Full Court Minute Books

Case S26/2024

Naaman v. Jaken Properties Australia Pty Limited ACN 123 423 432 & Ors

Case No.

Case no S26/2024

Case Information

Lower Court Judgment

08/09/2023 Supreme Court of New South Wales (Court of Appeal) (Bell CJ, Leeming & Kirk JJA)

[2023] NSWCA 214


Equity – Fiduciary duty – Fiduciary duty between former and successor trustees – Duties of trustees – Where first respondent successor trustee – Where second respondent sole director and shareholder of former trustee – Where former trustee appointed in June 2005  – Where in November 2006, appellant commenced proceedings against former trustee seeking damages of $2 million – Where first respondent replaced former trustee by way of deed of appointment – Where former trustee promised indemnity from first respondent as successor trustee – Where former trustee wound up because of claim for $2,500, with effect appellant's pending proceedings stayed – Where legal title to trust assets transferred to first respondent as trustee – Where on March 2014, default judgment entered in favour of appellant against former trustee – Where judgment set aside by consent, and proceedings reheard in December 2014 – Where on 25 February 2016, primary judge made orders entering judgment for appellant against former trustee in amount of $3.4 million and declared former trustee entitled to be indemnified out of trust assets – Where in meantime, trust assets dissipated by first respondent at discretion of third respondent – Where other respondents either knowingly involved in conduct or received trust property – Where primary judge found first respondent breached fiduciary duties, and other respondents either knowingly involved in the conduct or received trust property – Where Court of Appeal majority held first respondent did not owe fiduciary obligation at any time – Whether Court of Appeal majority erred in concluding first respondent as successor trustee did not owe fiduciary duty to former trustee not to deal with trust assets so as to destroy, diminish or jeopardise former trustee’s right of indemnity or exoneration from those assets.


08/02/2024 Determination

22/02/2024 Notice of appeal

28/03/2024 Written submissions (Appellant)

28/03/2024 Chronology (Appellant)

26/04/2024 Written submissions (Respondents)

17/05/2024 Reply

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