Duggan v White [2018] NSWSC 364

Supreme Court New South Wales

Medium Neutral Citation: Duggan v White [2018] NSWSC 364 Hearing dates: 5 March; 20 March 2018 Date of orders: 26 March 2018 Decision date: 26 March 2018 Jurisdiction: Equity Before: Parker J Decision: Executors advised that no secret trust subsists over property left to two beneficiaries. Catchwords: EQUITY – secret trusts – where gift is "accompanied by a statement from the donor as to how the gift is to be used" – whether bequest of property to plaintiffs in will an absolute gift to plaintiffs – whether explicit understanding gift to plaintiffs was given on particular terms – no explicit understanding – no secret trust arises

EQUITY – judicial advice – Trustee Act 1925 (NSW), s 63(1) – where initial application was not for judicial advice – whether trustees entitled to costs of application for advice – Trustee Act 1925 (NSW), s 59(4) – "implied indemnity" – whether costs properly incurred by trustees on behalf of estate – where residual beneficiary of estate not a party to proceedings – no costs order where order would affect residual beneficiary by "foreclosing the question of indemnity" Legislation Cited: Trustee Act 1925, ss 63(1), 59(4) Cases Cited: Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 Re Snowden [1979] Ch 528 Voges v Monaghan (1954) 94 CLR 231 Texts Cited: J D Heydon, M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) Category: Principal judgment Parties: Catherine Mary Duggan (First Plaintiff) Anne Elizabeth Duggan (Second Plaintiff) Helen White (First Defendant) Isabelle Duggan (Second Defendant) Annabelle White (Third Defendant) Ruby Duggan (Fourth Defendant) Amelia Duggan (Fifth Defendant) Imogen Duggan (Sixth Defendant) Representation: Counsel: S Chapple (First and Second Plaintiff)