Dawson v Fitch

The case of Dawson v Fitch involves a dispute over the appointment and resignation of trustees and executors in relation to a testamentary trust. The matter was heard in the Supreme Court of New South Wales. The key legal issues before the court were whether the appointment of a new trustee and the resignation of an existing trustee were valid and whether these actions had any impact on the executors' ability to administer the trust fund.

The court found that the appointment of Mr Kennedy as a trustee under Part 5 of the Trustee Act was not valid until it was registered. The court held that registration of such appointments does not have a retrospective effect, and thus Mr Kennedy’s appointment remained invalid until registered. The resignation of Mr McFarlane as a trustee did not affect his role as an executor, as the court determined that an executor cannot renounce their office after taking probate. Consequently, the court ruled that the appointment of Mr Kennedy was invalid and the executors were still amendable to the court under the Act. Given these findings, the court concluded that there had not been a "distribution" within the meaning of the Act and dismissed the appeal and cross-appeal.

The court's reasoning was grounded in the statutory provisions of the Trustee Act and established legal principles regarding the roles and responsibilities of executors and trustees. The court emphasised that the Trustee Act does not apply to the appointment of executors or administrators of a deceased estate, and an executor cannot retire once they have taken probate. The deeds in question did not contain the necessary vesting declarations and did not affect the executors' office or responsibilities. The court further noted that the original grant of probate remained valid, and Mr McFarlane continued as an executor. Therefore, the appointment of Mr Kennedy as a trustee was invalid and could not be used to resist the executors' actions to recover trust assets.