Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544

Supreme Court New South Wales

Medium Neutral Citation: Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 Hearing dates: 3 April 2023. Last submissions received 17 April 2023 Date of orders: 23 May 2023 Decision date: 23 May 2023 Jurisdiction: Equity Before: Henry J Decision: Judicial advice given in the terms set out at [99] Catchwords: EQUITY — trusts and trustees — judicial advice — application by four plaintiff trustees for judicial advice in managing and administering four related trusts — where original trust deeds and copies cannot be found — where letter of advice from accountant recommended structure involving establishment of trusts and terms concerning the identity of unitholders, discretionary beneficiaries and entitlements — where evidence that trusts established and have operated for many years — where searches revealed template trust deeds and specific information concerning trust names, establishment dates, settlement sums, applicable laws and details of the settlors, trustees and beneficiaries — where applicable law of trusts is that of Victoria or Queensland — jurisdiction of Court to provide judicial advice in its inherent jurisdiction and based on cross-vesting legislation of Victoria and Queensland — clear and convincing proof not required — certainties of intention, subject matter and objects made out — judicial advice provided Legislation Cited: Evidence Act 1995 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) Rules of the Supreme Court 1883 (UK) Supreme Court (General Civil Procedure) Rules 2005 (Vic) Trustee Act 1925 (NSW) Trustee Act 1958 (Vic) Trusts Act 1973 (Qld) Cases Cited: Ballard v Attorney-General (2010) 30 VR 413; [2010] VSC 525 Barp Nominees Pty Ltd [2016] NSWSC 990 Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 BTA Institutional Services Australia Ltd v BNY Trust (Australia) Registry Ltd (2009) 3 ASTLR 207; [2009] NSWSC 1294 In the Application of Brailey Holdings Pty Limited ACN 001 190 441 [2018] NSWSC 1493 Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand & Anor (2008) 237 CLR 66; [2008] HCA 42 Mack v Lenton (1993) 32 NSWLR 259 Maks v Maks (1986) 6 NSWLR 34 Re Adam John Dove Pty Ltd [2022] VSC 625 Re Application of Rinehart (2020) 104 NSWLR 274; [2020] NSWSC 1624 Re Cleeve Group Pty Ltd [2022] VSC 342 Re Dion Investments Pty Ltd [2013] NSWSC 1941 Re Porlock Pty Ltd [2015] NSWSC 1243 Vanta Pty Ltd v Mantovani [2023] VSCA 53 Category: Principal judgment Parties: DEK Technologies Pty Ltd as trustee for the DEK Technologies Unit Trust (First Plaintiff) Drini Mulla as trustee for the Mulla Trust (Second Plaintiff) Kerim Tanovic as trustee for the Tanovic Trust (Third Plaintiff) Wisdom Consultancy (Vic) Pty Ltd as trustee for the Yim Tang Family Trust (Fourth Plaintiff) Representation: Counsel: D Barlin (Plaintiffs)