Australian Incentive Plan Pty Ltd v Babcock and Brown International Pty Ltd (No. 2)

Australian Incentive Plan Pty Ltd sought variation of trusts from the Supreme Court of Victoria. The trusts in question were established by Babcock and Brown International Pty Ltd. The dispute centred on the interpretation and administration of the trusts, specifically regarding the nomination of beneficiaries and the role of the Attorney-General in relation to charitable trusts. The court was required to determine whether certain parties were necessary for the application to vary the trusts, and whether the Attorney-General should be involved in the nomination of charities as beneficiaries.

The legal issues included whether the Trustee Act 1958 (Vic) s 63A required the presence of all beneficiaries for an application to vary trusts, and how the role of the Attorney-General should be interpreted in the nomination of charities as beneficiaries. The court considered authorities such as Re Whigham’s Settlement Trusts and Re Longmans Settlement Trusts, as well as Bradshaw v University of Wales, Aberystwyth and Wallis v Solicitor-General for New Zealand. The court also examined the principles regarding the costs incurred by trustees in litigation, referencing cases such as Re Buckton and Wendt v Orr.

The court found that not all beneficiaries were necessary parties for an application to vary trusts, aligning with the interpretation of the Trustee Act 1958 (Vic) s 63A. The role of the Attorney-General in the nomination of charities as beneficiaries was clarified, drawing on the cited authorities. The court held that the trustee was entitled to costs for having a question determined in relation to the administration of the trust but was not permitted to decide to pay party costs of a contentious claim without court reference. The court granted the application for variation of the trusts with certain conditions, and awarded costs to the trustee in relation to the litigation.

The final orders included the variation of the trusts as sought by Australian Incentive Plan Pty Ltd, with specific conditions to be met. The court also directed that the trustee was to be reimbursed for costs incurred in the litigation, subject to the usual costs rules, and that the trustee could not agree to pay party costs without court approval.