PP New Pty Ltd

[2021] NSWSC 1426

Supreme Court

New South Wales

Medium Neutral Citation:

PP New Pty Ltd [2021] NSWSC 1426

Hearing dates:

2 November 2021

Decision date:

02 November 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

See [44] of judgment

Catchwords:

EQUITY — Trusts and trustees — Court’s supervision

— Powers, duties, rights and liabilities — Breaches of trust — Court’s power to excuse — Remuneration

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 61, 90

Corporations Act 2001 (Cth), s 439A, Pt 5.3A, Sch 2

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Insolvency Practice Schedule (Corporations) 2016, Div 65

Trustee Act 1925 (NSW), ss 59, 70, 81, 85, 93

Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 36.1

Cases Cited:

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109

Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Scott v Scott [1913] AC 417

Stein v Sybmore Holdings Pty Ltd (2006) 64 ATR 325; [2006] NSWSC 1004

Category:

Procedural rulings

Parties:

PP New Pty Ltd (First Plaintiff)
KordaMentha Shelf Co (APMSPSAF) Pty Ltd (Second Plaintiff)

Representation:

Counsel:
S Puttick (Second Plaintiff)

Solicitors:
Norton Rose Fulbright Australia

File Number(s):

2021/00179305

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 2 November 2021, I heard an application, by notice of motion dated 28 October 2021, brought by the second plaintiff, KordaMentha Shelf Co (APMSPSAF) Pty Ltd, to which I will refer as the New Trustee, for relief in relation to a trust (Trust) associated with the APM Security Plan Sickness and Accident Fund NSW (Fund). The first plaintiff (PP New Pty Ltd) (PP New) did not contest the relief sought. I granted the relief, which is intended to implement the process put in place in June 2021 (see below) for the reorganisation and potential winding up of the Fund. I indicated that I would publish my reasons for so doing as soon as practicable. These are those reasons.

Background

2. This proceeding was commenced by summons filed by PP New and the New Trustee on 22 June 2021 in connection with the Fund.

3. The Fund was set up in the 1950s to provide sickness, accident and funeral benefits for workers at the Botany Paper Mill in Matraville, NSW. The Botany Paper Mill was at that time owned by Australian Paper Mills (APM). Opal Packaging Australia Pty Ltd (Opal) became the owner of the Botany Paper Mill in 2020; and at the same time, PP New became a wholly owned subsidiary of Opal.

4. The assets of the Fund (which were held by PP New in trust) included two properties at Point Clare on the Central Coast of NSW with an estimated value of several million dollars.

5. As at the time of the commencement of the proceeding (and possibly for as long as the previous 10 years) it appears that there had been no formal management or control of the Fund or the Trust. In particular, Opal appears to have had no involvement in relation to the Fund for some time (and there was evidence that the Fund had been placed in “caretaker” mode by about 2012). It is noted that the Fund has no continuing role in the context of modern industrial relations or workplace practices.

6. This proceeding was precipitated by a letter, which came to the attention of Opal, sent to the Fund by the Australian Taxation Office (ATO) in September 2020, advising that the Fund had not submitted income tax returns for the period 1 July 2014 to 30 June 2019.

7. The position was complicated by the paucity of records about the operation of the Fund or the Trust (as set out in the affidavit of the solicitor for the plaintiffs, Mr Walrut, read in June 2021 on the previous application and the affidavits read on the previous and present application, respectively, of the partner of KordaMentha ultimately appointed as the New Trustee, Ms Conneely). There is evidence that there was a Trust Deed entered into in 1965 but that document has not been able to be located; and there is uncertainty about which set of rules (Rules) regulates the activities of the Fund and the Trust. The earliest set of Rules available in respect of the Fund are those dated 1979.

8. It appears from a set of “minutes” of the Fund (from August 2019) that the “Committee” at that time contemplated that the Fund be wound up. However, none of the members of that “Committee” is currently an employee of the Botany Paper Mill, and there is uncertainty as to the status of the “Committee”, not least having regard to the general uncertainty about the Rules and membership generally (as set out in the affidavits of Mr Walrut and Ms Conneely).

9. It was against this background that the matter first came before me (sitting as duty judge) on 22 June 2021. On that occasion, PP New sought the relief set out in the summons as the first stage in the process of a reorganisation and/or winding up of the Fund. In particular, the summons sought the replacement of PP New by the New Trustee (a special purpose trustee company established by KordaMentha) pursuant to s 70 of the Trustee Act 1925 (NSW) (Trustee Act).

10. On 22 June 2021, after hearing submissions and considering the material then put before the Court, I made orders (the 22 June 2021 Orders), inter alia, replacing PP New with the New Trustee as trustee for the Fund and vesting the Trust property in the New Trustee.

11. I also made consequential orders granting powers to the New Trustee to take control of the affairs of the Fund and the Trust (given the absence of records); to enable assets to be secured, as well as past and present members (Members), creditors, claimants and contributories (Claimants) to be contacted; and to enable further information to be obtained about the affairs of the Fund and the Trust. For the purposes of that application, Ms Conneely had set out a Step Plan, for the undertaking of the proposed actions by the New Trustee, with it being contemplated that a subsequent application would be brought before the Court once those initial steps had been taken, and potentially interested parties had been identified.

12. The matter then came back before me, on exercise of the liberty to apply, for the purposes of the present application.

13. The New Trustee’s approach, as explained in the submissions made both on the initial application and on the present application, has been in effect modelled (it being said to be analogous to and motivated by the rationale underlying) on the appointment of independent administrators under Pt 5.3A of the Corporations Act 2001 (Cth) (Corporations Act). In general terms, that approach has been directed towards identifying and notifying persons with potential interests in the Fund (the Interested Persons) and taking initial steps for the reorganisation and (potentially) the winding up of the Fund.

14. Since the 22 June 2021 Orders, as attested to by Ms Conneely in her second affidavit, the New Trustee has: undertaken a review of some 7,357 documents comprising the books and records of the Fund (the Books and Records); contacted and corresponded with various Interested Persons, in relation to this proceeding and more generally about the Fund; communicated with various financial institutions, including St George Bank (St George) and Bank Australia in relation to, inter alia, the New Trustee’s appointment as trustee, access to accounts, and whether any other bank accounts in the name of the Fund are existing; sought to identify the extent of, and existence of any other, share assets held by the Fund and/or in trust, including shares in Amcor Plc and Orora Ltd, as well as assuming control over those assets (noting that the final transfer procedures in respect of these is ongoing); assumed control and maintenance of the Point Clare Property (noting that title is yet to be transferred as it has not been possible to obtain the original certificates of title due to stay-at-home orders which have been in force in Victoria over the recent time and, in addition to this, the subsequent cancellation of existing certificates of title from 11 October 2021); and engaged with the ATO in relation to the tax affairs of the Fund (noting that it now appears that the PAYG instalments made in respect of the Fund since 2012 may be in excess of any tax liability owing).

Relief now sought

15. The relief sought in the present application falls within the following five categories: (i) orders in relation to the First Meeting of Interested Persons; (ii) orders in respect of the opening of new bank accounts in the name of the Fund; (iii) confidentiality and non-disclosure orders; (iv) orders in relation to the rollover of term deposits; and (v) orders in relation to costs, remuneration and ongoing judicial supervision of the process. I address each in turn.

16. To the extent that the proposed steps to be taken by the New Trustee involve a transaction or dealing in which the New Trustee may not be empowered to engage, the New Trustee here invokes s 81 of the Trustee Act, which confers a broad statutory power to amend a trust instrument and/or grant further powers to a trustee where there is no power to engage in a transaction or undertake some dealing. It is noted that a transaction within the meaning of s 81(1) of the Trustee Act need not involve the outlay of moneys (see, for example, Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 at [91] per Barrett JA (with whom Beazley P, as Her Excellency then was, and Gleeson JA agreed).

17. As to the requirements to be satisfied for the application of s 81(1) (see Stein v Sybmore Holdings Pty Ltd (2006) 64 ATR 325; [2006] NSWSC 1004 at [37]-[44] per Campbell J), these are: first, to identify “any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction”; second, to determine whether that dealing is expedient; third, to determine whether the proposed dealing is one that cannot be effected by reason of absence of power vested in the trustees by the trust instrument; and, fourth, that there be a question that has arisen that needs to be addressed.

18. Turning then to the particular categories of relief sought, I note as follows.

(i)   First Meeting of Interested Persons – prayers 2(a)-(g); 7

19. The 22 June 2021 Orders provided for the New Trustee, upon the expiry of 28 days from publication of the Notice (as defined) in The Australian and The Sydney Morning Herald, to bring a further application to the Court seeking directions for the convening of a meeting of Interested Persons to consider the Fund’s future (along with any other consequential directions to facilitate this). That time period expired on 3 August 2021.

20. What is contemplated by the orders now sought, in broad terms, (as adverted to above) is intended to mirror the process undertaken by a voluntary administrator between the first and second meeting of creditors under s 439A of the Corporations Act.

21. Relevantly, what is proposed involves the following steps: first, providing notice (the Second Notice) to Interested Persons of, inter alia, the orders made in this application and any reasons for judgment, and seeking those persons’ views on the future of the Fund and notifications of claims; second, preparing and issuing a report (via email and downloadable online) to those persons, such report to include information about the appointment of New Trustee, the New Trustee’s investigations, an outline of options concerning the future of the Fund (along with any recommendations in relation to the same), and giving notice of a meeting of Interested Persons along with providing a proxy voting form; third, holding the said meeting or, if required, adjourning that meeting (by no more than 45 business days) and issuing a supplementary report and later holding the adjourned meeting; and, fourth, then making an application to the Court to report on the outcome of the meeting(s) and to seek directions (and, if necessary, judicial advice) for the future of the Fund. Consequential relief for the obtaining of professional representation and advice for those purposes is also sought.

22. By prayer 7, an order is sought that the New Trustee make such application for directions and/or advice as it may be advised within 120 days of holding the meeting(s) as here contemplated, with any Interested Persons being entitled to seek leave to appear.

23. In that regard, the New Trustee notes that its ongoing task is to regularise matters, including to determine for whom the Fund is held and any claims that may be made on it; which would involve making decisions as to claims by those Interested Persons who have been identified to date and decisions as to the ongoing activities of the Fund and the Trust. It is submitted that these matters are properly characterised as issues that arise in, or in relation to, the management and administration of the Trust property; and that such activities are encompassed within the notion of a “dealing”, in its general sense. It is submitted that it is expedient for the powers to be granted at the present time (particularly in circumstances where no Trust Deed has yet been located).

24. Alternatively, the New Trustee invokes ss 61 and 90 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and r 2.1 and/or 36.1 of the Uniform Civil Procedure Rules 2005 (NSW) to support these prayers for relief, as giving effect to the underlying requirements of the just, quick, and cheap resolution of disputes.

(ii)   Bank accounts – prayer 2(h) to (j)

25. The New Trustee seeks orders for the opening of new accounts with St George in the name of the Fund for each of the accounts presently held at Bank Australia, and the transferring of those funds to St George (along with the reinvesting of term deposits) (akin, for example, to the requirement on an external administration for the opening of what is commonly referred to as an administration account – see Div 65 of the Insolvency Practice Schedule (Corporations) 2016 found in Sch 2 to the Corporations Act).

26. While the signatories to the Bank Australia accounts have been updated, a difficulty has arisen in that partners and employees of KordaMentha cannot view the accounts online and the internal client accounting team cannot manage nor conduct transactions through electronic funds transfer; and there is an inefficiency in the manner in which the review, approval and payment of invoices is presently able to occur. Hence the proposal for all of the accounts to be established with St George.

27. As to the reinvestment of the term deposits, the New Trustee intends to reinvest funds into products with the most favourable terms and interest rates so as to maximise the return on these investments. As the 22 June 2021 Orders did not provide the New Trustee with such powers, orders have been sought to confer limited powers to accommodate these investment decisions.

28. To date, the New Trustee has not been able to ascertain whether moneys in the existing Fund accounts might be impressed with different beneficial interests (for example, whether persons might have interests in one account pari passu whereas some specified class(es) of persons might have interests in another account in priority to other persons). In order to avoid commingling funds, the New Trustee does not intend to consolidate the accounts until the possibility of any such claims has been finally determined.

29. Consequential relief for the obtaining of professional representation and advice for the above purposes is also sought.

(iii)   Confidentiality and non-disclosure – prayer 3

30. A confidential exhibit was tendered on 2 November 2021, comprising evidence of correspondence which discloses lists of Interested Persons, their contact details, and information which may disclose personal information (see confidential exhibit marked “CMC-4” to the affidavit of Catherine Margaret Conneely sworn 28 October 2021). When the matter was before me in June 2021, a similar exhibit had been tendered on that application (see exhibit marked “BCW-1” to the affidavit of Bernard Colin Walrut affirmed 22 June 2021).

31. An order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) is now sought that this evidence be kept confidential and not be provided or disclosed (until further order) to any person other than the New Trustee, the officers and staff of KordaMentha and the legal advisors of the New Trustee. This order is sought on the grounds that it is necessary to prevent prejudice to the proper administration of justice and otherwise necessary in the public interest; and that that public interest in maintaining the confidentiality of this information significantly outweighs the public interest in open justice (see ss 8(1)(a) and (e)).

32. The New Trustee accepts that the relevant test is one of necessity and that primacy is given to the principle of open justice, such that orders should only be made in exceptional circumstances (pointing to what was said in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27], [35] per Bathurst CJ and McColl JA; and to the observation by Earl Loreburn in Scott v Scott [1913] AC 417 at 446, with reference to whether the administration of justice would be rendered impracticable or the case could not be effectively tried, or whether the parties entitled to justice would otherwise “be reasonably deterred from seeking it at the hands of the Court”).

33. The New Trustee argues that the suppression and non-publication order here sought would only minimally interfere with open justice; and that there is no present public interest in the identities, addresses, and other personal information of the Interested Persons. It is submitted that the order sought is necessary to protect the legitimate concerns for the privacy of the Interested Persons who are not presently parties to the proceeding.

(iv)   Rollover of term deposits – see prayer 4

34. Since the New Trustee’s appointment, three term deposits have matured and the New Trustee has reinvested those funds with the same institutions for shorter, three-month terms maturing in November (rather than withdrawing the funds and reinvesting for longer terms). The New Trustee took this course because there were no specific investment powers provided under the 22 June 2021 Orders (and having regard to the uncertainty as to which set of Rules apply and, even then, whether those Rules would confer such a power).

35. The New Trustee says that, as this proceeding involves a very substantial corpus of funds and there may later be dispute between potential claimants to property having such substantial value, it is appropriate and prudent to provide protection to the New Trustee lest any of these rollovers be said to constitute breaches of trust. An order is thus sought, for the avoidance of doubt, that the New Trustee be relieved, pursuant to s 85 of the Trustee Act, of any liability in connection with the rollover of those term deposits.

(v)   Costs, remuneration, judicial supervision – prayers 5, 6, 8

36. By prayers 5 and 6, the New Trustee seeks orders (pursuant to ss 93 and 59(4) of the Trustee Act) that its costs and expenses for this application be paid on an indemnity basis out of the assets of the Trust, and that the New Trustee’s future remuneration and disbursements in connection with the above stated course of action are to be paid from the assets of the Trust on an indemnity basis.

37. By prayer 8, the New Trustee seeks orders, pursuant to s 90 of the Civil Procedure Act, relating to the supervision by the Court of the New Trustee’s ongoing remuneration and disbursements (consistent with the like order made on 22 June 2021).

38. It is noted that ss 59(4) and 93 of the Trustee Act provide for a trustee to have its costs paid out of trust property in the execution of its powers, where such costs, charges, and expenses are properly and reasonably incurred (see Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109 at [40] per Payne JA (with whom myself and Gleeson JA agreed)). It is submitted that this is the case here, the New Trustee noting particularly that this application is brought pursuant to the 22 June 2021 Orders.

36. I note that by prayer 8, the New Trustee seeks to vary order 10 of the 22 June 2021 Orders, requiring the New Trustee at least every 6 months from the date of those orders (i.e., in December) to make an application for review of its remuneration and disbursements, such that the requisite application may be made within 4 weeks after the Court determines the application (provided for in order 2(f)) as to the outcome of the meeting. The New Trustee submits that this is prudent as it allows for the New Trustee to implement the orders sought as to the preparation and holding of the meeting and for the remuneration application to take place subsequently at the beginning of the next year (T 5). (I agree.)

Determination

40. The 22 June 2021 Orders were made (in circumstances where there had been no ongoing management of the Fund for some time) on the basis that it was expedient for the affairs of the Trust and the Fund to be regularised in the interests of the potential beneficiaries and persons claiming an interest in the assets of the Trust and the Fund (including for the lodgement of tax returns and payment of any tax owing). I considered it appropriate that an independent administrator be appointed to take control of the assets, and to investigate the affairs of the Fund and the Trust, on behalf of all interested parties.

41. I accepted that, given the potential for significant conflict between persons claiming an interest in the assets of the Fund and the Trust, and in the absence of any copy of the Trust Deed being able to be located that defined the trustee’s powers, it was impracticable to appoint a new trustee without the assistance of the Court, and it was appropriate to provide that trustee with protections in relation to its powers and rights of indemnity for the costs that would inevitably be incurred.

42. I was persuaded that the incorporation of the New Trustee, as an independent, special purpose trustee controlled by KordaMentha (and through which KordaMentha can be retained), would achieve the intended object of allowing potential members to be contacted, information to be gathered and appropriate reports to be undertaken; and that this process would allow all interested parties to comment upon and contribute to the resolution of the ultimate issue; namely, the future of the Fund and the Trust.

43. I also accepted that the proposed course of action there outlined was appropriate, noting that KordaMentha, as experienced external administrators, would have the skills and expertise to ascertain, secure and manage the assets which are the subject of the Trust.

44. The course of action there proposed (involving the determination of those for whom the Fund is held and in what amounts Claimants are entitled to Trust moneys; and the regularisation of the affairs of the Trust and the Fund) was in my view properly characterised as addressing issues that arise or might arise in or in relation to the management and administration of the Trust property.

45. Hence the orders made at that time.

46. Since then, considerable steps have been taken (as referred to above) to identify Interested Persons and potential claimants on the Fund; and communications have been received from various individuals raising issues as to the future of the Fund and distributions therefrom.

47. I am satisfied that the relief here sought appropriately continues the necessary process of reorganisation of the Fund; and that the next steps proposed to be taken will permit the proper assessment by the New Trustee of claimants on the Fund.

48. As to the orders sought in relation to the bank accounts, I accept that it is expedient to remove the inefficiency of the manner in which those accounts can presently be operated; and that appropriate steps are proposed to be taken to avoid commingling of funds in respect of which there may be different beneficial interests. I also accept that it is prudent for the New Trustee to have limited powers to deal with the investment and reinvestment of term deposits, as has been sought. The steps proposed to be taken, going forward in relation to the proposed reorganisation and/or winding up of the Fund involve dealings with the Trust in the sense contemplated by s 81 of the Trustee Act and I make the orders pursuant to the power there conferred.

49. Again, in the absence of location of the Trust Deed establishing the Trust, and the ongoing uncertainty as to the Rules that apply in relation to the Fund, and for the reasons submitted by the New Trustee, it is appropriate to make the orders sought by the New Trustee conferring the powers sought and making provision to relieve the New Trustee from liability in relation to the rollover of the term deposits. Finally, I am satisfied that it is appropriate to make the usual orders in relation to costs and remuneration of the New Trustee and to vary the 22 June 2021 Orders as requested.

50. I consider it appropriate to make the suppression and non-publication order sought in relation to the private information contained in the confidential exhibits tendered (as identified above), on the grounds that such an order is necessary in the public interest and that such interest significantly outweighs the interest in open justice. The order as sought is limited to an order until further order of the Court. I consider that appropriate in circumstances where at this stage those persons identified in the confidential exhibits are not yet parties to the proceeding and no public interest has yet been shown for the disclosure of their personal information.

51. For those reasons, on 2 November 2021, I made the orders set out in prayers 1-10 of the short minutes of order provided by Counsel for the New Trustee.

Orders

52. Leaving aside procedural orders, the orders so made were as follows:

1. Pursuant to s 81 of the Trustee Act 1925 (NSW) (Trustee Act), and ss 61 and 90 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and rules 2.1 and 36.1 of the Uniform Civil Procedure Rules 2005 (NSW), New Trustee is authorised to undertake the following course of action (Second Course of Action):

   1. provide notice (Second Notice) to the current and past members of the APM Security Plan Sickness & Accident Fund ABN 57 413 197 086 (Fund), creditors, claimants and contributories or potential creditors, claimants and contributories of the Fund, and the persons who have been acting as officeholders on behalf of the Fund (together, Interested Persons): (i) of the orders made in respect of this application and any reasons for judgment; (ii) of New Trustee’s intention to issue the Report (as defined in sub-paragraph (c) below) to Interested Persons and convene and hold a meeting (First Meeting) of Interested Persons by 31 December 2021, unless adjourned in accordance with sub-paragraph (e) below; (iii) seeking any additional information and documentation about the Fund and the Fund trust (Trust); (iv) seeking notification of any claims in respect of any property (Property) held on trust for the Fund under the Trust; and (v) seeking their opinion about the winding up of the Fund or any alternatives to winding up the Fund;

   2. issue the Second Notice by: (i) sending the Second Notice to the known email addresses of the Interested Persons; (ii) sending the Second Notice to the known postal addresses of the Interested Persons; (iii) publishing the Second Notice on (the New Trustee Website); and (iv) publishing the Second Notice in The Australian, the Sydney Morning Herald and the Daily Telegraph;

   3. prepare and issue a report to Interested Persons (Report) via email to known email addresses of Interested Persons and downloadable from the New Trustee Website, which Report is to include information about the following: (i) the appointment of New Trustee as trustee of the Fund; (ii) the Fund’s history, current status, property, affairs, and financial circumstances; (iii) New Trustee’s investigations into the affairs of the Fund and work undertaken since its appointment; (iv) an outline of options concerning the future of the Fund and, if and to the extent that New Trustee considers it appropriate, any recommendation(s) and the reasons for any such recommendation(s); (v) notice of the First Meeting (which must be provided not less than two weeks before the scheduled date of the First Meeting); and (vi) a proxy form to vote at the First Meeting in respect of the future of the Fund and any other resolutions that New Trustee considers appropriate for this purpose;

   4. hold the First Meeting via video teleconference;

   5. if required, adjourn the First Meeting (Adjourned First Meeting) for a period of no more than 45 business days and prepare and issue a supplementary report to Interested Persons (Supplementary Report), subject to the following: (i) any Supplementary Report is to be issued to Interested Persons via email to known email addresses of Interested Persons and downloadable from the New Trustee Website, and is to include: (A) notice of the Adjourned Meeting (which must be provided not less than two weeks before the scheduled date of the Adjourned Meeting); and (B) a proxy form to vote at the Adjourned Meeting in respect of the future of the Fund and any other resolutions New Trustee considers appropriate for this purpose; and (ii) the Adjourned Meeting is to be held via video teleconference;

   6. following the First Meeting or any Adjourned Meeting, make an application to the Court to report on the outcome of the meeting(s), and seek directions and orders for the future of the Fund, further conduct of the management of the Fund, and/or the determination of any questions arising in connection with the Trust and/or the Fund;

   7. for the purposes of the above sub-paragraphs: (i) conduct any further review of the books and records of the Fund and any additional information obtained after issuing the Second Notice; (ii) liaise with the Interested Persons, financial institutions and any other persons associated with the Fund; and (iii) identify the Property and liabilities of the Fund, including any Property held in the name of individuals or other third parties on behalf of the Fund;

   8. open new accounts (each a New Account) in the name of the Fund with St George Bank for each of the following accounts (each a Bank Australia Account) presently held with Bank Australia in the name of the Fund: (i) transaction account 7311; (ii) term deposit 0423; (iii) term deposit 0430; (iv) term deposit 0445; (v) term deposit 0482; (vi) term deposit 1168; (vii) term deposit 1169; (viii) term deposit 1166; (ix) term deposit 1167; and (x) term deposit 0486;

   9. transfer the funds held in each Bank Australia Account into the corresponding New Account;

   10. in respect of the New Accounts and the following accounts in the name of the Fund presently held with St George Bank, to the extent the account is a term deposit, reinvest the term deposit as required: (i) transaction account 4771; (ii) term deposit 5349; (iii) term deposit 5671; and (iv) term deposit 4611;

   11. obtain professional representation and advice for the purposes of sub-paragraphs (a) to (j) above.

2. Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds that the order is necessary to prevent prejudice to the proper administration of justice and otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice, until further order of the Court, the following documents (Documents):

   (i)   pages 80, 223, 226, 229, 232, 233, 234, 235 and 237 of exhibit marked “BCW-1” to the affidavit of Bernard Colin Walrut affirmed 22 June 2021; and

   (ii)   confidential exhibit marked “CMC-4” to the affidavit of Catherine Margaret Conneely sworn 28 October 2021, are to be marked “confidential” on the Court file and are not to be provided or disclosed to any person other than: (a) New Trustee and the officers and staff of KordaMentha; and (b) the legal advisors of the New Trustee.

3. Pursuant to section 85 of the Trustee Act, New Trustee is relieved from any personal liability for breach of trust in connection with the reinvestment of the following term deposits:

   (i)   St George Bank term deposit 5349;

   (ii)   St George Bank term deposit 4611; and

   (iii)   Bank Australia term deposit 0445.

4. Pursuant to s 93 of the Trustee Act, New Trustee’s costs and expenses of and incidental to this application are to be paid on an indemnity basis out of the assets of the Trust.

5. Pursuant to s 59(4) of the Trustee Act, New Trustee’s future remuneration and disbursements in connection with the Second Course of Action are to be paid from the assets of the Trust on an indemnity basis, as and when New Trustee considers appropriate, subject to order 8 below.

6. Pursuant to s 90 of the Civil Procedure Act, New Trustee make such application for advice and/or orders as it may be advised, within 120 days of holding the First Meeting or Adjourned First Meeting as contemplated by order 2 above, and any Interested Persons shall be entitled to seek leave to appear in any such proceeding.

7. Vary Order 10 of the orders made on 22 June 2021 to require the Second Plaintiff to make application to the Court for review of its remuneration and disbursements paid in accordance with:

   (i)   Order 8 of the orders made on 22 June 2021; and

   (ii)   Order 6 above, within four weeks after the Court determines the application referred to at Order 2(f) above.

8. Pursuant to s 90 of the Civil Procedure Act that, at least every six months from the date hereof until further or other order, New Trustee make an application to the Court for review of its remuneration and disbursements paid in accordance with order 6 in the prior six-month period.

9. New Trustee have leave to apply to Ward CJ in Eq in chambers on five (5) days’ notice to amend or vary the terms of orders 2 and 7, or if any circumstances so require.

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Decision last updated: 05 November 2021