Application by John William Kellert (No 2) [2018] NSWSC 94

Supreme Court New South Wales

Medium Neutral Citation: Application by John William Kellert (No 2) [2018] NSWSC 94 Hearing dates: 8 February 2018 Date of orders: 08 February 2018 Decision date: 08 February 2018 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph [50] Catchwords: TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925 Legislation Cited: Corporations Act 2001 (Cth) Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Application of Kellert [2017] NSWSC 897 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Re Estate of Chow Cho-Poon (2013) 10 ASTLR 251; [2013] NSWSC 844 Stein v Sybmore Holdings (2006) 64 ATR 325; [2006] NSWSC 1004 Category: Procedural and other rulings Parties: John William Kellert (first Plaintiff) Frances Rita Maloof (second Plaintiff) Representation: Counsel: Mr C Harris SC Solicitors: Brown Wright Stein Lawyers (Plaintiffs) File Number(s): 2017/27320

Judgment

Introduction 1. HIS HONOUR: This judgment concerns a second application for judicial advice made under the Trustee Act 1925 (NSW) ("the Act"), s 63, by the Plaintiffs who are the executors of the estate of Clement Joseph Maloof ("the deceased"). They seek advice on the questions to which I shall shortly refer. I made the orders at the conclusion of the hearing, stating that I would publish my reasons. These are the reasons. (The first application was dealt with and the reasons for the advice provided to the Plaintiffs, bear the medium neutral citation Application of Kellert [2017] NSWSC 897.) 2. There has been read on the present application, a Further Amended Summons filed on 18 December 2017; a confidential affidavit, sworn 13 January 2018, of the first Plaintiff, Mr J W Kellert; a confidential affidavit, sworn 1 February 2018, of Ms R Vijayaraj, a solicitor employed in the firm of solicitors retained to act for the Plaintiffs; an affidavit sworn 8 February 2018 of Ms Vijayaraj relating to additional service of beneficiaries of the estate who have not consented to what has been proposed and the information provided updating those beneficiaries; what is described as a "Confidential Statement of Facts" dated 12 December 2017 (Ex. JWK 1); a copy of the confidential Memorandum of Advice dated 12 December 2017 of Mr C Harris SC, going to some aspects of the application and the background to the conclusions he reached (Ex. JWK 2); the confidential Opinion, dated 15 December 2017, of Mr M S Willmott SC (Ex. JWK 3); and a confidential Outline of Submissions dated 19 December 2017 from Mr Harris SC (to which he spoke at the hearing). 3. (I mention, at this time, that Mr Willmott SC was briefed to provide advice on whether it is in the best interests of minor beneficiaries, entitled to take a share of the estate of the deceased, for the Plaintiffs to compromise the disputes on the terms set out in the Deed to which reference will be made.) 4. To assist with the determination of the proceedings, the Court, prior to the hearing, was also provided with a "Chronological bundle of documents" (in 2 Court Books) taken from the Confidential Statement of Facts dated 12 December 2017 and from the Confidential affidavit of Ms Vijayaraj sworn 1 February 2018. 5. I am grateful to the legal representatives of the Plaintiffs for the manner in which the case was prepared and presented. 6. Prior to the hearing of the application commencing, and again, before the orders were made, the matter was called outside the Court. On each occasion, there was no appearance by, or on behalf of, any person who might be interested in the proceedings.