Application of Browne as executor of the estate of Russell [2021] NSWSC 1340

Supreme Court New South Wales

Medium Neutral Citation: Application of Browne as executor of the estate of Russell [2021] NSWSC 1340 Hearing dates: 15 October 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Equity Before: Henry J Decision: See [23] Catchwords: EQUITY – Trusts and trustees – Court's supervision of – Appointment and removal of trustees – where nominated trustee of testamentary trust refused appointment – whether new trustee should be appointed under s 70 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction – new trustee appointed Legislation Cited: Trustee Act 1925 (NSW), ss 6, 70 Cases Cited: Crowle Foundation v NSW Trustee & Guardian [2010] NSWSC 647 Mallott v Wilson [1903] 2 Ch 494 Re Will of Orloff; Terracall v Churkovich (2010) 24 VR 603; [2010] VSC 48 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts (7th ed, 2006, LexisNexis Butterworths) Tucker, Le Poidevin and Brightwell, Lewin on Trusts (20th ed, 2020, Sweet & Maxwell) Category: Principal judgment Parties: Darryl Ian Browne (Plaintiff) Representation: Counsel: S Chapple (Plaintiff)

Solicitors: Browne Linkenbagh Legal Services (Plaintiff) File Number(s): 2021/157984 Publication restriction: Nil

Judgment – Ex Tempore (Revised) 1. The plaintiff, Darryl Ian Browne, is the executor of the estate of the late Peter Russell (the deceased) who died on 12 September 2018 leaving a will made on 16 July 2015. 2. By summons filed on 2 June 2021, the executor seeks an order pursuant to s 6 or s 70 of the Trustee Act 1925 (NSW), or otherwise pursuant to the inherent jurisdiction of the Court, that Equity Trustees Ltd be appointed as trustee of the 'Special Needs Fund' on the terms set out in the will. The order is sought because the initial trustee nominated under the will in relation to the Special Needs Fund has refused to accept the appointment. 3. The executor relies on his affidavit dated 1 June 2021 and written submissions which have been of assistance to the Court and from which some of what follows is taken. 4. There is no contradictor. I am satisfied that a contradictor is unnecessary in this case based on the nature of the application and the other matters to which I will refer.