David & Ros Carr Holdings Pty Ltd v Ritossa [2024] NSWSC 1125

Coffee and a Case Note

“We need to *wind up* the trust and sell the farms!”

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The Ps and the Ds each owned 50% of the units in a unit trust: [1]

TCo owned substantial real property - farms. The Ps sought to have the trust ended and distribute the assets. The Ds took the opposite view: [5]

The Ps said: 1. there was an agreement or estoppel that if one party wanted to exit, the assets would be sold; 2. the trust deed allowed a unit holder to terminate; 3. the TCo’s conduct was oppressive; and 4. a receiver should be appointed to trust assets: [7]

The Ps and Ds were bankers who, after a time, resolved to add valuable farmland to their portfolio: [15] - [18]

They sought advice on structuring: [19] - [30]

TCo was incorporated and established as trustee, with Ps and Ds funding TCo’s purchase of the land: [31], [32]

A unit holders agreement was considered but not signed: [33] - [36]

Once commenced, the parties considered: which farm management services Co was best, the possible acquisition of further properties by TCo, the Ds frustration with the Ps’ acquisition of a farm themselves and not for TCo, and the looming threat of drought: [39] - [53]

As the drought intensified, arguments arose about: (i) whether to de-stock or borrow to buy feed: [54] - [65], (ii) the Ps stretching their finances to make their own acquisitions thereby depriving TCo of a source of funds to buy land, and (iii) the Ps standing in the way of the Ds buying some land for themselves: [54] - [72]

The relationship deteriorated.In 2021 and 2022 the Ps put purchase offers to the Ds. The Ds accepted neither: [87] - [89]

Later in 2022, the Ps served a notice purporting to “wind up” the trust: [90]

Re 1., the Ps said there was an agreement, or representations founding an estoppel, that each party could unilaterally terminate the JV on notice: [107], [109]

The Court found no evidence of a “one out / all out” arrangement: [122]

Re 2., the unit holders has a present entitlement to trust capital; a position adopted for land tax purposes: [126], [136]

The Ps failed on this point; incl because the Deed did not give rise to a present entitlement for *each unit holder separately* rather than the unit holders together: [168], [184]

Re 3., the Court accepted oppression can occur with a trustee Co, with the relevant member protecting their family’s beneficiary interest: [202] - [204]

None of the pleaded oppression bases was made out: [209] - [255]

Ps’ complaints arose from disagreements re management of the farms through drought, and the lack of an exit strategy - neither proved commercial unfairness: [256] - [258]

Re 4., the trust property was not in jeopardy and TCo appeared to be performing satisfactorily: [266]

The Court was not moved by the Ps’ analogies to partnerships or s461 applications, leaving no basis for the appointment of a receiver: [267] - [283]

The Ps’ application was dismissed: [286]

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