Astor-Smith v Bazicus Pty Ltd [2019] NSWSC 239

Supreme Court New South Wales

Medium Neutral Citation: Astor-Smith v Bazicus Pty Ltd [2019] NSWSC 239 Hearing dates: 5 March 2019 Date of orders: 05 March 2019 Decision date: 08 March 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order pursuant to s 70 of the Trustee Act 1925 (NSW) that the defendant be appointed as trustee of the residuary estate of the late Barry Allen Jones under the Will dated 12 April 2012 (the Trust) in place of the original trustees, Susan Frances Astor-Smith and Robert George Pettener. 2. Order pursuant to s 71 of the Trustee Act 1925 (NSW) that the property now subject to the Trust vests in the defendant. 3. Order that the plaintiffs' costs of these proceedings be paid out of the estate of the late Barry Allen Jones on the indemnity basis. Catchwords: EQUITY — Trusts and trustees — Court's supervision of — Appointment and removal of trustees –– Circumstances where the original trustee wishes to retire and there will be adverse stamp duty consequences to the Trust if the alternate trustee named in the Will is appointed –– Order that defendant be appointed as trustee of the residuary estate under the Will in place of the original trustees Legislation Cited: Duties Act 1997 (NSW), s 54(3) Real Property Act 1900 (NSW) Trustee Act 1925 (NSW), ss 6, 70, 71 Cases Cited: Pope v DPR Nominees Pty Ltd (1999) 74 SASR 78 Re Fauntleroy (1839) 59 ER 610 Re Foxhall (1847) 41 ER 951 Re The Estate of Roberts (1983) 20 NTR 13; (1983) 70 FLR 158 Re Watson (1899) 18 NZLR 368 Category: Principal judgment Parties: Susan Frances Astor-Smith (First Plaintiff) Robert George Pettener (Second Plaintiff) Bazicus Pty Ltd (Defendant) Representation: Counsel: M Bennett (Plaintiffs) Defendant – submitting appearance