There was a good discussion here on suing the trustee of a trust – https://www.propertyinvesting.com/forums/getting-technical/legal-accounting/19601
My question is – how would someone lookup the trustee of a trust to sue them?
and then – if the trustee was a corporate trustee, what's to stop the trustee from claiming bankruptcy and having the appointer appoint a new trustee?
Any help appreciated,
Peter.Hi
The trustee is the legal owner of property. So if you can indenfity the property (not just land) you may be able to find the trustee. If the trustee owns real property you can do a title search and find it that way. If the trust owns a business then the trading name will be the trustee or if they have a registered trading name you may be able to find the trustee's name on documents such as invoices etc. Once you find the name then you can do titles searches on the name and find if there are other properties etc.
A corporate trustee usually owns no assets of their own – just the assets of the trust on behalf of the beneficaries. If you are suing the trustee in capacity as trustee then you may be able to sue the new trustee as well as the old one, or in place of the old one. The trustee is usually indemnified out of the trusts assets so it is like you are suing the trust – but a trust is not a legal entity and cannot be sued directly so you need to go after the trustee.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Thankyou Terry, I appreciate your knowledge and answers.
This sounds like a legal quagmire.
Can anyone point me to any precedents in Australian court where something like litigation against a trustee over property held in the trust has occurred? I would like to go through a real world scenario to make better sense of it.
Peter.
Trustees are sued all the time.
I just did a search on austlii and found this one
Green & Ors v Wilden Pty Ltd & Ors [2005] WASC 83
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASC/2005/83.html?query=^trustee
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
If you are suing a company in its own capacity or a trustee and you are worried about it having funds you can always seek a court order for security of costs. see s 1335(1) of the Corporations Act 2001
http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1335.htmlTerryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
That's great, Terry. Thankyou kindly.
This appears to be a more recent, shorter case where the assets of a trust have been suggested to be the security for the costs.
I can't tell what the outcome was. It appears that the court couldn't determine "whether the plaintiff owns them in its own right or whether it owns them as trustee" after a search of Landgate. I wonder why they couldn't tell the difference?
http://www.austlii.edu.au/au/cases/wa/WASC/2009/282.html
Can anyone interpret this for me? It seems very relevant to this discussion. If someone could briefly explain whether the assets were decided to be used as security by the court because of the plaintiff being a trustee of the trust.
Kind regards,
Peter.One partnership made by two trustee of two family trust. They made agreement with me. Partnership owe some money to me. I want to sue them. But problem is I cannot find out trustee names. My question is how can i find out trustee name? Or can I just sue them according to the partnership name on ABR ” The trustee of …… family trust & Trustee of ……family trust”(That is partnership name)? They have Business name registered. Any advice will be appreciated.
Thanks in advance.
How did you contract with them?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Hi Terry,
You seem to be discussing the exact situation I am facing. Essentially looking to gain a summary judgement against a retailer but the business name is registered to a Fixed Unit Trust which does not reveal who the actual trustee is.
Was thinking about doing a landgate search to see what their business premises come back with – but i’m assuming again that this will just come back to the Unit Trust and not reveal who is behind it.
What do you think?
full disclosure, the business name is Furniture Bazaar.
Cheers
Alex
I presume you did a AB search?
A trust is a private relationship, not registered anywhere. You need to find out who is operating the business. It can’t be a trust but would be a company or an individual who is acting as trustee.
If you do a title search it will show who the owner of the property is, but it will probably be leased to someone else. However, with Commercial leasesthe tenant often registers their lease on the title to the property so you could prob find it that way.
Other than that the name will be on invoices, websites etc.
You could also do an ASIC search on the business name.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
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