Re Perpetual Trustee Company Limited as trustee for the Joseph Babington Davis Settlement

In the case before the court, Perpetual Trustee Company Limited, as trustee for the Joseph Babington Davis Settlement, sought judicial advice regarding their potential liability for breach of trust. The dispute centred around the interpretation of section 63 of the Trustee Act 1925 (NSW), specifically whether the court could provide advice on a matter concerning the management or administration of trust property that might lead to a trustee's liability for breach of trust. The Court of Appeal was asked to determine the extent of the court's power to provide such advice.

The central legal issue was whether the court could give advice on the potential liability of the trustee for breach of trust when the basis of that liability related to the management or administration of the trust property. The Court considered whether there were any implications within the statutory framework that would exclude such questions from the court's advisory power. Given the broad wording of section 63, the Court found that there was no exclusion that would prevent the court from providing advice on these matters.

The Court of Appeal held that the power to give advice under section 63 of the Trustee Act 1925 (NSW) was not limited by the nature of the subject matter, provided that the advice sought related to the interpretation of the trust instrument or the management or administration of the trust property. The Court found that the language of the statute did not imply any exclusion that would restrict the court's ability to advise on potential liability for breach of trust arising from the management or administration of trust property. Consequently, the Court was empowered to provide the requested advice.

The court's decision affirmed that trustees could seek judicial advice on potential liability for breach of trust, including matters related to the management or administration of trust property, without being precluded by the statutory provisions. The Court of Appeal's ruling clarified the scope of the advisory power under section 63 of the Trustee Act 1925 (NSW), ensuring that trustees have access to necessary guidance to manage their duties effectively.