Application by Karellas Investments Pty Ltd [2016] NSWSC 1578

Supreme Court New South Wales

Medium Neutral Citation: Application by Karellas Investments Pty Ltd [2016] NSWSC 1578 Hearing dates: 02 November 2016 Date of orders: 02 November 2016 Decision date: 02 November 2016 Jurisdiction: Equity Before: Hallen J Decision: Pursuant to s 63 of the Trustee Act 1925 (NSW), order that the Trustee: Would be justified in applying for an order under s 144 of the Civil Procedure Act that the proceedings be transferred from the District Court to the Supreme Court on the basis that the District Court lacks, or may lack, jurisdiction to determine the claims made. Would be justified in conducting a defence of the District Court proceedings on such bases as it may be advised from time to time. Would not be justified in defending the District Court proceedings on the ground that the orders made in the Family Court give rise to any res judicata or estoppel in favour of the Trustee against the Plaintiff in those proceedings. Should be paid its costs, calculated on the indemnity basis, of the application for judicial advice, out of the property of the Trust. Catchwords: TRUSTEES - Judicial advice to trustee - Whether trustee should defend proceedings brought against it by former discretionary object of trust Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Trustee Act 1925 (NSW) Cases Cited: Application by Marilyn Joy Cottee; Estate of Gwenyth Shirley Smith [2013] NSWSC 47 Bideena Pty Ltd as trustee for the Bideena Pty Ltd Superannuation Fund (2016) 334 ALR 146; [2016] NSWSC 735 Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488; [2007] WASCA 270 In the application of NSW Trustee & Guardian [2014] NSWSC 423 Lenyco Pty Ltd; In the matter of the Daquino Family Trust [2009] NSWSC 846 Loblay and Loblay [2013] NSWSC 1195 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Morris v Smoel (as executors of the will of Morris, dec'd) [2013] VSCA 11 Quickfit Franchising Systems Pty Ltd as Trustee for the Jax Quickfit Franchising Systems Unit Trust [2012] NSWSC 1114 Re Application of the Anglican Property Trust Diocese of Bathurst [2016] NSWSC 13 Re Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 Re Estate Late Chow Cho-Poon [2013] NSWSC 844 Re Rosewood Research Pty Ltd (No 2) [2014] NSWSC 1226 Category: Procedural and other rulings Parties: Karellas Investments Pty Ltd (Applicant) Representation: Counsel: Mr A J McInerney SC with Mr D J Barnett (Applicant)