Re Estate Late Chow Cho-Poon; Application for judicial advice

[2013] NSWSC 844

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844
Hearing dates:	3 and 5 June 2013
Decision date:	26 June 2013
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Directions given for the further conduct of an application under the Trustee Act, 1925 NSW, s 63
Catchwords:	EQUITY - trusts and trustees - applications to the court for advice and authority - practice and procedure in judicial advice proceedings and partial administration proceedings - nature of and principles governing judicial advice -judicial advice on whether, upon proper construction of will, a class of beneficiaries has closed - Materiality of opinion of counsel - provisional construction of trust instrument - directions for notice of proceedings to be given to affected interests. EQUITY - perpetuities and accumulations - rule against remoteness of vesting - rule against perpetuities under general law and as modified by Perpetuities Act 1984 (NSW). SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - operation of class closing rules displaced by text of will.
Legislation Cited:	Trustee Act 1925 NSW Uniform Civil Procedure Rules 2005 NSW Civil Procedure Act 2005 NSW Court Suppression and Non-publication Orders Act 2010 NSW New South Wales Act 1823 (Imp) Supreme Court Act 1970 NSW Perpetuities Act 1984 NSW Minors (Property and Contracts) Act 1970 NSW
Cases Cited:	In Re Benjamin [1902] 1 Ch 723 Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 Crnjanin v Ioos [2010] NSWSC 750 at [28] Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [17] Application of Forsyth [1984] 2 NSWLR 327 at 334F-335F and 227A National Trustees Company of Australasia Limited v General Finance Company of Australasia Limited [1905] AC 373 Re Investa Properties Limited [2001] NSWSC 1089; 187 ALR 462 at [39]-[43] Perpetual Trustee Co v Watson (No 2) (1927) 28 SR (NSW) 43 at 46-47 Andrews v Partington (1791) 3 Bro.C.C.401; 29 ER 610 Gimblett v Purton (1871) LR 12 Eq 427 at 430. Leerac Pty Ltd v Garrick E Fay [2008[ NSWSC 1082 at [23] In Re Tom's Settlement; Rose v Evans [1987] 1 WLR 1021 at 1025F-G, citing In Re Clifford's Settlement Trust; Heaton v Westwater [1981] Ch 63 at 67 Ah Toy v Registrar of Companies (Northern Territory) (1986) 10 ACLR 630 at 646 D'Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 at 31[85] - 32[88] and 32[91] Salkeld v Salkeld (No 2) [2000] SASC 296 at [26]-[35] and [48]-[51] Re Estate of McCready [2004] NSWSC 887; 12 BPR 22, 327 at [15]-[17] and [26]-[30] In Re Benjamin [1902] 1 Ch 723 Re Beddoe [1893] 1 Ch 547 Schmidt v Rosewood Trust Limited [2003] 2AC 709 at 729-730 [51]-[54], 732 [59], 733 [61] and 734 [66] Hartigan Nominees Pty Limited v Rydge (1992) 29 NSWLR 405 Spellson v George (1987) 11 NSWLR 300; McDonald v Ellis (2007) 72 NSWLR 605
Texts Cited:	AG Nevill and AW Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981), para [1204] JD Heydon and MJ Leeming (ed), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 7th ed, 2006) at para [2134]; [1716]-[1717] E Finnane, HN Newton and C Wood, Equity Practice and Precedents (Law Book Co, Sydney, 2008) at para [20.15] and [20.25] Scott and Ascher on Trusts (5th ed, USA, 2007), Volume 4, p 1681 BA Helmore's The Law of Real Property in New South Wales (Law Book Co, Australia, 2nd ed, 1966): c 27 (at pp 256-266) Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 7th ed, 2006), para [2202] on p 504 and para [2216] Scott and Ascher on Trusts (5th ed, 2007), vol 4, pp 1677-1681 Lord St Leonards, A Handy Book on Property Law in a Series of Letters (Edinburgh and London, 2nd ed, 1858) at p 161
Category:	Principal judgment
Parties:	Chow Kwok Ching (as Co-Trustee for the Trust constituted by the Will of the Late Chow Cho-Poon) (First Plaintiff) Chan Pik Yun Peggy Chow (as Co-Trustee for the Trust constituted by the Will of the Late Chow Cho-Poon) (Second Plaintiff)
Representation:	M Walton SC with M Cairns (Plaintiffs) ex-parte Minter Ellison (Plaintiff)
File Number(s):	2013/00171883

Judgment

INTRODUCTION

1. The plaintiffs in these proceedings are the current trustees of a testamentary trust established by the Will of Chow Cho-Poon ("the testator"). By a summons invoking the jurisdiction of the Court under s 63 of the Trustee Act 1925 NSW, they have applied for judicial advice. The summons names no defendant. No evidence has been adduced of its service on any person. No orders have yet been made for service of notice of the proceedings on any person, or for the representation of any interests other than those of the plaintiffs.

1. The plaintiffs contend that they are entitled to a grant of relief under s 63, in the form of an order for the provision to them of private advice as to the proper construction, and operation, of a clause (clause 5A) in the testator's Will providing for a gift of property to an indeterminate class of beneficiaries which, they apprehend, may have closed.

1. In their application for advice they contend that, arising from clerical amendments to the text of the Will before its execution, uncertainty attaches to identification of the precise terms of the clause to be construed.

1. When invited to address the question whether their application for judicial advice should more properly be dealt with, on notice to all affected interests, as a suit for construction of the Will, the plaintiffs contended that: (a) section 63 confers on a trustee a right to seek private advice; (b) seeking advice under the statutory procedure afforded by s 63 and proceeding by way of a "construction summons" are two very different proceedings, with different purposes, different results and different effects; (c) in Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66, the High Court of Australia has determined that an application brought by a trustee under s 63 is for private and personal advice; (d) a s 63 application serves to provide a trustee with personal protection against an allegation of breach of trust, binding no-one to whom notice of the application has not been given, and not affecting the rights of beneficiaries who are free to bring their own proceedings against the trust; (e) it is a matter for the plaintiffs, as trustees, as to whether or not they decide to commence proceedings by way of a "construction summons", and in making that decision, they are not constrained by their application for judicial advice; (f) there is no power in the Court to compel the plaintiffs (as trustees) to commence proceedings by way of a "construction summons" or any other proceedings; and (g) the Court may determine the plaintiffs' s 63 application only in one of two ways, namely by providing advice as sought or by declining to provide that advice and dismissing the application.

1. These submissions sit uncomfortably with traditional notions of equity jurisprudence, the reasoning in the Macedonian Church Case, and the history of New South Wales legislation relating to the administration of trusts. Their assumption that a trustee is entitled to invoke the Court's jurisdiction on a "take it or leave it" basis, and without consequences for administration of the trust, is unfamiliar.

1. In deference to the submissions of counsel, the proceedings require more than a passing consideration of the nature and operation of the jurisdiction of the Court (including that exercisable by reference to s 63) to provide judicial advice to a trustee.

1. The necessity to canvass these topics arises from a combination of factors, not all unique to these proceedings, broader than the particular contentions of the plaintiffs.

1. First, characterisation of s 63 proceedings as a vehicle for the provision of "private advice" to a trustee in "summary" proceedings appears to have diverted attention away from the desirability of a trustee, wherever practicable, engaging beneficiaries in a dialogue, crystallising questions in dispute or in need of a judicial determination, before approaching the Court for relief. Secondly, s 63 has been invoked without the customary provision of a memorandum of opinion from counsel which, if provided to both the Court and beneficiaries, might have forestalled any need for judicial advice or, at least, facilitated the conduct of proceedings.

1. Thirdly, the questions presented for the Court's "opinion, advice or direction" (to paraphrase s 63) have been formulated, essentially, as questions of interpretation of the trust instrument without overt, deliberative consideration of whether that formulation might be insufficient to deal constructively with the trust or whether the proceedings might be more aptly dealt with in a construction suit, on notice to beneficiaries. Fourthly, the questions stated for the Court's consideration have been unaccompanied by any overt deliberation by the plaintiffs whether the problem sought to be solved in administration of the trust might need, at least in part, to be dealt with as a question of the "management or administration" of trust property rather than simply as a question of "interpretation of the trust instrument". A mere assertion that a s 63 application falls within both limbs of s 63(1) adds little to analyses of questions raised by an application.

1. Fifthly, the Statement of Facts tendered in support of the plaintiff's s 63 application has presented as "facts" propositions that are, in substance, assumptions made by the plaintiffs, qualified by reference to the subjective state of mind of the plaintiffs about assumed facts, in circumstances in which the state of mind of a trustee is not, of itself, a fact material to any determination the Court may be called upon to make. Sixthly, the written submissions provided to the Court by the trustees in lieu of a memorandum of counsel's opinion do not, in detail, analyse the merits of competing views of the question of construction stated for the Court's determination; they are not a substitute for a memorandum of opinion.

1. Seventhly, the possibility that persons with an interest in the outcome of these proceedings may reside outside the jurisdiction of the Court (and be less familiar with New South Wales law, practice and procedure than those resident here) tells in favour of an elaboration of topics which, in their own interests, they might, prudently, be allowed to consider before the Court makes a final determination on the plaintiffs' summons.

THE LEGISLATIVE CONTEXT OF AN APPLICATION FOR JUDICIAL ADVICE

1. Section 63 is in the following terms:

"63 Advice

(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

(3) Rules of court may provide for the use, on an application under this section, of a written statement signed by the trustee or the trustee's Australian legal practitioner, or for the use of other material, instead of evidence.

(4) Unless the rules of court otherwise provide, or the Court otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application.

(5), (6) and (7) Repealed.

(8) Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution.

(9) The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith.

(10) Any person who claims that the person's rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the Court, apply to the Court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution.

(11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any application under this section is served, or to whom notice is given in accordance with subsection (8), shall be bound by any opinion advice direction or order given or made under this section as if the opinion advice direction or order had been given or made in proceedings to which the person was a party."

1. As contemplated by s 63, rules of court have been made bearing upon the operation of the section. They are to be found in the Uniform Civil Procedure Rules 2005 NSW, particularly Part 55 Div 1.

1. The rules for which Part 55 Div 1 provides (rules 55.1-55.4) must be read in the context of the broader procedural framework for which the Civil Procedure Act 2005 NSW and the Uniform Civil Procedure Rules provide. They are not a self contained code.

1. An illustration of this is to be found in selection of the form of originating process for a s 63 application. UCPR Part 55 Div 1 is predicated upon the operation of the UCPRs generally.

1. Proceedings in this Court are ordinarily commenced by the filing of a statement of claim or a summons: UCPR rr 6.2(1) and 6.2(2). A s 63 application is generally made in proceedings commenced by summons, because it is made in proceedings in which no defendant is named in the originating process (UCPR r 6.4(1)(a)); because the proceedings in which it is made are proceedings in which the sole or principal question at issue is, or is likely to be, one of construction of a trust instrument or some other question of law (UCPR r 6.4.4(a)); because there is unlikely to be a substantial dispute of fact in the proceedings (UCPR r 6.4(4)(b)); or because some combination of those factors.

1. A "wrong" choice of the form of originating process is not fatal to the validity of proceedings. The Court's governing legislation contemplates that procedural irregularities can be dealt with to accommodate the dictates of justice: CPA s 63. Proceedings commenced by statement of claim that should have been commenced by summons can be conducted as if commenced by summons: UCPR r 6.5. Proceedings commenced by summons that should have been commenced by statement of claim can be continued on pleadings: UCPR r 6.6.

1. The flexibility attending the form of originating process is consistent with the Court's statutory mandate (reflected in both CPA s 90 and UCPR r 36.1) to make such orders as the nature of a particular case may require. UCPR r 36.1, in particular, provides that "[at] any stage of proceedings, the Court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion."

1. Implicit in legislative provisions of this nature is a need to ensure that, in the exercise of its jurisdiction in a particular case, the Court is mindful of a need to ensure that its procedures, judgments and orders are directed towards service of the purpose, or purposes, for which the jurisdiction exists.

1. Subject to compliance with procedural fairness principles, proceedings commenced as an application for judicial advice under s 63 of the Trustee Act might, for example, evolve into a "construction suit" in the context of a "partial administration order" made under UCPR Part 54 (to which reference is made in paragraph 176 below) or vice versa: Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 at [14]-[20]; AG Nevill and AW Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981), para [1204].

1. The concept of a "construction suit" is ordinarily associated with partial administration proceedings (under UCPR Part 54) which involve joinder of all interested parties or the making of orders (under UCPR Part 7 or the inherent jurisdiction of the Court) for the representation of otherwise absent interests. However, the procedure for which s 63 provides is sufficiently adaptable to accommodate, within the framework of the section, the provision of an "opinion, advice or direction", in proceedings in the nature of a construction suit, on notice to all interested persons and safeguarding, by representative orders, absent, affected interests.

1. Section 63(4) is expressly predicated on a power residing in the Court to direct that notice of an application under the section be served "on any person".

1. Section 63 provides a flexible means (and not the only means) by which the Court's jurisdiction relating to trusts can be enlivened. That jurisdiction includes as one of its purposes the due administration of trusts, including the protection of trust property and, incidentally, protection of trustees who, on the other side of the ledger, are subject to obligations enforceable by the Court.

1. UCPR Part 55 Div 1 is in the following terms:

"PART 55 - MATTERS ARISING UNDER THE TRUSTEE ACT 1925

Division 1 - Judicial Advice

55.1 Statement

(cf SCR Part 70, rule 3)

(1) A statement under section 63 of the Trustee Act 1925:

(a) must be divided into consecutively numbered paragraphs, and

(b) must state the facts concisely, and

(c) must state the question for opinion, advice or direction.

(2) Despite rule 6.12 (2), the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.

55.2 Order

(cf SCR Part 70, rule 4) An opinion, advice or direction under section 63 of the Trustee Act 1925 must be given by order.

55.3 Application by beneficiary

(cf SCR Part 70, rule 5) The time for an application under section 63 (10) of the Trustee Act 1925 is, subject to that subsection, 28 days after the date of receipt by the applicant of notice under section 63 (8) of that Act or the date of entry of the order containing the opinion, advice or direction, whichever date is the later.

55.4 Appeal

(cf SCR Part 70, rule 6)

An appeal lies to the Court of Appeal from an opinion, advice, direction or order given or made by the Supreme Court under section 63 of the Trustee Act 1925 , including an opinion, advice, direction or order given or made by an associate Judge. "

1. UCPR rule 6.12(1) provides that "[a] statement of claim or summons must specifically state the relief claimed by the plaintiff." Rule 6.12(2) provides that "[if] the relief claimed requires the determination or direction of the court on any question, the statement of claim or summons must state the question."

1. In relieving an applicant under s 63 from that obligation, s 63(2) recognises the flexibility required of an application for judicial advice. It eliminates a necessity for formal amendment of originating process as questions identified for consideration evolve (as they may not uncommonly do) during the hearing of an application. It does not relieve an applicant for advice from an obligation to "state the question for opinion, advice or direction". UCPR rule 55.1(1)(c) demonstrates that.

1. The terms of s 63(2), including the proviso, underscore the importance of ensuring that any order made under the section (as required by UCPR rule 55.2) is predicated upon a concise statement of "the facts" (as contemplated by UCPR rule 55.1(1)(b)).

1. It is not uncommon for a need to amend a rule 55.1 Statement (colloquially, but not entirely accurately, described as a "Statement of Facts") to emerge during the course of the hearing of a s 63 application.

THE NATURE OF "JUDICIAL ADVICE" PROCEEDINGS

1. This sometimes happens because, upon examination, a question stated for consideration requires, or would benefit from, reformulation. There may be an inter-dependency between the form of a question and the availability of answers. A question formulated as one relating to interpretation of a trust instrument (the second limb of s 63(1)) might yield a different practical outcome if formulated as one relating to management or administration of the trust (the first limb of s 63(1)).

1. This flows from the nature of relief granted by the Court. In a "construction suit", in partial administration proceedings governed by UCPR Part 54, in which all competing interests are represented before the Court, the Court's determination usually takes the form of a "declaration that, upon the proper construction of the instrument, et cetera". That is a declaration of a legal right, not a discretionary management decision. When the Court's determination is made in the context of a s 63 application, a question of construction may be addressed by embodiment of an answer to the question in an order responsive to the form of the question.

1. Where a more summary procedure may have been followed and all affected interests have not been represented in the proceedings, a 63 order may follow the usual form granted upon provision of judicial advice: "order that the trustee would be justified in [doing or omitting to do something] on the basis [assumption] that et cetera". This form of order is, or may be, a permissive form of management decision. I say "may be" because a trustee who acts in disregard of judicial advice might, by disregard of that advice, expose itself to liability for a breach of trust.

1. Where there is a contest between competing interests as to whether, upon the proper construction of a trust instrument, a class of beneficiaries entitled to benefit has closed and it appears that, if the class has not closed, the practical reality is that a change in the composition of the class is unlikely, the question for consideration on a judicial advice application might be as much one of risk management as of construction.

1. In those circumstances a trustee might, not unreasonably, decline to bear any risk of effecting a distribution of trust property without the sanction of the Court, and the availability of a sanction might depend on the extent to which (if at all) beneficiaries are able and willing, in both substance and form, effectively to relieve the trustee of risk.

1. An order that a trustee would be justified in effecting a distribution on an assumption that a class of beneficiaries has closed might, in effect, transfer the risk of an unexpected contest about a change in composition of the class from the trustee to beneficiaries who have supported the making of such an order. This outcome might be reinforced by an imposition of terms on the making of an order: CPA s 86.

1. In mentioning these considerations, I am not to be taken as encouraging anybody interested in the due administration of the trust the subject of these proceedings to take a particular course or to harbour hopes that might, on closer examination, be found to have been unfounded.

1. My purpose is more limited: to demonstrate to all persons interested in the current proceedings the importance of their engaging in a process of constructive engagement about the administration of the trust before calling upon the Court to make a determination without the benefit of their competing perspectives. An outcome that might not be possible on the formulation of a question of construction might, by an accommodation of competing interests, be open if presented as a question relating to the management or administration of trust property.

1. Advice given under the Trustee Act, s 63 is often said to be in the nature of "private advice", serving the function of providing personal protection to a trustee, subject to the qualifications in favour of other interests for which the section provides: Macedonian Church Case (2008) 237 CLR 66 at 91-92 [64]-[65]. However, what, precisely, is meant by "private advice" may depend on the nature of the particular case in which section 63 is called in aid; and the ambit of s 63 is not confined to the provision of "private, personal advice".

1. An application for judicial advice is not, inherently or universally, exempt from the need for the business of the Court to be conducted, generally, in public. A s 63 application is not exempt from the operation of the Court Suppression and Non-publication Orders Act 2010 NSW, with its bias in favour of the open administration of justice (s 6), despite the Act's preservation of the Court's inherent jurisdiction (s 4), and the potential applicability to proceedings for judicial advice of the statutory grounds (set out in s 8) for making an order under the Act to protect the confidentiality of information.

1. No application has been made, or foreshadowed, by the plaintiffs in these proceedings for a suppression or non-publication order. Their application was made, by the filing of a summons unqualified by reference to any need for confidentiality, in open court before me as the Equity duty judge in a busy list. No application was then or thereafter made, or foreshadowed, for an order under s 71 of the Civil Procedure Act that the plaintiffs' summons be dealt with in a closed court.

1. As noted by Lindgren AJ in Crnjanin v Ioos [2010] NSWSC 750 at [28], under s 63 a trustee generally places all relevant circumstances before the Court and seeks an opinion, advice or direction (colloquially, but not necessarily in concept, subsumed by the generic expression "judicial advice") that in those circumstances the trustee would be justified in taking a certain course; it is a mistake to think that, on an application for judicial advice, a trustee must necessarily "prove" facts according to a certain standard of proof to enable findings of fact to be made as in the case of adversarial litigation.

1. On a review of a judgment relating to the provision of judicial advice, a reader needs to be mindful of the possibility that a recitation of "facts" may be based upon a "statement of facts" by a trustee that is, in essence, an administrative form of statement upon which the Court is invited to act rather than a record of facts determined by the Court after a hearing on the merits. In these proceedings, at this stage, that possibility is a reality.

1. As the High Court confirmed in the Macedonian Church Case, judicial advice proceedings require the Court to adapt its procedures to serve, in the particular case, the purposes served by the Court's jurisdiction over trusts.

1. The Court is not bound to give judicial advice merely because a trustee has a right to apply for it: Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 at [8]-[9].

1. Particular care may need to be exercised in dealing with questions relating to the construction of trust instruments. The fact that a question of construction may involve controversy, referable to underlying facts or law, can be a ground for the refusal of relief under s 63 (AG Nevill and AW Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981) at para [1204]; JD Heydon and MJ Leeming (ed), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 7th ed, 2006) at para [2134]; and E Finnane, HN Newton and C Wood, Equity Practice and Precedents (Law Book Co, Sydney, 2008) at para [20.15] and [20.25]); but the terms of s 63(1) expressly contemplate that judicial advice can be sought, and given, in relation to the interpretation of a trust instrument.

1. The Court must be guided by what it perceives to be in the best interests of the trust estate: Application by Marilyn Joy Cottee [2003] NSWSC 47 at [35].

1. In any case falling within the broad jurisdictional limits of s 63, a discretionary judgement must be made about whether the "summary" procedure for which the section provides is a suitable vehicle for the determination of questions stated by a trustee for consideration: Macedonian Church Case [2008] 237 CLR 66 at 90 [60]. These proceedings call for an exploration of this topic.

1. The proceedings also call for a consideration of the important role played by the legal profession in facilitating the due exercise by the Court of its jurisdiction to provide judicial advice to trustees.

1. The practice of the Court over many years (as a matter of practice, not compelled by legislative edict) has been to look for, and in an appropriate case rely upon, a memorandum of opinion of counsel, proferred by an applicant for s 63 relief, directed to the substance of questions arising for consideration on the application: see, for example, Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [17].

1. The absence of a well-considered memorandum of opinion may compel the Court to explore possibilities, of fact and law, that might not otherwise need exploration. A well-considered memorandum should anticipate lines of inquiry that a judge might be bound to identify and, one way or another, address them so as to focus attention on real problems in need of a solution.

THE NATURE OF THE PRESENT PROCEEDINGS

1. The plaintiffs in these proceedings have made an ex parte application to a duty judge, apparently without notice to interested parties, for s 63 relief in circumstances in which they have not provided (but, moreover, have declined to provide) any form of professional opinion in support of the relief they claim. They have maintained that their claim for relief is sufficiently supported by the provision of written submissions, by them, about the availability of competing contentions bearing upon questions stated, by them, for the Court's consideration without any manifestation of an intention, on their part, to facilitate the participation of beneficiaries in the process.

1. The plaintiffs' submissions in support of their summons being dealt with on an ex parte basis reinforce an impression, which may not be entirely fair, that the object of their chosen procedure is to avoid engagement with competing interests within the subject trust's administration.

1. The first plaintiff is a major beneficiary under the Will, as well as a trustee. The second plaintiff is his wife. They are evidently content for the trust to continue to be administered, by them, notwithstanding demands by some beneficiaries that the trust be administered on the basis that the interests of all beneficiaries have "vested", with the consequence that the operation of the trust might be brought to an end with a final distribution of capital.

1. Use of the expression "vested" in this context is intended to mean "vested in possession" as distinct from "vested in interest". The difference is pithily explained in Osborne's Concise Law Dictionary (London, 13th ed, 2013): "An estate is said to be vested in possession when it gives a present right to the immediate possession of property; while an estate which gives a present right to the future possession of property is said to be vested in interest". The word "possession" might, in some definitions, be replaced by the word "enjoyment". Cf, P Butt, Land Law (Sydney, 6th ed, 2010), para [12.14]; Megarry and Wade, The Law of Real Property (London, 8th ed, 2012), paras [9-001]-[9-1007] and [9-020]-[9-023].

1. The distinction between "vested in interest" and "vested in possession" is important in these proceedings beyond the form of the questions stated by the plaintiffs for the Court's consideration. That is because a key to the interpretation of the terms of the clause of the testator's Will (clause 5A) at the heart of these proceedings may be an understanding of the "rule against perpetuities" (sometimes called "the rule against remoteness of vesting") and the interaction of that rule of law with principles of construction generally known as "the class closing rules".

1. Subject to the operation of the Perpetuities Act 1984 NSW, the rule against perpetuities renders void a disposition of property that may vest in interest at a time outside a timeframe (generally measured as the expiry of 21 years after the death of a "life in being") known as "the perpetuity period". Under the general law, a disposition of property is required to vest in interest within that period, whatever may be the time of its vesting in possession.

1. The plaintiffs contend, without express reference to s 63(8), that the questions identified by them for the Court's present consideration do not, in any real sense, concern a question of the identity of beneficiaries or the respective rights of beneficiaries. By characterising the questions at hand as relating merely to whether a class has closed, they might be thought to be laying groundwork available, in the fullness of time, to step around the mandatory notice provisions of s 63(8).

1. Unless the opening words of that subsection are given a narrow construction (which would constrain rights of appeal against judicial advice that beneficiaries may have under s 63), questions focussed on whether there has been closure of a class of beneficiaries entitled to a "share" of trust property contingent on the size of the class appear, to me, to fall squarely within the introductory words of s 63(8): "Where the question is who are the beneficiaries or what are their rights as between themselves...".

1. A question about whether a class of beneficiaries entitled under the Will has closed necessarily touches upon the identity of beneficiaries, and their rights inter se, in at least two ways. First, it demands a focus on whether the class (if it has not already closed) may include beneficiaries as yet unborn, or to be adopted by one or the other of the testator's sons. Secondly, if the class has not already closed there is a potential that existing presumptive beneficiaries may die before the class closes and, thereby, lose their interest in trust property.

1. It is possible that the reluctance of the plaintiffs to take a stand on whether the trust for which the Will provides (in clause 5A) has vested, and their refusal to provide a memorandum of opinion from counsel on that question, is related to an apprehension about the operation of a clause of the Will that might be interpreted as disentitling any beneficiary who commences proceedings to challenge the Will.

1. That clause (clause 5C(ii)), relevantly, provides that: "In case of any action or other proceedings for administration of my estate shall be commenced in any court of justice in the name of my beneficiaries or any one or more of them as plaintiff or plaintiffs otherwise than to secure the enjoyment of his her or their benefit [under the Will] then" their interest(s) under the Will "shall immediately cease and other provisions of the Will (clauses 5A and 5B in combination) are to operate so as to expand entitlements of remaining beneficiaries.

1. The material placed before me does not permit me to know, as a fact, whether the terms of the Will have operated as a disincentive to the plaintiffs, or to any beneficiary other than the first plaintiff, to institute proceedings to resolve doubts about whether the trusts for which the Will provides can, or should, be brought to an end, either according to their terms or by a distribution of trust capital.

1. To put such a possibility to rest, I record my opinion that nothing in the Will could reasonably be thought to have any scope for operation in the context of the current proceedings, whether characterised merely as an application for judicial advice or restructured to constitute a construction suit: Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082 at [5], [22]-[27] and [33]..

FACTUAL CONTEXT

1. On 3 August 1997 the testator died leaving a will and codicil expressed to relate to the testator's Australian property. The Will is dated 22 February 1982. The codicil is dated 27 September 1993. For present purposes, it is sufficient to notice that, by his codicil, the testator named the first plaintiff, Dr Chow Kwok Ching (his son), and Grace Chow, his widow and the mother of the first plaintiff, as the executors and trustees of the Will in lieu of a trustee company. In this judgment, a reference to "the Will" should be taken to mean, more precisely, the Will as amended by the codicil.

1. On 15 December 1997 a grant of probate of the Will (and codicil) was made in favour of the first plaintiff and the testator's widow.

1. On 1 December 2002 (a little more than five years after the testator died), his widow also died, leaving the first plaintiff as the only trustee of the deceased's estate under the will. By that time, all executorial duties had been completed. The estate was held by the testator's legal personal representatives as trustees.

1. On or about 20 December 2002, by an undated deed registered (as Book 4373 No 754) on that date, the first plaintiff appointed his wife, Chan Pik Yun Peggy Chow (the second plaintiff) to be his co-trustee of the estate.

1. The plaintiffs, as trustees of the testator's Australian property, have applied to the Court (pursuant to s 63 of the Trustee Act) for the opinion, advice and direction of the Court with respect to the questions WHETHER, on the proper construction of clause 5A of the will, the class of beneficiaries of the trust constituted by that clause has closed and, accordingly, WHETHER the trust has vested.

1. In written submissions filed in support of their summons the plaintiffs draw attention to the form of clause 5A as a source of uncertainty as to its meaning. They do not go so far as to contemplate, expressly, that clause 5A might be void for uncertainty; but the priority they give to elaboration of forms of clause 5A that could attract that label cannot be ignored.

1. The Will was drafted in an era dominated by typewriters, unaided by computer facilities that nowadays permit a seamless incorporation of amendments into a typed text. In conformity with office practice at the time the Will was made, certain words were interlineated as amendments to the original text, initialled in the margin.

1. So far as is material, and incorporating an initialled amendment, clause 5A appears to me to be in the following terms:

"5. I DEVISE AND BEQUEATH all my Australian property not hereby or by an codicil hereto otherwise effectively disposed of to my Trustee [an expression which, in the events that have happened, embraces the present plaintiffs] UPON TRUST [to realise the testator's property and, after payment of debts etc] TO HOLD the residue of such clear and ready moneys and all parts of my Australian property for the time being unconverted [into money] (all of which are herein called 'my residuary estate') ... [A.] UPON TRUST for such of the beneficiaries mentioned in the schedule [to the will] who shall be living at the date of my death and shall be living at the expiration of fifteen years from the date of my death or at the date the youngest of such beneficiaries shall attain the age of twenty one years whatever shall last happen in the proportions referred to [in the schedule] AND I DECLARE that each of such beneficiaries who shall survive me and has attained or shall attain the age of twenty one years shall be entitled to receive and be paid the income from his or her presumptive share of my residuary estate accruing after he or she attains that age."

1. These provisions lie at the centre of the question of construction identified by the plaintiffs for the Court's consideration. They need, however, to be read in the context of the clauses of the Will numbered 5B, 5C and 7.

1. Clause 5B casts light on the nature and timing of a beneficiary's interest under clause 5A. The reference to a "presumptive share" in the declaration of the testator in the final section of clause 5A ties in with the concept of a "[failure] to attain a vested interest" in the introductory "proviso" recorded in clause 5B. Together, they suggest an intent on the part of the testator that each beneficiary, other than (possibly) the youngest, was to obtain a property right vested in interest before their property rights all became vested in possession on the fulfilment of the last of the two post-death contingencies (namely, the passage of 15 years and the attainment by the youngest beneficiary of the age of 21 years) for which clause 5A provides.

1. In describing a circumstance in which a beneficiary's "interest" could be lost, clause 5C proceeds on the basis that a beneficiary's right under clause 5A was capable of vesting in interest, subject to the possibility of divestiture. Cf, Megarry and Wade, The Law of Real Property (8th ed), para [9-023].

1. Clause 7 throws light on the intendment of clauses 5A and 5B by its availability for beneficiaries under the age of 21 years, and by its reference to the expression "presumptive or contingent share" of such a beneficiary.

1. Clauses 5B, 5C and 7 are in the following terms:

"B. PROVIDED that if the trusts of any of such share or shares of my residuary estate shall fail by reason of a beneficiary failing to attain a vested interest therein I DIRECT that subject to the trusts powers and provisions herein contained or which may be applicable thereto by statute the said share and any share or shares which may accrue thereto by virtue of this present proviso shall be held by my Trustee as an accretion to the other share or shares (and in the proportions which those shares bear to each other if more than one) the trusts whereof shall not at the date of such accruer have failed as aforesaid and upon the trusts powers and provisions applicable thereto herein contained or such of them as at the date of such accruer shall be capable of taking effect.

C. PROVIDED ALWAYS that -

(i) if any of my said beneficiaries should in any way intermeddle with or interfere in or attempt to intermeddle with or interfere in the management of my real and personal estate then his her or their interest or interests under this my Will shall immediately cease and the provisions of subclause B hereof shall apply to the share of such beneficiary or beneficiaries; or

(ii) in case any action or other proceedings for administration of my estate shall be commenced in any court of justice in the name of my beneficiaries or any one or more of them as plaintiff or plaintiffs otherwise than to secure the enjoyment of his her or their benefit hereunder then my Trustee shall thenceforth stand possessed of all moneys to which such plaintiff or plaintiffs would otherwise have been entitled under this my Will in trust to pay thereout in the first place the costs as between solicitor and client of all parties to and having liberty to attend such action or proceedings as defendants or other than such plaintiff or plaintiffs and that this present trust shall have priority over all trusts herein declared in favour of such plaintiff or plaintiffs and the interest or interests of the plaintiff or plaintiffs hereunder shall immediately cease and the provisions of subclause B hereof shall apply to the share of such beneficiary or beneficiaries...

7. I EMPOWER my Trustee to pay or apply the whole or such parts as they shall think fit of the income of the presumptive or contingent share of my residuary estate to which any infant shall for the time being be entitled under the trusts hereinbefore declared for or towards his or her maintenance education advancement or benefit with power in the case of any such person who is for the time being a minor to pay the same to the parent or guardian or guardians of such minor for any of the purposes aforesaid without being required to see to the application thereof."

1. The amendment to the text of clause 5A appears, prima facie, to have been effected by the insertion immediately after the word "hereto" of the words "who shall be living at the date of my death and".

1. Without that clerical amendment to the text by interlineation, the material part of clause 5A appears, prima facie, to have read as follows:

"... UPON TRUST for such of the beneficiaries mentioned in the schedule hereto as shall be living at the expiration of fifteen years from the date of my death or at the date the youngest of such beneficiaries shall attain the age of twenty-one years whichever shall last happen in the proportions referred to therein....".

1. This amendment appears, prima facie, to have been made for a purpose related to insertion in the schedule to the Will of a residual class of beneficiaries, described generically rather than by name, whose common characteristic is that (if they ever existed) they were, or would be, grandchildren of the testator. The form of the schedule suggests that this class of beneficiaries was inserted in the schedule by amendment of the text, then initialled in the margin.

1. Taken together, the putative amendments to clause 5A and the schedule suggest, prima facie, that the Will was drafted by a person familiar with pitfalls of the rule against perpetuities (JHC Morris and WB Leach, The Rule Against Perpetuities (London, 1st ed, 1956; 2nd ed, 1962)) and, in particular, the problem of dealing with a testamentary gift to a grandchild, unborn at the date of the testator's death, whose contingent interest in trust property might vest more than 21 years after the death of a life in being: P Butt, Land Law (Sydney, 6th ed, 2010), paras [12.14] and [12.22]-[12.28].

1. The words, by amendment, inserted in clause 5A appear to have been inserted, prima facie, as a precaution against the possibility that insertion of the residual, generic category of grandchildren in the schedule to the Will might be thought to have endangered the validity of the clause 5A gift generally. If so, it was deployment of both braces and belt. The testator's three named sons are, by implication, lives in being.

1. The learning on the rule against perpetuities has quickly faded from view since enactment of the "wait and see" provisions of the Perpetuities Act 1984 which, in the mindset of the current generation of lawyers, effectively "abolished" (but in truth, only modified) the rule against perpetuities. The Act commenced substantive operation on 31 October 1984, after the date of the testator's Will and before the date of his codicil.

1. Section 7 of the Act provides that the perpetuity period is to be taken as 80 years from the date a "settlement" takes effect. By s 3(1), "settlement" is defined to include a will. Section 3(2) provides that "[for] the purposes of [the] Act, a will shall, in relation to a disposition [defined, by s 3(1), to include an alienation of property] contained in it, be deemed to take effect on the death of the testator." Section 8(1) substitutes a "wait and see" rule in lieu of the general law rule invalidating interests if there is any possibility of their vesting outside the perpetuity period.

1. The draftsman of the Will might reasonably be supposed to have been familiar with the law at that time conveniently analysed in the chapter entitled "Rules against Remoteness and Accumulation" in BA Helmore's The Law of Real Property in New South Wales (Law Book Co, Australia, 2nd ed, 1966): c 27 (at pp 256-266). That familiarity can also be taken to have extended to the law discussed in the "Note on Class Gifts" found in Appendix B (at pp 610-611) of Helmore's work.

1. As explained by Helmore (at pp 257-258), the rule against perpetuities, as finally established, can be stated as follows: "Any limitation [of a future interest in property] by virtue of which an interest in property may possibly vest [in interest] beyond a period measured by a life or lives in being and twenty one years thereafter, with an additional period for the gestation of an unborn infant in appropriate cases, is void ab initio". The possibility of vesting upon which the rule depends must be estimated at the time the limitation takes effect. To determine the validity or otherwise of the limitation, the situation at that time must be examined. In the case of a limitation by will, the relevant date is the death of the testator, from which date the will takes effect.

1. As explained by Helmore at p 259, "vesting" for the purpose of the rule means vesting "in interest", ie, that the person or persons to take under the limitation must be identified, the extent of the benefits must be definitely fixed, and the interest must be ready to take effect in possession within the perpetuity period (subject only to the existence of a prior interest, if any).

1. At pp 260-261, Helmore explains that, in the application of the rule against perpetuities to gifts to a class (ie, to a group of persons who come within a certain category, or description defined by a general or collective formula and who, if they take at all, are to take one divisible subject in certain proportionate shares) the rule is that the vice of remoteness affects the class as a whole, if it may affect an ascertained number of its members. To put it in other words, the interest of each member of a class must necessarily be capable of vesting within the perpetuity period. Otherwise the whole class gift is void. Cf, Butt, Land Law (6th ed), para [12.43] et seq; Megarry and Wade, The Law of Real Property (8th ed), para [9-068] et seq.

1. In his "Note on Class Gifts", Helmore elaborates principles of construction ("the class closing rules") which are commonly understood to have stemmed from the decision in Andrews v Partington (1791) 3 Bro.C.C.401; 29 ER 610 and which are sometimes known as "the rule in Andrews v Partington". In that connection, he records that the governing principle established by the case is that, where a fund is to be divided among a class which is capable of increase (or, it might be added, decrease) from time to time, the class closes when any member is entitled to call for a distribution of his share, and persons who would qualify for inclusion after that period are excluded.

1. There is no necessary connection between the rule in Andrew v Partington and the rule against perpetuities, the former having emerged before the latter crystallised in its "modern" form. However, they do, not uncommonly, have scope for operation together: JHC Morris, "The Rule Against Perpetuities and the Rule in Andrews v Partington" (1954) 70 LQR61; Butt, Land Law (6th ed), paras [12.18], [12.46], [12.47] and [12.52].

1. As a principle of construction, the rule in Andrews v Partington must yield to the intention of the testator as revealed by the text of the Will.

1. Case law suggests that, although the rule is essentially a rule of convenience, a departure from its operation is not readily found justified. There is a suggestion that the terms of a trust instrument must be "inescapably incompatible" with the operation of the rule if there is to be a departure from it: In Re Tom's Settlement; Rose v Evans [1987] 1 WLR 1021 at 1025F-G, citing In Re Clifford's Settlement Trust; Heaton v Westwater [1981] Ch 63 at 67.

1. The use of such emphatic language to describe the process of construing an instrument by reference to a principle of interpretation that is acknowledged to be a rule of convenience might be thought to be unjustified. Nevertheless, in this case, the contingency for which clause 5A provides (incorporating reference to "the youngest" of beneficiaries living at the date of the testator's death to attain 21 years of age and the expression "whichever shall last happen") rises above any threshold required for displacement of the rule in Andrews v Partington, according to which a numerically uncertain class of beneficiaries normally closes when the first member becomes entitled to claim his or her share.

1. The object of the rule in Andrews v Partington is said to be "to make property vest as early as possible, so that the persons to whom it is given may know what they have to expect, and make the fund available at the earliest period": Gimblett v Purton (1871) LR 12 Eq 427 at 430.

1. The terms of clause 5A of the Will suggest that the testator had other things in mind.

1. The schedule to the Will allocated a set number of "shares" to 12 beneficiaries identified by name. His widow was allocated three shares. Each of three sons was allocated three shares; nine shares in total. A daughter was also allocated three shares.

1. Seven named grandchildren were allocated a total of 10 "shares" between them. Three grandchildren were each allocated two shares; six shares in total. Four named grandchildren were each allocated one share; four shares in total.

1. After thus making provision for 12 named beneficiaries (allocated a total of 25 "shares" between them), the schedule concluded with the residual, generic allocation of shares. It identified as a beneficiary "[any] other child of any of [the three identified sons of the testator]" and provided for them to be allocated two shares each. The total number of "shares" allocated to this class of beneficiary, if any, depends on how many, if any, people fall within the class.

1. The percentage proportion of each beneficiary's interest in the estate also depends upon the same consideration: the size of the residual class of beneficiaries, if any.

1. The plaintiffs apprehend that a point of uncertainty in the meaning of clause 5A, read with the schedule, is: (a) whether the residual class of unnamed grandchildren of the testator nominated as beneficiaries was intended by him to be limited to grandchildren alive at the date of his death; or (b) whether he intended the class to extend to children unborn at the date of his death (including, it seems, the possibility of inclusion as beneficiaries of children as yet unborn).

1. They also apprehend that a problem arising from the second of these constructions of the Will is that there is no express clause in the Will terminating the trust and bringing it to an end, nor is there a winding up provision in the Will.

1. In a Statement of Facts (Exhibit P1) filed (in accordance with rule 55.1 of the Uniform Civil Procedure Rules 2005 NSW and the Trustee Act, s 63) the plaintiffs record as facts upon the basis of which judicial advice is sought the following (with emphasis added):

(a) Each of the beneficiaries identified by name in the schedule to the testator's will, with the exception of his widow, is still alive.

(b) The plaintiff (one of the three sons of the testator named in the schedule) has no children other than those named in the schedule.

(c) The plaintiffs have not been informed, and are not aware, of any children born to, or adopted by, the other two sons of the testator named in the schedule other than those named in the schedule.

(d) The plaintiffs believe that the youngest of the beneficiaries named in the schedule is a son of theirs (born on 7 October 1988), upon the basis of which they believe that all the beneficiaries named in the schedule had attained the age of 21 years as at 7 October 2009.

(e) Although clause 10 of the testator's Will allowed his "Trustee", three years after his death, to distribute the estate in the absence of proof to the trustee's satisfaction of survival of any further beneficiaries, the plaintiffs have not been satisfied of the survival of any beneficiaries other than those named in the schedule.

(f) Since 2003 the plaintiffs have been distributing the net income of the testator's estate, in or about June each year, to each of the beneficiaries named in the schedule who have attained the age of 21 years (with the exception of the testator's widow who died before the expiration of 15 years from the date of the testator's

death, or her estate).

1. The distribution of trust income since 2003 has been effected, I assume, in accordance with the declaration of the testator's intent found in the concluding section of clause 5A of the Will.

1. Clause 10 is in the following terms:

"10. I DECLARE that if at the expiration of three years from my death proof that any of my said beneficiaries survived me shall not have been received to the satisfaction of my Trustee then it shall as executor as aforesaid prove my Will and shall be at liberty to distribute my estate upon the footing that my said beneficiary or beneficiaries did not survive me."

1. The period of 15 years from the date of the testator's death expired on or about 2 August 2012.

1. If, as the plaintiffs believe, the youngest of the beneficiaries named in the schedule to the will attained the age of 21 years on 7 October 2009, then, but for the possibility that one or more of the three sons of the testator named in the schedule to the will has, or might in the future have, a child not named in the schedule who could fall within "the class", the class for which clause 5A of the will provides closed, effectively, on 2 August 2012.

1. The testator's Australian estate is a large one. As at the date probate was granted, it is said by the plaintiffs to have had an estimated value of $30 million. The latest available statement of administration of the estate, for the financial year ended 30 June 2011, is said by the plaintiffs to indicate that the value of the estate had grown to more than $52 million.

1. Nothing turns on the form of the assets comprising the estate. They are held, now, in a substantially liquid form.

THE ABSENCE OF COUNSEL'S OPINION

1. As has been noted, the plaintiffs' summons for judicial advice is unaccompanied by an opinion of counsel directed to the questions stated for the Court's consideration. The plaintiffs have, instead, provided written submissions which, they contend, address the alternative constructions of the will that are available.

1. Ordinarily, a summons for judicial advice should be accompanied by an opinion of counsel, directed to the substance of each question identified for the Court's consideration, and going beyond a mere statement about the availability of protection for a trustee from a court order.

1. Neither s 63 nor rules of court referable to s 63 mandate a requirement that a memorandum of opinion be provided in support of a s 63 application. Nor can it be said that every application must be accompanied by such a memorandum, whether provided by counsel or by a lawyer practising otherwise than at the Bar. Quite possibly, the Court could not compel counsel to express an opinion of this type: Cf, Application of Forsyth [1984] 2 NSWLR 327 at 334F-335F and 227A. Nevertheless, in practice importance may attach to such an opinion for a variety of reasons.

1. First, in practice the speed and efficiency with which an application for judicial advice can be dealt with derives from a combination of the efforts of both the legal profession and the Court. Although, in many cases, a trustee can obtain effective protection as well as guidance by acting upon the opinion or advice of a lawyer, the intervention of a lawyer is no guarantee of protection if a court subsequently perceives that: (a) the lawyer's opinion or advice was wrong; and (b) it was unreasonable for the trustee to have acted on it: JD Heydon and MJ Leeming (ed), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 7th ed, 2006), para [2202] on p 504, and para [2216]; Scott and Ascher on Trusts (5th ed, USA, 2007), vol 4, pp 1677-1681.

1. This was a deficiency in the availability of protection to trustees that served as one of the motivations for Lord St Leonards in his promotion of the English legislation that became a precursor to s 63. In his book, A Handy Book on Property Law in a Series of Letters (Edinburgh and London, 2nd ed, 1858), at p 161, he addressed the following remarks in a "letter" to a hypothetical trustee concerned about personal liability:

"In a case of real difficulty, you should be careful how you act under counsel's opinion, for if you are wrongly advised, and act accordingly, you will be responsible. And now, as I shall explain to you in my next and last Letter on the subject, you may in a summary, and comparatively with former proceedings, an inexpensive mode, obtain the opinion of the Court of Chancery on the rights of the parties. ..."

1. Aspirations for "summary" and "comparatively inexpensive" modes of obtaining curial relief could be added to the list of certainties of human existence, along with death and taxes.

1. The procedural objectives of speed and efficiency served by judicial advice proceedings cannot, in many cases, be achieved unless the Court is presented with the assistance of a memorandum of opinion by an independently-minded lawyer who, out of court, has studied the problem to be solved, examined the factual context critically, analysed competing contentions in a comprehensive legal context, and worked out a solution that commends itself to his or her professional judgement, a judgement upon which the Court can responsibly be invited to rely.

1. Secondly, a well drafted memorandum of opinion provides comfort to the Court upon a consideration whether questions identified for the opinion, advice and direction of the Court are ripe for consideration. Counsel will ordinarily have greater means at his or her disposal than has the Court to ensure: (a) that each identified question is, in the light of a trust instrument and extrinsic circumstances, the right question to be considered in order to meet the objectives served by s 63; and (b) that the facts upon which an answer is to be predicated are stated fairly and in terms appropriate to due consideration of each question.

1. Thirdly, the professional independence required of counsel in the analysis of a question stated for opinion, advice or direction adds value to a statement by counsel in a memorandum of opinion for which he or she is professionally responsible more than does a statement in the form of a mere submission.

1. Fourthly, an expression of opinion by counsel in a formal memorandum of opinion may, if not the subject of legal professional privilege, provide a firm foundation upon which persons interested in the due administration of a trust may decide whether (and, if so, how) they should seek to participate in proceedings commenced as an application for judicial advice.

1. Fifthly, an efficient administration of the "summary" jurisdiction exercised by the Court by reference to s 63 is aided by the availability of a considered opinion, by competent counsel upon whose judgement the Court is entitled to rely, whether or not (upon due consideration) it decides to agree with, or differ from, counsel's conclusions.

1. The availability of a formal memorandum of opinion from counsel, prepared in anticipation of a s 63 application, may, at least in some cases, either forestall any need for an application to Court being pressed or establish parameters within which a dispute about the due administration of a trust may be litigated.

1. In some cases it might result in a consensus. In others, it might crystallise questions in dispute. In yet others, it might fall short of establishing a consensus but, with an intimation that a trustee proposes to act upon it absent any application by an interested party for curial relief, it could provide a foundation for the trustee to "build an estoppel" against interested parties who acquiesce in the trustee's action.

1. In any event, by a fair engagement with beneficiaries, a trustee lays a foundation for an application to the Court, under s 85 of the Trustee Act, to be granted relief against liability for a breach of trust (National Trustees Company of Australasia Limited v General Finance Company of Australasia Limited [1905] AC 373; Re Investa Properties Limited [2001] NSWSC 1089; 187 ALR 462 at [39]-[43]) or as evidence persuasive of an absence of any "wilful default" on the part of the trustee personally that, if present, could expose the trustee to liability (Perpetual Trustee Co v Watson (No 2) (1927) 28 SR (NSW) 43 at 46-47; Ah Toy v Registrar of Companies (Northern Territory) (1986) 10 ACLR 630 at 646).

1. A memorandum of opinion prepared by counsel in anticipation of an application for judicial advice might ordinarily be expected to attract the advocate's immunity: D'Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 at 31[85] - 32[88] and 32[91]. If counsel and his or her instructing solicitor are concerned about the possibility that immunity might not attach to such a memorandum served before the commencement of proceedings for judicial advice, a memorandum might be expressed as having been prepared in support of a prospective application for advice and be served on interested parties pursuant to a direction made by the Court on the date upon which the summons commencing proceedings is first before the Court.

THE EXISTENCE OF CONTENTION IN ADMINISTRATION OF THE TRUST

1. The absence of a formal memorandum of opinion in relation to the questions stated for consideration of the Court in these proceedings has been noticed, not only by me, but also by beneficiaries in contention with the plaintiffs over those questions.

1. On an adjournment of their summons for judicial advice the plaintiffs brought to my attention a letter dated 30 May 2013, in which solicitors retained for two of the grandchildren named in the schedule to the Will complain about an alleged refusal by the plaintiff "to provide a copy of counsel's advice", as well as about an alleged failure by the plaintiffs to state "whether they believe the trust had vested, and if not, why not".

1. Both complaints come together in a complaint about delay, and a possible breach of duty, on the part of the plaintiffs. The beneficiaries' solicitors' letter inquires about what had happened about a "foreshadowed application for judicial advice" and records that "[it] is now 9 months since, in our opinion, the trust vested and the assets of the trust remain undistributed".

1. I infer that those beneficiaries contend that the trust vested both in interest and in possession on or about 2 August 2012, at the expiration of 15 years from the date of the testator's death in the sense that the beneficiaries then alive were entitled to immediate enjoyment, by distribution, of the trust property.

1. I gather, from oral submissions made by counsel for the plaintiffs in support of their summons for judicial advice, that a substantial proportion of the beneficiaries named in the schedule to the Will may be content for the trust for which clause 5A of the Will provides to be administered (by an annual distribution of income) on the basis that the class for which the will provides has not closed. Whether that is an accurate assessment of the attitudes of beneficiaries I do not know as a fact.

1. It is not easy to avoid having a sense of a possibility that the plaintiffs may not have been as candid as they should have been with beneficiaries about their delay in dealing with the testator's estate since 2 August 2012. The introductory lines of the beneficiaries' letter dated 30 May 2013 illustrate that:

"In our letter to you [the plaintiffs' solicitors] dated 10 May 2013, we asked you to set out your clients' position as to whether they believed the trust had vested, and if not, why not. Your letter [dated 22 May 2013] did not answer our question. Please answer it. If your clients are unsure as to the position, then please set out why that is.

Your clients are refusing to provide a copy of counsel's advice. We cannot understand why. ..."

1. The letters dated 10 and 22 May 2013 referred to in this letter are not in evidence. I was provided with a copy of the letter dated 30 May 2013 without any suggestion that I needed to see the earlier correspondence.

1. Why the plaintiffs have refused to engage beneficiaries whose interests they are obliged to take into account is a mystery no less curious than their dogmatic assertion of a "take it or leave it" entitlement to judicial advice, their refusal to provide a customary memorandum of opinion and their presentation of a Statement of Facts expressed in terms of their subjective state of mind.

THE WILL INCLUDES A "SENIOR COUNSEL ADVICE CLAUSE"

1. In defending the absence of any formal memorandum of opinion from counsel in support of the summons for judicial advice, the plaintiffs have submitted that there is no utility in the provision of such an opinion because, at the end of the day, all that matters is the opinion of the Court. For the reasons I have stated, I do not accept that contention. It places considerably less value on the considered opinion of counsel than judges have traditionally done.

1. The absence of a formal memorandum of opinion is all the more noticeable in these proceedings because clause 9(b) of the Will expressly empowers the testator's Trustee: "To take and act upon the opinion of any Queen's Counsel practising in the Supreme Court of New South Wales whether in relation to the interpretation of this my Will or any other document or statute or as to the administration of the Trusts hereof without being liable to any of the persons beneficially interested in respect of any act done in accordance with such opinion BUT nothing in this paragraph shall prohibit my Trustee from applying to any Court if it should think fit."

1. The significance of such a clause appears in the following extract from Scott and Ascher on Trusts (5th ed, USA, 2007), volume 4, p 1681:

"The terms of the trust sometimes provide that the trustee is not to be held liable for any action taken or omitted in reliance on the opinion of counsel. Such a provision, it would seem, is not invalid as against public policy if the trustee acts in good faith and with reasonable prudence, even if, as a result of the advice of counsel, the trustee makes a mistake of law as to the extent of its duties or powers. [References to US case law omitted]".

1. For my part, unless compelled by a contrary intention of the testator to do so, I would read the expression "any Queen's Counsel practising in the Supreme Court of New South Wales" as including any member of the Bar practising in the Court as a "Senior Counsel", bearing in mind that, since 1993, appointments of Queen's Counsel have been replaced in New South Wales by appointments of "Senior Counsel" as direct equivalents: R McColl (1994) 68 ALJ 470. The first SCs were announced on 22 November 1993, shortly after the date of the testator's codicil.

1. In the absence of extrinsic evidence suggesting that the testator's intention was fixated on the office of Queen's Counsel, I would readily infer an intention that the Trustee could, within the meaning of clause 9(b), take and act upon the opinion of any Senior Counsel practising in the Supreme Court of New South Wales, whether blessed with the post nominals "QC" or the equivalent "SC".

1. Clause 9(b) expressly reserves the entitlement of the testator's "Trustee" to make an application to the Court for judicial advice. The nature of the office of a trustee is such that a provision purporting to deny such an entitlement might well be ineffective in any event: Leerac Pty Ltd v Garrick E Fay [2008[ NSWSC 1082 at [23].

1. The point under consideration here is not whether the testator's "Trustee" was entitled to apply for judicial advice rather than taking and acting upon the opinion of counsel (whether a silk or not); but what, if any, implications the absence of a memorandum of counsel's opinion might have for the fate, or on the course, of the application for judicial advice the plaintiffs have made.

THE NATURE AND LIMITS OF QUESTIONS FOR JUDICIAL ADVICE

1. The questions for consideration on their summons for judicial advice are said by the plaintiffs to be simply questions of "construction", not touching upon the identity of beneficiaries or the respective rights of beneficiaries.

1. That might, ultimately, prove to be so. However, on one construction of clause 5A perceived by the plaintiffs to be open, any question of "construction" may be predicated upon an assumption as to the present or prospective existence of children of the three sons of the testator named in the schedule to the Will.

1. The form of the central statement of fact on this subject in the plaintiffs' formal Statement of Facts presents a problem with the provision of judicial advice on an ex parte basis, in the proceedings as presently constituted, without insistence upon a closer examination of assumptions of fact which underlie it.

1. Paragraphs 12 and 13 of the Statement take the following form:

"12. The Trustees have not been informed and are not aware of any additional children born to or adopted by [the first plaintiff's brothers nominated in the schedule to the Will] other than those named [in the schedule]. The first plaintiff and his wife, the second plaintiff, also have no children other than those named [in the schedule].

13. The Trustees believe that the plaintiffs' son, ..., whose date of birth is 7 October 1988, is the youngest of the beneficiaries and that, as a result, all the known beneficiaries of the estate had attained the age of twenty-one as at 7 October 2009. [Emphasis added]".

1. These paragraphs invite the Court to proceed on the basis of an unexamined state of mind of the plaintiffs without elaboration of any objective, underlying facts and without any assurance that the plaintiffs have made inquiries, let alone reasonable inquiries, about facts which they implicitly invite the Court to assume to be true. They invite the Court to assume, without inquiry, that the only children that the testator's three named sons have ever had are all named in the schedule to the Will.

1. The protection afforded trustees under s 63(2) is qualified by a proviso that focuses attention on the state of mind of a trustee.

1. I do not suggest that there is any foundation in these proceedings for suggesting that the plaintiffs may have been "guilty of ... fraud or wilful concealment or misrepresentation" in seeking to obtain judicial advice based upon paragraphs 12 and 13 of their Statement of Facts. However, the italicised passages in those paragraphs present, at least, a problem of form and, possibly, one of substance.

1. As a matter of form, they invite the Court to proceed upon assertion of a subjective state of mind (an assumption) without any assurance that it has a reasonable foundation in objective fact.

1. As a matter of substance, were the Court to grant the plaintiffs judicial advice based upon facts stated at that level of abstraction, and qualified by reference to the plaintiffs' state of mind, it could unwittingly invite a disappointed beneficiary to engage the plaintiffs in a contest about the operation of the proviso. It is not in the interests of the plaintiffs, beneficiaries or the administration of justice to allow the proceedings to be decided, one way or the other, without further inquiry about the foundations in objective fact of the subjective state of mind claimed by the plaintiffs.

1. Perhaps, more fundamentally, a failure to articulate contextual facts (highlighted by the absence of a memorandum of counsel canvassing issues that might arise on the facts or incidentally to them) deprives the Court of materials upon which it might form a view as to whether or not interested parties should be permitted an opportunity to canvass identified facts or to offer an elaboration of them.

1. The importance of these considerations is magnified in a case concerning a question about whether a class of beneficiaries should be found to have closed in circumstances in which contextual facts suggest, or may suggest, that the possibility of a beneficiary, presently unknown, emerging in the future may be no more than a hypothetical, but unrealistically remote possibility.

1. The Court's equity jurisdiction must be exercised with a conscientious regard for the interests of all persons interested in the due administration of a trust, whether they are born or unborn, present or absent. It is not, however, a captive of unrealistic, remote possibilities.

1. The intention of the testator is paramount; but an element of doubt about what it is, or how it might be implemented, may (in an appropriate case) provide an occasion upon which present practicalities can be accommodated in the service of a testator's presumed intention.

1. An illustration of different means by which the testator's family might move towards an outcome in which any dispute about the proper construction, and operation, of the Will may be resolved can be found in Salkeld v Salkeld (No 2) [2000] SASC 296 at [26]-[35] and [48]-[51]. The reasoning in that case, if correct, might be thought to suggest, for example, that the plaintiff's application for judicial advice might extend to: (a) a question whether a formal compromise of family disputes about the trust might be approved in the exercise of the Court's inherent jurisdiction; or (b) a question whether the trustee would be justified in making, or supporting, an application for a variation of the terms of the trust in an Australian jurisdiction which (unlike New South Wales) has an analogue of s 59C of the Trustee Act 1936 SA, allowing the court to approve a revocation or variation of a trust.

1. Another possibility that might be explored is the question whether the construction given to s 72 of the Trustee Act 1925 NSW in Re Estate of McCready [2004] NSWSC 887; 12 BPR 22, 327 at [15]-[17] and [26]-[30] might be open to being distinguished, if not challenged. The terms of the trust under consideration in that case (identified in [5]-[7]) involved a contingent remainder prospectively without remaindermen. That might be thought to be different from the present case, where, subject to disfeasance if they do not survive for a further indefinite time, all the known beneficiaries of the class of beneficiaries nominated by the testator may be said to have an established equitable right vested in interest, albeit not in possession.

1. Section 72 of the Trustee Act is in the following terms:

"72. Contingent Rights of Unborn Persons.

Where any property is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence, would in respect thereof become entitled to or possessed of the property on any trust, the Court may make a vesting order releasing the property from the contingent right, or vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the property."

1. Whether s 72 or any of the other possibilities I have identified might have any scope for practical operation I do not know because: (a) the plaintiffs' written submissions suggest that (by reason of amendments to the text) uncertainty may attach to the text of the Will; (b) the Statement of Facts proferred by the plaintiffs is bare of detail; and (c) absent a supporting memorandum of counsel, I do not know whether the various possibilities I have canvassed have or have not been considered by the plaintiffs, or by any other persons interested in the subject trust.

1. I am not to be taken as embracing any of these possibilities as a solution to such (if any) disputation there may be within the testator's family. The more limited point I seek to make is that the present manner and form of the plaintiff's application for judicial advice raises questions rather than simply offering answers.

1. A more detailed elaboration of the facts of the present case than can be found in the plaintiff's Statement of Facts might suggest, at least to some beneficiaries, the desirability of exploring practical possibilities opened up by a consideration of Salkeld and other lines of inquiry.

1. I have no information about the respective personal circumstances of the beneficiaries named in the schedule to the Will, not limited to three named sons of the testator. In particular, I do not know their respective dates of birth or whether any of the three named sons did or did not, in fact, have additional, unnamed children (as a birth parent or by adoption) at the time of the testator's death.

1. If I were to take the view that the questions stated for consideration in the plaintiffs' summons are ripe for determination without information beyond that set out in the plaintiffs' Statement of Facts, the questions for consideration would bear, not only the character of questions of construction, but questions about the reasonableness of assumptions of fact as to the past, present or prospective existence, or otherwise, of beneficiaries falling into the final, residuary class of grandchildren entitled to benefit.

1. In substance, the plaintiffs might be thought to seek something in the nature of a "Benjamin Order" (named after In Re Benjamin [1902] 1 Ch 723), adapted to a next of kin inquiry, to the effect that the plaintiffs are at liberty to distribute the testator's estate on the footing that the testator's three named sons have never had and are not now capable of having more children beyond those named in the schedule to the will.

1. The plaintiffs' submissions do not appear to have exhausted everything that might reasonably be said on such questions.

1. They say nothing of the rule against perpetuities, the class closing rules or the different meanings of "vested". The importance of this omission lies not so much in a suggestion that those rules apply to clause 5A of the Will as in a need, upon a construction of the Will, to discern their influence. The draftsman of the Will, in both the unamended text and in the insertions added to clause 5A and the schedule, appears to have been conscious of the need to accommodate those rules. Upon that assumption, a correct assessment of the testator's intention needs to work through their influence on the selection of language to express that intention.

1. I do not know whether such (if any) differences of opinion as may divide the attitudes of the known beneficiaries as to whether the trust has vested depend on arguments relating to private international law factors.

1. I assume (but I do not know as a fact) that all known beneficiaries of the trust governed by the will agree that the law to be applied is that of New South Wales.

1. In saying this, I am mindful that the deceased appears to have made both his will and his codicil, and to have been domiciled, in New South Wales. However, I am equally mindful that he appears to have had a substantial presence overseas. The plaintiffs' Statement of Facts recites that, after his Australian Will was made, he made another Will in Singapore, dealing with his assets outside Australia, and probate of that later Will was granted to his widow and a person other than the plaintiffs in Singapore on 29 September 1997.

1. The plaintiffs' Statement of Facts recites that clause 6 of the Singapore Will provides that it was not intended by the testator to affect his Australian property or the operation of his Australian Will. That may well be right. However, I do not know whether anybody interested in the estate of the testator by virtue of the Singaporean Will challenges the proposition that the testator's Singaporean and Australian Wills were to take effect concurrently and independently.

1. I do not know anything about the terms upon which the estate of the testator's widow is held, or whether any person interested in that estate claims to be affected by answers that may be given to the questions stated for consideration in the plaintiffs' s 63 summons.

1. The fact that these different perspectives may be open highlights the question whether the questions stated for consideration of the Court in that summons are ripe for determination.

PRINCIPLES GOVERNING AN APPLIATION FOR JUDICIAL ADVICE

The Macedonian Church Case

1. Authoritative guidance on the construction and operation of s 63 is available in the judgment of the High Court of Australia in Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66.

1. Care needs to be taken not to be misled by broad, normative statements made in texts and case law predating this judgment. It scrutinised the jurisprudence of judicial advice more closely than most of the authorities that preceded it.

1. The urgency that not uncommonly attaches to a s 63 application arising under the first limb of s 63(1) relating to a question of "management or administration", as distinct from a "construction" issue arising under the second limb, may have operated against a closer review of the topic in earlier cases.

1. The comparative lack of urgency attaching to many cases that might fall distinctly within the second limb might also explain the reluctance of judges, at least in former times, to countenance use of s 63 as a mechanism for resolution of disputes about the interpretation of a trust instrument.

1. The s 63 application considered by the High Court was treated as involving both limbs of s 63(1); namely, a question "respecting the management or administration of ... trust property" and a question "respecting the interpretation of [a] trust instrument": 237 CLR 89-90 [58] and 127 [195]. It was, as English cases would call it, a Beddoe application, named after Re Beddoe [1893] 1 Ch 547: an application that calls for consideration whether or not a trustee should bring or defend, or continue to bring or defend, proceedings in the capacity of a trustee.

1. The judgment of the High Court expressly did not consider how far this Court may have jurisdiction to give judicial advice by reason of the inherent jurisdiction of a court of equity, or by reason of the Supreme Court Act 1970 NSW, s 22 or s 23: 237 CLR 81 n 47.

1. Nevertheless, a premise underlying the High Court's consideration of the operation of s 63 is that a trustee might obtain the direction or opinion of this Court on a matter of administration or management, or as to a question of construction of a trust instrument, on an application for an order for the general administration of the trust by this Court: 237 CLR 90 [61] - 91 [63].

1. Another, related premise underlying the High Court's judgment is that the procedure for which s 63 provides is functionally similar, and a procedural alternative, to the procedure for which Part 54 of the Uniform Civil Procedure Rules 2005 NSW presently provides: 237 CLR 85 [43] - 86 [45].

1. Whereas s 63 provides a statutory mechanism for the provision of judicial advice, incorporating (as explained at 237 CLR 84 [39]-[40]) innovations not formerly found in antecedent legislation in New South Wales or England, the procedure for which UCPR Part 54 and its analogues provide may be described as a proceeding for a "partial administration order" of a trust in lieu of an order for general administration.

1. What is meant by that expression, a "partial administration order", can be gleaned from a consideration of UCPR rules 54.1, 54.2, 54.3, 54.6 and 54.7. They are in the following terms:

"54.1 Definitions

(cf SCR Part 68, rule 1) In this Part:

"administration proceedings" means proceedings for the administration of an estate, or for the execution of a trust, under the direction of the Supreme Court.

"ancillary proceedings" means proceedings brought pursuant to rule 54.3.

"estate" means a deceased person's estate.

54.2 Application of Part

(cf SCR Part 68, rule 3) This Part applies to both administration proceedings and ancillary proceedings.

54.3 Relief without general administration

(cf SCR Part 68, rule 2)

(1) Proceedings may be brought for any relief which could be granted in administration proceedings.

(2) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including:

(a) any question arising in the administration of an estate or in the execution of a trust,

(b) any question as to the composition of any class of persons:

(i) having a claim against an estate, or

(ii) having a beneficial interest in an estate, or

(iii) having a beneficial interest in property subject to a trust,

(c) any question as to the rights or interests of a person who claims:

(i) to be a creditor of an estate, or

(ii) to be entitled under the will, or on the intestacy, of a deceased person, or

(iii) to be beneficially entitled under a trust.

(3) Proceedings may be brought for an order directing any executor, administrator or trustee:

(a) to furnish accounts, or

(b) to verify accounts, or

(c) to pay funds of the estate or trust into court, or

(d) to do or abstain from doing any act.

(4) Proceedings may be brought for:

(a) an order approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee, or

(b) directing any act to be done in the administration of an estate that the Supreme Court could order to be done if the estate were being administered under the direction of the Court, or

(c) directing any act to be done in the execution of a trust that the Supreme Court could order to be done if the trust were being executed under the direction of the Court.

(5) Subrules (1)-(4) do not limit the operation of each other.

(6) In any proceedings brought pursuant to this rule, a claim need not be made for the administration of the estate, or the execution of the trust, under the direction of the Supreme Court.

54.6 Supreme Court not required to order general administration

(cf SCR Part 68, rule 8 (1))

The Supreme Court need not make an order for the administration of an estate, or for the execution of a trust, under the direction of the Court unless the order is necessary for the determination of the questions arising between the parties.

54.7 Supreme Court may order general administration in certain circumstances

(cf SCR Part 68, rule 8 (2))

(1) This rule applies if it appears to the Supreme Court that an order for the administration of an estate or the execution of a trust under the direction of the Court is necessary:

(a) to prevent proceedings by any person who claims:

(i) to be a creditor of the estate, or

(ii) to be entitled under the will, or on the intestacy, of the deceased, or

(iii) to be beneficially entitled under the trust, or

(b) to protect the interests of any person who is, or who may be, beneficially entitled under the trust.

(2) In these circumstances, the Court:

(a) may make such an order, and

(b) may further order that no steps are to be taken under the order, or under any account or inquiry directed, without the leave of the Court."

1. The fact that the "summary" nature of a s 63 application for judicial advice, and an application for a partial administration order under UCPR Part 54, is described by reference to the jurisdiction available in a suit for the general administration of a trust (the characteristic features of which are described in McLean v Burns Philp Trustee Co Ltd (1985) 2 NSWLR 623 at 633C-636F) testifies to the fact that, implicitly, the High Court did take into account both the inherent jurisdiction of a court of equity and the jurisdiction of this Court by virtue of the Supreme Court Act 1970, s 22.

1. Section 22 preserves the jurisdiction of the Court as formerly established as the superior court of record in New South Wales, ultimately by the operation of the Third Charter of Justice issued pursuant to Act 4 George IV c 96, known colloquially as "The New South Wales Act 1823 (Imp)".

1. The importance of this observation may be diminished by the broad and flexible operation attributed to s 63 by the High Court. Nevertheless, if one separates the procedural form through which equity jurisdiction was administered at the time of reception of English law in New South Wales (via a suit for the general administration of a trust) from the purpose and content of that jurisdiction (namely, the due administration of trusts, including the protection of trust property and the supervision of trustees), one sees that the High Court's judgment is informed by jurisprudence that is central to "the inherent jurisdiction of a court of equity".

1. The general law concept of a trust is a product of that jurisprudence. Statutory "trusts" are, by nature, regulated by their governing legislation. The procedures for which s 63 of the Trustee Act and UCPR Part 54 provide may apply to trusts of that description, but their field of operation is much broader. Hence the necessity for flexibility in their operation.

1. Section 63 contemplates an application to the Court by a "trustee". The expression "trustee" is defined by s 5 of the Trustee Act to include a "legal representative". That expression is defined by s 5 to include an "executor". An "executor" is defined to mean "the executor to whom probate has been granted".

1. The application of s 63 and Part 54 must, in each case, be informed by the purposes they serve. Those purposes include both the protection of trust property and, as an incident of the obligations imposed on a trustee, protection of a trustee in the due administration of trust property: 237 CLR 91 [64] - 92 [66], 94 [72]-[73]. Another way of putting this may be to say that the principal purpose of the Court is the protection of the interests of the trust and, incidentally, protection of a trustee acting in those interests: 237 CLR 128 [196].

1. The Court, by virtue of the legislation governing its procedures (including s 63, UCPR Part 54 and, no less, the case management provisions of the Civil Procedure Act 2005 NSW and the UCPR) and general principles of equity, is required to have regard to considerations of expediency in the service of the jurisdiction it exercises in aid of the due administration of a trust.

1. With this in mind, I turn to eight points specifically identified by the plurality in the Macedonian Church case as material to the operation of s 63: 237 CLR 89 [54] - 95 [76].

1. First, the jurisdiction or power conferred by s 63 is not constrained by implications or limitations not found in the express words of the section: 237 CLR 89 [55]. There is nothing express or implied in s 63 that limits its application to "non-adversarial" proceedings, or proceedings other than those in which a trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office: 237 CLR 89 [55]-[57].

1. Secondly, only one jurisdictional bar to s 63 exists: an applicant must point to the existence of a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument: 237 CLR 89-90 [58].

1. Thirdly, there is nothing express or implied in the text of s 63 that makes some discretionary factors always more significant or controlling than others. There are no implied limitations on discretionary factors arising under s 63. The Court's discretion is confined only by the subject matter, scope and purpose of the legislation: 237 CLR 90 [59] and 128 [196].

1. Thus (as appears at 237 CLR 90 [60]): (a) the fact that a court may rely on a written statement of the trustee, or use other material "instead of evidence" by reason of s 63(3), gives rise to discretionary considerations of substantial weight where the question for advice is in form or substance an application which will determine or affect questions that could also be resolved in ordinary adversarial litigation; and (b) the Court may properly decline judicial advice if, for example, a contested construction suit, constituted by the disputing parties and resolved by a judge acting on evidence, appears to be more apt to the resolution of a question concerning the interpretation of a trust instrument; but (c) the discretion of the Court to consider applications brought under s 63 is not yoked to a general first principle that, where there is a contest or where there are adversaries, it is not appropriate to give advice.

1. Fourthly, the procedure for which s 63 provides is "summary" in the sense that it permits a trustee to obtain the opinion, advice or direction of the Court without commencement of a suit for the general administration of a trust: 237 CLR 90 [61] - 91 [63].

1. Fifthly, s 63 operates as an exception to the Court's ordinary function of deciding disputes between competing litigants. It affords a facility for giving advice to a trustee that is "private" in the sense that a primary function of the section is to give personal protection to the trustee; others permitted to participate in a s 63 application, because they may be affected by advice given to a trustee, are not strictly speaking "parties" to the proceedings or in a position of parity with the trustee: 237 CLR 91 [64] - 92 [66].

1. Sixthly, the operation of s 63 will tend to vary with the type of trust involved: 237 CLR 92 [67] - 93 [68]. Every s 63 application depends on its own facts and is essentially a matter for the discretion of the judge who hears it: 237 CLR 88 [51]. The merits of any particular decision made under s 63 must depend on the particular circumstances of the case in which the decision was made: 237 CLR 95 [76].

1. Seventhly, s 63 makes provision for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office, and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of litigation: 237 CLR 93-94 [71].

1. Eighthly, certain propositions enumerated in the judgment of the Court of Appeal under review in the High Court - reported in [2007] NSWCA 150 at [63] - should not be regarded, as propositions, as expressing the governing law in Australian courts.

1. Semble, the propositions disclaimed by the High Court are propositions to the effect that:

(a) the proper province of judicial advice is guidance for the future;

(b) section 63 is intended to empower advice to be given to those who have the stewardship of property for the benefit of others;

(c) section 63 does not empower advice in connection with litigation that concerns merely whether the trustee has, in the past, committed breaches of trust even if the litigation (to establish the alleged breach of trust) necessarily involves the proper construction of a trust instrument;

(d) section 63 does not empower advice in connection with litigation that involves merely allegations of past misconduct on the part of the trustee that, if established, will entail personal liability for breach of trust or statutory wrongdoing (and where the trust property will, in no way, be protected or enhanced by defence of the claim); and

(e) the provision to a trustee of an indemnity from trust assets should not be provided in advance under colour of private judicial advice.

1. Care needs to be taken in elaboration of the High Court's disclaimer of these propositions because its disclaimer was generic and not entirely unqualified. The object of the disclaimer appears, in part, to have been to caution against the imposition of a gloss, of any description, on the text of s 63. Care needs to be taken not to elevate any disclaimer of a particular proposition into a counter-proposition likewise suffering from the character of a gloss on the governing legislation.

1. Not unnaturally, the High Court's observations have been taken as an encouragement to trustees to make a s 63 application whenever confronted by an element of doubt about steps to be taken in the due administration of a trust; as an encouragement to courts of first instance to exercise s 63 jurisdiction liberally; and as an encouragement to them not to withhold judicial advice by adoption of a restricted view of the operation of s 63. See, for example, 237 CLR 91 [63], 93 [69]-[70] and 94 [74].

1. The High Court's judgment has served the beneficial purpose of opening to view the breadth and flexibility of the jurisdiction of this Court to aid the due administration of trusts by proceedings for relief falling short of a general administration order.

1. However, if the jurisdiction of the Court to aid the due administration of trusts is to be exercised fairly, efficiently and beneficially, care needs to be taken to ensure that an application to the Court is not made unnecessarily, prematurely or without due engagement of persons who may have an interest in the outcome of a s 63 application.

1. That is so for at least two reasons. First, s 63 reflects a compromise between a procedure for affording private advice to trustees and the need for affected persons to be given a hearing in some cases: 237 CLR 92 [65]. Secondly, even if (as s 63 contemplates) the rights of a person potentially affected by a provision of judicial advice will not necessarily be affected without notice of the advice or of pending s 63 proceedings, the ability of the Court to provide well measured advice may be affected to the extent that it is not given the benefit of a full appreciation of what competing interests might say if allowed an opportunity to inform the Court of a perspective different from that presented by a trustee appearing ex parte.

1. There is, an element of forensic judgement required of a trustee in deciding to make an application for judicial advice and in the preparation of materials to be placed before the Court. And there is, likewise, an element of judgement required on the part of the Court upon a consideration whether judicial advice should be given without notice to interested parties. Nice questions of case management may arise in order to minimise the risk of proceedings becoming unmanageable.

A PROVISIONAL CONSTRUCTION OF THE WILL

1. Given: (a) the existence of contention within the testator's family about the proper construction of clause 5A; (b) the plaintiffs' suggestion that construction of the Will may require consideration of whether the terms of clause 5A are attended by clerical error productive of substantive doubt; and (c) the course taken by the plaintiffs in approaching the Court without fully engaging the views of beneficiaries or such (if any) other parties who may be affected by the proceedings, and without the provision of a memorandum of counsel setting out an analysis of the problem to be solved, I am reluctant to express anything other than a provisional view about the correct interpretation of the Will or about appropriate steps to be taken in management or administration of the trust created by clause 5A.

1. In these circumstances, I propose to express a provisional view about the construction of clause 5A, and to reconsider what course to take upon a final determination of the proceedings after giving directions designed to bring these proceedings (including my Reasons for Judgment) to the attention of all beneficiaries and legal personal representatives of the testator other than the plaintiffs, leaving to them the decision whether or not (at their own risk as to costs) they seek to be heard.

1. In my opinion, provisionally:

(a) Clause 5A of the Will is to be read in the form set out in paragraph 70 above.

(b) The problem to be solved in these proceedings does not ultimately depend only (or even mainly) upon difficulties with the construction of clause 5A, but with the apparent absence of due inquiry by the plaintiffs into the facts (or, at least, their presentation to the Court of facts) to which the clause is directed.

(c) The proper construction of clause 5A falls into place when it is construed in the legal context in which it was drafted, a context which includes, under the general law, both the rule against perpetuities and the class closing rules. That context appears to have influenced the form of clause 5A. When it is taken into account, the plaintiffs' suggestion that uncertainty attaches to the text of the clause evaporates.

(d) The residual class of grandchild beneficiaries for which the schedule to the Will provides presents no problem, vis à vis the rule against perpetuities, because of: (i) the inclusion in clause 5A of the expression "who shall be living at the date of my death"; and (ii) definition of the prospective beneficiaries by reference to the testator's sons, each of whom could serve as a "life in being" for the purposes of the rule. In terms of the rule against perpetuities, no invalidity arises from a remoteness of vesting.

(e) Despite the fact that the operation of the class closing rules favours an earlier rather than a later "vesting" of property, the intent of the testator appears to have been that the clause 5A gift would, for all beneficiaries, vest both in interest and in possession on the last occurring of the two post-death contingencies referred to in the clause.

(f) That the gift vested in possession on the last occurring of the two post-death contingencies is, I think, clear enough.

(g) Arguably, however, the entitlements of beneficiaries vested in interest: if they were then aged 21 years, at the time of the testator's death; or, otherwise, when they subsequently attained that age. Such an argument could draw support from use of the word "presumptive" in clause 5A in close proximity to references to the age of 21 years (in the declaration section of clause 5A) and attainment of a "vested interest" (in clause 5B), in contrast with the combination of the words "presumptive" and "contingent" in the power of advancement allowed in favour of an "infant" in clause 7. The expression "infant" was, at common law, defined by reference to the age of 21 years. The age of majority in New South Wales was generally reduced from 21 to 18 years by the Minors (Property and Contracts) Act 1970 NSW, s 9. There is, however, within that Act scope for an argument that, in the testator's Will, the word "infant" must be taken to refer to a person under the age of 21 years: ss 6(2), 9(2)(b). Juxtaposition of the declaration section of clause 5A and clause 7 could reinforce that argument, absent which there could be a gap in the provision made for beneficiaries aged between 18-21 years.

(h) If the entitlement of a beneficiary were to vest in interest before the last occurring of the two post-death contingencies referred to in clause 5A, but in possession on the occurrence of that event, then that beneficiary may have an entitlement to participate in a distribution of the trust capital on the happening of the event.

(i) On the information currently to hand in the plaintiffs' Statement of Facts, the only known beneficiary who might fall into this category is the widow of the testator, whose deceased estate might have an interest in arguing against the proposition stated in paragraph (e) above. I have no information about the identity of the person or persons beneficially entitled to the widow's estate.

(j)   On the proper construction of clause 5A, membership of the class for which the clause provides depends, inter alia but critically, upon a candidate for class membership having been alive at the time of the testator's death.

(k) That criterion may not have been duly investigated by the plaintiffs. It has been presented to the Court in terms of their subjective state of mind based upon assumptions of fact.

(l) If the plaintiffs' assumptions of fact are grounded in objective fact, the clause 5A gift must, prima facie, be taken to have vested in possession, for all beneficiaries, on or about 2 August 2012, 15 years after the testator's date of death and three years or so after the youngest beneficiary turned 21.

1. Two critical questions remain to be considered before the plaintiffs' summons can be the subject of a final determination:

(a) Can the Court be satisfied that there is a reasonable foundation for the plaintiffs to act on the basis (or for the Court to find as a fact) that, at the time of the testator's death, his three named sons had no living children other than the children named in the schedule to the Will?

(b) Is there a class of persons interested in the estate of the testator (either under a will other than the testator's Australian Will or on a partial intestacy) who may, at their own risk as to costs, seek to argue that the clause 5A trust is invalid, that it has not vested in possession or that it vested in interest earlier than it vested in possession ?

1. I invite the plaintiffs to address these questions by affidavits filed and served on interested parties before the proceedings return to the Court for directions, or final orders, as the nature of the case may then require.

1. In anticipation of that event, I make the following orders:

(1) Order that the plaintiffs on or before 26 July 2013 serve on: (a) all beneficiaries named in clause 5A of the testator's Will (including the legal personal representatives of the widow of the testator); and (b) all legal personal representatives of the testator other than themselves, copies of the following documents:

(1.1) the Summons filed on 3 June 2013.

(1.2) the plaintiffs' Statement of Facts dated 31 May 2013 (Exhibit P1).

(1.3) the letter dated 30 May 2013 addressed by Arnold Bloch Leibler to Minter Ellison Lawyers (Exhibit P2).

(1.4) the plaintiffs' written submissions dated 3 June 2013.

(1.5) the plaintiffs' supplementary written submissions dated 4 June 2013.

(1.6) these Reasons for Judgment.

(1.7) these Orders.

(2) Order that these proceedings be listed before Lindsay J at 9.30am on 2 August 2013 for directions, or final orders, as the nature of the case may then require.

1. These orders are made by reference to s 63(4) of the Trustee Act as well as the case management provisions of the Civil Procedure Act and the Uniform Civil Procedure Rules and the Uniform Civil Procedure Act.

1. It is not necessary for the purpose of this judgment to enter upon controversy about the nature and extent of the Court's inherent jurisdiction, in supervision of the administration of trusts, to order the disclosure of information to a beneficiary or object of a trust: Cf, Schmidt v Rosewood Trust Limited [2003] 2AC 709 at 729-730 [51]-[54], 732 [59], 733 [61] and 734 [66], citing Hartigan Nominees Pty Limited v Rydge (1992) 29 NSWLR 405 and Spellson v George (1987) 11 NSWLR 300; McDonald v Ellis (2007) 72 NSWLR 605; JD Heydon and MJ Leeming (ed), Jacobs' Law of Trusts in Australia (7th ed, 2006) paras [1716]-[1717].

1. Section 63(4) provides statutory recognition of the power of the Court to direct that notice of an application for judicial advice under the section be served on any person. In these proceedings, for the reasons outlined, the proper disposition of the application requires that persons who have, or may have, an interest in the due administration of the testator's estate be given an opportunity (at their own risk as to costs) to be heard.

1. The role to be played by the plaintiffs, as trustees, upon the return of the proceedings before the Court (after the service of notice of the proceedings on potentially interested parties) will depend upon the questions, if any, then identified for determination and the presence, or otherwise, of parties able to serve as contradictors.

1. The plaintiffs are required, by virtue of their office as trustees, to adapt their role to facilitate an orderly determination of such, if any, disputes as remain to be determined. An assumption cannot, and should not, be made that it will be necessary, or appropriate, for them to assume an adversarial role. The focus of these proceedings is on taking such steps as may be required to facilitate a due administration of the testator's testamentary trusts.

1. All questions of costs are reserved for further consideration.

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1. ADDENDUM (5 August 2013)

1. On 27 June 2013 separate proceedings instituted by some beneficiaries of the estate of the Late Chow Cho-Poon ("the deceased") came before Lindsay J for directions. The summons claimed declarations as to construction of clause 5A of the will of the Deceased and, more particularly, an order that the trustees of the trust created by that clause "account for the assets and accrued income of the estate" of the deceased.

1. Lindsay J ordered that the beneficiaries' proceedings be listed before him at 9.30am on 2 August 2013 for directions or final orders.

1. The two sets of proceedings came before Lindsay J at that time. The only parties who appeared before his Honour were the trustees and the particular beneficiaries who had commenced proceedings against the trustees.

1. After reading affidavits filed in response to the directions given by him on 26 June 2013, and entertaining submissions by the parties before the Court, Lindsay J made notations and orders on the trustees' application for judicial advice (in Case No. 2013/00171883) that including the following:

(1)   NOTE:

(a) the affidavit of Chow Kwok Ching (the first plaintiff) sworn 1 August 2013.

(b) the affidavit of Gary Stephen Ulman (solicitor for the plaintiffs) sworn 31 July 2013.

(c) there has been no appearance before the Court by any person other than the plaintiffs in these proceedings and the plaintiffs in the related proceedings bearing Case No. 2013/190172.

(d) each of the parties who has appeared before the Court in these proceedings (namely, the plaintiffs in these proceedings and the plaintiffs in Case No. 2013/190172) supports the granting of judicial advice to the plaintiffs (Trustees of the Estate of the Late Chow Cho-Poon) substantially in the terms of paragraph 203 (l) of the Reasons for Judgment published by Lindsay J as [2013] NSWSC 844 (26 June 2013).

(2)   ORDER that any requirement (by virtue of orders made by Lindsay J on 26 June 2013) for further service of notice of these proceedings be dispensed with.

(3)   ORDER that the plaintiffs would be justified in administering the estate of the Late Chow Cho-Poon ("the Deceased") on the basis that:

(a) the terms of clause 5A of the Will of the Deceased are as set out in paragraph 70 of the Reasons for Judgment published by Lindsay J as [2013] NSWSC 844 (26 June 2013); and

(b) the gift for which clause 5A of the Will of the Deceased provides vested, in interest and possession, for all beneficiaries on 2 August 2012.

(4)   ORDER that the costs of these proceedings (comprising the costs of the plaintiffs in these proceedings and the costs of the plaintiffs in the related proceedings bearing Case No. 2013/190172) be paid out of the assets of the trust created by clause 5A of the Will of the Deceased, such costs to be assessed on the indemnity basis.

1. After entertaining submissions by the parties to the beneficiaries' proceedings (Case No. 2013/00190172), Lindsay J gave directions for the further conduct of those proceedings.

Amendments

05 August 2013 - Addendum added 5 August 2013

Decision last updated: 05 August 2013