John Campbell Nominees Pty Ltd ACN 646 545 262 [2021] NSWSC 233

Supreme Court New South Wales

Medium Neutral Citation: John Campbell Nominees Pty Ltd ACN 646 545 262 [2021] NSWSC 233 Hearing dates: 12 March 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Equity Before: Kunc J Decision: Judicial advice given Catchwords: EQUITY – Trusts and trustees – Judicial advice – Whether trustee justified in defending proceedings and filing cross-claim where it will not be the only contradictor Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Category: Principal judgment Parties: John Campbell Nominees Pty Ltd ACN 646 545 262 (Plaintiff) Representation: Counsel:

J Burnett (Plaintiff) C Birtles (C L Campbell and B F Campbell) J Townsend (Solicitor) (A I Tonking SC)

Solicitors:

Resolve Litigation Lawyers (Plaintiff) Bridges Lawyers (C L Campbell and B F Campbell) J Townsend (A I Tonking SC) File Number(s): 2021/053066 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. Nearly 46 years ago, a series of transactions was entered into concerning a farming property near Warren (the Property). In a few days' time, on 22 March 2021, Slattery J of this Division will hear three sets of proceedings in which the beneficial ownership of the Property will be an important question. 2. The application before the Court today is brought by one of the parties to one of those three proceedings, John Campbell Nominees Pty Ltd (JCN), for judicial advice under the Trustee Act 1925 (NSW). JCN is a trustee of the Campbell Family Trust (the Trust). The Trust was established as part of the transactions entered into 46 years ago. The question relevantly to be determined by Slattery J is who is beneficially entitled to the Property? JCN will contend that the Property is part of and held upon the terms of the Trust. Others, in circumstances I will shortly describe, will contend otherwise. 3. JCN seeks this advice: "Question 1: Whether it is justified, as trustee of the Discretionary Trust, in: a. Defending the claims and relief sought in New South Wales Supreme Court proceedings 374756 of 2019 (Equity Proceeding) insofar as they concern the land held by BCN (Trust Property); b. Advancing a cross-claim in the Equity Proceeding in the event the plaintiffs do not succeed in obtaining the relief they seek concerning the Trust Property. Question 2: Whether it is entitled to pay costs incurred in so defending those claims and relief sought and advancing a cross-claim, from the trust fund." 1. For the reasons which follow, the Court will provide that advice, but subject to a qualification in relation to JCN's entitlement to pay its costs from the Trust's property.