Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) [2013] NSWSC 1525

Supreme Court New South Wales

Medium Neutral Citation: Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) [2013] NSWSC 1525 Hearing dates: 19 September 2013 Decision date: 18 October 2013 Jurisdiction: Equity Division Before: Darke J Decision: (1) Pursuant to s 63 of the Trustee Act 1925 I advise that, subject to the proviso that the plaintiff acts in accordance with the provisions of paragraphs 104(a), (d) and (e) of the confidential memorandum of advice of Mr Sulan dated 4 July 2013, the plaintiff would be justified in continuing to prosecute the Summons in proceedings 2011/412419 and defending the Cross-claim (as amended) in proceedings 2011/412419. (2) The plaintiff's costs of these proceedings are to be paid out of the assets of the Gladstone Road Trust. (3) Liberty is granted to the plaintiff to apply on 5 days' notice. Catchwords: EQUITY - trusts and trustees - applications to court for advice - private trust - whether trustee justified in continuing to prosecute proceedings and defend a cross-claim in proceedings - whether trustee entitled to be indemnified out of trust assets for costs of proceedings - where allegations made of breach of trust - where removal of trustee sought - whether court should provide advice - judicial advice given Legislation Cited: Trustee Act 1925 Cases Cited: Application of Gnitekram Marketing Pty Ltd [2010] NSWSC 1328 Barnes v Addy (1874) LR 9 Ch App 244 Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar [2008] HCA 42; (2008) 237 CLR 66 PILT Nominees Pty Ltd v Baltarna Pty Ltd [2009] NSWSC 656 Re Australian Pipeline Ltd [2006] NSWSC 1316; (2006) 60 ACSR 625 Category: Principal judgment Parties: Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) (Plaintiff) Michael Mayne (proposed First Defendant) Donna Mayne (proposed Second Defendant) Representation: Counsel: D Sulan (Plaintiff) C Alexander (proposed First and Second Defendants) Solicitors: Kemp Strang (Plaintiff) McLaughlin & Riordan (proposed First and Second Defendants) File Number(s): SC: 2013/240130 Publication restriction: Nil