Application of David Kerr [2017] NSWSC 358

Supreme Court New South Wales

Medium Neutral Citation: Application of David Kerr [2017] NSWSC 358 Hearing dates: 23/03/2017 Date of orders: 06 April 2017 Decision date: 06 April 2017 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Applicant to have some but not all advice sought, and to bring in draft orders. Catchwords: TRUSTS AND TRUSTEES – application for judicial advice – where trustee appointed to investigate breaches of trust by previous trustee – where trusts comprise investments in forestry schemes – whether trustee would be justified in commencing proceedings – whether trustee would be justified in entering into a litigation funding agreement – where non-disclosure to beneficiaries of relevant terms of the funding agreement – whether inadequate canvassing of the market – whether Funder had excessive control – Trustee Act 1925 (NSW), s 63 Legislation Cited: Trustee Act 1936 (SA) Trustee Act 1925 (NSW) Corporations Act 2001 (Cth) Court Suppression and Non-Publication Orders Act 2010 (NSW) Cases Cited: Australian Executor Trustees Limited v Provident Capital Limited (Receivers and Managers Appointed (In Liq) [2016] FCA 337 Castle Hill Joinery and Interiors Pty Ltd (as Trustee for the Gladstone Trust) [2013] NSWSC 1525 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 105 ACSR 581 Hastie Group Ltd (In Liq) v Moore [2016] NSWCA 305 In The Matter of 7 Steel Distribution Pty Limited (in Liquidation) (Receivers and Managers Appointed) [2013] NSWSC 669 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar (2008) 237 CLR 66 National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268 Texts Cited: AP Herbert, Uncommon Law (1935) Category: Principal judgment Parties: David Kerr (Applicant) Australian Executor Trustees (SA) Limited (Interested Party) Representation: Counsel: