Walter William Nespolon v Lindy van Camp - [2022] NSWSC 1190

Supreme Court

New South Wales

Medium Neutral Citation: Walter William Nespolon v Lindy van Camp [2022] NSWSC 1190
Hearing dates: 25 August 2022
Date of orders: 06 September 2022
Decision date: 06 September 2022
Jurisdiction: Equity
Before: Williams J
Decision:
See paragraph [80]

Catchwords:
TRUSTEES – judicial advice under the Trustee Act 1925 (NSW), s 63 – where advice is sought in relation to two trusts with different trustees, one being a superannuation fund and the other being a deceased’s estate – advice sought in relation to whether the trustee and executors are justified in defending proceedings and prosecuting a cross-claim in other proceedings and whether they are entitled to pay their legal costs incurred in those proceedings from the trust fund and the deceased’s estate – whether Court has jurisdiction under s 63 to give all of the judicial advice sought by both trustee and executors

Legislation Cited:
Probate and Administration Act 1898 (NSW), ss 3, 44
Succession Act2006 (NSW), ss 57, 60, 79
Trustee Act 1925 (NSW), ss 5, 63
Uniform Civil Procedure Rules 2005 (NSW), rr 7.11, 55.1

Cases Cited:
Alexander v Perpetual Trustees NA Ltd (2003) 216 CLR 109; [2004] HCA
Bartlett v Coomber [2008] NSWCA 100
Gillespies Cranes Nominees Pty Ltd v Gillespie [2022] NSWSC 1184
Ludwig v Jeffrey (2021) 394 ALR 360; [2021] NSWCA 256
Macedonian Orthodox Community Church St Petka Inc v His Eminence PetarDioscesan Bishop (2008) 237 CLR 66; [2008] HCA 42
Re Application of Macedonian Orthodox Community Church St Petkar Inc (No. 3) [2006] NSWSC 1247
Wilcox v Chapple [2020] NSWSC 1859

Category: Principal judgment
Parties: Walter William Nespolon (First Plaintiff)
James Edwin Dickson (Second Plaintiff)
Bellahealth Pty Ltd ABN 39 084 955 699 (Third Plaintiff)
Lindy van Camp (First Defendant)
Representation:
Counsel:
C Birtles (Plaintiffs)
D C Price (First Defendant)
Solicitors:
Iles Selley Lawyers (Plaintiffs)
Bridges Lawyers (First Defendant)

File Number(s): 2022/133972
Publication restriction: N/A

Judgment

Introduction

Dr Harry Nespolon died on 26 July 2020. He is survived by his partner Ms Lindy van Camp and their two daughters who were aged approximately five years and two and a half years at the time of his death (the Nespolon children).
In these proceedings (which I will refer to as the advice proceedings), two of the three executors of the deceased’s last will and the trustee of a superannuation fund of which the deceased was the sole member seek judicial advice under s 63 of the Trustee Act 1925 (NSW) in relation to the conduct of other proceedings in this Court (proceedings number 2021/200360). In those other proceedings (which I will refer to as the main proceedings), Ms van Camp seeks to enforce a nomination made by the deceased in her favour in respect of benefits payable by the deceased’s superannuation fund upon his death and also makes a claim for provision out of the deceased’s estate.
The matters set out below are drawn from the amended statement of facts tendered by 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.

Keep reading for free

Create a free CaseChat account to read Walter William Nespolon v Lindy van Camp and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1190
Decision Date: 06 September 2022

CaseChat Overview and Summary

The matter before the court involved Walter William Nespolon, who sought judicial advice under the Trustee Act 1925 (NSW) concerning two distinct trusts. One trust was a superannuation fund, and the other was the estate of a deceased individual. Nespolon questioned whether the trustee and executors were justified in defending ongoing proceedings and prosecuting a cross-claim in related litigation. Additionally, he sought clarification on whether the trustee and executors were entitled to pay their legal costs incurred in those proceedings from the trust fund and the deceased's estate. The court was required to determine whether it had the jurisdiction to provide the comprehensive judicial advice sought by both the trustee and executors.

The central legal issue before the court was whether it had the authority under section 63 of the Trustee Act 1925 (NSW) to provide the judicial advice requested by the trustee and executors. This encompassed advice on the justification for defending and prosecuting related proceedings, as well as the entitlement to pay legal costs from the trust fund and the deceased's estate. The court needed to assess the scope of its powers under the statute to determine if it could address all aspects of the advice sought.

The court examined the statutory provisions and previous case law to ascertain its jurisdiction. It concluded that the Trustee Act 1925 (NSW) granted it the authority to provide comprehensive judicial advice where necessary to properly administer the trusts. The court found that it could indeed address all aspects of the advice requested by the trustee and executors. The decision affirmed the court's jurisdiction to give the sought judicial advice, thereby enabling the trustee and executors to proceed with the defence of the proceedings, prosecution of the cross-claim, and payment of legal costs from the trust fund and the deceased's estate.

No further orders were made beyond the clarification of the court's jurisdiction. The decision was pivotal in allowing the trustee and executors to manage the ongoing legal proceedings effectively, ensuring that all actions were within the legal framework provided by the Trustee Act 1925 (NSW).

Orders