Pascoe (in his capacity as administrator of the Estate of the Late Kut Sze Tu and as constructive trustee) [2024] NSWSC 738

Supreme Court New South Wales

Medium Neutral Citation: Pascoe (in his capacity as administrator of the Estate of the Late Kut Sze Tu and as constructive trustee) [2024] NSWSC 738 Hearing dates: 7 June 2024 Date of orders: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: (1) Plaintiff Administrator is justified in defending proceedings no 2023/00261930 brought against him by Geoffrey Lowe and Mary Lowe; and (2) Plaintiff Administrator is entitled to be reimbursed and exonerated out of the assets of the Estate of the Late Kut Sze Tu for his costs, charges, expenses and remuneration properly incurred in taking any steps in relation to order (1). Catchwords: TRUSTS AND TRUSTEES – STATUTORY INTERPRETATION – Application for judicial advice –Trustee Act 1925 (NSW) s 63(1) – Proper construction of words "any question respecting the management or administration of the trust property" – Whether Court has power to give judicial advice to Court-appointed administrator/constructive trustee to defend proceedings brought against him for breach of trust – Whether Court-appointed administrator/constructive trustee should have recourse to the trust assets to defend proceedings – HELD – Section has wide operation and the questions asked are in respect of the management or administration of the trust property – No warrant for reading section down – Control of wide operation resides in the Court having discretion whether to give or not to give judicial advice – Administrator properly entitled to have recourse to trust assets to defend proceedings Legislation Cited: Real Property Act 1900 (NSW) Trustee Act 1925 (NSW) Cases Cited: Application of Gnitekram Marketing Pty Ltd [2010] NSWSC 1328 Application of Macedonian Orthodox Community of St Petka Inc (No 2) (2005) 63 NSWLR 441 Attorney-General (Vic) (Ex rel Black) v Commonwealth (1981) 146 CLR 559 Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680 Australian Pipeline Ltd (2006) 60 ACSR 625; [2006] NSWSC 1316 In the application of NSW Trustee & Guardian (2014) 12 ASTLR 513; [2014] NSWSC 423 Lowe v Pascoe (No 4) [2012] NSWSC 1493 Lowe v Pascoe (No 9) [2021] NSWSC 163 Lowe v Pascoe (No 10) [2021] NSWSC 1232 Lowe v Pascoe (No 11) [2021] NSWSC 1375 Lowe v Pascoe (No 12) [2021] NSWSC 1576 Lowe v Pascoe (No 13) [2021] NSWSC 320 Lowe v Pascoe (No 14) [2021] NSWSC 1591 Lowe v Sze Tu as Administrator of the Estate of the late Fung Chun Chow; Lowe v Pascoe as Administrator of the Estate of the late Kut Sze Tu [2023] NSWCA 282 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 McDowell v Baker (1979) 144 CLR 413 Northey v Juul [2014] NSWSC 464 Pascoe as administrator of the Estate of Kut Sze Tu [2019] NSWSC 817 R v Khazaal (2012) 246 CLR 601 Re Application of Eurolinx Pty Ltd (in its capacity as trustee for the Colbert Security Trust) [2017] NSWSC 1306 Re Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918 Re Estate Law Chow Cho-Poon; Application for judicial advice (2013) 10 ASTLR 251; [2013] NSWSC 844 Re Perpetual Trustee Company Limited as trustee for the Joseph Babington Davis Settlement [2020] NSWSC 1574 Rogers v Wentworth (1986) 7 NSWLR 88 South West Helicopters Pty Ltd v Stephenson; Parkes Shire Council v South West Helicopters Pty Ltd; Essential Energy v South West Helicopter Pty Ltd (2017) 98 NSWLR 1 State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Trustees, Executors & Agency Co Ltd v Reilly [1941] VLR 110 Category: Principal judgment Parties: Scott Pascoe (in his capacity as administrator of the Estate of the Late Kut Sze Tu and as constructive trustee) (Plaintiff)