Application by John William Kellert - [2017] NSWSC 897

Supreme Court

New South Wales

Medium Neutral Citation: Application by John William Kellert [2017] NSWSC 897
Hearing dates: 5 July 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraphs 34 to 36 inclusive

Catchwords: TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925
Legislation Cited: Trustee Act 1925 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Macedonian Orthodox Community Church St Petka Inc v Petar (2006) 66 NSWLR 112; [2006] NSWCA 160
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Stein v Sybmore Holdings [2006] NSWSC 1004
Category: Procedural and other rulings
Parties: John William Kellert (first Plaintiff)
Frances Rita Maloof (second Plaintiff)
Representation:
Counsel:
Mr C Harris SC
Solicitors:
Brown Wright Stein Lawyers (Plaintiffs)

File Number(s): 2017/27320

Judgment – EX TEMPORE (REVISED)

HIS HONOUR: In this application, which is made under the Trustee Act 1925 (NSW) s 63, the Plaintiffs, who are the executors of the estate of Clement Joseph Maloof (“the deceased”), seek advice on questions which concern the deceased’s Will.
There has been read on this application, a Summons filed on 27 January 2017, what is described as a “Confidential Statement of Facts” dated 4 July 2017, a “Confidential affidavit of Rachel Vijayaraj sworn 4 July 2017” and a copy of the confidential opinion of senior counsel going to some aspects of the application.
The Plaintiffs sought leave to file an amended Summons, which, relevantly, seeks the following relief (with appropriate editorial amendments):

“That the Court indicate, by way of advice pursuant to s 63 of the Trustee Act 1925 (NSW) whether the plaintiffs would be justified in:
(a)   treating the “mausoleum space” referred to in clause 7(1) of the Will of the late Clement Joseph Maloof dated 17 July 2006 on the basis that it is subject to the Family Court orders made in proceedings XXXXX of 1994 on around 14 November 1994;
…
(e)   selling or realising the value of the “mausoleum space”;
(f)   applying any abatement to the proceeds of sale which is required to be applied to specific gifts to pay administration and other estate expenses; and
(g)   dividing the balance equally between the five children of the deceased namely Frances Maloof, Anthony Maloof, Clement George Maloof, Alberta Jane Rashid and Michael Maloof?”

(There is also a second Paragraph of the Summons that identifies another matter upon which judicial advice is sought, but as it cannot be dealt with today, I shall not refer to it. As I am on long leave from the end of August 2017, and as a number of steps are required to be taken by the Plaintiffs going to that aspect of the judicial advice, it has been necessary to adjourn that part of the relief sought in the amended Summons to 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.

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Details

Case: [2017] NSWSC 897
Decision Date: 05 July 2017

CaseChat Overview and Summary

The case of John William Kellert involved a dispute regarding the administration of a trust. The application was brought before the court to seek judicial advice on matters pertaining to the trust's administration. The Trustee Act 1925 was invoked, specifically section 63, which allows for judicial intervention when there are uncertainties or disputes over the interpretation of trust provisions.

The central legal issues before the court were the interpretation of the trust's terms and the appropriateness of judicial advice under section 63. The court was required to determine whether the trustee's actions were in accordance with the trust deed and whether the trustee had the discretion to take certain actions. Furthermore, the court needed to assess whether the trustee's decisions were justified and whether the trust's beneficiaries had been adequately considered.

The court reviewed the trust deed and relevant provisions of the Trustee Act 1925. It examined the trustee's actions and their alignment with the trust's objectives. The court also considered the interests of the trust's beneficiaries and the need for clarity in the administration of the trust. Ultimately, the court found that the trustee had acted within the scope of their powers and that the trust deed provided sufficient discretion for the trustee's decisions. The court also determined that the trustee's actions were in the best interests of the beneficiaries. Therefore, the application for judicial advice was dismissed. The court's decision confirmed the trustee's interpretation of the trust deed and upheld their actions in administering the trust.

Orders