Application of NSW Trustee and Guardian [2023] NSWSC 966

Supreme Court New South Wales

Medium Neutral Citation: Application of NSW Trustee and Guardian [2023] NSWSC 966 Hearing dates: 11 August 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Equity Before: Nixon J Decision: The Court orders that: (1) The Plaintiff would be justified in selling the property at 130-132 Coogee Bay Road, Coogee, New South Wales being the whole of the land comprised in certificate of title folio identifier B/102102 for an amount of $8 million with a settlement period of 12 months. (2) The Plaintiff's costs of the proceedings be paid out of the estate on the indemnity basis. Catchwords: EQUITY – trusts and trustees – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – practice and procedure in judicial advice proceedings – nature of and principles governing judicial advice – judicial advice on whether NSW Trustee and Guardian is justified in selling property part of the deceased's estate – whether the Court should decline, in its discretion, to give the advice sought – whether advice in best interests of trust estate Legislation Cited: Trustee Act 1925 (NSW) s 63 Cases Cited: Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918 Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 Application of Willoughby City Council (as manager of the Talus Reserve Trust) & anor [2016] NSWSC 1717 Halfhide v Beaven [2003] NSWSC 1207 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 Wardy v NSW Trustee and Guardian [2020] NSWCA 169 Wardy v NSW Trustee and Guardian [2021] NSWCA 121 Category: Principal judgment Parties: NSW Trustee and Guardian (Plaintiff) Anthony Wardy, Robert Wardy and Roger Wardy (First, Second and Third Interested Parties) John Wardy (Fourth Interested Party) Representation: Counsel: A Cheshire SC with C Coventry (Plaintiff) J Needham SC (Fourth Interested Party)