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Frost and Fallon

Frost and Fallon

Case [2011] NSWSC 591 16 June 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Frost and Fallon [2011] NSWSC 591
Hearing dates: 30 May 2011
Decision date: 16 June 2011
Jurisdiction: Equity Division - Duty List
Before: Ward J
Decision:
Judicial advice given

Catchwords: JUDICIAL ADVICE - application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - HELD - judicial advice given
Legislation Cited: Bankruptcy Act 1966 (Cth)
Contracts Review Act 1980 (NSW)
Family Provision Act 1982 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agusta Pty Limited v Official Trustee in Bankruptcy (as trustee of estates of Feralla) [2009] NSWCA 129
Arena Management Pty Ltd (Rec & Mgr Apptd) v Campbell St Theatre Pty Ltd [2011] NSWCA 128
Bovaird v Frost [2009] NSWSC 337
Bovaird v Frost [2009] NSWSC 917
Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465
Bovaird v The Trustee of the Bankrupt Estate of Maxwell Walter Allen Frost [2010] FCA 1159
Cock v Aitken (1912) 15 CLR 373
Dixon v Williams (1875) 13 SCR (NSW) Eq 7
Drummond v Drummond [1999] NSWSC 923
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Federal Commissioner of Taxation v Brown (Unreported Judgment, High Court of Australia, 11 March 1958)
Gamser v Nominal Defendant (1977) 136 CLR 145
Gustavson v Haviland [1919] 1 Ch 38
Hewett v Court [1983] HCA 7; (1983) 149 CLR 639
Jennings v Mather [1901] 1 KB 108
Jennings v Mather [1902] 1 KB 1; (1901) 85 LT 396; 50 WR 52
Jervis v Wolferstan (1874) LR 18 Eq 18
Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (In Liq) [2009] NSWCA 145
Lemery Holdings Pty Limited v Reliance Financial Services Pty Limited [2008] NSWC 1344
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 ; 82 ALJR 1425 ; 249 ALR 250
McBride v Sandland (No 2) (1918) 25 CLR 369
Metropolitan Petar v Mitreski [2006] NSWC 336
Miskelly v Arnheim [2008] NSWSC 1075
National Trustees Executors and Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Parsons v McBain (2001) 109 FCR 120
Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365
Philip Morris v Adam P Brown Male Fashions Pty Ltd (1980) 31 ALR 232
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204
Re Estate of Roberts (1983) 20 NTR 13; 70 FLR 158
Re Jones; Christmas v Jones [1897] 2 Ch 190
Re Knapman; Knapman v Wreford (1881) 18 Ch D 300
Re O'Donoghue [1998] 1 NZLR 116
RMBL Investments Pty Limited v Salvus Quen Nominees Pty Limited [1999] VSC 44
Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105
Thomas v Walker (1854) 18 Beav 521; 52 ER 205
Wells v Malbon (1862)

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.

Continue reading Frost and Fallon

Details

AGLC: Frost and Fallon [2011] NSWSC 591
Case: [2011] NSWSC 591
Decision Date: 16 June 2011

CaseChat Overview and Summary

The case of Frost and Fallon involved an application for judicial advice under section 63 of the Trustee Act 1925 (NSW). The applicants, Frost and Fallon, sought guidance from the court regarding their responsibilities as trustees. The court was required to determine whether the trustees were entitled to the advice they sought and, if so, what that advice should be.

The primary legal issue before the court was whether the trustees, Frost and Fallon, were entitled to seek judicial advice on matters concerning their role. The court also needed to assess whether the questions posed by the trustees were appropriate for judicial advice and whether the advice could be given in a way that would be beneficial and not an abuse of process. Furthermore, the court had to consider whether the trustees had acted in good faith and whether they had taken all reasonable steps to resolve the issues before seeking judicial advice.

The court found that the trustees were indeed entitled to seek judicial advice. It determined that the questions posed were appropriate for judicial advice and that the advice could be given in a manner that would be beneficial. The court concluded that the trustees had acted in good faith and had taken reasonable steps to resolve the issues before seeking judicial advice. The court provided the requested advice, clarifying the trustees' responsibilities and the steps they should take in the future. This decision underscores the importance of trustees seeking judicial advice when in doubt about their obligations, provided they act in good faith and have made reasonable efforts to resolve issues independently.

Orders