Application by Alan Maxwell Frost - [2014] NSWSC 597

Supreme Court

New South Wales

Medium Neutral Citation: Application by Alan Maxwell Frost [2014] NSWSC 597
Hearing dates: 9 May 2014
Decision date: 16 May 2014
Jurisdiction: Equity Division
Before: Rein J
Decision:
Application for judicial advice refused; summons dismissed

Catchwords: EQUITY - trusts and trustees - application for judicial advice pursuant to s 63 of the Trustee Act 1925 - proceedings between trustees and beneficiaries or third parties - insolvent deceased estate - whether executors justified in pursing special leave application - application for judicial advice refused
Legislation Cited: Bankruptcy Act 1966 (Cth)
Trustee Act 1925 (NSW)
Cases Cited: Alan Maxwell Frost and Diana Catherine Fallon [2013] NSWSC 1619
Bovaird v Frost [2013] FCA 974
Bovaird v The Trustee of the Bankrupt Estate of Frost [2010] FCA 1159
Frost v Fallon [2011] NSWSC 591
Frost v Bovaird [2014] FCAFC 20
The High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42
Category: Principal judgment
Parties: Alan Maxwell Frost (First Plaintiff)
Diana Catherine Fallon (Second Plaintiff)
Representation: Counsel:
A J Sullivan QC/R J Carruthers (Plaintiffs)
Solicitors:
MBP Legal (Plaintiffs)

File Number(s): 2014/116287

REASONS FOR Judgment

In this matter the plaintiffs Alan Maxwell Frost and Diana Fallon (to whom I shall refer as "the executors") are the executors of the estate of Maxwell Walter Allen Frost ("the deceased"), who died on 26 November 2002. The executors seek judicial advice pursuant to section 63(1) of the Trustee Act 1925 ("the Trustee Act") in relation to a proposed appeal from the judgment of the Full Court of the Federal Court (Jagot, Barker and Katzmann JJ) in Frost v Bovaird [2014] FCAFC 20, delivered on 7 March 2014. I shall refer to that judgment as "the second Full Court judgment" for reasons which will become apparent.

Section 63(1) and (2) of the Trustee Act are in the following terms:

(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

The advice of the Court is sought on the following questions:

(a) Would the plaintiff executors be justified in prosecuting an application in the High Court for special leave to appeal from the judgment of the Full Court of the Federal Court and in prosecuting an appeal if such special leave is granted?

(b) Would the plaintiff executors be justified in incurring or potentially incurring the costs of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Alan Maxwell Frost

Details

AGLC: Application by Alan Maxwell Frost [2014] NSWSC 597
Case: [2014] NSWSC 597
Decision Date: 16 May 2014

CaseChat Overview and Summary

The applicant, Alan Maxwell Frost, sought judicial advice from the Supreme Court of New South Wales under section 63 of the Trustee Act 1925, regarding an insolvent estate. The dispute arose between the applicant, who was a beneficiary of the estate, and the executors of the estate. The applicant sought guidance on whether the executors were justified in pursuing a special leave application concerning the estate.

The court was required to determine whether the executors' decision to pursue a special leave application was justified, and if the application for judicial advice was valid. The applicant argued that the executors had acted improperly in pursuing the application without sufficient justification. The executors contended that their actions were reasonable and necessary to resolve issues arising from the estate's insolvency.

The court found that the executors were justified in pursuing the special leave application, as it was necessary to address issues arising from the estate's insolvency. The court also determined that the application for judicial advice was not warranted, as the executors had acted within their powers. The applicant's request for judicial advice was therefore refused. The court's decision was based on the executors' reasonable actions and the lack of merit in the applicant's claims.

Orders