Application by Gainer Associates Pty Ltd [2024] NSWSC 1437

Supreme Court New South Wales

Medium Neutral Citation: Application by Gainer Associates Pty Ltd [2024] NSWSC 1437 Hearing dates: 11 November 2024 Date of orders: 11 November 2024 Decision date: 12 November 2024 Jurisdiction: Equity Before: Kunc J Decision: Judicial advice given that trustee justified in paying trust assets to estate of the late Gail Thelen Catchwords: EQUITY — Trusts and trustees — Judicial advice — Lost trust deed — Express trust fails for uncertainty — Assets held subject to resulting trust Legislation Cited: Trustee Act 1925 (NSW) s 63 Cases Cited: Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Others [2023] NSWSC 544 Clarke v Hilton (1866) LR 2 Eq 810 In the application of Brailey Holdings Pty Ltd (ACN 001190441) [2018] NSWSC 1493 Vanta Pty Ltd v Mantovani (2023) 72 VR 19; [2023] VSCA 53 Category: Principal judgment Parties: Gainer Associates Pty Ltd (Plaintiff) Representation: Counsel: A Cheshire SC (Plaintiff) Solicitors: Carroll & O'Dea (Plaintiff) File Number(s): 2024/362510

JUDGMENT

Summary 1. This is an application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (TA) by the plaintiff trustee Gainer Associates Pty Ltd. 2. The following facts are not in doubt: 1. Gainer is the trustee of the Werner Thelen Family Trust; 2. The late Werner Thelen and his late wife Gail Thelen were beneficiaries of the Trust (and to whom I shall refer without disrespect by their given names); 3. Gail survived Werner and was the sole beneficiary of Werner's estate; 4. The trust deed constituting the Trust has been lost. 1. Gainer brings this application because while the TA and the general law may supply some terms of the Trust, there is no evidence to enable Gainer or the Court to be certain about who, other than Werner and Gail, are beneficiaries of the Trust, when the Court is satisfied the trust deed must have specified other beneficiaries. In these circumstances, the Court concluded that the Trust had failed for uncertainty and gave the judicial advice set out in [30] below about how Gainer would be justified in dealing with the Trust's assets. These are the reasons for that advice. 2. The Court acknowledges the considerable assistance it has received from the written opinion of Mr A Cheshire of Senior Counsel, which was admitted into evidence, and from his submissions to the Court on behalf of Gainer.