Supreme Court New South Wales Medium Neutral Citation: NSW Trustee and Guardian -v- Ralph Stern [2014] NSWSC 808 Hearing dates: 28 May 2014 Decision date: 28 May 2014 Jurisdiction: Equity Division Before: Hammerschlag J Decision: See [11] Catchwords: EQUITY - TRUSTS AND TRUSTEES - s 63 of the Trustee Act 1925 (NSW) - application for judicial advice - no issue of principle Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Sekers v Sekers [2010] NSWSC 59 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 666 Category: Principal judgment Parties: NSW Trustee and Guardian - Plaintiff Ralph Stern - First Defendant Thomas Joseph McLoughlin as Tutor for Carol Judy Jennifer Sekers - Second Defendant Representation: Counsel: M.J. Gorrick - Plaintiff R. Stern - Self-Represented - First Defendant T.J. McLoughlin - Second Defendant Solicitors: L. Rundle & Co - Plaintiff File Number(s): 2014/51326 EX TEMPORE Judgment 1HIS HONOUR: By Amended Summons filed today the plaintiff NSW Trustee and Guardian ("the trustee") seeks, under s 63(1) of the Trustee Act 1925 (NSW), opinion, advice or direction in relation to certain questions in respect of the management or administration of trust property vested in it pursuant to trusts established by orders of Ward J (as her Honour then was) made on 7 May 2010 and entered on 13 May 2010 in connection with Carol Judy Jennifer Sekers ("Carol") and others. 2In a comprehensive and detailed judgment Ward J determined that certain provision should be made for Carol (see Sekers v Sekers [2010] NSWSC 59). This judgment should be read in conjunction with that one. Order 8 of her Honour's orders contemplated the establishment for the benefit of Carol a trust designated as a special disability trust for which provision is made in Commonwealth legislation. For reasons which are at present not necessary to adumbrate, the trustee did not establish the trust as contemplated by her Honour, but now wishes to do so. 3The legislation governing the establishment and operation of such trusts makes provision for a maximum amount which can be vested for the benefit of the beneficiary. At the time of her Honour's judgment, that amount was $551,750. By virtue of the passage of time, the amount which now may be invested is $609,500, but that may increase as of 1 July 2014 in accordance with indexation. 4The trustee seeks advice and a direction that in the circumstances and events which have occurred, it would be justified in settling the sum of $609,500 or such greater amount as may be able to be so held in a special disability trust for the benefit of Carol. 5Carol is represented by a tutor. Ralph Stern ("Ralph") represents himself in these proceedings. No party considers that the advice is inappropriately sought or that it is inappropriate to give it. This is a case, in my opinion, in which the advice sought can and should be given (see 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 666). 6Next, her Honour's judgment contemplated that the residence then occupied (and now still occupied by Carol), being unit 1/52 Edward Street Bondi ("the unit"), could be sold and an alternative residence somewhere in the Bondi area be purchased for her occupation, and that thereafter the unit would be sold and the proceeds (or some of them) would be vested in the general trust to be established as ordered by her Honour. 7However, it is apparent that Carol does not wish to vacate. Ralph does not seek that she vacate and the trustee does not consider, in her interests, that she should be required to vacate at this point. There are on foot negotiations which might result in the availability of funds enabling the unit to be renovated in a manner which would not deplete the entitlements to which Carol would otherwise be entitled. It is appropriate in these circumstances that the parties be given some time to explore alternative possibilities. 8In the meantime, however, there are some repairs which are urgent and the trustee seeks advice that it is justified in paying out, to a maximum of $30,000, funds to effect essential repairs to the unit even though Carol's period of occupation is at present uncertain. 9In all of the circumstances which have arisen, I consider that it is appropriate to give the advice sought. 10There are, as I understand it, arrangements between the trustee and Ralph which will, for the moment, protect Carol Sekers' possession and occupation of the unit. In the meantime the trustee will pay out-goings, including strata levies, excluding any special levies in respect of the unit. 11The Court is of the opinion, in the circumstances and the events which have arisen that: 1. The trustee is justified in settling the sum of $609,500 or such greater sum as may be able to be so held in a special disability trust in respect of the family provision claim made by Carol. 2. The trustee is presently justified in not taking any immediate steps to acquire a residence for Carol as contemplated by order 7 made on 7 May 2010 and entered on 13 May 2010. 3. The trustee is justified in paying out of the moneys it holds on trust for Carol up to $30,000 to effect what it considers to be essential repairs to unit 1/52 Edward Street Bondi, whether of a recurrent or of a capital nature, notwithstanding that the future duration of Carol's occupation of the unit is uncertain. 12The parties have liberty to apply on twenty-four hours' notice. The proceedings are stood over before me for directions or any other orders as may be appropriate, to 16 September 2014. 13All questions of costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2014