Re: Application of the Anglican Property Trust Diocese of Bathurst [2016] NSWSC 13

Re: Application of the Anglican Property Trust Diocese of Bathurst [2016] NSWSC 13

APT was justified in defending the Principal Proceedings and using trust assets for that defence because the Blake Opinion supported reasonable prospects of success, APT's defence was reasonably arguable, APT was the proper contradictor for claims seeking to affect trust property, APT could not otherwise fund the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 February 2016
Procedural Posture
Application for Judicial Advice Under Trustee Act 1925 (nsw), S 63 / Principal Judgment; Reasons for Orders Made on 26 May 2014
Outcome
The plaintiff would be justified in defending the proceedings and having recourse to trust assets for reasonable defence costs and disbursements; would be justified in not commencing proceedings against Ansvar if it denied or failed to admit liability; and is entitled to recourse to trust assets for its costs of...
Legal Topics
['judicial Advice' 'trustee Defending Proceedings' 'recourse to Trust Assets for Legal Costs' 'trust Property' 'trustee Liability Insurance']
['trusts and Trustees' 'equity' 'charitable Trusts' 'insurance'] ['judicial Advice' 'trustee Defending Proceedings' 'recourse to Trust Assets for Legal Costs' 'trust Property' 'trustee Liability Insurance']

Source-derived case record

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Procedural Posture

Application for Judicial Advice Under Trustee Act 1925 (nsw), S 63 / Principal Judgment; Reasons for Orders Made on 26 May 2014

Legal Issues

  1. 1 ['Whether the plaintiff would be justified in defending the ADF Proceedings and the CBA Proceedings until their conclusion.' 'Whether the plaintiff would be justified in using the resources of the Trust to defend the Principal Proceedings.' 'Whether the plaintiff would be justified in not commencing proceedings against Ansvar Insurance Limited if it denied or failed to admit liability under the relevant insurance policy.']

Ratio Decidendi

APT was justified in defending the Principal Proceedings and using trust assets for that defence because the Blake Opinion supported reasonable prospects of success, APT's defence was reasonably arguable, APT was the proper contradictor for claims seeking to affect trust property, APT could not otherwise fund the defence, the claimed relief would substantially deplete trust assets, and the estimated defence costs were proportionate to the amounts and trust property at risk. APT was also justified in not commencing proceedings against Ansvar if Ansvar denied or failed to admit liability, having regard to the confidential Blake Opinion on the policy issue.

Court Disposition

The plaintiff would be justified in defending the proceedings and having recourse to trust assets for reasonable defence costs and disbursements; would be justified in not commencing proceedings against Ansvar if it denied or failed to admit liability; and is entitled to recourse to trust assets for its costs of...

Orders

  • ['That the plaintiff would be justified in defending each of proceedings with the case number 2014/75940 in the Commercial List of the Equity Division of this Court and proceedings with the case number 2014/75947 in the Commercial List of the Equity Division of this Court.' 'That the plaintiff is entitled to have...