Application by South Melbourne Continental Pty Ltd

South Melbourne Continental Pty Ltd applied to the Supreme Court of Victoria for a declaration that the trust deed governing its assets be reconstructed and for orders that the trustee approve past transactions of the trustee. The respondent, D. R. McKendry Nominees Pty Ltd, opposed the application, arguing that the plaintiff had not made all reasonable efforts to locate the trust deed and had not provided sufficient evidence of the contents of the trust deed. The court was required to determine whether the plaintiff had made all reasonable efforts to locate the trust deed and whether there was sufficient evidence of the contents of the trust deed to support the application.

The court found that the plaintiff had not made all reasonable efforts to locate the trust deed, as it had not made inquiries of certain individuals who may have had knowledge of the location of the trust deed. The court also found that there was insufficient evidence of the contents of the trust deed to support the application. The court held that, in the absence of a trust deed, it was unable to make the orders sought by the plaintiff. The court dismissed the application, noting that the plaintiff had not discharged the onus of proving that all reasonable efforts had been made to locate the trust deed and that the contents of the trust deed were sufficiently established. The court also noted that, in the absence of a trust deed, it was not possible to determine the terms of the trust and the rights and obligations of the parties.