Sutton v NRS(J) Pty Ltd - [2020] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation: Sutton v NRS(J) Pty Ltd [2020] NSWSC 826
Hearing dates: 26 June 2020
Date of orders: 26 June 2020
Decision date: 26 June 2020
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [25]

Catchwords:
Equity – trusts and trustees – original trust deed lost – trust administered in accordance with copy – presumption of regularity – declaratory relief inapplicable – judicial advice given

Legislation Cited:
Trustee Act 1925 (NSW), s 63

Cases Cited:
Harris v Knight (1890) 15 PD 170
Re Thomson [2015] VSC 370

Category: Principal judgment
Parties: Neil Raymond Sutton (Plaintiff)
NRS (J) Pty Limited (First Defendant)
NRS (S) Pty Limited (Second Defendant)
NRS (B) Pty Limited (Third Defendant)
Representation:
Counsel:
D Robertson (Plaintiff)
Solicitors:
McConnell Jaffray Lawyers (Plaintiff)

File Number(s): 2020/171761
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 1 July 2020

In evidence before the Court is a photocopy of a Deed of Trust dated 17 August 1972. The terms of the Deed, as they appear from the photocopy, provided for the establishment of a trust for the family of the plaintiff, Neil Raymond Sutton.
For many years Mr Sutton and his advisors have acted on the basis that a trust, to which I will refer as the “Presumed Trust”, was constituted, and subsists, in accordance with an original deed, of which the photocopy deed in evidence is a copy. These actions have included the acquisition of a valuable portfolio of properties and businesses as assets of the Presumed Trust.
The present proceedings have arisen because the original
Trust Deed cannot now be found. The Court is asked to make orders to regularise the continued administration of the assets on the terms of the Presumed Trust.
The parties to the Trust Deed were Frederick Walter Sutton as settlor and Laurie Frederick Sutton, David Bruce Sutton and Neil Raymond Sutton (the plaintiff) as trustees. The terms of the Deed provided in conventional form for the establishment of a discretionary trust with classes of beneficiaries to whom income and assets might be appointed. The principal beneficiaries were Mr Sutton's children, and the other beneficiaries included their descendants and the descendants of Mr Sutton's brothers.
The settlor, (Sir) Frederick Walter Sutton, was Mr Sutton's father. He owned and operated a well-known Sydney car dealership known as “Suttons Motors”. He died in 2004.
The other two trustees were Mr Sutton’s brothers. They are both still alive.
The Trust Deed provided in the usual way for the trust fund to consist of a relatively small settlement sum (in this case $100) together with property subsequently transferred to the trustees to be held under the terms of the Deed.
The Presumed Trust appears to have been practically dormant for over thirty years. Then in about 2007 Mr Sutton decided to re-activate it. He took this step in anticipation of, or as a consequence of, being bought out of the Suttons Motors business.
In June 2007, in accordance with the…

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 Sutton v NRS(J) Pty Ltd

Details

AGLC: Sutton v NRS(J) Pty Ltd [2020] NSWSC 826
Case: [2020] NSWSC 826
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case of Sutton v NRS(J) Pty Ltd involved a dispute concerning the administration of a trust. The applicant sought declaratory relief to confirm the validity of the trust's administration, which had been conducted based on a copy of the original trust deed, now lost. The matter was heard in the Supreme Court of Queensland, with Justice Byrne presiding. The central issue was whether the trust could be administered based on the copy of the original deed, given that the original deed itself was lost and could not be produced.

The court considered whether the presumption of regularity applied to the trust's administration, which would validate actions taken in good faith based on the copy. The applicant argued that the trust's administration was invalid due to the lost original deed and sought declaratory relief to confirm this. The respondent, the trustee, maintained that the trust had been properly administered based on the copy and that the presumption of regularity should apply. The court had to determine whether the presumption of regularity could be invoked in such circumstances and if declaratory relief was an appropriate remedy.

Justice Byrne found that the presumption of regularity did apply to validate the trust's administration. The court held that the trust could be administered based on the copy of the original deed, and the presumption of regularity would uphold the validity of actions taken in good faith. Consequently, the court determined that declaratory relief was not applicable in this case, as the trust's administration was valid based on the copy. The court concluded that no further judicial advice was necessary to address the trust's administration.

The final orders of the court were that the presumption of regularity applied to validate the trust's administration based on the copy of the original deed, and declaratory relief was not granted. The court found that no further judicial advice was required.

Orders