Barp Nominees Pty Ltd [2016] NSWSC 990

Supreme Court New South Wales

Medium Neutral Citation: Barp Nominees Pty Ltd [2016] NSWSC 990 Hearing dates: 15 July 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Jurisdiction: Equity Before: Pembroke J Decision: Judicial advice granted Catchwords: TRUSTS – lost deed – evidence of contents – judicial advice as to basis for management and administration of trust Cases Cited: Maks v Maks (1986) 6 NSWLR 34 Porlock Pty Ltd [2015] NSWSC 1243 Category: Principal judgment Parties: Barp Nominees Pty Ltd - plaintiff No defendant Representation: Counsel: D Barlin – for the plaintiff

Solicitors: Hunter Lawyers – for the plaintiff File Number(s): 2016/178368

Judgment 1. This is an application by the plaintiff for an order pursuant to s 63 of the Trustee Act. It seeks judicial advice that it is justified in managing and administering the trust estate known as the 'Sandrin Family Trust' pursuant to the terms contained in a document entitled Deed of Trust and dated 23 August 1974. 2. The circumstances which give rise to this application are that the evidence clearly and unequivocally satisfies me that two trusts were established by Giovanni Barp and Gilda Barp. They had two children, Giselda Sandrin and Clelia Cisera. The trusts were established for the Sandrin family and the Cisera family. The trust deed for the Cisera trust remains in existence and there is no issue about it. The trust deed for the Sandrin trust has been lost. Once again, the evidence is clear about this. 3. The evidence explains that the two family trusts were set up at the same time and that they shared equally in certain property interests which I assume were originally acquired by Mr and Mrs Barp or entities owned or controlled by them. I am satisfied that the two trusts mirrored each other and that the only differences were as to the beneficiaries and the person who controls the trust. 4. The primary evidence was given by Mrs Swift, who is the daughter of Giselda Sandrin. Her mother, at an elderly age, sat down with her and explained that she wished to take her through the Sandrin trust deed, pointing out its provisions and explaining the operation of the trust. Mrs Swift noticed that the Sandrin trust deed was dated 1974, which was the year in which her grandmother, Mrs Barp, died. She also noticed that the trustee was the plaintiff. Her mother pointed out her name - that is, Mrs Swift's name - and her mother's name where they appeared as beneficiaries. That was the last time that Mrs Swift saw the Sandrin trust deed. It is referred to in numerous company records of the plaintiff and there seems to be no serious doubt that it once existed and that its terms were relevantly identical to the terms of the Cisera trust deed. 5. I have had the benefit of the very thorough advice of counsel for the plaintiff, Mr Barlin, who has drawn my attention to the decision of Young AJA in Porlock Pty Ltd [2015] NSWSC 1243. The secondary evidence in this case of the existence and terms of the lost trust deed are more than adequate to satisfy me that the advice sought is appropriate. This is not an application to reconstruct the trust or to create one in the same terms. It is merely an application that the trustee is justified in managing and administering the trust estate in accordance with terms which are substantially the same as the terms of the Cisera trust deed. Naturally, those terms have been modified where appropriate to reflect the different family interests involved. 6. The plaintiff has recognised and assumed the burden of demonstrating the need for 'clear and convincing proof not only of the existence but also of the relevant contents' of the missing trust deed: see Maks v Maks (1986) 6 NSWLR 34 at 36 per McLelland J and Porlock Pty Ltd [2015] NSWSC 1243 at [6] to [8]. As I said, this is not a case of reconstruction of a trust and it is far more than mere guesswork or an exercise of the imagination. The application is based upon the actual personal observation and remembrance of the contents of the lost document. The fact that there was a mirror trust deed for the other side of the family fortifies me in reaching the conclusion that the advice sought is appropriate. 7. For those reasons, I will make the orders set out in the Short Minutes of Order as follows: 1. Order pursuant to Section 63 of the Trustee Act 1925 (NSW) that Barp Nominees Pty Ltd (ACN 001 258 519) is justified in managing and administering the trust estate known as the Sandrin Family Trust which was established in 1974 pursuant to the terms annexed and marked 'A' to the orders. 2. Order that the costs of these proceedings be borne by, and paid out of the income and/or capital of the Sandrin Family Trust on an indemnity basis. 1. In cases such as this, it is appropriate that the terms upon which I have concluded that the trustee is justified in managing and administering the trust estate should be annexed to the orders of the Court.