In the matter of Creditors' Trust of Jackgreen (International) Pty Ltd [2011] NSWSC 748

In the matter of Creditors' Trust of Jackgreen (International) Pty Ltd [2011] NSWSC 748

The trustees are not entitled, on a strict construction of the Trust Deed, to draw remuneration exceeding creditor-approved limits without further approval. However, it is expedient for the administration of the trust for the Court to order payment of further remuneration, pursuant to s 81 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction, due to significant unanticipated work undertaken and the lack of a practicable approval mechanism under the Trust Deed after the Deed of Company Arrangement terminated.

Parties
Trustee / Plaintiff: Atle Crowe-Maxwell; Trustee / Plaintiff: John Frederick Lord
Jurisdiction
Australia
Judgment Date
18 July 2011
Procedural Posture
Application for Judicial Advice / Hearing and Final Orders
Outcome
Application granted. Trustees are entitled to further remuneration out of the trust fund and to indemnity for costs.
Legal Topics
Trustee Remuneration, Judicial Advice, Expenditure Out of Trust Property, Interpretation of Trust Instruments
Equity Trusts and Trustees Trustee Remuneration Judicial Advice Expenditure Out of Trust Property Interpretation of Trust Instruments

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Parties

Atle Crowe-Maxwell

Trustee / Plaintiff

John Frederick Lord

Trustee / Plaintiff

Procedural Posture

Application for Judicial Advice / Hearing and Final Orders

Legal Issues

  1. 1 Whether trustees are entitled to remuneration out of the trust fund in amounts exceeding creditor-approved limits under the Trust Deed; if not, whether the Court should order such remuneration pursuant to s 81 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction

Ratio Decidendi

The trustees are not entitled, on a strict construction of the Trust Deed, to draw remuneration exceeding creditor-approved limits without further approval. However, it is expedient for the administration of the trust for the Court to order payment of further remuneration, pursuant to s 81 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction, due to significant unanticipated work undertaken and the lack of a practicable approval mechanism under the Trust Deed after the Deed of Company Arrangement terminated.

Court Disposition

Application granted. Trustees are entitled to further remuneration out of the trust fund and to indemnity for costs.

Orders

  • Order pursuant to s 81 of the Trustee Act 1925 (NSW), or the Court's inherent jurisdiction, that the plaintiffs are entitled to payment out of the trust fund of the further sum of $50,000 plus GST for remuneration, costs, and expenses of administering the Creditors' Trust until termination.
  • Order pursuant to s 93 of the Trustee Act 1925 (NSW) that the plaintiffs' costs, charges, and expenses of and incidental to the application be paid on an indemnity basis out of the Trust.