Harry Thynne v Jevny Pty Ltd

2025/00367093

EQUITY – in 1980, James Bernard Thynne (Jim) established the Thynne Family Trust (the Trust) – the Trust owned the farming property, while Jim ran the farming business – Jim’s will left key assets to his wife, Victoria, with the understanding (set out in a memorandum of wishes) that after Victoria’s death, the property on Mona Road, Darling Point (the Mona Road Property) and other assets would pass to Jim’s sons, Harry and Patrick – after Jim’s death in 2011, Victoria controlled the Trust and the family farming business – over time, disputes arose between Harry and Victoria over whether Victoria could mortgage the Mona Road Property, whether she had improperly received income distributions from the Trust, and whether she had breached any obligations under the memorandum of wishes – Harry also sought to remove the first respondent, Jevny Pty Ltd (the Trustee), and have a receiver appointed to sell Trust assets – the primary judge held that Victoria was entitled to full use and enjoyment of the Mona Road Property during her lifetime – while the primary judge found that distributions made to Victoria and her company before Jim’s death were not authorised because the Trust deed was never validly amended to include them as beneficiaries, the primary judge accepted that both Jim and Victoria had acted honestly and reasonably in believing the distributions were valid – therefore, the primary judge held that the Trustee was excused from liability for distributions made after Jim’s death under s 85 of the Trustee Act 1925 (NSW) and the primary judge did not remove Jevny Pty Ltd as trustee – whether the primary judge erred in declining to order an account and require the Trustee to restore the unauthorised distributions of Trust income that the Trustee had made to Victoria, by having regard to incorrect facts and acting on wrong principle when reasoning – whether the primary judge erred by ordering, pursuant to s 85 of the Trustee Act, that the Trustee be relieved of personal liability for any breach of trust involved in making distributions of the income of the Trust, by failing to have regard to relevant considerations and acting on wrong principle when reasoning that the Trustee, by its sole director, Victoria, had acted honestly and reasonably when making the distributions and should be excused from personal liability for its breach of trust and breach of fiduciary duty when making those distributions.

Thynne v Jevny Pty Limited (No 3) [2025] NSWSC 986

Thynne v Jevny Pty Limited (No 4) [2025] NSWSC 1115