John Leslie Kennedy v Glenn Raymond Kennedy [2011] NSWSC 1619

Supreme Court New South Wales

Medium Neutral Citation: John Leslie Kennedy v Glenn Raymond Kennedy [2011] NSWSC 1619 Hearing dates: 4 November 2011 Decision date: 04 November 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Appoint the plaintiffs as trustees of the Kennedy Family Trust. Vesting order made vesting trust property in the new trustees. Catchwords: TRUSTS - trusts and trustees - trustee and appointer cannot be found trust property at risk of repossession and sale - suitable case for new trustees to be appointed. Legislation Cited: Trustee Act 1925, s 70 Cases Cited: Guazzine v Pateson (1918) 18 SR (NSW) 275 Johnstone v Johnstone (1902) 2 SR (NSW) Eq 90 Wrightson v Cooke (1908) 1 Ch 789 Category: Principal judgment Parties: First Plaintiff:- John Leslie Kennedy Second Plaintiff:- Sylvia Joan Kennedy Defendant:- Glenn Raymond Kennedy Representation: Plaintiffs:- P.A. Regattieri Defendant:- No appearance Plaintiffs:- Peter Gerard Bartley, Peacockes solicitors File Number(s): 2011/98840 Publication restriction: No

EX TEMPORE Judgment 1Before the Court is an application to appoint new trustees to the Kennedy Family Trust. The case, in my view, is a clear one for the exercise of the Court's supervisory jurisdiction over this trust to appoint new trustees under Trustee Act 1925, s 70. 2The plaintiffs, Mr John Kennedy and Mrs Sylvia Kennedy, are the parents of the defendant, Mr Glenn Kennedy. The plaintiffs were advised some years ago to set up a discretionary family trust and to appoint their son as its trustee. The precise reasons for the setting up of the Kennedy Family Trust are not demonstrated in evidence. But the trust was set up on accountant's advice. 3The problem that brings the matter to Court is that for over two and a half years the defendant trustee has not been in contact with his parents, who are named as the Principal Beneficiaries of the trust. The trust has one asset, a property in Dubbo on which liabilities are accruing. The defendant's disappearance has meant that the plaintiffs and specifically Mrs Kennedy, and companies associated with her, have met the trust's liabilities in order to preserve trust property.