AMP Captital Investors Ltd as Responsible Entity for the KSC Trust [2010] NSWSC 1259

New South Wales Supreme Court

CITATION : AMP Captital Investors Ltd as Responsible Entity for the KSC Trust [2010] NSWSC 1259

HEARING DATE(S) : 27 October 2010, 28 October 2010

JUDGMENT DATE : 2 November 2010

JUDGMENT OF : Slattery J at 1

DECISION : See paragarph 18 of the judgment.

CATCHWORDS : Trusts and trustees - judical advice - application by trustee for juducal advice as to whether it would be justified in defending proceedings - proceedings at an early stage - counsel's advice tendered justifying defence of the proceedings - HELD: trustees would be justified in filing a defence and in utilising the trust estate for that purpose.

LEGISLATION CITED : Trustee Act (NSW) 1925, s 63

CATEGORY : Separate question

CASES CITED : Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66

PARTIES : Applicant- AMP Captital Investors Ltd as Responsible Entity for the KSC Trust

FILE NUMBER(S) : SC 2010/353969

COUNSEL : Applicant- T.F. Bathurst QC, K.H. Barrett

SOLICITORS : Applicant- Luke Buchanan, Clayton Utz

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

SLATTERY J

TUESDAY, 2 NOVEMBER 2010

2010/356969 AMP CAPITAL INVESTORS LIMITED AS RESPONSIBLE ENTITY FOR THE KSC TRUST JUDGMENT

1 HIS HONOUR: The plaintiff, AMP Capital Investors Limited ("AMP CI") is the trustee of the responsible entity of a unit trust, the KSC Trust. The principal asset of this trust is the Karrinyup Shopping Centre in Perth, Western Australia. The KSC Trust was established by a trust deed dated 23 March 1994. AMPCI claims judical advice in these proceedings under Trustee Act 1925, s 63 as to whether it would be justified in defending certain proceedings brought against it by one of the beneficiaries of the KSC Trust.