to make.

33. For these reasons, the orders I make are:

34. The first defendant is restrained until further order from using or causing to be used the funds of the Coorey Family Trust Fund or the J&J Coorey Trust for the purpose of defending this proceeding.

35. To the extent that any one or more of the third, fourth or fifth defendants have used, or have caused the first defendant to use, funds from the Coorey Family Trust Fund or the J&J Coorey Trust to defend these proceedings to date (including to pay the fees or disbursements of Hitch Pty Ltd), the first, third, fourth or fifth defendants as the case may be are to ensure that the quantum of such funds is to be paid within 28 days from the date of these orders into Court pending the determination of these proceedings, or any appeal therefrom, whichever is the later.

36. The plaintiffs’ motion filed 24 June 2026 is otherwise dismissed.

37. The defendants’ motion filed 3 June 2026 is dismissed.

38. I will hear the parties on costs.

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