Application of David Kerr

The application of David Kerr was before the Supreme Court of Victoria. Kerr sought judicial advice regarding the entry into a litigation funding agreement. The primary issue before the court was whether the trustees of a trust should seek judicial advice before entering into a litigation funding agreement, and if such advice would constitute a question of principle. The court was tasked with determining whether the trustees needed to obtain judicial approval before proceeding with the litigation funding agreement, and if the matter involved a question of principle that warranted such judicial intervention.

The court considered the legal framework governing trusts and trustees, specifically focusing on the requirements for trustees to obtain judicial advice. The court examined the nature of the litigation funding agreement and its implications for the trust. It also assessed whether the trustees' decision to enter into the agreement was within their powers and duties as trustees, and if seeking judicial advice was necessary to ensure the agreement did not contravene any legal principles. The court concluded that the matter did not raise a question of principle that required judicial intervention.

In reaching its decision, the court highlighted that the trustees had the authority to enter into the litigation funding agreement without seeking judicial advice, provided it was in the best interests of the trust and consistent with the trust deed. The court emphasised that the trustees' decision-making process should be guided by their duty of care, skill, and diligence, and that seeking judicial advice was not mandatory in this instance. Consequently, the court ruled that the trustees were not required to obtain judicial advice before entering into the litigation funding agreement, as it did not involve a question of principle.

The final orders of the court were that the trustees were not mandated to seek judicial advice before entering into the litigation funding agreement, and that the matter did not constitute a question of principle warranting such judicial intervention. The court's decision affirmed the trustees' authority to manage the trust in accordance with their powers and duties, provided they acted in the best interests of the trust.