NSW Caselaw
New South Wales Supreme Court
CITATION : Fay v Moramba Services Pty Ltd [2010] NSWSC 725
HEARING DATE(S) : 7 June 2010
JUDGMENT DATE : 2 July 2010
JURISDICTION : Equity Division
JUDGMENT OF : Brereton J
DECISION : Orders for costs paras 61-63
CATCHWORDS : EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – indemnity – where trustees successfully defend application by some beneficiaries for removal – EQUITY - trusts and trustees - applications to the court on originating process – EQUITY - trusts and trustees - applications to the court for advice and authority – whether trustee of discretionary trust would be justified in funding defence of proceedings to which it was not a party – whether burden should be borne by plaintiff beneficiaries in context of discretionary trust - whether advice that certain approach to future distributions would be justified should be given, absent knowledge of all relevant circumstances when discretion falls to be exercised – EQUITY - trusts and trustees - proceedings between trustees and beneficiaries or third parties – costs – where beneficiaries' claim against trustees dismissed – ordinary position – whether hardship to beneficiaries justifies departure from ordinary rule
(NSW) Contracts Review Act 1980 LEGISLATION CITED : (NSW) Trustee Act 1925, s 59(4) (NSW) Uniform Civil Procedure Rules 2005, r 42.1, r 42.25
CATEGORY : Consequential orders
Bovaird v Frost [2009] NSWSC 917 Drummond v Drummond [1999] NSWSC 923 Emanuel Management Pty Ltd (in liq) v Emanuele (2002) 83 SASR 501 Fay v Moramba Services Pty Ltd [2008] NSWSC 424 Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 In Re Llewellin; Llewellin v Williams (1887) 37 Ch D 317 CASES CITED : Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Miller v Cameron (1936) 54 CLR 572 National Trustees Executors and Agency Co of Australasia v Barnes (1941) 64 CLR 268 National Trustees Executors and Agency Co of Australasia v Dwyer (1940) 63 CLR 1 Oshlack v Richmond River Council (1998) 193 CLR 72 Porter v GIO Australia Ltd [2002] NSWSC 668 Whitlam v National Roads and Motorists Association Ltd (2006) 58 ACSR 370
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