Ireland v Retallack; Retallack v Ireland [2012] NSWSC 1179

Supreme Court New South Wales

Medium Neutral Citation: Ireland v Retallack; Retallack v Ireland [2012] NSWSC 1179 Hearing dates: 9 August 2012; 5 September 2012 Decision date: 05 October 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Pursuant to the Trustee Act, 1925 s 63, order that the Plaintiff would be justified in settling the Supreme Court proceedings 59108 of 2010 (the "Estoppel/Family Provision Proceedings"). (b) It is unnecessary to answer questions (b), (c) and (d). (c) Order that the Plaintiff's costs of the proceedings, calculated on the indemnity basis be paid out of the residue of the estate of the deceased. (d) The Court notes the undertaking of the Plaintiff, by senior counsel, to the Court, that the Plaintiff will not rely on section 63(2) of the Trustee Act 1925 should a question arise in any future proceedings as to whether the Plaintiff has discharged his duty as trustee in respect of the subject matter of the application. (e) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (f) Senior Counsel's opinion, which is annexed to an affidavit of the Plaintiff, read on the hearing is to be placed in a sealed envelope and is not to be opened without an order of this court. (g) Stand the proceedings over to a convenient date for the making of orders to finalize all of the proceedings. Catchwords: TRUSTS - JUDICIAL ADVICE - application by Plaintiff trustee for judicial advice pursuant to s 63 of the Trustee Act 1925 - whether he would be justified in resolving proceedings on identified terms - Judicial advice not given on terms of compromise but simply that the trustee would be justified in compromising the proceedings - Unnecessary to answer other questions posed Legislation Cited: Family Provision Act 1982 Trustee Act 1925 Trusts Act 1973 (Qld) Uniform Civil Procedure Rules 2005 Cases Cited: Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 Beddoe, Re [1893] 1 Ch 547 Chamberlin v Spry [2008] VSC 562 Crnjanin v Ioos; Ioos v Crnjanin [2010] NSWSC 750 Ireland v Retallack [2011] NSWSC 846 Ireland v Retallack (No 2) [2011] NSWSC 1096 Ireland v Retallack [2011] NSWSC 1510 Jax Quickfit Franchising Systems Pty Ltd as Trustee for the Jax Quickfit Franchising Systems Unit Trust [2012] NSWSC 1114 McKinnon v Samuels [2000] VSC 393 Macedonian Orthodox Community Church St Petka Inc v Petar [2006] NSWCA 160; (2006) 66 NSWLR 112 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Perpetual Investment Management Limited as responsible entity for Perpetual's Monthly Income Fund, Re and Perpetual's Wholesale Monthly Income Fund [2011] NSWSC 133 Stein v Sybmore Holdings [2006] NSWSC 1004 Watson v Yore [2004] QSC 339 Category: Principal judgment Parties: Mark Gerard Ireland (as executor of the Estate of the Late Charles Stewart Gordon) (Plaintiff in 2010/316546 & 2010/360339) Sandra Jane Retallack (Defendant in 2010/316546 Sandra Jane Retallack (First Defendant in 2010/316546 & 2010/360339) Gordon Family Corporation Pty Ltd (Second Defendant in 2010/360339) Richard John William d'Apice (third Defendant in 2010/360339) Sandra Jane Retallack (Plaintiff in 2010/59108) Mark Gerard Ireland (as executor of the Estate of the Late Charles Stewart Gordon) (Defendant in 2010/59108) Wade v State of Victoria (No 2) [2012] FCA 1080 Representation: Counsel: Mr M Dempsey SC; Ms J Gleeson (Plaintiffs in 2010/316546 & 2010/360339) Mr L Ellison SC (Defendants in 2010/316546 & first and second Defendants 2010/360339) Mr L Ellison SC (Plaintiff in 2010/59108) Mr M Dempsey SC; Ms J Gleeson (Defendant in 2010/59108) Mr I Sinnadurai (sol) for third Defendant in 2010/360339) Solicitors: Argyle Lawyers Pty Ltd (Plaintiffs in 2010/316546 & 2010/360339; Defendant in 2010/59108) King Cain Solicitors (Defendants in 2010/316546 & first and second Defendants in 2010/360339; Plaintiff in 2010/59108) Richard John William d'Apice (third Defendant in 2010/360339) File Number(s): 2010/316546; 2010/360339; 2010/59108