This interlocutory application is the latest application in proceedings which have involved multiple applications to determine a range of issues in respect of a company now in liquidation, Beechworth Land Estates Pty Ltd (in liq) ("BLE"), and parties who have asserted claims to its assets. The issues raised by this Interlocutory Process were listed separately, prior to a further hearing in the substantive proceedings in December 2018 that will determine, inter alia, competing claims by several parties to BLE's remaining assets. It is necessary to determine this application, prior to that further hearing, since the result of this application will at least impact upon whether an additional party, Overdean Developments Pty Ltd ("Overdean"), should properly be joined as a defendant in the substantive proceedings and be allowed an opportunity to appear at that hearing.
Overdean relied, in support of its Interlocutory Process, on the affidavits dated 21 September 2018, 18 October 2018 and 30 October 2018 of its director, Mr Brian Dean. The Second Respondent, BAD Nominees (NSW) Pty Ltd ("Nominees"), and the Third and Fourth Respondents, Mr Smits and Mr Mahommed, in turn rely on Mr Mahommed's lengthy affidavit dated 26 October 2018. Substantial parts of that affidavit are of doubtful relevance to the application or are inadmissible in form, although objection was not taken to them.
It is convenient to set out the chronology of events, drawing upon Mr Dean's several affidavits, Mr Mahommed's affidavit and the documentary evidence. Mr Dean's evidence is that he caused the incorporation of Nominees in February 2008, in order to appoint it as trustee of the Dean Super Fund ("DSF"), and he is the sole director, shareholder and secretary of Nominees. In his first affidavit, Mr Dean referred to an unexecuted copy of the trust deed for the DSF in a form exhibited to that affidavit (Ex A1, p 11). By his second affidavit dated 18 October 2018, Mr Dean identified a different unexecuted trust deed for the DSF and claimed that he collected and kept a copy which had not been executed when the trust deed was executed (Ex A2, p 7). That trust deed was in substantially different form from the trust deed referred to in Mr Dean's first affidavit. Clause 26 of the trust deed exhibited to Mr Dean's second affidavit relevantly provided that:
"The members may appoint a new or additional trustee, or remove a trustee, by written resolution to that effect. A person appointed as trustee must consent to act as a trustee or director of corporate trustee by providing notice of consent to all members."
A schedule to the unexecuted trust deed exhibited to Mr Dean's second affidavit (Ex A2, p 54) identifies the date of that trust deed as 24 December 2012 (although I recognise, that that does not coincide with the incorporation of Nominees) and identifies Mr Dean as the member of the superannuation fund.
By his third affidavit dated 30 October 2018, Mr Dean says that he was mistaken in identifying the document exhibited to his first affidavit as the trust deed for the DSF and refers to his having corrected that error, implicitly by identifying the other version of the trust deed, in his affidavit dated 18 October 2018. His evidence, in his third affidavit, is that the trust deed exhibited to his second affidavit is a true copy of the executed trust deed for the DSF although, I interpolate, that document does not appear to be executed. He refers to having received a copy of the executed trust deed from BT Financial Group, with whom he had a self-managed superannuation fund account, on 16 October 2018. The email said to attach that document, but not the executed document, is in evidence.
It is common ground that, on or about 1 February 2013, the DSF advanced the amount of $1,261,791.23 to BLE (Dean 18.10.18 [7]). Mr Dean's evidence, admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) as submission only, is that the amount owing has increased as a result of further advances and the accrual of interest. Mr Dean also gives evidence, also admitted with a limiting order under s 136 of the Evidence Act as submission only, of certain dealings with Maitland Finance and Acquisition Pty Ltd. Those dealings are not material to the determination of this application.
Voluntary administrators were appointed to BLE in July 2014 and those persons were subsequently appointed agents of BLE as mortgagee in possession of certain lots situated in Beechworth Victoria, and as court-appointed receivers of certain BLE assets, being the same lots.
It is common ground that, in May 2016, Nominees gave a power of attorney ("POA") in favour of Messrs Mahommed and Smits (Dean 18.10.18 [22]; Ex A2, p 118), which is expressed as irrevocable for the period commencing on 5 May 2016 until 5 May 2019. At least by June 2016, disputes had arisen between Mr Dean on the one hand and Mr Smits and Mr Mahommed on the other as to the latters' entitlement to act on behalf of Nominees.
Mr Dean also refers, in his second affidavit, to an agreement reached between relevant parties, as recorded in a judgment of Gleeson JA in Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447. The essential terms of that agreement were that lots 16, 17, 18, 30, 47-49 and 73-74 were transferred by BLE (as mortgagee in possession) to Nominees or its nominee in reduction of the amount of Nominees' claim against BLE in the amount of $1 million ("Amount"); and, if a distribution was likely in the winding up of BLE, Nominees (or its assignee, as the case may be) may prove in the liquidation for the difference between the Amount and the quantum of Nominees' claim against BLE, as adjudicated by the liquidators of BLE.
Mr Mahommed's evidence is that, on 20 March 2018, Nominees as assignor executed a deed of assignment with Garslev Holdings Pty Ltd ("Garslev") as assignee, purportedly for consideration of $850,000, in respect of the transfer of the relevant lots to Garslev. Mr Mahommed refers to a transfer of land by mortgagee under s 77 of the Transfer of Land Act 1958 (Vic) executed by BLE and Garslev in respect of the relevant lots (Ex R1, 135-138). Mr Mahommed's evidence, as to which he was not cross-examined, was that Garslev paid an amount of $57,800 towards stamp duty, title office fees and agents fees to enable the lodgement of the transfer for registration in respect of the relevant lots although that transfer has not been registered by reason of caveats registered on the title of those lots.
It is common ground that, on or about 17 July 2018, BLE and Nominees effected settlement of a contract between Nominees and Garslev by a nomination ("Nomination") made by Nominees, and BLE provided to Nominees and Garslev a certificate of title to the relevant lots and a transfer of the lots in favour of Garslev (Dean 18.10.18 [27]-[28]). By a receipt dated 17 July 2018 (Ex A2, p 144), Nominees and Garslev jointly and severally acknowledged receipt from BLE of original certificates of title in respect of the relevant nine properties and a transfer form in respect of those certificates of title from BLE to Garslev signed on behalf of BLE. Mr Dean advanced criticisms of that transaction in his affidavit dated 18 October 2018, including the suggestion that Garslev is associated with Mr Smits. It is not necessary or possible to determine those allegations in dealing with this application. Mr Mahommed's evidence, to which no objection was taken and as to which he was also not cross-examined, was also that:
"Since 17 July 2018, Garslev has acted in pursuance of the said Nomination and the POA through its independent solicitors by attending to stamping and registration of the Transfer (subject to removal of the Caveats …) and it has resold the Subject Lots to independent third party purchasers through licensed real estate agents in Victoria in entirely arms length transactions, upon confidential terms and for true open market value. My experiences from the subject matters is that the vested interests of Garslev, those of such purchasers and of [Mr Mahommed and Mr Smits] are likely to be prejudiced irreparably and permanently if Mr Dean, Overdean and [a financier] are allowed to interfere with the said sales and completion of the [Nominees] Contract."
Mr Dean's evidence is that he removed Nominees as trustee of the DSF on 5 September 2018. Also on that date, Overdean consented to be the trustee for the DSF (Ex A1, p 97). Mr Dean signed a document headed "Removal of Trustee" which provided that:
"1. I, Brian Arthur Dean, of [address] being the sole beneficiary of the [DSF] … hereby resolve and advise that in accordance with the rules of the aforesaid superannuation fund that I remove [Nominees] as trustee of the [DSF] effective forthwith.
2. I appoint in its stead to act as trustee of the [DSF], [Overdean] of [address]." (Ex A1, p 98)
Mr Smits, who appears for Nominees as well as being the Third Respondent in the proceedings in his own right, draws attention to the possibility that Mr Dean may then have intended to refer to the trust deed in the form referred to in his first affidavit of 21 September 2018. While that may be the case, the validity of the removal of Nominees as trustee of the DSF turns upon whether Mr Dean had and exercised the power to remove the trustee under the applicable trust deed, not upon whether he had correctly identified the applicable trust deed at the relevant time.
Also on 5 September 2018, Mr Dean chaired what he described as a meeting, although only he attended it, removing Nominees as trustee of the DSF and appointing Overdean as its trustee. The relevant document is headed "Minutes of Meeting of Member", suggesting that it is a meeting of Mr Dean alone, as the sole member of the DSF. The minutes of that meeting relevantly stated that (Ex A1, 99):
"The Trustees passed the following special resolution:
(a) That the notice of removal of [Nominees] as trustee of the [DSF] received from the Member be accepted;
(b) That having received a consent to act from [Overdean] to act as trustee, that [Overdean] be accepted as the new trustee for the [DSF], effective from the close of this meeting."
It appears that the reference to the trustees (presumably, Nominees and Overdean) passing the following special resolution may be incorrect or may be surplusage, as Mr Katsoulas, who appeared for Overdean, accepted in the course of submissions. By his third affidavit, Mr Dean also refers to having executed a deed of appointment and retirement of trustee of discretionary trust on 5 September 2018, although that document was not exhibited to his two earlier affidavits. The parties to that document are Nominees, Overdean and Mr Dean.
By letter dated 13 September 2018, Overdean notified several persons of the change in trustee of the DSF by letters (Ex A1, pp 100-103) that stated that:
"[Overdean] advised:
I advise that [Overdean] has been appointed Trustee of the [DSF] effective from 5th September 2018. The appropriate resolution was executed by sole member, Mr Dean, in accordance with the Rules.
All future correspondence in relation to the investment by the [DSF] in either [BLE] or Griffiths Estates Pty Ltd (in liq) is to be directed to us."
Overdean also advised Mr Smits and Mr Mahommed of that appointment at the same time (Ex A1, p 101).
I note, for completeness, that Mr Mahommed also addressed, in his affidavit dated 26 October 2018, the findings of Brereton J in earlier proceedings which had determined that a registered irrevocable power of attorney dated 9 May 2016 ("POA") in favour of Messrs Smits and Mahommed was irrevocable. Overdean had not contended to the contrary in this application and, in the event, does not now press orders in respect of the POA. Mr Mohammed also refers, in that affidavit, to a consultancy agreement between Nominees as trustee for the DSF (which he claims also binds Nominees in its personal capacity) and Vestecorp Financial Services Pty Ltd ("Vestecorp") and Mr Smits which provides for payment at hourly rates in respect of Mr Mohammed and Mr Smits. Mr Mahommed also refers to an irrevocable authorisation and direction from Nominees to Messrs Smits and Mahommed and Vestecorp which, inter alia, provides for payment of a specified percentage of monies, damages, interests and costs payable to Nominees in legal proceedings to Messrs Smits, Mahommed and Vestecorp. Mr Mahommed also refers to aspects of the relationship between Nominees and Mr Dean and Messrs Mahommed and Smits and to the complexity of the issues arising in the relevant proceedings and to the circumstances of the transfer of the relevant lots. Mr Mahommed also addresses a number of other matters, which it is not necessary to address in order to determine this application. In that affidavit, Mr Mahommed also makes allegations in respect of the preparation of sham documents by Mr Dean. None of those allegations were put to Mr Dean, who was not cross-examined, and I disregard them on the basis that the Court could not properly reach such findings where Mr Dean has had no opportunity to respond to them. It appears that other aspects of Mr Mahommed's affidavit may be directed to the substantive proceedings, or at least respond to evidence that has not been led in this application.
[3]
Whether Overdean is now the trustee of DSF
By Amended Interlocutory Process filed 1 November 2018, by leave, Overdean seeks a declaration that it is the trustee of the DSF. It also seeks a consequential order that the trust property, implicitly of the DSF, be vested in Overdean as the new trustee under s 71 of the Trustee Act 1925 (NSW). It is apparent that at least Mr Mahommed, in his capacity as attorney appointed to Nominees, does not accept that Nominees has been removed as trustee of the DSF and he contests Mr Dean's power to remove Nominees as trustee in paragraph 79 of his affidavit dated 26 October 2018, admitted with a limiting order under s 136 of the Evidence Act as a submission only. There is accordingly a real dispute between the parties as to that question and a declaration is appropriate to resolve that dispute. That declaration would also establish the factual and legal basis for further the resolution of disputes which may exist between the parties as to the entitlement to possess property of the DSF.
Mr Katsoulas submits, and I accept, that the question of the validity of the removal and appointment of a trustee depends, first, on the terms of the instrument creating the trust: Statewide Developments Pty Ltd (in liq) (recs and mgrs apptd) v Azure Property Group (Holdings) Pty Ltd [2012] NSWSC 616; (2012) 84 NSWLR 133 at [15]. No party here contended that the provision for appointment of a new trustee by registered deed in s 6 of the Trustee Act was the only way in which a new trustee could be appointed, as distinct from a facilitative provision. Mr Katsoulas submits that cl 26 of the trust deed exhibited to Mr Dean's second affidavit, which he has deposed to be a true copy of the trust deed of the DSF, permits the removal of a trustee by written resolution. Clause 32 of that trust deed provides that, whenever a trustee leaves the fund, he or she shall return all records, books and accounts of the fund to the remaining trustee. Mr Katsoulas submits that, on 5 September 2018, Mr Dean as sole member of the DSF resolved to remove Nominees as trustee of the DSF effective immediately and resolved to appoint Overdean as trustee of the DSF by way of written statement and minutes of a meeting of the DSF. Mr Katsoulas points out that there is evidence that Overdean consented to act as trustee of the DSF. Mr Dean's evidence, which was not objected to in his third affidavit and as to which he was not cross-examined, is that he is the sole member of the DSF. Mr Katsoulas submits, simply enough, that the removal of Nominees as trustee and the appointment of Overdean as trustee of the DSF was in accordance with the express power contained in the trust deed and that the declaration sought has utility where Nominees continues to hold itself out, by Mr Mahommed, as trustee of the DSF.
In further written submissions, Mr Smits raised a question whether there was a change of trustee of the DSF on 5 September 2018, and identified questions as to how particular pages came to be inserted into the version of the trust deed contained in Ex A1, and how the deed of appointment and retirement of trustee of the DSF, which Mr Dean claims was executed on 5 September 2018, refers to cl 26 in the later version of the trust deed, when the earlier and different trust deed was exhibited to Mr Dean's affidavit of 21 September 2018. Mr Smits did not seek to put any of those matters to Mr Dean, who was not required for cross-examination, to allow him an opportunity to answer them. Nor did Mr Smits put to Mr Dean, to give him an opportunity to answer, the inference that he seeks to have drawn that the deed of appointment and retirement of trustee was not executed on 5 September 2018.
Mr Smits also refers to a difference in the number of pages contained in the version of the trust deed exhibited to Mr Dean's second affidavit and the number of pages contained in the version of the trust deed contained in Overdean's Court Book. Mr Smits notes that one of the pages contained in Overdean's Court Book appears twice, with one version purporting to be an execution of the trust deed by the Nominees. It should come as no surprise, given the history of these proceedings generally and the conduct of this application particularly, that that does not appear to be the case in the version of the Court Book provided to the Court, at least in respect of the page numbers to which Mr Smits refers. It may well have been desirable for Mr Smits to seek to explore a number of the discrepancies to which he refers in cross-examination of Mr Dean. However, he did not do so and I do not find that those matters impugn Mr Dean's evidence as to the existence or terms of the trust deed in the form exhibited to his second affidavit.
Mr Smits' submissions otherwise largely focussed upon the question whether the POA was irrevocable in its terms, notwithstanding that Overdean did not appear to contend to the contrary, and upon whether it was terminable under s 28 of the Powers of Attorney Act 2003 (NSW), a matter relevant to the application that is not now pressed by Overdean. In addressing that issue, Mr Smits variously submitted that Mr Dean had engaged in a range of unconscientious conduct to the detriment of trust creditors, although he did not seek to put any of those allegations to Mr Dean in cross-examination; that the trust deed for establishment of the DSF was a sham, although he also did not seek to put that allegation to Mr Dean in cross-examination; and that there was no evidence of due compliance with any relevant trust deed for the DSF in respect of the alleged change of trustee, a proposition which cannot be accepted given the evidence to which I have referred above. Mr Smits also submitted that the appointment of Overdean as trustee for the DSF had the purpose or object of circumventing earlier orders made by the Court, and amounted to the tort of inducing a breach of contract or to breach of an implied term or condition of the various arrangements with Nominees and that the appointment of Overdean as trustee of the DSF would be futile, by reason of several matters.
It seems to me that none of these matters is capable of impugning the validity of the removal of Nominees or the appointment of Overdean as trustee of the DSF. No improper purpose in removing Nominees and appointing Overdean as trustee of the DSF was established, and Mr Smits also did not identify any legal basis on which any question of Mr Dean's subjective purpose would invalidate a removal and appointment of trustee made in accordance with the terms of the trust. Any question of a tort or breach of contract arising by the relevant actions does not affect the validity of the removal of Nominees or appointment of Overdean as trustee of the DSF.
Notwithstanding the error in Mr Dean's first affidavit as to the identity and terms of the trust deed for the DSF, it was ultimately not put to him that the evidence in his second and third affidavits was either false or mistaken, and I accept that evidence where Mr Dean has had no opportunity to answer any challenge to it. The terms of that trust deed permit Mr Dean, whose evidence is (as I noted above) that he is the sole member of the DSF, to remove a trustee and appoint a new trustee by a written resolution to that effect. It seems to me that the written statement and minutes dated 5 September 2018 (notwithstanding the erroneous reference to the trustee in the latter) constitute a written resolution to that effect. The requirement that Overdean consent to act as trustee in cl 26 of the trust deed is satisfied. In these circumstances, I am satisfied that a declaration should be made, as sought by Overdean, as to the validity of the removal of Nominees and the appointment of Overdean as trustee of the DSF.
[4]
Whether a vesting order should be made under s 71 of the Trustee Act
Mr Katsoulas submits, in a brief written submission, that s 71(2)(b) of the Trustee Act empowers the Court to make a vesting order where a new trustee has been appointed out of Court under any express power. The learned authors of Jacob's Law of Trusts in Australia, 8th ed, [25-04] observe that the power under s 71(2)(b) of the Trustee Act may be exercised in cases where property does not vest in new trustees under s 9 of the Trustee Act without the execution of conveyances or transfers. Mr Katsoulas also submits that:
"As a consequence of Overdean's appointment under an express power of the Trust, and the removal of [Nominees] as trustee [of the DSF], it is appropriate that all the property held by [Nominees] subject to the Trust should vest in the new trustee."
An immediate difficulty with that submission is the absence of any specificity as to what property is held by Nominees subject to the trust, or any attempt to engage with the range of disputes that exist as to that question.
Mr Smits responds that Nominees has no interest in the relevant lots as a result of the transfer of those lots to Garslev and that there has been "substantial, part performance" of the arrangements between BLE, Nominees and Garslev and that Garslev is the beneficial owner of the relevant lots. Mr Smits initially submitted that Garslev was also entitled to full, absolute and indefeasible estates in fee simple in the subject lots under s 43 of the Transfer of Land Act, but rightly abandoned that submission, which was obviously untenable where the transfer of the relevant lots to Garslev had not been registered. Mr Smits also submitted that the choses in action of Nominees were validly assigned to Garslev under the agreements to which I referred above and advanced a range of other submissions, several of which appeared to depend on facts not in evidence in the application.
It seems to me that it is not appropriate to determine, in an interlocutory application of this kind, complex questions as to the validity of the dealings between BLE, Nominees and Garslev, particularly where Overdean did not seek to join Garslev as a respondent to the application so that it had an opportunity to be heard. There would be no utility, and a potential for real prejudice, in making a vesting order under s 71(2)(b) of the Trustee Act in respect of unidentified property held by Nominees subject to the trust, where the disputes as to the respective parties' entitlements to that property and particularly the relevant lots have not been and cannot be determined in this application. I do not accept Mr Katsoulas' submission that such an order could be made, and then any issues in respect of claims by third parties to rights over the relevant property could be determined. It seems to me that an order under s 71(2)(b) of the Trustee Act is not appropriately made where there are multiple contested claims over the relevant property which have not yet been determined.
[5]
Whether Overdean should be joined in the substantive proceedings
Overdean seeks leave to be heard in or, implicitly in the alternative, an order that it be joined as a defendant in proceedings 2014/229138 and proceedings 2018/99714 in which substantive issues are to be determined, and which are listed for hearing in December 2018 as I noted above. In oral submissions, Mr Katsoulas placed primary weight upon joinder of Overdean as a defendant in the proceedings, rather than giving it an opportunity to be heard in the proceedings. Mr Katsoulas submits that Overdean should be joined to represent the DSF's interests as a creditor of BLE.
The parties did not address the applicable provisions of the Uniform Civil Procedure Rules 2005 (NSW) or the case law. Rule 6.24 of the Uniform Civil Procedure Rules relevantly provides that:
"If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party."
The first part of this rule is directed to the joinder of a proper party to the proceeding, that is a person who might have been joined as a party, and the second to a "necessary" party to the proceeding, although those concepts overlap. The scope of a corresponding rule was considered in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193; 21 ACSR 635, where the Full Court of the Federal Court pointed to the intention to avoid, where reasonably practicable, a multiplicity of proceedings and observed that "[a]n order which directly affects a third person's rights against or liabilities to a party should not be made unless that person is also joined as a party". The Full Court observed that the relevant test:
"… involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent... The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential."
In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131]-[132], the High Court referred to the decision of the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd above and applied a test of direct effect on the legal rights of another person, in that case the interests of a person claiming an interest in the land which would be deprived of its rights if indefeasible proprietary rights were created in favour of a party to the litigation without it being heard. In Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042 at [7], Ball J summarised the relevant principle as being that a person "ought to be joined as a party if its legal rights are directly affected by the orders sought but not otherwise". I adopted the same approach in Re Raejoe Pty Limited (rec and mgr apptd) (admins apptd) as trustee for The Coe Family Trust [2012] NSWSC 1457, on which I have drawn for the summary of the principles that appears above.
I am satisfied that, where it is common ground that Nominees, as trustee for the DSF, made a substantial loan to BLE, and where I have held that Overdean has now replaced Nominees as trustee for the DSF, that Overdean should be joined as a defendant in the substantive proceedings. It does not follow that Nominees will not also properly remain as a defendant in the proceedings where it may also have rights arising, for example, from any rights of indemnity or exoneration and any associated lien available to it as a former trustee of the DSF. In any event, no party sought an order removing Nominees as a defendant in the proceedings.
[6]
Status of irrevocable power of attorney given by Nominees
Overdean initially sought, but did not press at the hearing, a declaration that Nominees or Overdean as trustee of the DSF has terminated the POA in favour of Mr Smits and Mr Mahommed, as and from 11 October 2018, or an alternative order that the Court terminate the POA under s 28 of the Powers of Attorney Act. Mr Dean referred, in his affidavit dated 18 October 2018, to the circumstances in which orders for indemnity costs were made against Nominees, in respect of an earlier security for costs motion, and identified those orders as a reason he wished to terminate the POA. It is not necessary to address that matter, where the application in respect of the termination of the POA was not pressed.
[7]
Order for delivery of up of certificates of title and other documents
Finally, Overdean sought and pressed an order that Mr Smits and Mr Mahommed jointly and severally deliver up to Overdean, as the trustee of the DSF, all certificates of title held by them pursuant to the POA. Mr Katsoulas pointed out that, as I have noted above, BLE conveyed the certificates of title for the relevant lots to Nominees and Garslev, pursuant to the agreement noted by Gleeson JA to which I have referred above, and he submits that the relevant lots "are assets of the [DSF], with legal title vesting in Overdean as trustee".
It seems to me that such an order could not be made in this form. First, there is no evidence that either Mr Smits or Mr Mahommed, jointly or severally, personally hold the relevant certificates of title, although it is possible that Nominees does so, or that Garslev does so or, possibly, that the third party purchasers of relevant lots referred to in Mr Mahommed's affidavit evidence to which I referred above now do so. It seems to me that an order could not properly be made against Mr Smits and Mr Mahommed personally to deliver documents which are or may be held by corporate entities or third parties. Second, it seems to me that such an order should not be made, as a matter of discretion, without determining the disputes between the various parties as to their respective entitlements to the certificates of title, or the relevant lots, for the same reasons that a vesting order under s 71 of the Trustee Act should not be made without determining those disputes.
[8]
Orders and costs
My tentative view, subject to hearing the parties, is that there should be no order as to the costs of the proceedings, where Overdean has succeeded in two aspects of the application but not pressed or not succeeded in other substantial aspects of that application. However, I will reserve the question of costs pending the hearing of the substantive proceedings and allow an opportunity for submissions as to costs after the substantive proceedings have been determined.
I make the following orders:
1 Declare that Overdean Developments Pty Ltd (ACN 109 387 457) is the trustee of The Dean Superfund (ABN 97 710 854 397).
2 Order that Overdean Developments Pty Ltd be joined as a defendant in each of proceedings 2014/229138 and proceedings 2018/99714.
3 The costs of this application be reserved.
[9]
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: 12 November 2018