Wright v Stevens - [2018] NSWSC 548

Supreme Court

New South Wales

Medium Neutral Citation: Wright v Stevens [2018] NSWSC 548
Hearing dates: 6 – 7 December 2017; 1 February 2018 (additional written submissions)
Date of orders: 03 May 2018
Decision date: 03 May 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
The answers to the questions posed as issues are summarised at [335].
The Court stands the matter over to a date to be appointed to make final orders and to determine any outstanding issues, including how the costs of the proceedings should be borne.
Catchwords: TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.
Legislation Cited: Associations Incorporation Act 2009 (NSW)
Charitable Trusts Act 1993 (NSW)
Corporations Act 2001 (Cth)
Probate and Administration Act 1898 (NSW)
Statute of Charitable Uses 1601
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AIT Investment Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216
Application by Stevens [2016] NSWSC 1523
ASIC v Carey (No 6) (2006) 153 FCR 509; [2006] FCA 814
Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209
Avanes v Marshall (2007) 68 NSWLR 595; [2007] NSWSC 191
Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Chaine-Nickson v Bank of Ireland [1976] IR 393
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4
College of Law Pty Ltd v Attorney General of NSW [2009] NSWSC 1474
Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655; [2012] HCA 11
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531
Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep)
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53
Crociani & Ors v Crociani & Ors (Jersey) [2015] WTLR 975; [2014] UKPC 40
Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301
Deutsch v Trumble [2016] VSC 263
Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd [2007] VSC 272
Erceg v Erceg [2017] 1 NZLR 320; [2017] NZSC 28
Fairbairn v Varvaressos (2010) 78 NSWLR 577
Fay v Moramba Services Pty Ltd [2009] NSWSC 1428
Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547; [1989] 89 ATC 5274
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11
Gartside v Inland Revenue Commissioners [1968] AC 553
Goodman v Mayor of Saltash (1882) 7 App Cas 633
Hancock v Rinehart [2015] NSWSC 646
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40
Kafataris v Deputy Commissioner of Taxation [2008] 172 FCR 242; [2008] FCA 1454
Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
King v Perpetual Trustee Company Limited (1955) 94 CLR 70; [1955] HCA 70
Kinsela v Caldwell (1975) 132 CLR 458; [1975] HCA 10
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6
Ku‑ring‑gai Municipal Council v The Attorney‑General (1954) 55 SR (NSW) 65
Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157
Lea v Mo-Mont Pacific [2016] NSWSC 809
Lewis v Tamplin [2018] EWHC 777 (Ch)
Marley v Rawlings [2015] AC 129
McDonald v Ellis (2007) 72 NSWLR 605; [2007] NSWSC 1068
McGarvie Smith Institute v Campbelltown MC (1965) 11 LGRA 321
McNeill v Hearing & Balance [2007] NSWSC 942
McPhail v Doulton [1971] AC 424
Morice v Bishop of Durham (1804) 9 Ves Jun 399; 32 ER 656
Newell; Muriniti v De Costi [2018] NSWCA 49
O’Rourke v Darbishire [1920] AC 581
Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Radmanovich v Nedeljkovic [2001] NSWSC 492
Randall v Lubrano (Supreme Court (NSW), Holland J, 31 October 1975, unrep)
Rauch v Maguire [2010] 2 NZLR 845
Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367
Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484
Re Fairbairn [1967] VR 633
Re Hodgson; Nowell v Flannery [1936] 1 Ch 203
Re Lauer; Corby v Lyttleton [2017] VSC 728
Re Londonderry’s Settlement [1965] Ch 918
Re Williams; Williams v Williams [1897] 2 Ch 12
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Rouse v IOOF Australia Trustees Limited (1999) 73 SASR 484; [1999] SASC 181
Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] UKPC 26
Silkman v Shakespeare Haney Securities Ltd [2011] NSWSC 148
Spellson v George [1987] 11 NSWLR 300
Spellson v Janango Pty Ltd (Supreme Court (NSW), Hodgson J, 8 December 1987, unrep)
Spotlight Stores Pty Ltd v Federal Commissioner of Taxation (2004) 55 ATR 745; [2004] FCA 650
Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808
Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315
Towns v Wentworth [1858] 11 Moo PC 526; (1858) 14 ER 794
Trust Co (Nominees) Ltd v Banksia Securities Ltd (recs and mgrs apptd) (in liq) [2016] VSCA 324
Vegners v Federal Commissioner of Taxation (1991) 21 ATR 1347; (1991) 91 ATC 4213
Verge v Somerville [1924] AC 496
Viljoen v Hayes [2017] NSWSC 801
Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; [2003] HCA 15
Texts Cited: I Hardingham and R Baxt, in Discretionary Trusts (2nd ed, 1984)
J C Campbell, “Access by trust beneficiaries to trustees’ documents information and reasons” (2009) 3 J Eq 97
J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 8th ed, 2016)
P Brereton, "A Trustee's Lot Is Not a Happy One", [2010] NSWJSchol 23
Category: Principal judgment
Parties: Nicholas Delpratt Wright (Plaintiff)
Beryl Joan Stevens (first Defendant)
Attorney-General of New South Wales (second Defendant)
Representation:
Counsel:
Ms P M Lane (Plaintiff)
Mr P Blackburn-Hart SC and Mr S Fitzpatrick (first Defendant)
Dr C Mantziaris and Ms K Boettcher (second Defendant)
Solicitors:
Green & McKay (Plaintiff)
Reynolds & Reynolds Legal Services (first Defendant)
Crown Solicitor’s Office (NSW) (second Defendant)

File Number(s): 2016/206770
Publication restriction: Nil

Judgment

The Proceedings – The nature of the dispute

HIS HONOUR: By Summons, filed on 7 July 2016 (and amended on 7 April 2017), the Plaintiff, Nicholas Delpratt Wright, sought orders that the first Defendant, Beryl Joan Stevens, as the Trustee of the George and Annie Cork Memorial Trust (“the Trust”), provide to him information and documents about the Trust. In addition, he sought an order for the passing of the accounts of the estate of Cyril David Cork (“the deceased”), pursuant to whose Will the Trust was created.
On 4 April 2017, by consent, the second Defendant, the Attorney-General of New South Wales, was joined as a party to the proceedings. By Cross-Summons, filed on 12 May 2017, the second Defendant sought, amongst other relief, a declaration that the purpose of benefiting any one, or more, of the persons identified in Schedule 2, Item 2 of the Will of the deceased was a charitable purpose; a declaration that, on the true construction of the Will and in the events that happened, all of the property of the Trust was the subject of a valid charitable trust; and an order that the second Defendant prepare an administrative scheme to give effect to the charitable trust. In the alternative, the second Defendant sought a declaration that the circumstances in which the original purposes of the charitable trust had failed, or had ceased to provide a suitable and effective method of using the Trust property, having regard to the spirit of the Trust; and an order that the Trust be applied cy-près with a scheme to be settled for that purpose.
The first Defendant opposed all of the claims made by the Plaintiff and by the second Defendant respectively. She submitted that each of the Amended Summons and the Cross-Summons should be dismissed. She asserted that either the Plaintiff was no more than a person eligible to be appointed to the category of “Beneficiaries” of the Trust, and, thus, had no standing to obtain any of the relief sought; or that the relief sought, in the circumstances, should be denied in the event the Court considered that it had a discretion to permit the Plaintiff to seek the documents and other information.
In relation to the issues raised by the second Defendant, the first Defendant submitted that the Trust was a valid private discretionary trust, and did not need to be saved by resort to a finding that it was a charitable trust. She asserted that there was no uncertainty as to the Trust’s objects; that the evidence in the proceeding did not support the contention that the Trust was incapable of enforcement; and that the terms of the Trust contradicted any suggestion that its purpose was a charitable one.
In reply, the Plaintiff asserted, amongst other things, that the inherent jurisdiction of the Court enabled the Court to grant the relief sought; in other words, that disclosure was part of the arsenal of tools that the Court could deploy, in exercising its equitable jurisdiction, to ensure that a trust is properly administered.
Alternatively, the Plaintiff relied upon Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), rule 31.54(1), which enables the Court to “obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser's opinion”. How this was to be achieved, who “the person who was specially qualified”, and what “opinion” should be acted upon, was not the subject of evidence or submissions.
Although the first Defendant made some submissions on costs, it was common ground, at the hearing, that the question of costs should be dealt with after the determination of the proceedings.
From the above, it can be seen that this is not a case where the first Defendant, as Trustee, has surrendered her discretion to the Court. Nor is it a case in which, without surrendering her discretion, she has invited the Court, in effect, to confirm, as valid, her refusal to produce the documents sought, because, for example, documents contain legal advice about the due administration of the Trust on the ground of legal professional privilege. In addition, it is not a case in which an application for discovery before suit, either under the Rules, or under the Court’s inherent jurisdiction has been made, or where the disclosure of documents after the commencement of proceedings, is sought.
Rather, this is a case, brought by a disappointed Plaintiff, by way of a challenge to a trustee’s negative exercise of discretion to disclose documents and provide accounts, and one in which he seeks to invoke, amongst other things, an original discretion in the Court, to grant an order for production, inventory, account and inquiry, as part of its jurisdiction in the administration of trusts.

Additional possible basis of jurisdiction

There was no reference, by any party, to the UCPR Part 54, which applies to “administration proceedings”, those being relevantly defined, in the UCPR, as “proceedings for … the execution of a trust, under the direction of the Supreme Court”.
Because I considered that UCPR Part 54 may be relevant to the issues in dispute, I requested my Associate to forward an email, on 22 January 2018, to all counsel, drawing attention to that Part of the UCPR. I directed that any further submissions should be made, in writing, by 1 February 2018.
Submissions were received from the Plaintiff and from the first Defendant. Counsel responded that the second Defendant did not wish to make any further submissions on this aspect.

The Documents sought by the Plaintiff

The documents sought in the Plaintiff’s Amended Summons are:

“1.    A schedule of Trust assets showing the nature, documentation, status and value of all assets of the trust estate;
2.   Each nomination, or written record of nomination, as a person or entity as a Beneficiary of the trust as the same is defined in the Trust;
3.   Profit and loss balance sheets for the Trust for the financial years ending 30 June 2009 – 30 June 2015 and such other accounting records as are necessary to understand the financial position of the Trust and its assets.”

It was agreed that the first Defendant had not provided the documents that are set out in paragraphs 1, 2 and 3 of the Amended Summons: T3.23 – T3.27. The basis for non-production is that she says she is under no obligation to do so as a matter of law.
In Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, Sheller JA, at 443, wrote that “[T]he expression ‘trust document’ can have little more precise meaning than a document relating to the trust or its administration”. Earlier, Salmon LJ in Re Londonderry’s Settlement [1965] Ch 918, at 938, described “trust documents” as containing “information about the trust which the beneficiaries are entitled to know”, and as documents in which “the beneficiaries have a proprietary interest ... and, accordingly, are entitled to see”.
(There has been criticism of Lord Salmon’s description as assuming “the answer to the question it is directed to solve" and is accordingly "of no assistance": Hartigan Nominees Pty Ltd v Rydge, Sheller JA, at 443. Kirby P, in dissent, at 413, regarded the term as one defined with “unilluminating circularity” and one that “states, rather than solves, the problem of the documents to which access might be had by beneficiaries, as of right, against reluctant trustees”.)
In this case, however, no party argued that the documents sought by the Plaintiff were not “trust documents”.
As is apparent from the Amended Summons, the disclosure sought by the Plaintiff is not very extensive. However, it will involve the inevitable disclosure, at least to the Plaintiff, of some documents that may contain information about the operation of the Trust, the transactions into which the first Defendant, as Trustee, has entered, the identity of “the Beneficiaries” who have been appointed in writing, what each “Beneficiary” has received by way of distributions from the Trust, and, perhaps, the basis upon which the first Defendant, as Trustee, has made the decisions that she has made.
Clearly what is being sought by the Plaintiff is to be used to determine the nature and value of the Trust estate, to investigate the financial dealings and transactions concerning the Trust assets, and to ascertain to whom, or to which entities, distributions have been made in the administration of the Trust estate.
There is nothing in the Amended Summons to suggest that the Plaintiff is prepared to accept some lesser disclosure, or that he is prepared to provide undertakings of confidentiality, including an undertaking to provide access to the documents solely to his professional advisors. This is understandable because if the Plaintiff obtains the relief he seeks, others, falling within the description of the class in the Will of the deceased, would be able to seek the same, or similar, relief.

The Issues

Shortly prior to the hearing, and in accordance with the directions of the Court, the parties agreed upon the issues that the Court was asked to decide (Ex. A):

“1.   Should the George and Annie Cork Trust be construed as a charitable trust or a private discretionary trust or is it invalid?
2.   If the Trust is a charitable trust, is it necessary to settle an administrative or cy-près scheme?
3.   If an administrative or cy-près scheme should be settled, what are the terms on which that should occur?
4.   If the Trust is a private discretionary trust, is the Plaintiff eligible to be appointed as a Beneficiary within the terms of Schedule 2 Item 2 of the Will?
5.   If yes to 4, what test should the Court apply to determine whether the Plaintiff has (as a person eligible to be appointed as a Beneficiary) an entitlement to access to the documents sought in the Amended Summons?
6.   If the correct test requires that the Court must be satisfied the Plaintiff has a proprietary interest in the Trust assets, what is his entitlement, if any, to access the documents sought in the Amended Summons?
7.   If the correct test requires that the Court has a discretion to grant or withhold access, should the discretion be exercised in favour of the Plaintiff?
8.   If yes to 7, what is his entitlement to access the documents sought in the Amended Summons and to which documents?
9.   What conditions, if any, should be imposed on the Plaintiff’s access to or use of the documents?”

The second Defendant, without the agreement of the other parties, also raised the following issues for the Court’s consideration:

“10. Who may currently enforce the Trust?
11. Can the class of objects stated in Schedule 2 Item 2 be identified independently of the exercise of the trustee’s discretion?”

An additional issue, following it being raised by the Court, will be whether UCPR Part 54, provides a basis for the relief sought by the Plaintiff.
Some of the issues to be decided will turn on the construction of the deceased’s Will. Others may require the Court to determine whether to exercise its inherent jurisdiction to supervise, and if necessary to intervene in, the administration of the Trust.

The Evidence

In the Plaintiff’s case, an affidavit from the Plaintiff, and one from Mr William Hinchcliffe, was each read. Neither of the deponents was cross-examined.
An affidavit of Ms C E Drummy, a solicitor in the Office of the Crown Solicitor, was read in the second Defendant’s case, which affidavit was a formal affidavit. The circumstances in which the second Defendant came to be a party to the proceedings were set out. The deponent, also, was not cross-examined.
An affidavit by the first Defendant, affirmed on 10 August 2016, that had been filed, and served, was not read at the hearing. The Court was informed, without objection, and without contradiction, by counsel for the second Defendant, that until the day before the commencement of the hearing, the affidavit was to be read; that the legal representatives of the second Defendant had given notice for the first Defendant to attend for cross-examination; and that late on the day before the hearing commenced, the first Defendant’s legal representatives informed the other parties, that the affidavit of the first Defendant that had been served was not to be read: T121.36 – T121.45.
Thus, at the hearing, there was no affidavit read, or evidence tendered by, the first Defendant, going to the issues to which reference has been made. The failure by the first Defendant to disclose information to the Court led to some criticism of her. Counsel for each of the Plaintiff, and of the second Defendant, emphasised that the first Defendant, as the trustee of the Trust, was the only person who could “tell this Court … basic things about the operation of the Trust and, to be clear, that is whether a Beneficiary has been appointed, whether the distributions made to those 13 organisations, to the persons who built, or had built for them, the medical centre and the retirement village, whether those people are recipients of grants or Beneficiaries. Nowhere in the first Defendant's submissions is it asserted that those persons are Beneficiaries”: T57.05 – T57.13.

Another matter about which the first Defendant may have been able to give evidence would have been whether the information sought by the Plaintiff would be difficult or expensive to generate, or collate, which matter may be a factor against requiring its disclosure. There may be other features of the administration of the Trust, also, that could prompt questions to which the first Defendant could provide answers, but these have not been the subject of submissions.
During the first day of the hearing, during the submissions being made on behalf of the second Defendant, the first Defendant was given the opportunity to consider, overnight, whether she wished to make an application to re-open her case and provide further evidence: T68.14 – T70.45.
The next day, the Court was informed, from the bar Table, by senior Counsel, that the first Defendant did not wish to re-open her case: T71.29 – T71.30; T75.05 – T75.12.
Senior counsel for the first Defendant argued, T62.08 – T62.14, that:

“there is not an issue, because, if the Plaintiff is not found to have the relevant standing to make the complaint, and if the Trust is not a charitable trust, that's the end of the proceeding because we would be inviting your Honour to say it is a private discretionary trust and that is the end of it. To go the next step and say there has to be somebody available to enforce it, when, if your Honour makes these findings, both cases are, in effect, dismissed, is to go beyond what this case is concerned with”.

Despite making the above submission, senior Counsel for the first Defendant accepted that if the first Defendant did not have a legal justification for not providing documents, then “apart from wanting an opportunity to consider what has to be supplied, she will supply it”: T11.20 – T11.36. She would want an opportunity to provide, “or enter into appropriate negotiations with the Plaintiff and others, to deal with that”: T17.08 – T17.12; T26.06 – T26.11.
In Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53, Gleeson CJ wrote, at [11]:

“Lord Mansfield said that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’. This is a fundamental precept of the adversarial system of justice, and is treated as axiomatic in the day to day operations of courts.”

In Newell; Muriniti v De Costi [2018] NSWCA 49, Beazley P (with whom Gleeson and White JJA agreed), wrote, at [78]:

“The rule in Jones v Dunkel applies where there is an unexplained failure of a party to give evidence or to call a witness. Such failure may have either or both of the following consequences in the fact finding process. It ‘may lead rationally to an inference that the evidence would not help that party’s case’: Jones v Dunkel at 321; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 at 480-481. It also enables the court more readily to draw an affirmative inference in support of the opposing party’s case: Commonwealth of Australia v McLean (unreported, NSW Court of Appeal, 31 December 1996); Manly Council v Byrnes [2004] NSWCA 123 at [51]; Carolyn Sappideen and Prue Vines, Fleming’s Law of Torts (10th ed, 2011, Lawbook Co) at 13.50.”

In Re Fairbairn [1967] VR 633, at 639, Gillard J wrote:

“If the trustees do not choose to put before the Court any information about the documents in their possession, or give any evidence of circumstances to justify their non-production, the Court may be more bold and would more readily draw inferences in favour of the plaintiff as to the contents of the documents than it might otherwise do. From the correspondence which passed between the trustees and the solicitors, it can be inferred that there are some relevant documents. But what they are and what they contain and what justification there may be for their non-production for inspection, the trustees have either failed or refused to inform the Court. These are matters peculiarly within the knowledge of the trustees. I, therefore, find that on the balance of probabilities they do contain information about the trust which the plaintiff is entitled to know.”

Whilst senior Counsel for the first Defendant did attempt to explain the reasons for not providing documents, he did not provide any explanation for her not giving evidence.
Whether to draw any inference, and also, if there is a discretion to be exercised by the Court in relation to the Plaintiff’s application for disclosure of documents relating to the Trust, the approach of the first Defendant in failing to give any evidence, and the explanation for that approach, must be evaluated.

Prior Proceedings

It is next necessary to say something about the background to this litigation and earlier proceedings in which the Court was involved.
In proceedings 2016/286033, heard by Stevenson J, on 26 October 2016, the first Defendant (as the Plaintiff in those proceedings), sought the Court’s advice, under s 63 of the Trustee Act 1925 (NSW), on the question whether or not she was justified in (a) defending proceedings brought by the Plaintiff (in these proceedings); (b) pursuing a notice of motion that she had filed on 15 August 2016, in the proceedings, seeking to have them dismissed under UCPR rule 13.4; and (c) drawing on funds of the Trust to pay her legal costs of defending the proceedings and pursuing the notice of motion. She also sought an order that she be indemnified from the Trust for the costs of the application for judicial advice. (Neither the Plaintiff, nor the second Defendant, in the current proceedings, was a party to the judicial advice proceedings.)
In an ex tempore judgment, which bears the medium neutral citation Application by Stevens [2016] NSWSC 1523, Stevenson J concluded, at [10] – [14]:

“Based on the opinion of counsel and my own consideration of the matter, I have serious doubts as to Mr Wright’s standing to bring the Proceedings and, if he does, as to whether the Court would exercise its discretion in [his] favour as to grant the orders he seeks. That provides a basis for me to conclude that the Trustee would be justified in defending the Proceedings and drawing on the Trust for her costs for that purpose.
However, I am not satisfied that the Trustee’s position in the Proceedings is so clear, and that Mr Wright’s claim in the Proceedings is so weak, that I should go further and find that the Trustee would be justified in prosecuting the Motion.
It is true that, on the Motion, it is unlikely that there will be any dispute as to the facts. However, that would be the beginning and not the end of the inquiry on the Motion as the Trustee would have to establish that the Proceedings brought by Mr Wright are either frivolous or vexatious, are an abuse of process of the Court or that no reasonable cause of action is disclosed.
A possible, if not likely, result of the Motion is that the judge hearing it will conclude that the matter is not sufficiently clear to warrant summary dismissal.
It may be that the Trustee will come to the view that the more practical approach will be simply to seek to have Mr Wright’s claim brought on for early final hearing.”

It is unnecessary to refer to what are said to be “criticisms”, made by counsel for the second Defendant, regarding the failure to involve the second Defendant in the prior proceedings. In my view those criticisms, valid or otherwise, are not relevant to the proceedings with which this Court is now concerned.

Background Facts

An analysis of the legal issues, to be more meaningful, requires a general overview of the surrounding facts and the events giving rise to the Plaintiff’s claim. The following facts are not the subject of any dispute (to the extent that they are identified in Ex. B), or are clearly established, otherwise, by the uncontested evidence of the Plaintiff and/or of Mr Hinchcliffe.
The deceased lived in Dorrigo, New South Wales. He was a well-known Dorrigo identity. He died on 6 November 2007. He was never married, and, so far as is known, he had no children. He had no other next of kin (entitled to his estate by operation of the intestacy rules that applied at the date of the deceased’s death).
The deceased left a duly executed Will that he made on 29 October 2007 (shortly before his death). It appointed "the solicitors at the date of my death of the firm Barwick Stevens Lawyers to be one of my joint executors and direct[ed] that only one of them need prove the will and act initially in respect of its Trusts" and "my accountant Timothy John Christiansen": Clause 2 of the Will.
On 17 April 2008, this Court granted Probate of the deceased’s Will to the first Defendant, who is a solicitor at the firm Barwick Stevens Lawyers, and to Timothy John Christiansen. I shall return to the other relevant terms of the Will later in these reasons.
Mr Christiansen retired as a trustee of the Trust on about 14 August 2013. (Any document that related to his retirement is not in evidence.) Since then, and currently, the first Defendant has remained the sole trustee of the Trust.
In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased’s estate was disclosed as having an estimated, or known, value of $5,540,921 (which appears to be incorrect). The estate was said to consist of real property ($4,790,000), as well as cash at bank, and personalty (in total $475,921). (When calculating the total of the estimates or known values of the property disclosed in the Inventory of Property, the actual estimated total value of the estate was $5,265,921.)
The nature, or value, of the deceased’s estate, at the date of hearing, was not disclosed in the evidence. There is no evidence about whether the estate has been fully administered. (The Court was informed by senior counsel for the first Defendant, from the bar Table, that the estate of the deceased has been fully administered However, that is not an agreed, or an otherwise established, fact: T2.17 – T2.23.) There is also no evidence that the first Defendant has verified, filed, and passed, any accounts, relating to the estate: T20.00 – T20.05.

The Terms of the deceased’s Will

No party disputed that the deceased’s Will was, at least in part, a badly drafted document. A reference to a “Trust Deed”, several times, demonstrates that it is unnecessary to say more. There was, of course, no Trust Deed. However, the First Schedule to the Will, comprising some 22 pages, set out the terms of the testamentary Trust.
Clause 4 of the Will provided a gift of “the whole of my estate of whatsoever kind and wheresoever situate, after payment of all due debts and testamentary expenses, to my trustees UPON TRUST, as set out in the Schedules to this my Will”.
Clause 5 of the Will directed that “the said trust be a discretionary trust in memory of my parents, George and Annie Cork”.
Clause 6 of the Will gave the Trustees powers “in addition to those powers as set out in the Trust Deed”:

“(a)   To sell, lease, exchange or otherwise dispose of assets in [the] estate on such terms as the Trustee considers expedient as though the Trustee were the absolute beneficial owner thereof;
(b)   To carry on … any business which [the deceased] was engaged as at the date of … death, and to employ … [people] upon such terms and conditions as the Trustee shall think fit and generally to act in all respects in relation to such business as if the Trustee where [sic] the absolute owner thereof and [directed] that the Trustee shall not be liable for any loss occasioned by the carrying on of the said business…;
(c)   To call in and convert to money such part or parts of [the] estate and property as may not consist of money; and
(d)   To amend the Trust Deed to comply with the Australian Taxation laws from time to time and to apply to the Australian Taxation Office for charitable status when and if required".

Before referring to the terms of the First Schedule, I shall refer to the Second Schedule of the Will because it is short and what follows, thereafter, will be more comprehensible.
Item 1 of the Second Schedule to the Will, identified “Barwick Stevens Lawyers” and Timothy John Christiansen as the first Trustee.
Item 2 of Schedule 2 provided that:

"The Beneficiary or Beneficiaries referred to in Clause 1.3 of the First Schedule is or are:
Such persons, Trustees of Trusts (but excluding any Trusts which would result in a breach of the rule against perpetuities or the rule against accumulations) companies or charities, residing in or otherwise carrying on business in Dorrigo in New South Wales or surrounding areas as defined by the postcode 2453 as the Trustees shall before the vesting date appoint in writing to be beneficiaries for the purposes of this Deed."

(The use of the term “beneficiaries” is inapt in so far as it suggests the existence of any vested beneficial interest in the assets held on the Trust.)
Clause 1 of the First Schedule defined several concepts:

The first Trustee, named in Item 1 of the Second Schedule, and the Trustee is defined as “the trustee or trustees for the time being of the Trust set up under this Schedule”: Clause 1.1.

The "vesting date" means the first to occur of the date being the last day within seventy years after the day of the deceased's death, or such earlier date as the Trustee may, in his absolute discretion, determine to be the vesting date: Clause 1.2.

The "Beneficiary/ies" shall means “the person or persons named in Schedule 2 Item 2: Clause 1.3.

The "Trust Fund" includes any money, securities, property or proceeds of sale given by the deceased under the Will, or accepted by the Trustee as additions to that money etc, or any part or parts thereof: Clause 1.6.

“Income” of the Trust “includes all profits or gains taken into account in calculating the net income of the Trust and exempt income, as defined in s 95(1) of the [Income Tax Assessment Act 1936 (as amended)], notwithstanding that the whole or any part thereof may otherwise constitute capital of the Trust”: Clause 1.9.

Clause 1.11 states, "The plural number shall include the singular number."

Clause 1.13 provides that “[w]ords importing “persons” shall include bodies corporate”.

(It is the identification of the “Beneficiary/ies” and how each is to be identified that lies at the centre of at least one of the questions of construction agitated by the parties.)
The primary trust obligation, with respect to income of the Trust Fund, until the vesting date, was dealt with in Clause 2. It is "subject to the provisions of paragraph 4.3” (which gives the Trustee power to appropriate capital for any Beneficiary and so remove that capital amount from the Trust Fund).
Under Clause 2.1, the Trustee may, prior to the expiration of any year, pay, or apply, the whole, or any part, of the income of the Trust Fund for the year, to, or for the benefit of, all, or such one or more, of the Beneficiaries, living or in existence at any time during the year of income, in his absolute discretion may, from time to time during the year, determine. The manner of exercise of discretions conferred on the Trustee is not set out.
Clause 2.2 provides that in default of that exercise of discretion, and subject to any application pursuant to Clause 2.1, on, or before, the last day of the year of income, the Trustee shall "subject as hereinafter provides", hold the income, to pay or to apply it for the benefit of the Beneficiaries that are “living on the last day of that year".
Clause 3 deals, primarily, with the manner in which the Trustee may apply any income for the benefit of a Beneficiary, namely, by expending the income for the "maintenance education, advancement in life, benefit or support" of the Beneficiary, or otherwise expending the income in such manner as the Trustee may in his "absolute discretion"' decide (Clause 3.1.1); or by determining that the Beneficiary has an immediate vested indefeasible interest in such income, whereupon the Beneficiary shall have an immediate vested indefeasible interest thereto (Clause 3.1.2). Again, the manner of exercise of discretions conferred on the Trustee is not set out.
Clauses 3.2 and 3.3, respectively, deal with the manner of applying income to an infant Beneficiary under Clause 3.1.1, or the way in which a determination of a vested interest works under Clause 3.1.2. That includes, in the case of an infant Beneficiary, the payment of income to the parent, or guardian, of the Beneficiary, or the person with whom the Beneficiary is, for the time being, residing. If the Trustee applies the income of the Trust Fund for the benefit of a Beneficiary who is an infant, then, the income shall be invested, and the Trustee holds the income that accrues for that infant Beneficiary. The Trustee may use the income accrued for the maintenance, education advancement in life, benefit or support, of the infant Beneficiary. The Trustee must pay over the income (and any income accrued thereon not expended) “immediately upon the Beneficiary ceasing to be an infant or upon the Beneficiary’s prior death” to such Beneficiary or to his legal personal representative.
Clause 3.4 gives the Trustee power “[I]n lieu of paying or expending income in cash … to transfer any property of like value forming part of the Trust Fund … to the person entitled to that income in whole or in part satisfaction thereof…”.
The capital of the Trust Fund is held under Clause 4.1 and Clause 4.2, subject to Clause 4.3 (which gives the Trustee power to appropriate capital for any Beneficiary and so remove that capital amount from the Trust Fund).
Clause 4 of the First Schedule should be set out verbatim:

“4.1 the Trustee shall hold the Trust Fund (or such part as the Trustee shall in his absolute discretion determine) upon trust for all or such one or more of the Beneficiaries as shall be living or be in existence on the vesting date and in such shares or proportions as the Trustee shall revocably or irrevocably before the vesting date appoint and at such age or time or respective ages or times and with such trusts for their respective benefit and provision for their respective maintenance advancement education and benefit as the Trustee shall determine at the time of such appointment provided that a revocable appointment under this sub-clause may be revoked by the Trustee at any time prior to but not on or after the vesting date:
AND
4.2 In default of and subject to any appointment pursuant to paragraph 4.1:
4.2.1. the Trustee shall hold the Trust Fund upon trust for the Beneficiary/ies.

4.3 Notwithstanding anything herein contained the Trustee may at any time and from time to time prior to the vesting date in his absolute discretion appropriate any part of the capital of the Trust Fund and hold the same upon trust absolutely for any Beneficiary who or which shall be living or in existence at the date of such appropriation and thereupon such appropriated capital shall cease to be part of the Trust Fund.”

Clause 5 provides that the Trustee may, in his absolute discretion, apply any capital of the Trust Fund, for the benefit of an infant Beneficiary, by expending the Trust Fund for the maintenance, education, advancement in life, benefit or support of that infant Beneficiary, and the provisions of Clauses 3.2 and 3.4 (concerning the application of income) apply to that application. The manner of exercise of discretions conferred on the Trustee is not set out.
Clause 6 provides that any "determination, appropriation or appointment" by the Trustee shall be "oral, or in writing, as the trustee may determine" but if the Trustee makes an oral determination, “a record of such determination in a minute [not necessarily signed by the Trustee] shall be kept with the accounts and records of the fund and such minutes shall be deemed good and sufficient evidence of the determinations, appropriations and appointments which they purport to record”.

Clause 7 deals with the Trustee's ability to deduct any tax payable on a distribution of capital out of that capital, or pay it from other trust moneys or property as the Trustee may decide.
Clause 8 deals with the manner in which the Trustee may structure the books of account and records of the Trust. The Trustee may identify, and separately record, identified categories of income received into the Trust Fund (Clause 8.1); may identify and separately record income or capital, having individual or unique characteristics, other than those identified in the categories of income earlier referred to, as by resolution, the Trustee shall determine (Clause 8.2); if a resolution, or determination, of the Trustee, by which income of the Trust Fund is distributed, or accumulated pursuant to Clause 2, the Trustee may separately deal with the whole, or part of the income, so that the same, or any part thereof, may be specifically paid, applied or set aside, for the benefit of any one or more of the Beneficiaries (Clause 8.3); has a discretion to distribute all, or any part of capital in accordance with Clause 4 (Clause 8.4); allocate expenses and outgoings of the Trust Fund against, and deduct those expenses and outgoings from, income or capital of any one or more categories "in such manner as the trustee sees fit" (Clause 8.5); if the Trustee does not exercise the discretion in relation to expenses and outgoings of the Trust Fund in respect of a financial year, those expenses and outgoings are to be allocated and deducted firstly, from income which is not income from a category, and if that income is not sufficient, then the expenses and outgoings not so absorbed, shall be allocated in such a manner as the Trustee may decide against income of a category or categories, to which a tax credit or rebate does not attach, and thereafter against the remaining income of the Trust Fund (Clause 8.6); income or capital of the Trust Fund to which a "default beneficiary" (a term which is not defined) becomes entitled, and which can be identified from the books and records of the Trust as being of a category, retains its separate identity when it passes to, or is received by, the default beneficiary, or when the default beneficiary otherwise become entitled thereto (Clause 8.7).
Clause 9 specifies the Trustee’s powers. It is not necessary to refer to this Clause in detail, but it includes powers of investment, reinvestment, or remaining as invested for as long as the Trustee thinks fit, whether or not such investment is authorised by law for the investment of trust funds, including selling, transposing, or varying, investments, and re-investing moneys, of any nature authorised by the terms of the Trust Instrument (Clause 9.2 and Clause 9.4); and employing moneys for the time forming part of the Trust Fund in carrying on any business, or businesses, as the Trustee may in his discretion deem to be fit and desirable (Clause 9.3). Clause 9 also includes powers to apply the Trust Fund to the benefit of Beneficiaries and other powers of management. Clause 9.27 provides that “[G]enerally the Trustee may manage or deal with the Trust Fund as fully as if the Trustee legally and beneficially owned the same”. Clause 9.39 permits the Trustee to divide assets, in specie, between the Trust Fund and other trust funds in such manner as the Trustee thinks fit.
Clause 10 prohibits the Trustee from doing anything that would be rendered void or ineffective by any rule or law against remoteness of vesting, or any rule or law restricting the right or power to accumulate income, and requires the powers to be read so as not to authorise any such actions, including to ensure that the Trust Fund vests in interest not later than the vesting date described in Clause 1.2.2.
Clause 11 provides for protection to persons dealing with the Trustee that “except in the case of fraud” no person dealing with the Trustee needs to ascertain whether the Trustee is acting in accordance with the Will or whether the transaction is for the benefit of Beneficiaries, and that no person shall be affected by knowledge, or notice, that any contract has not been authorised, or that any transaction is not for the benefit of Beneficiaries, and all such contracts will be valid and effectual.
Under Clause 12, the Trustee has power, in his absolute discretion, to pay or transfer the whole, or any part, of the Trust Fund, or income from it, to the Trustee/s, for the time being, of any settlement, “whereunder all or any of the Beneficiaries are beneficiaries whether absolutely contingently presumptively or prospectively, to be held by such Trustee/s as an addition to” that settlement. If that payment, or transfer, is made, the property so paid, or transferred, is discharged from the trusts of the Trust created by the Will. However, the payment or transfer “shall not be made unless the persons entitled to the capital of the other settlement must become entitled to a vested interest therein prior to" the vesting date in Clause 1.2.2.
Under Clause 13, the Trustee is entitled to release any power, including the power to make an appointment under Clause 4.1.
Under Clause 14, the Trustee may (with the consent of the person entitled to exercise the powers under Clause 15) revoke, or add to, or vary, the trusts and may declare any "new or other" trusts or powers, but so as not to infringe the rule against perpetuities, and so that such new trusts may relate to the management or control of the Trust Fund or the investment thereof, or the Trustee's powers and discretions, but such new trusts, powers, discretions, alterations or variations, “shall not be in favour, or for the benefit of, the Trustee, or result in any benefit to the Trustee, but shall be for the benefit of one or more of the Beneficiaries”, and “shall not affect the beneficial entitlement to any amounts set aside for any Beneficiary prior to the date of the variation, alteration or addition”.
In addition, the Trustee has power, before the vesting date, by deed or deeds, revocable or irrevocable, to revoke all or any of the trusts or powers other than this power of variation "to such ends intents and purposes as the Trustee may in his absolute discretion … think fit", but not so that “the Trustee shall require or be enabled to acquire any benefit out of or connected with the Trust Fund or its income or have any possession enjoyment or benefit … whatsoever enforceable at law or equity … of or from the Trust Fund or its income", or so as to extend the vesting date, and not so as to exercise any such power in respect of income derived earlier than the date of variation.
Under Clause 15, the Trustee may appoint a new Trustee (Clause 15.1) and on appointment the Trust Fund vests in the new Trustee (Clause 15.2). The power to appoint must not be exercised in favour of the Settlor, a person who is solely entitled to exercise the power of appointment for the time being, or any person who settles money on the Trust (Clause 15.3).
The appointment of a new Trustee may be exercised by memorandum under hand, or by deed, and the new Trustee may be a corporation or a resident outside Australia (Clause 15.4). On the resignation, or retirement, of the Trustee, the retiring Trustee must promptly hand to the new Trustee all books, records, documents and other property of or pertaining to the Trust, do all things necessary to transfer the legal title in the assets of the Trust Fund to the new Trustee, sign all necessary authorities, and give the new Trustee such assistance as is reasonably required to put the new Trustee into full knowledge of the affairs of the Trust (Clause 15.5).
(The Second Schedule, Item 3, provides that the person or persons with the power of removal and appointment under Clause 15 are “Barwick Stevens Lawyers” and Mr Christiansen.)
Clause 16 provides that in respect of future payments, transfers, gifts, devises and bequests to the Trustee, the money, securities, or other property, real or personal to which the Trustee has assented, the Trustee is to hold the property paid, transferred or conveyed, “as if the same had been paid, transferred, or conveyed, to the Trustee at the time of execution of” the Will, and it is “to be included in the meaning of the term ‘the Trust Fund’”.
Clause 17, relevantly, permits the Trustee, if temporarily out of, or if intending to be temporarily out of, Australia, or if the Trustee deems it for any reason to be desirable in the administration of the Trust, to delegate, or revoke any such delegation, the trusts, in whole or in part, or subject to limitations or restrictions, to such person or persons as he thinks fit. The Trustee may execute such instruments or powers of attorney to effect the delegation as he shall think proper, and the person receiving the delegation is not bound to enquire whether the delegation is valid.
Clause 18 deals with exemptions from liability and the indemnity of the Trustee. Under it, the Trustee is not liable for any loss that may be suffered from investing in any of the modes of investment authorised by the Trust instrument (Clause 18.1); the consequences of any error of judgment or any forgetfulness, whether of law or fact, on the part of the Trustee or his legal or other advisers, or any servants or agent generally, "for any breach of duty or trust committed, given or omitted, by the Trustee charged to be so liable", or for "any loss arising out of any act or omission in the execution or management and administration of this trust, so long as the Trustee … has acted in good faith”. The Trustee is also not personally liable for the acts of any officer or agent, servant, employee, or nominee, and "all persons claiming any beneficial interest in, over, or under, the property for the time being subject to the trusts hereby created shall be deemed to take notice of and subject to the protection hereby conferred on the Trustee" (Clause 18.3).
The Trustee is entitled to be indemnified from the Trust Fund in respect of "costs, charges and expenses and any personal liability incurred in the administration of or intended or purported administration of this trust except such liability as may be proved affirmatively to have been incurred in personal conscious bad faith by the Trustee seeking or claiming to be so indemnified." (Clause 18.2). The Trustee is entitled to protection if the Trustee acts upon a document he believes to be genuine and to be signed by the proper party (Clause18.4). The Trustee is not required to interfere or exercise rights in respect of any company in which the Trust Fund is invested if the Trustee has no notice of any mismanagement of the company, and “no Beneficiary shall be entitled to require the distribution of any dividend” by any company, or require the Trustee to exercise any powers he may have to compel any distribution of dividends, unless there is proved affirmatively to have been an act of dishonesty in the management of the company (Clause 18.5).
Under Clause 19, there may be only one, and no more than three, Trustees (Clause 19.1). The Trustee is entitled to reimbursement “of all moneys properly expended by him and chargeable against the Trust Fund” (Clause 19.2); if the Trustee is a solicitor, the Trustee may charge professional fees (Clause 19.3); the Trustees may act by majority if there are more than two Trustees (Clause 19.4); the Trust is to be interpreted in accordance with the law of New South Wales, but where a new Trustee resides outside Australia, the appointor may direct that the law of the place of residence of the Trustee, or one of the Trustees if more than one, to be the proper law for the administration of the trust (Clause 19.5); the Trustee is not disqualified from acting in a fiduciary position in a company in which the Trust Fund is invested, and may retain remuneration received for so acting (Clause 19.7); and "[a]ll the Trustee’s powers may be exercised notwithstanding that there may be a conflict between his duty as a Trustee and any personal interest which he may have." (Clause 19.8).
Clause 20 deals with the Trustee's remuneration. Relevantly, it provided that the Trustee “may charge and be paid out of the Trust Fund and the income thereof such remuneration as the Trustee in his absolute discretion shall consider reasonable”. One added proviso was that, in any financial year, the total remuneration paid to the Trustee was not to exceed “the aggregate of five per centum of the gross income of the Trust Fund during that year and two per centum of the value of any portion of the Trust Fund that the Trustee may during the year have transferred or paid to or applied to or for any of the Beneficiaries or …towards satisfaction of a share in the Trust Fund”.
Clause 21 prohibits the Trustee from satisfying any deficiency, or loss, arising in any annual accounting period from the corpus of the Trust Fund, and must have resort only to any profits arising out of a subsequent accounting period out of such activity carried on in such subsequent accounting period.
Clause 22 is not relevant.
Clause 23 refers to the title of the Trust, to which reference has earlier been made.
Clause 24 deals with the name of the Trust by reference to Schedule 2, Item 4, to which reference has earlier been made.
There is nothing in the deceased’s Will that imposes a duty upon the Trustee to provide information to a discretionary object or to a “Beneficiary”. However, the Court was not directed to any condition of confidentiality in the Will, or that identifies any level of secrecy with regard to the affairs of the Trust, or any Clause that requires aspects of the Trust’s administration to be dealt with in confidence. Nor is there anything in the Will that limits a discretionary object, or a “Beneficiary”, seeking to obtain information from the Trustee.
Thus, there is nothing in the Will that suggests that the deceased wanted to impose limitations of disclosure upon the first Defendant, as Trustee, although, of course, she was given an absolute discretion which, in the events that have happened, she can exercise alone.

Additional Undisputed Facts

The Plaintiff is not a specifically named beneficiary of the Trust. However, he is a person who is a resident living within the Dorrigo postcode area 2453. He has lived within the Dorrigo postcode area since 1999. Before that, he was a farmer engaged in business within the postcode area for about 40 years. He is a retired Fellow of the Securities Institute of Australia and a former member of the Sydney Stock Exchange and the Australian Stock Exchange. He has been a member of the Grafton Rural Lands Protection Board.
In the circumstances, the Plaintiff is a person with a genuine legitimate expectation of benefitting from the Trust as one of the “persons” whom the first Defendant, as Trustee, is bound to have in mind when exercising the discretion to appoint “a person” in writing to be a Beneficiary for the purposes of the Trust.
A person who is also not a named beneficiary of the Trust, but who has been living within the Dorrigo post code area since 1994, is Mr Hinchcliffe, a retired accountant and business analyst (and formerly a management accountant): T2.45 – T3.04. He is not a party, but, as stated, a witness in the proceedings.
The Plaintiff met with the first Defendant and Mr Christiansen at the first Defendant’s office, on 15 April 2014 where they had a conversation about the administration of the Trust.
The Plaintiff called a public meeting in Dorrigo on 28 May 2014 at which about 80 people, including the Plaintiff and Mr Hinchcliffe, attended. Subsequently, the Plaintiff wrote a letter, dated 29 May 2014, to the first Defendant referring to the public meeting and what, he said, had occurred thereat. He requested a response to the letter from the first Defendant but he received no reply.
The Plaintiff sent an open letter, addressed to the first Defendant, which was published in the Don Dorrigo Gazette of 4 June 2014. Also published in the same edition of the newspaper, was a letter to the Editor, from Mr Christiansen, and a series of questions about the Trust that had been posed to, and the answers said to have been given by the first Defendant.
Mr Christiansen’s letter prompted a lengthy letter from the Plaintiff to the editor of the newspaper and an “open letter” to the editor from Mr Hinchcliffe, both of which letters were published on 18 June 2014. A further letter to the editor, from the Plaintiff, was published on 6 August 2014.
Mr Hinchcliffe communicated with the first Defendant, by telephone, on 26 September 2014, seeking to obtain access to the financial information of the Trust. He also made similar requests to her by email.
Mr Hinchcliffe was permitted to inspect some financial documents relating to the Trust on 26 November 2014, for a limited amount of time. These documents were the Profit & Loss Statements and Balance Sheets for the Trust for each of the financial years ending 30 June 2009, 2010, 2011, 2012 and 2013. He was not permitted to take a copy of any of these documents but was permitted to make notes about their contents.
The Plaintiff was also given an opportunity to inspect some of the financial information, provided by the first Defendant: T9.49 – T10.00. He did so on, or about, 3 December 2014: T14.25 – T15.03. He stated that these included “what appeared to be” balance sheets and profit and loss statements apparently relating to the Trust for the five financial years from the year ending June 2009 to the year ending June 2013. He, also, was not provided with a copy of any documents, but was permitted to take notes of their contents.
A second public meeting concerning the Trust was held on 11 December 2014, at which meeting 30 to 40 people attended.
A response, dated 15 December 2014, to other correspondence sent by Mr Hinchcliffe to the first Defendant, or her solicitors, from the first Defendant’s solicitors, simply stated: “We do not intend to enter into any further correspondence with you.”
On 3 December 2015, the Plaintiff’s solicitors wrote to the first Defendant and to Mr Christiansen, seeking information about the nature and condition of the Trust assets and details concerning the nomination of Beneficiaries under the Trust. Mr Christiansen sent a written reply, dated 9 December 2015. (Although a reply dated 9 February 2016, from the first Defendant, was identified, a copy of that document was not annexed as suggested.)
The first Defendant has not provided, to the Plaintiff, a statement of the assets and liabilities of the estate, in a complete form, or provided to him the documents, or the accounts, that he has sought: T3.18 – T3.25. It is said that this has caused him to have a real concern as to the administration of the Trust assets.
The involvement of the second Defendant in relation to the estate of the deceased commenced in about November 2014, when information, from the Plaintiff, was received, raising, what were said to be, concerns that the Trust was not properly being administered by the first Defendant.
In a letter dated 16 February 2016 to the Crown Solicitor’s Office, the Plaintiff’s solicitors stated that “at no time has our client asserted that the …[T]rust is a charitable trust” and that “[O]ur client’s foreshadowed proceedings are predicated on the basis that the [T]rust is a private trust.”
On 29 February 2016, a legal representative of the second Defendant sought further information about the Trust from the first Defendant, which information was provided on 20 May 2016.
Following the commencement of the proceedings, the second Defendant sought to be joined as a party and that order was made, consensually, by this Court on 4 April 2017.
There are about 2,600 people who reside within the Dorrigo post code area. (The number of Trustees of Trusts, companies that conduct business, or the charities, in the Dorrigo area, was not the subject of any evidence.)

The first Defendant has invited “submissions for grants for local projects which can demonstrate a net benefit to the community with an emphasis on creating local employment/training and/or providing community facilities and services”. A copy of a document headed “The George and Annie Cork Memorial Trust – Grant Guidelines and Conditions 2011” is in evidence.
The Trust has made grants from the Trust to the following entities:

Dorrigo Cricket Club;

Dorrigo Swimming Club;

Dorrigo RSL Golf Club;

Dorrigo Historical Museum;

the Dorrigo Rotary Club.

The Dorrigo Showground and Public Reserve Trust Inc;

the Dorrigo Youth Clinic;

the Dorrigo Men's Shed;

the Dorrigo Recreation Ground Committee;

the RSL Sub Branch;

the Dorrigo Guy Fawkes Historical Museum;

the Dorrigo Chamber of Commerce; and

the Dorrigo Girl Guides.

Evidence, in the form of searches, revealed the following entities are, or were at some point, registered as an association:

The Dorrigo Cricket Club Incorporated is a registered association, first registered on 6 September 1996 (Ex. C/1-2).

The Dorrigo Swim Club Incorporated is a registered association, first registered on 1 December 2006 (Ex. C/3-4).

The Dorrigo Social Golf Club Incorporated was a registered association, first registered on 22 March 1996, but was deregistered on 23 August 2003 (Ex. C/5-6).

The Don Dorrigo & Guy Fawkes Historical Society Inc is a registered association, first registered on 24 June 1992 (Ex. C/14-15).

The Dorrigo Chamber of Commerce Incorporated is a registered association, first registered on 16 October 1998 (Ex. C/16).

Searches have not revealed whether the Dorrigo Rotary Club, the Dorrigo Youth Clinic, the Dorrigo Recreation Ground Committee, the Dorrigo Men’s Shed, the RSL Sub-Branch, the Dorrigo Chamber of Commerce, and the Dorrigo Girl Guides, is each registered with the Australian Securities & Investments Commission as an association (whether incorporated or unincorporated), or that any of those entities is a proprietor of a business name, or company: Ex. C.
(It was submitted that this raises a question whether funds from the Trust have been paid to entities that do not fall within the class of “Beneficiary/ies”.)
Funds from the Trust have also been expended for the construction, in Dorrigo, of a medical centre, as a memorial to George and Annie Cork (the deceased’s parents), and for the construction of retirement accommodation.
There is no evidence of an appointment, in writing, by the first Defendant, of any person, Trustees of Trusts, companies, or charities, residing in, or otherwise carrying on business, in Dorrigo, or surrounding area as defined by post code 2453, to be beneficiaries.
In fact, senior counsel for the first Defendant conceded, at T105.40 – 105.42:

“I am instructed to make the following concession, if that's an appropriate concession. There are no documents confirming or formally appointing a Beneficiary.”

He added, at T106.00 – T106.08:

“However, I would invite your Honour to make an inference that the payments being made to those parties and individuals who are the members of those parties set out in para 7 of the agreed statement of facts, those payments would be the basis for an inference that your Honour could draw that they were properly made within the power and that, notwithstanding there is no written evidence of their appointment in a formal way, they are relevantly Beneficiaries.”

The Plaintiff’s Submissions

By way of introduction, it was pointed out, in the Plaintiff’s written Submissions, that the Plaintiff does not challenge the validity of the Trust; that he “does not (nor could he) say anything about whether the Trust instrument is valid as a private trust”; that he brings the proceedings upon the basis that the Will establishes a private discretionary trust; and that he “neither supports nor opposes the position taken by” the second Defendant.
In Submissions in reply, counsel for the Plaintiff wrote:

“The Plaintiff has brought these proceedings because of concerns about the due administration of the trust … at substantial cost and risk sought in the public interest to bring these concerns to the attention of the Court”.

Whilst the submissions go on to point out the concerns of the Plaintiff regarding the administration of the Trust, it is not necessary to repeat all of these concerns, since there is no person seeking to remove the first Defendant as the trustee of the Trust. The Amended Summons does not seek any relief consequent upon establishing the validity of those concerns. In addition, that was not an issue for consideration identified by the parties. It is sufficient to say that there are concerns, which, on proper investigation, may, or may not, be real.
I shall quote, verbatim, the thrust of the Plaintiff’s written submissions:

“17.   The central contention of the Plaintiff is that on the proper construction of the Will of the Deceased, and the Trust constituted by that Will, the Trustee has extensive powers of investment and management, but those powers must be exercised in furtherance of the expressed trusts and obligations relating to the application and appropriation of Trust Funds to a Beneficiary.
18.   Appointment as a Beneficiary is the gateway to the distribution of benefits under the Trust. The accounting information maintained by the Trust does not appear to provide any separate accounting in respect of ‘grants’ that have been made to date, and does not disclose whether or not any Beneficiaries are in existence. If there is no accounting under these proceedings, and there are no Beneficiaries, there is no other basis on which the Court may supervise the administration of the Trust, assuming it to be a valid private trust.
19.   The plaintiff contends that on the proper construction of the trust instrument, the Trustee may deal with the assets of the Trust Fund, but may not make donations or grants from the Fund otherwise than to persons or entities who have been appointed as Beneficiaries. The grants by the Trustee to community groups and unincorporated organisations must be supported, to be authorised by the Trust instrument, by written appointments or memoranda of appointments as a Beneficiary. The accounts must therefore reflect the distinction between the exercise of powers of management, and the exercise of powers of appointment. There is no indication that the accounts do disclose this separate treatment.”

The Plaintiff also submitted that he is a discretionary object of the Trust because he is a “person” who resides within the surrounding area of Dorrigo as defined by postcode 2453. Therefore, he is within the class of persons identified in the Second Schedule, Item 2, who may be appointed, in writing, by the first Defendant, as Trustee, to be “a Beneficiary” for the purposes of exercising the powers under the Trust. He accepted that he has no greater, or lesser, right than any one of the other persons who fall, or entity which falls, within the description of “the Beneficiary” in the Second Schedule, Item 2, to exercise rights under the First Schedule to the Will.
The Plaintiff asserted that one of the rights that he seeks to compel is the due administration of the Trust by requiring the first Defendant, as the Trustee, to provide an accounting of the nature and value of the assets of the Trust Fund. He contended that the First Schedule to the Will provides that the Trustee must keep proper accounts, and that the extensive powers of the Trustee cannot be interpreted so as to render the Trustee free of the fundamental obligations of a trustee to hold the assets of the Trust for the objects of the Trust on the terms of the Will, or to prevent the Court exercising jurisdiction to supervise the due administration of the Trust, and/or of the estate of the deceased. Other rights that the Plaintiff seeks to compel are the right to have the first Defendant considers whether to appoint him as a “Beneficiary”, and if appointed, to consider him in respect of the distribution of the income and/or capital of the Trust Fund.
It was put, in oral submissions that:

“As a person entitled to be considered by the Trustee as one who may be appointed in writing to be a Beneficiary for the purposes of the deed (sic), he has a right to approach the Court to exercise a discretion to have documents provided to him by the Trustee": T37.36 – T37.44.
…
It is the exercise of the Court’s discretion upon which the Plaintiff relies, as a person entitled to be considered by the Trustee, who may be appointed in writing to be a Beneficiary [to obtain the relief that he seeks]: T38.07 – T37.10.”

It seems to have been accepted then, that if there were no discretion in the Court to have documents provided by the Trustee to the Plaintiff as a person entitled to be considered to be appointed in writing by the Trustee to be a “Beneficiary”, or if there was no evidence of him having been appointed in writing to be a Beneficiary, then his claim for relief would fail.
The Plaintiff also submitted that the first Defendant’s exercise of discretion to pay out, or to apply, income and/or capital from the Trust Fund, depended upon the existence of a Beneficiary, or Beneficiaries, as defined. The Trustee was not constrained by the need to identify any particular characteristics of the proposed recipient of the income, or capital, of the Trust Fund, other than that the person to whom, or the entity to which, income or capital was to be paid out, or in respect of who, or which, it was to be applied, fell within the definition of "Beneficiary/ies" under the Second Schedule, Item 2. It followed, so it was submitted, that the Trustee, first, must have appointed, in writing, the person, or entity, residing in, or otherwise carrying on business, in Dorrigo in New South Wales or its surrounding area as defined by postcode 2453.
The submission, in other words, was that the Schedules to the deceased’s Will drew a clear distinction between the first Defendant’s power with respect to the appointment of a Beneficiary or Beneficiaries (Second Schedule, Item 2 and First Schedule, Clause 6), the power to apply income and/or capital of the Trust Fund for the benefit or provision of the Beneficiary or Beneficiaries (First Schedule, Clauses 2, 3, 4 and 5), and her powers to administer the Trust Fund (First Schedule, Clause 9).
The matters that suggest that the first Defendant was required to exercise the power to appoint a Beneficiary or Beneficiaries were:

There is no gift over, which suggests that the deceased intended that the Trustee would be required to determine who were to be appointed as beneficiaries, rather than giving a complete discretion as to appointment with a provision if no appointment were made;

Clause 4, which concerned the distribution of capital, required the Trustee to hold the fund at the vesting date for "such one or more of the Beneficiaries as shall be living or be in existence on the vesting date and in such shares or proportions as the Trustee shall ‘revocably or irrevocably’ before the vesting date appoint…". There was, thus, a duty to make an appointment before the vesting date as defined in Clause 1.2. However, if there were no appointment in respect of capital before the vesting date under Clause 4.1, the Trustee was to hold the Trust Fund, on trust, for the Beneficiary/ies.

If there were no duty to exercise the power of appointment, and the first Defendant, as Trustee, did not make any appointment, she would continue to hold the Trust Fund, making investments of the Trust property, until the vesting date (whether it is the date referred to in Clause 1.2.1 or Clause 1.2.2), at which date the Trust would fail for want of objects. This was not how the Court would construe the power to appoint which should be construed as a trust power.

Upon the construction advanced by the Plaintiff:

The Trustee had power to use, and to deal with, the Trust Fund, but only for the benefit of the Beneficiary, or Beneficiaries, appointed under Schedule 2, Item 2.

The Trustee had no power to appropriate, or apply, the income, or the capital, of the Trust Fund, other than to a Beneficiary or Beneficiaries, and the powers to use and manage the Trust Fund would be read subject to that primary obligation.

In order for the Trustee to appropriate, or apply, the Trust Fund to the benefit of a Beneficiary, or Beneficiaries, the Trustee must have made an appointment in writing, or must have created a memorandum in writing, of the appointment.

The accounts kept by the Trustee must contain sufficient information to enable the Trustee to distinguish between the investments of the Trust Fund, and the application of the income, or the capital, of the Trust Fund, for the benefit of Beneficiary or Beneficiaries. The accounts, therefore, must clearly distinguish between the accounting in respect of the powers to appoint and to manage.

The provisions regarding Trustee’s remuneration clearly contemplated that there would be information in the accounts which enabled the formula set out in Clause 20.2 to be applied to the amounts paid to the Trustee by way of remuneration.

The Plaintiff also submitted that the Court does not know whether there is any “Beneficiary or Beneficiaries” appointed by the Trustee, under the Trust instrument, only because the first Defendant, as Trustee, had not identified any such person, or entity. If there is, are, or were, any such persons, or entities, he, she or it, may have a vested interest in the Trust Fund, and so would be in a better position than the Plaintiff to seek the relief.
In reply, the Plaintiff also submitted that the most basic investigation of the identity of the persons to whom the first Defendant had provided “grants”, revealed questions about whether some of those recipients satisfied the Schedule 2, Item 2, definition of “Beneficiaries”, particularly, any entity not registered as an association (whether incorporated or unincorporated), as a proprietor of a business name, or a company. If any were unincorporated associations, investigation of the residence of all members would be required to demonstrate that the unincorporated association comprised "persons residing" in the Dorrigo post code area.
It was put that the evidence showed that the first Defendant may have made a grant to organisations that were either not registered, or that did not exist as a registered business entity, at the time distributions were made. Further, if any recipient was a “Beneficiary”, the accounts of the Trust should show how the income or capital of the Trust was applied to the Beneficiaries under Clause 2 or Clause 4 of the First Schedule, once nominated under the Second Schedule, Item 2 of the Will.
(In relation to unincorporated associations, the Plaintiff pointed to the Associations Incorporation Act 2009 (NSW), s 19 of which refers to the legal capacity and powers of an “association”, which means “an association registered under this Act”: s 4.)
In relation to the dispute whether the appointment of a “Beneficiary” must be in writing, the Plaintiff submitted that the Second Schedule, Item 2, required that to be done by the use of the words “shall … appoint in writing”. He disputed that the first Defendant could rely upon the First Schedule, Clause 6, to appoint a Beneficiary or Beneficiaries orally, stating that the Second Schedule, Item 2, specifically required the appointment to be in writing.
Also, it was put that there was a temporal obligation on the first Defendant to distribute income to a Beneficiary or Beneficiaries in default of any decision to favour one, or more, Beneficiaries under Clause 2.1. Accordingly, in order for the Trustee to exercise any power under Clause 2.1, there must have been a sufficient record of the appointed Beneficiary or Beneficiaries to enable that decision to be made.
The Plaintiff also submitted that in order for any incoming Trustee, under Clause 15, to account for the distribution of income or capital to any “Beneficiary” or “Beneficiaries”, the incoming Trustee would need to know the identity of the Beneficiary or Beneficiaries in respect of any given year of income. It would be difficult, if not impossible, to ensure that the Trust was properly administered without a contemporaneous written nomination of a “Beneficiary”.
Accordingly, the Plaintiff submitted, if the contention of the first Defendant that the Plaintiff had no standing to seek relief as he is not a “Beneficiary” within the definition of that term in Schedule 2, Item 2, there being no evidence that he had been appointed to be a “Beneficiary” for the purposes of the Trust instrument, then, for the same reason, there was no other person who, or entity which, had a better right than the Plaintiff to enforce the terms of the Trust. The consequence was that the first Defendant, as the Trustee, effectively, was immune from the scrutiny of the Court in administering the Trust.
In this regard, the Plaintiff pointed to the fundamental aspect of the jurisdiction of a Court of equity to supervise, and, in appropriate circumstances, to intervene in, the administration of a trust: Morice v Bishop of Durham (1804) 9 Ves Jun 399, at 404-405; 32 ER 656 at [658]; Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5, Gageler J, at [84].
He also submitted that the proper administration of trusts is a matter of public interest, the proper conduct of trustees warranting close public scrutiny: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, at [52], with the result that the question whether the first Defendant, as Trustee, should provide the information sought, must be answered in the affirmative.
The Plaintiff pointed to the following matters:

The Trust administered property which was likely to be of substantial value;

The Trustee's powers, with respect to the management and administration of the Trust Fund, were extensive;

There was no indication whether there are Beneficiaries, as defined by the Schedules to the deceased’s Will;

The Trustee had made public statements that “grants” had been made to various bodies and individuals, without disclosing whether they are Beneficiaries, and with no indication how they fall within the definition of a “Beneficiary” under the Trust.

To the extent that any recipient was an unincorporated association, it was not clear how the Trustee determined that the conditions in the Trust for that recipient’s appointment had been met.

The Plaintiff was not acting frivolously or vexatiously. He was a person with a sound financial background, and knowledge of financial management, who was acting in the interests of all of the discretionary objects of the Trust.

The Plaintiff also submitted that whether or not he is a “Beneficiary” appointed by the first Defendant, as a person residing in Dorrigo or the surrounding area as defined by postcode 2453, he was a “potential Beneficiary”, and, as such, was entitled access to trust documents, or to trust information. He placed reliance on, amongst other cases, Schmidt v Rosewood TrustLtd [2003] 2 AC 709; [2003] UKPC 26, as well as AIT Investment Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216. He also relied upon Kafataris v Deputy Commissioner of Taxation [2008] 172 FCR 242; [2008] FCA 1454, Lindgren J, at [44], in which it was stated that:

“…Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see Re Gulbenkian’s Settlements [1970] AC 508; McPhail v Doulton [1971] AC 424.”

The Plaintiff submitted that the minimum obligations imposed upon the Trustee, by the terms of the Trust, would include the obligation to keep accounts and records, a duty to report to the Beneficiary or Beneficiaries and/or to the Court, and a duty to pay amounts that the Trustee was obliged to pay to any Beneficiary or Beneficiaries appointed. Merely keeping annual financial statements, albeit audited, was not enough.

Mahoney JA, in Hartigan Nominees v Rydge, at 436, wrote that it was important in resolving that case to have regard to "the essential nature of ... discretionary trust[s] [which] ... is not a mere commercial document in which the public may have an interest [but] ... is a private transaction, a disposition by the settlor of his own property, ordinarily voluntarily, in the manner which he is entitled to choose [and] [s]pecial cases apart, it is proper that his wishes and his privacy be respected." Sheller JA, at 442, expressed similar concerns.
Whether or not the discretion of the Court should be exercised is said to involve a “balancing of competing interests”: Avanes v Marshall, at [14]. It is the Court’s role to determine what extent information should be disclosed through this “balancing process”: at [15], [26].
In AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Limited, at [85], Bergin CJ in Eq formulated the following principles:

“(a) the object of discretion, including a mere power, may apply to the Court for access, as well as beneficiaries with a ‘fixed’ interest;
(b) the power to order disclosure is ‘one aspect of the court's inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts’;
(c) the power to order inspection is discretionary; and,
(d) the Court may have to ‘balance’ the competing interests of different beneficiaries, the trustees and third parties, with disclosure being limited and safeguards being put in place.”

The line of authority suggests that the Court, in exercising its discretion, has an obligation to balance the interests of the applicant and the Trustee.
In Erceg v Erceg, at [56], the Court identified the factors that may be considered in the balancing exercise, stating:

“Drawing these threads together, we consider the matters that need to be evaluated in relation to an application for disclosure of trust documents include the following:
(a)   The documents that are sought. Where a number of documents are sought, each document (or class of document) may need to be evaluated separately, given that different considerations may apply to basic documents such as the trust deed and more remote documents such as the settlor’s memorandum of wishes.
(b)   The context for the request and the objective of the beneficiary in making the request. The case for disclosure will be compelling if meaningful monitoring of the trustee’s compliance with the trust deed in the administration of the trust could not otherwise occur. In this regard, it may be relevant that disclosure has been made to other beneficiaries. However, assuming no improper motive on the part of the beneficiary seeking information, the fact that disclosure has previously been made to other beneficiaries will rarely be a decisive factor against disclosure.
(c)   The nature of the interests held by the beneficiary seeking access. The degree of proximity of the beneficiary to the trust (or likelihood of the requesting beneficiary or others in the same class of beneficiaries benefitting from the trust) will also be a relevant factor.
(d)   Whether there are issues of personal or commercial confidentiality. Recognition should be given to the need to protect confidential matters of a personal or commercial nature. The Court should also take into account any indications in the trust deed itself about the need for confidentiality in relation to commercial dealings or private matters in relation to particular beneficiaries.
(e)   Whether there is any practical difficulty in providing the information. If the information sought by the person requesting the information would be difficult or expensive to generate or collate, that may be a factor against requiring its disclosure.
(f)   Whether the documents sought disclose the trustee’s reasons for decisions made by the trustees. It would not normally be appropriate to require disclosure of the trustees’ reasons for particular decisions.
(g)   The likely impact on the trustee and the other beneficiaries if disclosure is made. In particular, would disclosure have an adverse impact of the beneficiaries as a whole that would outweigh the benefit of disclosure to the requesting beneficiary? In the case of a family trust, this may include the possibility that disclosure would embitter family feelings and the relationship between the trustees and beneficiaries to the detriment of the beneficiaries as a whole. However, on the other hand, non-disclosure may have a similar effect.
(h)   The likely impact on the settlor and third parties if disclosure is made. The impact that disclosure will have on the settlor and/or on third parties will need to be considered.
(i)   Whether disclosure can be made while still protecting confidentiality. This may require that copies of documents supplied to a beneficiary are redacted to ensure nondisclosure of confidential information.
(j)   Whether safeguards can be imposed on the use of the trust documentation. Examples would include undertakings and inspection by professional advisers only and other safeguards to ensure the documentation is used only for the purpose for which it was disclosed.”

The Supreme Court, in that case, was sceptical of applications which are not based on a particular concern about the administration of the Trust, but which instead seek to try to find a basis for challenging the actions of a trustee which the applicant considers not in his, or her, favour.
In Lewis v Tamplin [2018] EWHC 777 (Ch), Matthews J, when considering whether a beneficiary was entitled to document disclosure on the basis of the Court’s inherent jurisdiction to supervise the activities of trustees, wrote at [43]:

“It was not suggested in argument that the claimants were in cahoots with the potential developers of the land, and anxious to see confidential advice to the trustees so that it could be passed to such developers (cf Rouse v IOOF Australia Trustees [1989] SASC 181 ), or that they were carrying on some kind of business in competition with the trustees, so that sensitive commercial information might be used for their personal gain (Morris v Morris (1993) 9 WAR 150 ), or that there might have been dealings by other beneficiaries with their shares which the claimants were not entitled to know about (Re Tillott [1892] 1 Ch 82 , 89), or that the beneficiary’s conduct gave ‘genuine reason for concern as to what he would do with the information if he received it’ (Erceg v Erceg, [96], [99]). On the material before me, no special circumstances pointing against giving such assistance have been shown. On the contrary, the evidence is that the claimants want the information for precisely the right reasons, namely, to hold the trustees to account, and thus to vindicate their own beneficial interests, by way of an action for breach of trust if need be.”

Having considered the authorities, I am of the view, the general trend of the more recent authorities suggests that the question of disclosure of documents being treated as an issue of enforcement of the trust, thereby ensuring the is trustee’s accountability, albeit limited by the type of concerns raised in Erceg v Erceg. The Court appears to be determining the issue based on the trustee’s obligation and the power of enforcement.
In the present case, there is no suggestion that the Plaintiff wishes to challenge the actions of the first Defendant that are not in his favour. He has made it clear that he is concerned about the administration of the Trust and that he wants the information “for precisely the right reasons, namely, to hold the trustees to account, and thus to vindicate their own beneficial interests, by way of an action for breach of trust if need be”. The documents that are sought seem to corroborate that he has such concerns.
I am satisfied that factors that warrant the disclosure of documents outweigh any competing concerns as raised by the first Defendant, and, accordingly, the Court’s discretion should be exercised in favour of the Plaintiff.

What is his entitlement to access the documents sought in the Amended Summons and to which documents?

In answering this question, I cannot do better than refer to what was written by J C Campbell, whilst a judge of the Court of Appeal of the Supreme Court of New South Wales and a Visiting Fellow of Wolfson College, Cambridge, in an article headed “Access by trust beneficiaries to trustees’ documents information and reasons”, in (2009) 3 J Eq 97, at 108 – 110:

“Extent of information required to be disclosed
The duty to account relates to the provision of information, not merely of such information as happens to exist in writing. In Clarke v Earl of Ormonde the way Lord Eldon explained the rights of the Marquis during his life was in terms of an entitlement to have questions answered. Similarly in Walker v Symonds, Lord Eldon said:
‘It is the duty of trustees to afford to their cestui que trust accurate information of disposition of the trust-fund; all the information of which they are, or ought to be in possession: a trustee may involve himself in serious difficulty, by want of the information which it was his duty to obtain.’

Similarly in Ottley v Gilby Lord Langdale MR said:
‘a legatee has a clear right to have a satisfactory explanation of the state of the testator's assets, and an inspection of the accounts, but he has no right to require a copy of the accounts at the expense of the estate.’

The ‘satisfactory explanation’ is a separate thing to the inspection of the accounts.
Holland J in Randall v Lubrano, Powell J in Spellson v George and Hodgson J in Janango, all accepted that the potential object of the power had a right to information, as well as to documents.
Several cases have decided that a beneficiary is entitled to see cases for opinion of counsel, and advices of counsel, that were obtained by a trustee in administering the trust, though not cases for opinion and advices that the trustee obtained for the purpose of defending his own position, once it was known that an allegation that he had breached the trust was being made against him.
The right of a beneficiary to receive information concerning the trust is not merely a right to be provided with what are said to be statements of fact concerning the trust assets and dealings. As well, cases have held that a beneficiary is entitled to a degree of proof that the information that has been given is correct. Thus, in Clarke v Earl of Ormonde Lord Eldon held that the successors in title of the Marquis were entitled to not only have a set of accounts produced to them, but also to have an inspection of ‘the vouchers’— which I take to mean documentary proof of the individual transactions that were summarised in the accounts.
Similarly in In Re Tillott Chitty J said:
‘a trustee is bound to give his cestui que trust proper information as to the investment of the trust estate, and where the trust estate is invested on mortgage, it is not sufficient for the trustee merely to say, ‘I have invested the trust money on a mortgage’, but he must produce the mortgage deeds, so that the cestui que trust may thereby ascertain that the trustee's statement is correct, and that the trust estate is so invested. The general rule, then, is what I have stated, that the trustee must give information to his cestui que trust as to the investment of the trust estate. Where a portion of the trust estate is invested in Consols, it is not sufficient for the trustee merely to say that it is so invested, but his cestui que trust is entitled to an authority from the trustee to enable him to make proper application to the Bank, as has been done in this case, in order that he may verify the trustee's own statement; there may be stock standing in the name of a person who admits he is a trustee of it, which at the same time is incumbered, some other person having a paramount title may have obtained a charging order on the stock or placed a distringas upon it.’

In that case the plaintiff, who had a one-twelfth interest in remainder subject to a life estate in a trust fund that was invested in consols, was held entitled to have the trustee sign an authority enabling the plaintiff to ascertain the amount of the consols held by the estate and any encumbrances on those consols. The trustees had opposed that order on the basis that granting it would enable the plaintiff to ascertain information as to the dealings of the other cestui que trust with their shares, and that even if the other cestui que trust had encumbered their shares that would not affect the plaintiff’s interest in the consols. Chitty J made such an order, even though there was no suggestion that the trustee’s statement was incorrect. Chitty J continued:
‘that the cestui que trust is entitled to the further information that he now asks for, which will enable him to go back with an authority from the trustee, on which the bank will shew that the fund is either clear of all distringases and the like or that it is not. I quite agree with what fell from counsel for the defendant that this may give the plaintiff more information than he is entitled to ask, because as there are twelve shares in this fund, it may be that there are several distringases on the fund obtained by persons who have charges on the contingent interest of the other persons, and it is clear that the trustee is not bound to give the cestui que trust of one share any information as to the dealings of the other cestui que trust in whose share he has no interest, shewing whether those shares are or are not incumbranced. I think, then, for these reasons, that there ought to be a further order in the terms the plaintiff asks for, but the plaintiff must pay the costs of the motion.’

That initially puzzling statement might, perhaps, be justified on the basis that, if the plaintiff could be fully informed concerning his own interest in the trust fund only by adopting a course of action that incidentally involved disclosing matters relating to the interests of other beneficiaries in the trust fund, it was necessary for the information relating to the other beneficiaries to be disclosed. Even if that is the correct explanation, the decision on costs seems strange.”

His Honour went on to write, at 145:

“What the court is doing, when it intervenes in favour of such a potential beneficiary to require information to be provided, is taking the view that diligent performance of the settlor’s intention and the office the trustee has undertaken requires that such a potential beneficiary be provided with certain information. It seems to me that when the equity court requires information concerning a trust to be provided to someone who happens to have a proprietary right in the trust fund, it is proceeding on exactly the same principles. In the case of a person with a proprietary right in some particular trust fund, it may be easier to conclude that carrying out of the settlor’s intention and the office the trustee has undertaken would require that person to be provided with particular types of information, but that is a matter about what is involved in performance of that particular trust.
However, even in relation to a person with a vested right of property in the trust fund, the circumstances of the particular trust might make clear that the trustee is obliged not to provide information, even to someone with a vested interest. That was exactly what was held to be the case in Hartigan Nominees v Rydge. If a parent, in setting up a family trust, took the view that it would sap a child’s initiative if the child knew it was due to come into a sizeable fortune, and thus forbade the trustee to disclose anything about the trust to the child until the child reached a particular age, that child would have no right to information about the trust, notwithstanding that it had a vested right of property, until it reached that age.
The principle that the manner in which trustees are required to account depends on the constitutive documents of the trust is well established: Attorney-General v Earl of Stamford. More recently, Tierney v King shows how the provisions of the deed, even in relation to a superannuation plan, could result in the intention of the settlor being that only limited information concerning the trust be provided to members, notwithstanding that members of a superannuation plan would ordinarily have vested rights of property.”

Yet, the Plaintiff, as a discretionary object, is not entitled to see everything. For example, he has not sought, nor would he be entitled to see, documents private to the first Defendant which may evidence the reasons why she has made her decisions.
As requested, I shall allow the parties to consider the documents that should be provided, failing agreement in respect of which I shall specify the documents.

What conditions, if any, should be imposed on the Plaintiff’s access to or use of the documents?

I am prepared to hear the parties on the conditions, if any, that should be imposed on the Plaintiff’s access to or use of the documents. If the documents are limited to those sought in the Amended Summons, it is difficult to see why conditions should be imposed, but, as sought by the first Defendant, I shall allow the parties to discuss this aspect and try to reach agreement.
I shall stand the matter over to a date convenient to the Court and to the parties following the delivery of these reasons.

Who may currently enforce the Trust?

Had I found that the Trust was a charitable trust, at general law, the second Defendant, the Attorney-General of New South Wales, is “the proper and ... the only competent party to protect the charitable trusts and to seek to enforce them and to look after the interests of the public in those trusts": Ku‑ring‑gai Municipal Council v The Attorney‑General (1954) 55 SR (NSW) 65, at 69‑70.
Since I have not made that finding, nothing else need be said about it.
The question, then, is answered, in part, by what was written by the High Court in CPT Custodian Pty Ltd v Commissioner of State Revenue at [17], approving the statement in Schmidt v Rosewood TrustLtd, that:

“the right to seek the intervention of a court of equity to exercise its inherent authority to supervise and, if necessary, to intervene in the administration of trusts, ‘does not depend on entitlement to a fixed and transmissible beneficial interest’.”

In the circumstances, any of the discretionary objects could seek the intervention of the Court, assuming that there was a proper basis for that application.

Can the class of objects stated in Schedule 2 Item 2 be identified independently of the exercise of the trustee’s discretion?

In my view, for the reasons expressed earlier, the class of objects identified in the Will, can be identified as such persons, Trustees of Trusts (but excluding any Trusts which would result in a breach of the rule against perpetuities or the rule against accumulations) companies or charities, residing in or otherwise carrying on business in Dorrigo in New South Wales or surrounding areas as defined by the postcode 2453 as the Trustees shall before the vesting date appoint in writing to be beneficiaries for the purposes of the Will.
However, as also stated earlier, none of the class becomes a “Beneficiary” until the first Defendant appoints in writing any member of the class to be a “Beneficiary” for the purposes of the Will.

Is the Plaintiff entitled to an order for accounts?

In Chaine-Nickson v Bank of Ireland [1976] IR 393, the trustees of a discretionary trust refused to render accounts of the trust property to the plaintiff who was a potential beneficiary. The trustees were ordered by the High Court to render such accounts but no question was ever raised that they might be removed as such trustees by reason of their unwarranted refusal to render accounts.
In Hancock v Rinehart [2015] NSWSC 646, it was said, at [338] – [340]:

“The plaintiffs seek orders for the taking of an account of the Trust, in common form. A plaintiff who seeks the remedy of an account must prove that the defendant is an accounting party, and that the plaintiff is entitled to some (uncertain) sum from the defendant [Juul v Northey [2010] NSWCA 211, [185]; Mulherin v Quinn Villages Pty Ltd [2007] QSC 231; Re Sharpe (unreported, FCA, Drummond J, 11 December 1992), [5]; Meagher, Gummow & Lehane, Equity Doctrines and Remedies 4th ed (2002) LexisNexis (at [25-025]), citing Doss v Doss (1843) 3 Moo Ind App 175, 196-7; 18 ER 464, 472 (Dr Lushington)].

In the relation of trustee and beneficiary, the trustee is an accounting party. It is a fundamental obligation of a trustee to keep and render to the beneficiaries a full and candid record of their stewardship, including all appropriate financial accounts [Burrows v Walls (1855) 5 De G M & G 233; 43 ER 859, 866 (Cranworth LC); Low v Bouverie [1891] 3 Ch 82, 99 (Lindley LJ); Armitage v Nourse [1998] Ch 241, 261 (Millett LJ); Waterhouse v Waterhouse (1998) 46 NSWLR 449, 494 (Windeyer J)]. That duty to account encompasses a duty to keep records, a duty to report to the beneficiaries and/or the court, and a duty to pay amounts the trustee is obliged to pay to the beneficiaries [Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, [42]].
Except where an account on the wilful default basis is sought - and it is not sought here - a beneficiary's entitlement to an account does not depend on alleging or establishing any default or breach of trust. As Powell J (as he then was) put it in Spellson v George (1987) 11 NSWLR 300 (at 315-316):
'This being the essential nature of the position of a trustee, and the liability to account being an essential ingredient in it, it seems to me that it is inescapable that the cestuis que trust, or any one of the cestuis que trust, have, or has, a correlative right to approach the Court for its assistance in enforcing the personal obligation of the trustee, and, in particular, in enforcing the trustee's obligation to account. Since that right is, as it seems to me, a fundamental right of the cestuis que trust, or of a cestui que trust, it seems to me that it is not correct to say that its enforcement by the court is dependent upon the cestuis que trust, or the cestui que trust in question, first raising an allegation, or establishing a prima facie case, of fraud or some other like breach of trust. On the contrary, so it seems to me, where the court's assistance in enforcing the trustee's obligation to account is invoked, the court should be concerned with only two questions, they being, first, whether the plaintiffs are, or the plaintiff is one of the, cestuis que trust, and, second, whether the defendant trustee has failed to observe his obligation to account.'”

Until Schmidt v Rosewood Trust Ltd, the accepted view had been that the ability to invoke the court's supervision depended on the nature of the interest the applicant enjoyed. A differentiation between a fixed and discretionary beneficiary, on the one hand, and the object of powers of appointment on the other, was made. The former enjoyed rights enabling him, her or it, to seek an accounting, whilst the latter did not, unless those rights were specifically conferred by the trust instrument.
However, as stated previously, at [51], the following passage appeared in Schmidt v Rosewood Trust Ltd:

"Their Lordships considered the more principled and correct approach is to regard the right to seek disclosure of trust documents as one aspect of the court's inherent jurisdiction to supervise, and if necessary to intervene in the administration of trusts. The right to seek the court's intervention does not depend on entitlement to a fixed and transmissible beneficial interest. The object of a discretion (including a mere power) may also be entitled to protection from a court of equity, although the circumstances in which you may seek protection, and the nature of protection you may expect to obtain, will depend on the court's discretion …"

It is to be noted that some accounts have already been provided to the Plaintiff. In addition, the first Defendant stated, in relation to the question of UCPR rule 54, that “the Trustee indicated that if the Court finds that the Plaintiff has such standing, she will provide an accounting and other information to which a beneficiary is ordinarily entitled”.
I shall leave it to the parties, at least initially, to work out whether the documents to be provided will include the accounts of the Trust.

Does UCPR rule 54 provide a basis for relief

UCPR rule 54 is instructive in providing an answer to the question. The rule allows for proceedings to be brought for “any relief which could be granted in administration proceedings”: UCPR r 54.3(1). The term “administration proceedings” is defined to mean “proceedings for the administration of an estate, or for the execution of a trust, under the direction of the Supreme Court”: UCPR rule 54.1.
Relevantly, the rule also provides that proceedings may be brought for “the determination of any question which could be determined in administration proceedings”: rule 54.3(2). (The rule then provides a list of questions that the Court may determine, although, this list is not exhaustive.)
Also relevant, UCPR r 54.3(3) provides:

“54.3 Relief without general administration
(3) Proceedings may be brought for an order directing any executor, administrator or trustee:
(a) to furnish accounts, or
(b) to verify accounts, or
(c) to pay funds of the estate or trust into court, or
(d) to do or abstain from doing any act.”

UCPR rule 54.3(4)(c) includes proceedings that could be brought for “directing any act to be done in the execution of a trust that the Supreme Court could order to be done if the trust were being executed under the direction of the Court”.
This sub-rule does not expressly limit who may bring the application for an order directing the executor, administrator or trustee. One can also see that the language of the rule, referring as it does to “any relief” and “any question”, is extremely broad.
In Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484, at [12], Lindsay J described UCPR rule 54 as a “procedural expedient” that is “designed to provide [a] summary, cost-effective alternative to an application for general administration of a trust by the Court”.
In Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808, at [50] – [52], Parker J in discussing the rule, stated:

“Under UCPR Pt 54, the Court has power to grant relief of the type which could formerly have been granted in what were known as administration proceedings. The Court has wide powers to direct acts to be done in the administration of the estate and to determine questions arising in the administration of the estate, including questions as to the rights or interests of a person who claims to be a creditor of the estate: r 54.3(2)(c).
These powers are amply wide enough to ensure that the interests of the estate can be protected. But, of course, the making of such orders is not a matter of right on the part of the beneficiary who applies for them. Ultimately, it is a matter for the Court to consider whether the orders should be made and, in doing so, the Court will take into account such questions as to the strength of potential claims or arguments available to the estate as against creditors or other third parties, and other practical questions such as the degree of likely recovery.
UCPR Pt 54 also contains specific rules directed towards the provision of accounts by executors or others: r 54.3(3)(a). But, again, these are not matters of right and it is always a matter for the Court as to whether it should require an account and, if so, the scope of the account, the detail involved and the extent to which supporting documents or other material needs to be produced.”

In Viljoen v Hayes [2017] NSWSC 801, at [16], Parker J described the ambit of UCPR rule 54, which description is also instructive:

“The power under UCPR r 54.3(3) is wide. But it is confined to the proper administration of the trust or estate in question: Gonzales v Claridades (2003) 58 NSWLR 211 at 217-8. The plaintiff must therefore show that the production of the documents in question is an appropriate step to take in the interests of the proper administration of the estate.”

The Plaintiff has sought to rely on UCPR rule 54.3 as an independent source of power, either in the event that the Court found that the provision of the Trust documents required him to have a proprietary interest, or, alternatively, in the event that the Court had the power to grant access to the Trust documents through its inherent jurisdiction, but did not exercise its discretion in granting these documents to him. Whilst accepting that he must have standing, it was submitted that he had the necessary standing to enable him to rely on the rule.
I consider the power conferred by UCPR rule 54.3 is wide enough to be capable of compelling the provision of documents sought by the first Plaintiff in the Amended Summons.
As will be remembered, the Plaintiff has sought a schedule of Trust assets showing the nature, documentation, status and value of all assets of the trust estate, as well as certain profit and loss balance sheets for the Trust, and such other accounting records as are necessary to understand the financial position of the Trust and its asset. Such documents would, at the very least, fall within the scope of requiring the Trustee to “verify accounts” (UCPR rule 54.3(3)(b)), but also could fall within the Court’s power to order a Trustee “to do … any act” (UCPR rule 54.3(3)(d).
The Plaintiff also sought each nomination, or written record of nomination, as a person or entity as a Beneficiary of the trust as the same is defined in the Trust, which falls within the scope of “relief which could be granted in administration proceedings”: UCPR rule 54.3(1).
In respect to the additional order sought by the Plaintiff to verify, file and pass accounts relating to the estate, I am also satisfied that this order is within the scope of UCPR r 54.3(3).
The relevant question is whether an order made pursuant to the rule would be confined to the proper administration of the trust or estate in question. Put another way, the question is whether the proceedings brought by the Plaintiff concerned the proper administration of the Trust. If answered in the affirmative, the Plaintiff has met the question of standing required for relief in respect of UCPR rule 54.3.
In my opinion, the Plaintiff has established a proper basis for the relief he has sought from the Court. Interpreting the rule broadly and flexibly, I am satisfied that a person such as the Plaintiff, who is a “person” who could be appointed as a “Beneficiary”, has a sufficient interest in ensuring the proper administration of the Trust to provide the necessary standing to seek relief and an order requiring the first Defendant (the trustee) to provide documents.
I also consider, as a matter of practicality, the documents sought are not in nature onerous to produce. (Such documents, being necessary for the proper administration of the Trust, should already be in existence). Finally, the production of the specified documents does not unduly interfere with the rights of third parties.

Summary of conclusions

In summary then, the following answers are given to the questions posed as issues:

Should the George and Annie Cork Trust be construed as a charitable trust or a private discretionary trust or is it invalid?

The Trust should be construed as a private discretionary trust.

If the Trust is a charitable trust, is it necessary to settle an administrative or cy-près scheme?

It is not necessary to determine this issue since the Trust is not a charitable trust.

If an administrative or cy-près scheme should be settled, what are the terms on which that should occur?

It is not necessary to determine this issue since the Trust is not a charitable trust.

If the Trust is a private discretionary trust, is the Plaintiff eligible to be appointed as a Beneficiary within the terms of Schedule 2 Item 2 of the Will?

Yes.

If yes to 4, what test should the Court apply to determine whether the Plaintiff has (as a person eligible to be appointed as a Beneficiary) an entitlement to access to the documents sought in the Amended Summons?

The jurisdictional basis to decide whether the Plaintiff is entitled to access the documents sought is not whether the Plaintiff has a proprietary interest in the Trust. One commences with the obligation of the Trustee to administer the Trust in accordance with the terms of the Will. The right to seek disclosure of trust documents “is one aspect of the Court’s inherent jurisdiction to supervise, and if necessary to intervene in, the administration of the Trust”. The power to order inspection is discretionary in the sense that it involves assessment and judgment. The Court exercises its jurisdiction as a court of equity, exercising its own judgement as to whether disclosure ought to be made at all, and, if so, to what extent and on what conditions.

A person who may be appointed as a “Beneficiary” may seek access to documentation necessary to assess whether the trustee has acted in accordance with the terms of the Trust, and in this way, may ensure the trustee’s accountability, albeit limited by the type of concerns raised in Erceg v Erceg.

If the correct test requires that the Court must be satisfied the Plaintiff has a proprietary interest in the Trust assets, what is his entitlement, if any, to access the documents sought in the Amended Summons?

It is not necessary to answer this question.

If the correct test requires that the Court has a discretion to grant or withhold access, should the discretion be exercised in favour of the Plaintiff?

The Court should exercise its discretion in favour of the Plaintiff.

If yes to 7, what is his entitlement to access the documents sought in the Amended Summons and to which documents?

As requested by the first Defendant, the parties should be given the opportunity to agree upon the documents to be provided to the Plaintiff, failing which agreement the Court will determine the documents to be provided.

What conditions, if any, should be imposed on the Plaintiff’s access to or use of the documents?

The conditions, if any, to be imposed upon the Plaintiff, will depend upon the nature of the documents to be provided. The parties should be given the opportunity to agree upon the conditions, if any, to be imposed on the Plaintiff’s access to, or use of, the documents, failing which agreement the Court will determine the conditions, if any.

Who may currently enforce the Trust?

Any of the discretionary objects, or any of the “Beneficiaries” appointed could seek the intervention of the Court, assuming that there was a proper basis for that application.

Can the class of objects stated in Schedule 2 Item 2 be identified independently of the exercise of the trustee’s discretion?

Yes, if falling within “such persons, Trustees of Trusts (but excluding any Trusts which would result in a breach of the rule against perpetuities or the rule against accumulations) companies or charities, residing in or otherwise carrying on business in Dorrigo in New South Wales or surrounding areas as defined by the postcode 2453 as the Trustees shall before the vesting date appoint in writing to be beneficiaries” for the purposes of the Will.

Does UCPR rule 54 provide a basis for relief

Yes. The power conferred by UCPR rule 54.3 is wide enough to be capable of compelling the provision of documents sought by the first Plaintiff in the Amended Summons.

The Court stands the matter over to a date to be appointed to make final orders and to determine any outstanding issues, including the issue of how the costs of the proceedings should be borne.

**********

Decision last updated: 04 May 2018

Medium Neutral Citation:	Wright v Stevens [2018] NSWSC 548
Hearing dates:	6 – 7 December 2017; 1 February 2018 (additional written submissions)
Date of orders:	03 May 2018
Decision date:	03 May 2018
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The answers to the questions posed as issues are summarised at [335]. The Court stands the matter over to a date to be appointed to make final orders and to determine any outstanding issues, including how the costs of the proceedings should be borne.
Catchwords:	TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.
Legislation Cited:	Associations Incorporation Act 2009 (NSW) Charitable Trusts Act 1993 (NSW) Corporations Act 2001 (Cth) Probate and Administration Act 1898 (NSW) Statute of Charitable Uses 1601 Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	AIT Investment Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216 Application by Stevens [2016] NSWSC 1523 ASIC v Carey (No 6) (2006) 153 FCR 509; [2006] FCA 814 Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 Avanes v Marshall (2007) 68 NSWLR 595; [2007] NSWSC 191 Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 Chaine-Nickson v Bank of Ireland [1976] IR 393 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 College of Law Pty Ltd v Attorney General of NSW [2009] NSWSC 1474 Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655; [2012] HCA 11 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep) CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53 Crociani & Ors v Crociani & Ors (Jersey) [2015] WTLR 975; [2014] UKPC 40 Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301 Deutsch v Trumble [2016] VSC 263 Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd [2007] VSC 272 Erceg v Erceg [2017] 1 NZLR 320; [2017] NZSC 28 Fairbairn v Varvaressos (2010) 78 NSWLR 577 Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547; [1989] 89 ATC 5274 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11 Gartside v Inland Revenue Commissioners [1968] AC 553 Goodman v Mayor of Saltash (1882) 7 App Cas 633 Hancock v Rinehart [2015] NSWSC 646 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 Kafataris v Deputy Commissioner of Taxation [2008] 172 FCR 242; [2008] FCA 1454 Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 King v Perpetual Trustee Company Limited (1955) 94 CLR 70; [1955] HCA 70 Kinsela v Caldwell (1975) 132 CLR 458; [1975] HCA 10 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Ku‑ring‑gai Municipal Council v The Attorney‑General (1954) 55 SR (NSW) 65 Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157 Lea v Mo-Mont Pacific [2016] NSWSC 809 Lewis v Tamplin [2018] EWHC 777 (Ch) Marley v Rawlings [2015] AC 129 McDonald v Ellis (2007) 72 NSWLR 605; [2007] NSWSC 1068 McGarvie Smith Institute v Campbelltown MC (1965) 11 LGRA 321 McNeill v Hearing & Balance [2007] NSWSC 942 McPhail v Doulton [1971] AC 424 Morice v Bishop of Durham (1804) 9 Ves Jun 399; 32 ER 656 Newell; Muriniti v De Costi [2018] NSWCA 49 O’Rourke v Darbishire [1920] AC 581 Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Radmanovich v Nedeljkovic [2001] NSWSC 492 Randall v Lubrano (Supreme Court (NSW), Holland J, 31 October 1975, unrep) Rauch v Maguire [2010] 2 NZLR 845 Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484 Re Fairbairn [1967] VR 633 Re Hodgson; Nowell v Flannery [1936] 1 Ch 203 Re Lauer; Corby v Lyttleton [2017] VSC 728 Re Londonderry’s Settlement [1965] Ch 918 Re Williams; Williams v Williams [1897] 2 Ch 12 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Rouse v IOOF Australia Trustees Limited (1999) 73 SASR 484; [1999] SASC 181 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] UKPC 26 Silkman v Shakespeare Haney Securities Ltd [2011] NSWSC 148 Spellson v George [1987] 11 NSWLR 300 Spellson v Janango Pty Ltd (Supreme Court (NSW), Hodgson J, 8 December 1987, unrep) Spotlight Stores Pty Ltd v Federal Commissioner of Taxation (2004) 55 ATR 745; [2004] FCA 650 Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808 Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 Towns v Wentworth [1858] 11 Moo PC 526; (1858) 14 ER 794 Trust Co (Nominees) Ltd v Banksia Securities Ltd (recs and mgrs apptd) (in liq) [2016] VSCA 324 Vegners v Federal Commissioner of Taxation (1991) 21 ATR 1347; (1991) 91 ATC 4213 Verge v Somerville [1924] AC 496 Viljoen v Hayes [2017] NSWSC 801 Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; [2003] HCA 15
Texts Cited:	I Hardingham and R Baxt, in Discretionary Trusts (2nd ed, 1984) J C Campbell, “Access by trust beneficiaries to trustees’ documents information and reasons” (2009) 3 J Eq 97 J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 8th ed, 2016) P Brereton, "A Trustee's Lot Is Not a Happy One", [2010] NSWJSchol 23
Category:	Principal judgment
Parties:	Nicholas Delpratt Wright (Plaintiff) Beryl Joan Stevens (first Defendant) Attorney-General of New South Wales (second Defendant)
Representation:	Counsel: Ms P M Lane (Plaintiff) Mr P Blackburn-Hart SC and Mr S Fitzpatrick (first Defendant) Dr C Mantziaris and Ms K Boettcher (second Defendant) Solicitors: Green & McKay (Plaintiff) Reynolds & Reynolds Legal Services (first Defendant) Crown Solicitor’s Office (NSW) (second Defendant)
File Number(s):	2016/206770
Publication restriction:	Nil