Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680

Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680

The Court declined to exercise discretion to give the judicial advice sought because the application was motivated in the context of impending proceedings against the trustee, would require advice based on incomplete context, involved complex business judgments the trustee was not equipped to make, was opposed by the majority unitholders, and there was no compelling reason to depart from the notice period or termination process provided by the trust deed.

Parties
Plaintiff/first Cross Defendant: Aurora Australasia Pty Ltd; Applicant on the Motion/first Defendant/second Cross Defendant: Hunt Prosperity Pty Ltd; Second Defendant/first Cross Claimant: AMHP Pty Ltd; Second Cross Claimant: Adam Hartley; Third Cross Defendant: David James Driver
Jurisdiction
Australia
Judgment Date
04 June 2024
Procedural Posture
Notice of Motion for Judicial Advice Under Trustee Act 1925 (nsw) S 63 / Application for Judicial Advice in Context of Ongoing Proceedings, Determination at First Instance
Outcome
Notice of Motion dismissed
Legal Topics
Judicial Advice to Trustee, Trust Termination, Winding Up Trusts, Variation of Trust Deed, Trustee Duties
Equity Trusts Judicial Advice to Trustee Trust Termination Winding Up Trusts Variation of Trust Deed Trustee Duties

Case Brief

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Parties

Aurora Australasia Pty Ltd

Plaintiff/first Cross Defendant

Hunt Prosperity Pty Ltd

Applicant on the Motion/first Defendant/second Cross Defendant

AMHP Pty Ltd

Second Defendant/first Cross Claimant

Adam Hartley

Second Cross Claimant

David James Driver

Third Cross Defendant

Procedural Posture

Notice of Motion for Judicial Advice Under Trustee Act 1925 (nsw) S 63 / Application for Judicial Advice in Context of Ongoing Proceedings, Determination at First Instance

Legal Issues

  1. 1 Whether the trustee is justified in amending the trust deed to shorten the termination notice period from three months to seven days
  2. 2 Whether the trustee is justified in terminating the fund and distributing its assets on short notice under the amended deed
  3. 3 Whether the court should exercise discretion to give the judicial advice sought, especially in context of pending proceedings involving claims against the trustee

Ratio Decidendi

The Court declined to exercise discretion to give the judicial advice sought because the application was motivated in the context of impending proceedings against the trustee, would require advice based on incomplete context, involved complex business judgments the trustee was not equipped to make, was opposed by the majority unitholders, and there was no compelling reason to depart from the notice period or termination process provided by the trust deed.

Court Disposition

Notice of Motion dismissed

Orders

  • The Notice of Motion filed 14 May 2024 is dismissed.
  • Any party seeking costs orders must notify within seven days; directions to be given if needed.