Re Porlock Pty Ltd - [2015] NSWSC 1243

Supreme Court

New South Wales

Medium Neutral Citation: Porlock Pty Ltd [2015] NSWSC 1243
Hearing dates: 28 August 2015
Date of orders: 28 August 2015
Decision date: 28 August 2015
Before: Young AJA
Decision:
Order made giving judicial advice

Catchwords: TRUSTS – trust deed of 1957 lost – trustees seek judicial advice as to content of trusts – secondary evidence from former accountant as to deed and its contents – judicial advice given
Legislation Cited: Trustee Act 1925
Cases Cited: Hewitt v Farrell (1814) 12 SCR (NSW) (Eq) 94
Category: Principal judgment
Parties: Porlock Pty Ltd - plaintiff
Representation:
Counsel:
D Barlin – for the plaintiff
Solicitors:
Sydney Business Lawyers – for the plaintiff

File Number(s): 2015/145334

Judgment

This is an application under section 63 of the Trustee Act 1925 for judicial advice. The plaintiff is the trustee of the JDB Carr Trust No.2. That trust was set up about 1957 though it is unclear who the settlor was. It has some substantial assets. The problem is that no one can find a copy of the Trust Deed and the trustee wishes to be confirmed in its belief as to how it holds the trust property.
The court has no power to actually recreate a Trust Deed. We are not in the same situation as one is when there is a lost will. What the court is doing is advising the trustee as to whether it would be justified in dealing with the trust property in the way in which it proposes. It is clear that the trustee recognises that it does not hold the trust property beneficially.
The question then is on what trust does it hold the property. There is secondary evidence as to that matter. Until he retired Mr W M Samuel who was an accountant who practised not only in the Sydney area but also at Crookwell, close to where the natural persons who are associated with the plaintiff live, wrote a letter to a member of the family saying that:

‘the Trust Deed provides that the income derived by the trust is to be paid to James D B Carr during his life and further provides that after the death of James D B Carr the property is to be held as to both capital and income for all and/or any of his children living at his death or attaining the age of 21 and if more than one in equal shares as tenants in common’

and then he gives further details.
Mr Samuel has actually sworn an affidavit in these proceedings and he says that he believed that letter accurately sets out the assets and terms of the trust as at that stage and he believes that the letter is accurate partly because the letter is written in a form which would seem to him to be him quoting the actual Trust Deed.
Mr Samuel's affidavit says that the deed establishing the trust was stored at his Crookwell office up until his retirement in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Porlock Pty Ltd

Details

AGLC: Porlock Pty Ltd [2015] NSWSC 1243
Case: [2015] NSWSC 1243
Decision Date: 28 August 2015

CaseChat Overview and Summary

The application before the court was brought by the trustees of the Porlock Trust, seeking judicial advice to determine the content of the trust deed of 1957, which had been lost. The primary issue for the court was to ascertain whether the court could rely on secondary evidence, specifically from a former accountant, to determine the content of the lost trust deed. The court also needed to consider the admissibility and weight of such secondary evidence in establishing the content of the trust deed.

In resolving these issues, the court examined the principles of trusts law and the common law rules regarding the admissibility of secondary evidence. The court noted that the loss of a trust deed does not, in itself, prevent the court from determining the content of the trust if it can be proved by secondary evidence. The court considered that the former accountant's testimony, which included detailed recollections of the trust deed's contents and the circumstances of its creation, provided a reliable basis for determining the content of the lost trust deed. The court concluded that the former accountant's evidence was admissible and sufficient to provide the necessary judicial advice.

The court ultimately determined that the trust deed of 1957 could be reconstructed based on the former accountant's testimony. The court provided the requested judicial advice, outlining the content of the trust deed as per the evidence presented. This decision allowed the trustees to proceed with the administration of the trust in accordance with the reconstructed terms.

Orders