NSW Caselaw
New South Wales Supreme Court
CITATION : Leerac Pty Ltd v Garrick E Fay & ors [2010] NSWSC 1088
HEARING DATE(S) : 23 July 2010 JURISDICTION : Equity Division
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 23 July 2010
DECISION : Trustees justified and entitled to aid defence of defendants
CATCHWORDS : EQUITY – Trusts and trustees – Applications to the court for advice and authority – whether trustee justified in paying successful costs of estate proceedings prior to defendants taking recovery action against plaintiffs
LEGISLATION CITED : (NSW) Trustee Act 1925 s 63
CATEGORY : Consequential orders
CASES CITED : Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Leerac Pty Ltd (plaintiff) Garrick E Fay (first defendant) PARTIES : Dallas Fay (second defendant) Sioned Fay (third defendant) Louisa Fay (fourth defendant)
FILE NUMBER(S) : SC 08/282225
COUNSEL : Mr R M Smith SC w Mr P W Flynn (plaintiff) Ms Merkel (first & second defendants)
Corrs Chambers Westgarth (plaintiff) SOLICITORS : Slater & Gordon (first & second defendants) Emil Ford & Co (third & fourth defendants)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
BRERETON J
Friday, 23 July 2010
2008/282225 Leerac Pty Ltd ACN 000 566 843 v Garrick E Fay JUDGMENT (ex tempore) 1 HIS HONOUR: This judgment is given in proceedings 08/282225, formerly 6250/08, Leerac Pty Ltd v Fay and others, in which on 2 July 2010 the court gave certain judicial advice to the plaintiff Leerac Pty Ltd [see Fay v Moramba Services Pty Ltd [2010] NSWSC 725, [62]], including advice that Leerac, in its capacity as trustee of the inter vivos trusts, would be justified in paying out of the trust estate the defendants' costs of their defence of the estate proceedings, to the extent that costs are not recovered from the plaintiffs pursuant to the party/party costs order against them, and are not recoverable from the deceased's estate pursuant to the defendants' right of indemnity against the deceased's estate.
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