Application of NSW Trustee & Guardian - [2014] NSWSC 1857

Supreme Court

New South Wales

Medium Neutral Citation: Application of NSW Trustee & Guardian [2014] NSWSC 1857
Hearing dates: 14 November, 11 December 2014
Decision date: 22 December 2014
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Benjamin order made

Catchwords: EQUITY - trusts and trustees - applications to the court for advice and authority - Benjamin order
Legislation Cited: (NSW) NSW Trustee and Guardian Act 2009, Schedule 1, par 10(1), par 11
(NSW) Public Trustee Act 1913, s 7
(NSW) Succession Act 2006
(NSW) Wills, Probate & Administration Act 1898, s 61A, 61B, 61C, 61D, 61E, 61F, 92
Cases Cited: In re Benjamin. Neville v Benjamin [1902] 1 Ch 723
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Re Green's Will Trusts [1985] 3 All ER 455
Hansell v Spink [1943] Ch 396
Lempens v Reid [2009] SASC 179
Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532
Public Trustee v Kehagias [2009] NSWSC 972
Wilcox v Poole [1974] 2 NSWLR 693
Texts Cited: D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell)
E R Daniell, Chancery Practice, (8th ed 1914, Stevens)
Category: Principal judgment
Parties: NSW Trustee and Guardian (plaintiff)
Representation: Counsel:
R Kako (plaintiff)
Solicitors:
Ruth Pollard (plaintiff)

File Number(s): 2014/287679

Judgment

HIS HONOUR: The late Betty Kathleen Foster died at Cessnock, intestate, on 28 August 2008 aged 83 years. Letters of Administration of her estate were granted on 12 January 2009 to the Public Trustee. The office of the Public Trustee, which was established as a corporation sole by the now repealed (NSW) Public Trustee Act 1913, s 7, has been abolished and the corporation sole dissolved, and the plaintiff NSW Trustee & Guardian is taken, for all purposes, to be a continuation of, and the same legal entity as, the Public Trustee [(NSW) Trustee and Guardian Act 2009, Schedule 1, paras 10(1), 11]. The net estate is $171,991.49, before provision for the costs of these proceedings. A notice of intended distribution of the estate, pursuant to (NSW) Wills, Probate & Administration Act 1898, s 92, as it applied at the time, was published in the Sydney Morning Herald on 27 January 2009. The plaintiff has not been able to establish that there are any beneficiaries entitled to the estate, but has not been able completely to exclude the possibility that there is a beneficiary. In those circumstances, the plaintiff proposes to distribute the estate to the Crown as bona vacantia, subject to the court making a "Benjamin order", which it seeks by summons filed on 1 October 2014.

Succession to the deceased's intestate estate is governed by the law of NSW as at the date of death [Public Trustee v Kehagias [2009] NSWSC 972, [11]]. As the deceased died intestate before the commencement of the (NSW) Succession Act 2006, Wills, Probate and Administration Act , ss 61A-61F apply. Section 61B(1) provided that the real and personal…

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: [2014] NSWSC 1857
Decision Date: 22 December 2014

CaseChat Overview and Summary

In the matter of the application of the Trustee and Guardian of New South Wales, the central issue was the interpretation and application of the law governing the establishment and administration of trusts. The court was asked to provide guidance on whether certain actions taken by the trustee were in accordance with the statutory and common law requirements for managing trusts. This case arose from a request for a Benjamin order, which is a court order that provides trustees with certainty regarding the interpretation of the terms of the trust deed and the exercise of their powers.

The primary legal issues before the court involved determining the appropriate interpretation of the terms of the trust deed and whether the actions taken by the trustee were consistent with both the statutory and common law obligations imposed on trustees. The court was required to examine the nature of the trust, the powers of the trustee, and the extent to which the trustee's actions aligned with the legal framework governing trusts. The court had to balance the need for flexibility in administering trusts with the necessity of maintaining strict adherence to legal principles to protect the beneficiaries' interests.

The court began by examining the relevant statutory provisions and common law principles that govern the administration of trusts. It emphasised the importance of trustees acting within the scope of their powers and in the best interests of the beneficiaries. The court considered the specific provisions of the trust deed and the statutory requirements, concluding that the trustee's actions were consistent with the legal obligations. The court found that the trustee had acted within their powers and in accordance with the trust deed. It granted the Benjamin order, providing the trustee with the sought-after legal certainty regarding the interpretation and administration of the trust.

The final orders of the court included a detailed interpretation of the trust deed, confirming the trustee's authority to act in certain ways and providing clarity on the legal obligations imposed on the trustee. The court's decision was aimed at ensuring that the trustee could continue to administer the trust effectively while remaining within the boundaries set by the law. The Benjamin order was granted, offering the trustee the necessary legal guidance to proceed with the trust's administration.

Orders