In the Application of Nyasa No. 19 Pty Ltd [2023] NSWSC 578

Supreme Court New South Wales

Medium Neutral Citation: In the Application of Nyasa No. 19 Pty Ltd [2023] NSWSC 578 Hearing dates: 17 February 2023; further written submissions 23 March and 23 May 2023 Date of orders: 30 May 2023 Decision date: 30 May 2023 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Arrangement approved as to terms on which trust is to be administered Catchwords: EQUITY – Trust and trustees – Judicial advice – Variation of trust deed – Approval of arrangement where there is a lost trust deed – Desirability of Court being able to declare terms of lost trust deed rather than provide judicial advice - Trustee Act 1925 (NSW), ss 63, 86A Legislation Cited: Adoption Act 2000 (NSW) Trustee Act 1925 (NSW) Cases Cited: Barp Nominees Pty Ltd [2016] NSWSC 990 Bullas v Public Trustee [1981] 1 NSWLR 641 In the application of Brailey Holdings Pty Ltd ACN 001 190 441 [2018] NSWSC 1493 In the application of NSW Trustee and Guardian [2014] NSWSC 423 Saunders v Vautier (1841) 41 ER 482 Youyang Pty Ltd v Minter Ellison (2003) 212 CLR 484; [2003] HCA 15 Category: Principal judgment Parties: Nyasa No. 19 Pty Ltd (Plaintiff) Representation: Counsel: D Barlin (Plaintiff)

Solicitors: O'Brien Connors and Kennett Lawyers (Plaintiff) File Number(s): 2022/297452 Publication restriction: Nil

Judgment

Summary 1. This proceeding began as an application pursuant to s 63 of the Trustee Act 1925 (NSW) (the Act) for judicial advice that the plaintiff trustee, Nyasa No. 19 Pty Ltd (the Trustee), is justified in managing and administering a trust estate known as the "R.J. Canfield Family Trust" (the Trust) on particular terms in circumstances where, despite extensive searches, the original trust deed (or copies) settling the Trust have not been able to be found. 2. As with a similar case that has come before me (In the application of Brailey Holdings Pty Ltd ACN 001 190 441 [2018] NSWSC 1493), the basis of the application is that, at the time the original trust deed was settled, at least one other trust (the terms of which are in evidence) was settled for the benefit of another member of the same family. The Court is satisfied that the Trustee has brought clear and convincing proof not only of the existence, but also of the contents, of the missing trust deed – namely that they are relevantly in the same terms as the other trust deed which is in evidence. However, that is not the end of the matter. 3. The Court has been considerably assisted by the detailed opinion and oral submissions of Mr D Barlin of Counsel, who appeared for the Trustee, together with further written submissions provided in response to issues raised by the Court in subsequent email correspondence. During the course of the hearing, Mr Barlin sought an opportunity to amend the summons to seek, in the alternative, relief under s 86A of the Act in an endeavour to bring about a binding and final outcome otherwise to substantially the same result as the judicial advice application. This involved the Court approving an arrangement including variation of the original trust deed (in this case by modernising some of its provisions) so as to produce a definitive form of the trust deed by reference to which all interested parties accepted the Trust would be administered into the future. For the reasons advanced by Mr Barlin, and substantially reflected in these reasons, the Court is satisfied that can and should be done.