Application by Barry McMahon Nominees Pty Ltd

In the matter of Barry McMahon Nominees Pty Ltd, the applicant sought a declaration that the original trust deed governing a property did not exist. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the existence and availability of the original trust deed, with the applicant claiming that the original had been destroyed and could not be located. The respondent contested this, arguing that the original deed was still in existence.

The legal issues before the court included whether the original trust deed had indeed been destroyed, and if secondary evidence could be admitted to establish the contents of the original deed. The applicant relied on statements from individuals who had seen the original deed and were able to describe its contents. The respondent challenged the admissibility of this secondary evidence, arguing that the original deed should have been produced if it existed.

The court found that the original trust deed had been destroyed, and that secondary evidence was admissible to prove its contents. The court accepted the statements of witnesses who had seen the original deed, noting the consistency and detail in their accounts. The court concluded that the applicant had met the burden of proving the destruction of the original deed and that the secondary evidence was sufficient to establish the contents of the trust deed. The court granted the applicant's application, declaring that the original trust deed did not exist.

The final order of the court was that the original trust deed governing the property did not exist, and the secondary evidence presented was sufficient to determine its contents. The court's decision allowed the applicant to proceed with its intended legal actions based on this declaration.