Re Porlock Pty Ltd

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.