Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328

New South Wales Supreme Court

CITATION : Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328

HEARING DATE(S) : 17 November 2010

JUDGMENT DATE : 17 November 2010

JUDGMENT OF : Hallen AsJ

1. Pursuant to Trustee Act, s 63, I order that the second Defendant: (a) would not be justified in doing all things necessary, or reasonably incidental, to conduct the defence of the proceedings in which it is the second Defendant; DECISION : (b) would be justified in doing all things necessary, or reasonably incidental, to conduct the prosecution of the cross-claim, as amended, so far as that cross-claim seeks to determine the identity of the holder of the beneficial interest in the Tenterfield Property, on such bases as it may be advised from time to time, up to and including the entry of judgment in those proceedings; (c) would not be justified in paying costs of either Defendant of the defence, or of the cross-claim, as amended, out of the property of the trust. 2. I order that the second Defendant's costs of the application are payable out of the trust estate. However, this order should not be taken to be one that further varies the injunction that has been granted. 3. I reserve liberty to apply on three days notice.

CATCHWORDS : TRUSTS AND TRUSTEES - s 63 Trustee Act 1925 - Judicial advice - Judicial advice to trustee as to whether he would be justified in conducting defence of proceedings and in bringing cross-claim - Advice also sought regarding paying costs - Manner of proceeding - UCPR rule 55.

LEGISLATION CITED : Trustee Act 1925 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings