Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680

Supreme Court New South Wales

Medium Neutral Citation: Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680 Hearing dates: 29 May 2024 Date of orders: 4 June 2024 Decision date: 04 June 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: Notice of Motion dismissed Catchwords: JUDICIAL ADVICE – Trustee Act 1925 (NSW) ss 63(1)-(2) – The trustee of a unit trust trading in foreign exchange contracts seeks judicial advice that it is justified in terminating the trust and doing so in a shorter period than that which the trust deed provides (by exercising a power under the trust deed to vary it) – Where there is shortly to be heard in the Court a trial involving, amongst others, claims against the trustee for breach of duty and that it should be removed – Where one of the avowed purposes of the trustee in bringing the application is to reduce its participation in the upcoming trial – Where the trustee's approach is based on a short series of factual propositions without regard to the wide and significant context in which those propositions must be seen to be properly understood – Where the advice sought would entail closing out open positions on foreign currency contracts, a decision which would require complex and expert business judgement which the trustee is not in a position to make – Where the trust has made significant losses but in the immediate past has made a profit - Where one of the parties opposing the advice holds 80% of the equity in the trust – HELD – In the circumstances, it is not appropriate for the Court to exercise its discretion to give the advice sought – Application dismissed Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Beck v Henley (2014) 11 ASTLR 457; [2017] NSWCA 201 In the application of NSW Trustee & Guardian (2014) 12 ASTLR 513; [2014] NSWSC 423 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 Re Estate Law Chow Cho-Poon; Application for judicial advice (2013) 10 ASTLR 251; [2013] NSWSC 844 Category: Principal judgment Parties: Aurora Australasia Pty Ltd (Plaintiff/First Cross-Defendant) Hunt Prosperity Pty Ltd (Applicant on the Motion/First Defendant/Second Cross-Defendant) AMHP Pty Ltd (Second Defendant/First Cross-Claimant) Adam Hartley (Second Cross-Claimant) David James Driver (Third Cross-Defendant) Representation: Counsel: