Full Court Minute Books

Case S223/2015

                                Fischer & Ors v. Nemeske Pty Ltd & Ors

Case No.


Case Information

Lower Court Judgment

11/02/2015 Supreme Court of New South Wales (Court of Appeal) (Beazley P, Barrett JA, Ward JA)

[2015] NSWCA 6


Equity – Trusts and trustees – Power of Trustees – Maintenance and Advancement – Where first respondent is the trustee of the Nemes Family Trust and applicants are the “Specified Beneficiaries” – Where in July 1994 the trust recorded an “asset revaluation reserve” in the accounts of the trust in the amount of $3,904,300 – Where first respondent determined to make a distribution to Mr and Mrs Nemes but no money was paid out – Where, in 1995, first respondent executed a Deed of Charge in favour of the Nemes which recorded that trust was indebted to the Nemes to the sum of $3,904,300 – Whether a trustee of an express trust validly exercise a power to “advance” or “apply” the capital or income of that trust by resolving to pay or credit an amount of money to a beneficiary of the trust, notwithstanding that the trust assets do not include, and have never included, any money – Whether an action for money had received maintainable against a trustee upon the trustee stating an account to the relevant beneficiary, notwithstanding that the trustee continued to have ongoing active duties as trustee in respect of all of the trust assets from which any liability to the relevant beneficiary would be realised.

Short Particulars


16/10/2015 Hearing (SLA, Sydney)

26/10/2015 Notice of appeal

30/10/2015 Submitting appearance (First Respondent)

02/11/2015 Submitting appearance (Fourth to Thirteenth Respondents)

02/11/2015 Notice of Contention (Second and Third Respondents)

04/11/2015 Written submissions (Appellants)

04/11/2015 Chronology (Appellants)

18/11/2015 Written submissions (Second and Third Respondents)

25/11/2015 Reply

02/12/2015 Hearing (Full Court, Canberra) (Audio-visual recording)

06/04/2016 Judgment (Judgment summary)