Re Balsa Rejus Pty Ltd - [2022] VSC 223

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2022 01384

IN THE MATTER of an application by BALSA REJUS PTY LTD (ACN 136 406 141) (as trustee for the Balsa Rejus Property Trust) and HETREL HOLDINGS PTY LTD (ACN 136 404 996) (as trustee for the Hetrel-Jacet Trust No. 8) for judicial advice under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

BETWEEN:

BALSA REJUS PTY LTD (ACN 136 406 141) (AS TRUSTEE FOR THE BALSA REJUS PROPERTY TRUST)	First Plaintiff
and
HETREL HOLDINGS PTY LTD (ACN 136 404 996) (AS TRUSTEE FOR THE HETREL-JACET TRUST NO. 8)	Second Plaintiff

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2022
DATE OF RULING:	5 May 2022
CASE MAY BE CITED AS:	Re Balsa Rejus Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 223

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EQUITY – TRUSTS AND TRUSTEES – Judicial Advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – In re Beddoe application by trustees for judicial advice concerning defence of proceedings in Federal Circuit and Family Court of Australia – Respondent husband in Federal Circuit and Family Court of Australia proceeding a specified beneficiary of a discretionary trust and applicant wife a member of a class of general beneficiaries – Substantive relief claimed directly in Federal Circuit and Family Court of Australia proceeding against trustees of the trusts – Trustees justified in defending the claims against them – Trustees in first instance entitled to indemnification of costs out of the assets of trusts – Macedonian Orthodox Church v Eminence Petar (2008) 237 CLR 66, Re Care Super Pty Ltd [2021] VSC 805, McDonald v Horn [1995] 1 All ER 961, Hopkins v Edwards [2020] VSC 456, Alsop Wilkinson v Neary [1996] 1 WLR 1220, Application of Uncle’s Joint [2014] NSWSC 321, Re Dallaway (deceased) [1982] 3 All ER 118 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Wotherspoon	KCL Law

HIS HONOUR:

Introduction

Balsa Rejus Pty Ltd (‘BR’) in its capacity as trustee of the Balsa Rejus Property Trust (‘BR Property Trust’) and Hetrel Holdings Pty Ltd (‘HH’) in its capacity as trustee of the Hetrel-Jacet Trust No. 8 (’HJ Trust’) (together, the ‘Trustees’) have applied to this Court for judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

Rule 54.02(1) of the Rules provides that a proceeding may be brought for any relief which could be granted in an administration proceeding. Rule 54.02(2) relevantly provides that, without limiting paragraph (1), a proceeding may be brought for:
(a)the determination of any question which could be determined in an administration proceeding, including any question–
(i)arising … in the execution of a trust;
(ii)as to the composition of any class of persons having … a beneficial interest … in property subject to a trust; or
(iii)as to the rights or interests of a person…

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 Re Balsa Rejus Pty Ltd

Details

AGLC: Re Balsa Rejus Pty Ltd and Anor [2022] VSC 223
Case: [2022] VSC 223
Decision Date: 5 May 2022

CaseChat Overview and Summary

Balsa Rejus Pty Ltd was a trustee for a discretionary trust, with a number of beneficiaries. The company applied to the Supreme Court for judicial advice concerning the defence of proceedings in the Federal Circuit and Family Court of Australia. The applicant was a member of the class of general beneficiaries of the trust and the respondent, her husband, was a specified beneficiary. The applicant sought substantive relief directly against the trustees in the Federal Circuit and Family Court. The trustees argued they were justified in defending the claims against them and that they were entitled to indemnification of costs out of the assets of the trust.

The court considered whether the trustees were justified in defending the claims and whether they were entitled to indemnification of costs. The court held that the trustees were justified in defending the claims, as the applicant had failed to establish a case for indemnity. The court found that the trustees were entitled to indemnification of costs out of the assets of the trust. The court cited relevant case law to support its decision, including Macedonian Orthodox Church v Eminence Petar, Re Care Super Pty Ltd, McDonald v Horn, Hopkins v Edwards, Alsop Wilkinson v Neary, Application of Uncle’s Joint, and Re Dallaway (deceased). The court concluded that the trustees were entitled to indemnification of costs out of the assets of the trust.

The Supreme Court granted the trustees' application for judicial advice and ordered that they were justified in defending the claims against them. The court further ordered that the trustees were entitled to indemnification of costs out of the assets of the trust. The court did not make any orders regarding the substantive relief sought by the applicant in the Federal Circuit and Family Court of Australia proceeding. The trustees were advised to proceed with defending the claims and to seek indemnification of costs from the trust assets.

Orders