NSW Caselaw
Reported Decision : 63 NSWLR 441
New South Wales Supreme Court
CITATION : Application of Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2005] NSWSC 558
HEARING DATE(S) : 2 June 2005
JUDGMENT DATE : 10 June 2005
JURISDICTION : Equity Division
JUDGMENT OF : Palmer J
DECISION : Advice given in respect of admitted trust property but not otherwise; recourse may be had to trust assets for purpose of obtaining counsel's preliminary advice as to prospects.
CATCHWORDS : TRUSTS AND TRUSTEES - JUDICIAL ADVICE - JURISDICTION - DISCRETION - COSTS OF LITIGATION - Whether the Court has jurisdiction under s.63 Trustee Act or under the general law to give judicial advice on the application of a party which denies that it is a trustee but seeks judicial advice to protect itself against costs if it is ultimately proved wrong - the nature and purpose of Counsel's advice as to a trustee's prospects of success in litigation - advice may be given in stages - a cap may be placed on authorised expenditure from trust assets.
Supreme Court Rules 1970 (NSW) - Pt 31 LEGISLATION CITED : Trust Property Act 1862 - s.30 Trustee Act 1925 (NSW) - s.63(1), s.63(4)
- Alsop Wilkinson (a firm) v Neary [1995] 1 All ER 431 - Auspac Corporate Managers Pty Ltd v J. Noble Pty Ltd [2003] NSWSC 548 - Biddencare Ltd, In re [1994] 2 BCLC 160 - Dallaway (dec'd), Re [1982] 1 WLR 756 - Gardner v London Chatham & Dover Railway Company (No 1) (1867) LR 2 Ch App 201 - Harrison v Mills [1976] 1 NSWLR 42 - Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 - Medland; Eland v Medland, In re (1889) 41 Ch D 476 CASES CITED : - Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Association Inc [2003] NSWSC 104 - Metropolitan Petar v Mitreski [2003] NSWSC 262 - Moritz (dec'd), In re [1960] Ch 251 - G.B. Nathan & Co Pty Ltd (in liq), Re (1991) 24 NSWLR 674 - Permanent Trustee Australia Ltd, Re (1994) 33 NSWLR 547 - Perpetual Trustee Co Ltd, Re Application of [2003] NSWSC 1185 - Public Trustee and Estate of T, Re [1999] NSWSC 1027 - Westdock Realisations Ltd, Re [1988] BCLC 354 - Ford & Lee "Principles of the Law of Trusts" - p.17-1054
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