Re Public Trustee of Queensland

The matter before the court involved the Public Trustee of Queensland, who was the custodian trustee of several managed investment schemes, seeking advice and directions from the Court. The Public Trustee, Opus Capital Limited, which was the managing trustee, and The Trust Company (Australia) Limited, a third party involved in the transfer of assets, were the parties to the dispute. The Public Trustee sought directions from the court regarding whether it should commence proceedings against Opus Capital Limited for the recovery of unpaid legal fees and whether it should comply with certain instructions received from Opus Capital Limited.

The court was required to decide whether it was appropriate for the Public Trustee to initiate legal proceedings against Opus Capital Limited to recover unpaid legal fees and whether the Public Trustee was authorised to comply with the instructions from Opus Capital Limited to transfer the assets of the managed investment schemes from the Public Trustee to The Trust Company (Australia) Limited. The court also needed to determine whether the Public Trustee could retain and assert a lien over the assets of the managed investment schemes to secure the claims for indemnification.

The court held that it was appropriate for the Public Trustee to commence proceedings seeking orders contained in the draft originating application. The court also held that the Public Trustee could properly comply with the Notices of Proper Instructions and the directions from Opus Capital Limited to transfer the assets of the managed investment schemes, subject to certain conditions. The court further held that the Public Trustee could retain and assert a lien over the assets of each scheme in an amount sufficient to meet the claims for which the Public Trustee seeks to be indemnified until such time as the right to indemnification and lien were finally determined by the court or agreed by the Public Trustee and Opus Capital Limited.

The court made directions in accordance with the relevant sections of the Public Trustee Act 1978 (Qld) and the Trusts Act 1973 (Qld). The court directed that it was appropriate for the Public Trustee to commence proceedings seeking orders contained in the draft originating application. The court also directed that the Public Trustee could properly comply with the Notices of Proper Instructions and the directions from Opus Capital Limited to transfer the assets of the managed investment schemes, subject to certain conditions. The court further directed that the Public Trustee could retain and assert a lien over the assets of each scheme in an amount sufficient to meet the claims for which the Public Trustee seeks to be indemnified until such time as the right to indemnification and lien were finally determined by the court or agreed by the Public Trustee and Opus Capital Limited.