NSW Trustee vs beneficiary

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Byarn

Member
18 July 2021
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Trustee vs beneficiary

I have a property dispute with partner on rural property.
On OP request we engaged a Private trustee, property auctioned off 18 June, 90 days settlement.
Suddenly, a week ago the trustee is insisting that my family vacates, 4 weeks before 16 September settlement date, or he ll refer the matter to court, ask court to evict us.
This, because he does not think that we ll give vacant possession on 16 September.
He has no reason to think that, I have at all times cooperated with the sale, am still paying ALL outgoings, done that for 10 years.
Of course we will vacate 16 September, we are not dumb.
That trustee is close to OP lawyer, will communicate behind my back.
Trustee has hardly ever communicated with me, made huge error in contract for sale, never gave me copy of contract, I had to pose as potential buyer to view the contract, then 2 days before the auction found the error about it liable to GST, it was not liable for GST and the sale would have missed out on $150,000.
He then lambasted me for mentioning it so late.....
Other communications before that, too much to mention now.
My question now is:
What legs has a trustee have to go to court because he wants vacant possession 4 weeks before settlement?
How to defend ourselves?
We have a family with 3 small children living on the property, need the settlement payout to purchase another house.
Can he also delay our payout?
 

Rod

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Byarn

Member
18 July 2021
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It is the property partner that own the half of property choose the private trustee and i have no say on it except he take me to court to agree on it and i did sign to agree the trustee he choose and now the trustee seems not doing what is the best interest of us as beneficiary
 

Byarn

Member
18 July 2021
4
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1
He want us out 4 weeks before the settlement and he don't communicate on what reason,we want out as the day of 90 days settlement as per contract but all of the sudden the trustee send us email that that is what he want and as trustee we have no choice as it is his decision..is that really legal to do?i have young children need a place to live and school to transfer but trustee just don't wanna communicate and if he will he is just bullying
 

Rod

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While you have provided useful background information, you did not answer my question.

I suspect the answer is in the agreement you signed.

In the meantime write back and say where in the agreement does he have the authority to force you out before settlement.

Did you get legal advice before signing the agreement?
 

Byarn

Member
18 July 2021
4
0
1
Hi Rod, this is Hans. My wife has earlier communicated about this issue.

We did have legal advice before engaging this trustee. Only took him on because the matter would otherwise end up in Supreme NSW Court. Trustee was engaged by partner's lawyer, is likely to be his good friend.
Partner's lawyer and now this trustee have always told me that I am not willing to sell, want to stay on the property, will not cooperate, etc. All total fabrication by the lawyer, now the trustee also only to increase costs and fan the flames. I have at all times cooperated, they have nothing, no proof whatsoever that I have not cooperated at any time. My business partner is very vague, I suspect early onset dementia, is targeted for exorbitant fees.
From memory, there is nothing in the agreement about offering vacant possession, certainly nothing about 28 days before settlement. Otherwise, of course he'd have used that.
Only on 5 July he mentioned the 28 days before settlement, gives me to 7 July to respond.
I am confused, told him that direct, of course, the tenants have left and will give vacant possession at settlement.
On 8 July emails back again, telling me that "he'd be required to approach the court for possession and that it will increase the cost of the parties".
My lawyer replies, saying that we will offer vacant possession at settlement, as is the norm.
On 13 July he responds, telling that "he has been appointed as trustee which requires him to ensure that the property is sold. He will be placed in a difficult situation if I don't offer vacant possession at settlement date.
He won't have sufficient time to enforce HIS rights to vacant possession if a Notice to Complete is issued."
He mentions that his request is reasonable and should not be a burden on us, that he has provided sufficient notice.
Then finishes with, asks my lawyer "please ensure vacant possession is provided 4 weeks before settlement"

I'm not responding anymore, reckon that he has no legs, there is no reason whatsoever for us to offer vacant possession 4 weeks before settlement.

This trustee has been negligent, dealing with this matter in a slack way, has been going on for nearly a year or so with him.

All the letter writing of course increases costs exponentially, without any grounds.

Now, of course, I am wondering when we will receive the payout from the sale, he will have everything in his trust account, will just continue harassing us as he has done in the past...

We are all stressed out, cannot even purchase another property with that trustee playing dumb games. Imho any court would throw out his request for the 4 weeks but of course, another matter in court would attract huge fees, we already paid far too much for this unnecessary saga.

Kind regards,
Hans
 

Rod

Lawyer
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Have your lawyer tell him you will give vacant possession before settlement (ie the day before), and any costs incurred if the trustee takes action will likely be at the trustee's own cost. Have your lawyer tell him he is not properly performing his fiduciary duties , in particular his duties of good faith and acting impartially.

Also say if he applies to court you will counter with a claim to remove him as trustee.

Keep in mind without seeing the trust deed I cannot be certain he doesn't have the right to do what he is suggesting. You need the advice of your lawyer.

If you have already said the things I mentioned, and possibly more, then a simple follow may still be required. Helps to cover your backside.
 
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