Australian Incentive Plan Pty Ltd v A-G (Vic) (No 2)

Australian Incentive Plan Pty Ltd appealed against the decision of the Court of Appeal in relation to the costs of the appeal. The Court of Appeal had ordered the appellant to pay the respondent's costs of the appeal, which were to be paid out of the trust fund. The respondent was the Attorney-General of Victoria, who had intervened in the proceedings below on behalf of the beneficiaries of the trust. The dispute centred on the question of whether the trustee's costs of appeal should be paid out of the trust fund and whether the trustee should be treated like other appellants.

The legal issues the court was required to decide included whether the trustee's costs of appeal should be paid out of the trust fund, whether the trustee should be treated like other appellants, and whether the trustee acted reasonably and in the best interests of the beneficiaries in bringing the appeal. The court considered relevant authorities such as Re Earl of Radnor’s Will Trusts, Rosenthal v Rosenthal, Dunne v Byrne, Gale v Gale, Re Bubnick, and Forsyth v Sinclair (No 2).

The court found that the trustee's costs of appeal should not be paid out of the trust fund and that the trustee should not be treated like other appellants. The court held that the trustee acted reasonably and in the best interests of the beneficiaries in bringing the appeal, as the advice given below was on a basis not argued below. The court held that the trustee was entitled to have its costs of the appeal paid out of the trust fund. The court also held that the trustee was not to be treated like other appellants, as it had a duty to protect the interests of the beneficiaries.

The court ordered that the respondent pay the appellant's costs of the appeal, to be paid out of the trust fund. The court also ordered that the respondent pay the appellant's costs of the appeal in the Court of Appeal, to be paid out of the trust fund.