Australian Youth and Health Foundation v Perpetual Trustee Company Ltd (No 2)

[2017] NSWCA 165

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Australian Youth & Health Foundation v Perpetual Trustee Company Ltd (No 2) [2017] NSWCA 165
Hearing dates:	On the papers
Decision date:	06 July 2017
Before:	Bathurst CJ; Beazley P; Meagher JA
Decision:	1. Appeal allowed. 2. Set aside orders 1 and 2 under the heading “Judicial Advice” in the orders made by the primary judge on 16 September 2016. 3. Order that the respondent is released from the undertaking noted in [7] of the orders made by the primary judge on 16 September 2016 and that the appellant is released from the associated undertaking as to damages. 4. Order that both parties’ costs of this appeal are payable out of the fund known as the Eric Storm Charitable Trust, such costs to be assessable on an indemnity basis. 5. Remit the matter to the primary judge for further consideration in light of this Court’s judgment of 6 June 2017.
Catchwords:	PROCEDURE – judgments and orders – consequential orders following successful appeal from judicial advice to trustee – whether matter should be remitted to trial judge – no question of principle
Category:	Consequential orders (other than Costs)
Parties:	Australian Youth & Health Foundation (Appellant) Perpetual Trustee Company Limited (Respondent)
Representation:	Counsel: N Cotman SC, D Knoll AM (Appellant) B Coles QC, S Robertson (Respondent)   Solicitors: Pavuk Legal (Appellant) Church & Grace Solicitors (Respondent)
File Number(s):	2016/305837
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2016] NSWSC 1273 Date of Decision: 13 September 2016 Before: Stevenson J File Number(s): 2016/107692

Judgment

1. THE COURT: The Court delivered judgment in this appeal on 6 June 2017: Australian Youth & Health Foundation v Perpetual Trustee Company Ltd [2017] NSWCA 127. The parties were directed to file written submissions if they could not agree on orders giving effect to that judgment. They could not agree and those submissions have now been received.

2. The parties are not agreed as to whether an order should be made remitting the matter to the primary judge for further consideration in the light of this Court’s judgment. They otherwise agree that the following orders should be made:

1. Appeal allowed.

2. Set aside orders 1 and 2 under the heading “Judicial Advice” in the orders made by the primary judge on 16 September 2016.

3. Order that the respondent is released from the undertaking noted in [7] of the orders made by the primary judge on 16 September 2016 and that the appellant is released from the associated undertaking as to damages.

4. Order that both parties’ costs of this appeal are payable out of the fund known as the Eric Storm Charitable Trust, such costs to be assessable on an indemnity basis.

3. The parties are in dispute as to whether there are further matters which remain unresolved and to be addressed by the primary judge in the light of this Court’s reasons. The Trustee submits that there are and that they include whether it is obliged immediately to disburse any suspended distributions; and as to the form of any advice now to be given taking account of this Court’s reasons. The appellant submits that there are no matters which remain to be addressed which have not already been dealt with by the primary judge or this Court.

4. The fact of this dispute alone makes it appropriate that the proceeding be remitted to the primary judge for further consideration in the light of this Court’s judgment.

5. Accordingly the Court makes orders 1 to 4 above and the following order:

(5)   Remit the matter to the primary judge for further consideration in light of this Court’s judgment of 6 June 2017.

6. In the course of the written submissions, the respondent also pointed out that the earlier reasons did not correctly describe its position before the primary judge as to the formation of an opinion that the Foundation had ceased to operate under its fundamental objects and purposes. To rectify this oversight, amendments have been made to [7] and [42] of the Chief Justice’s reasons as recorded on CaseLaw.

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Decision last updated: 06 July 2017