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

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

It was expedient to appoint Bazicus Pty Ltd as the new trustee because Ms Astor-Smith wished to retire as trustee, appointment of the alternate trustee Mr Huw Jones would cause adverse stamp duty consequences to the Trust, and the plaintiffs could not achieve the change under the Will or s 6(6) of the Trustee Act 1925 (NSW). The consent of the remainder beneficiaries supported the orders, and the Court was satisfied that the property subject to the Trust should vest in the defendant.

Jurisdiction
Australia
Judgment Date
08 March 2019
Procedural Posture
Equity Proceedings Concerning Appointment of a New Trustee Under the Trustee Act 1925 (nsw) / Principal Judgment on Summons Filed 23 November 2018
Outcome
Application granted; Bazicus Pty Ltd appointed trustee of the residuary estate and trust property vested in it, with plaintiffs' costs payable from the estate on the indemnity basis.
Legal Topics
["court's Supervision of Trusts" 'appointment and Removal of Trustees' 'residuary Estate Under a Will' 'stamp Duty Consequences of Change of Trustee' 'vesting of Trust Property']
['equity' 'trusts and Trustees'] ["court's Supervision of Trusts" 'appointment and Removal of Trustees' 'residuary Estate Under a Will' 'stamp Duty Consequences of Change of Trustee' 'vesting of Trust Property']

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Procedural Posture

Equity Proceedings Concerning Appointment of a New Trustee Under the Trustee Act 1925 (nsw) / Principal Judgment on Summons Filed 23 November 2018

Legal Issues

  1. 1 ['Whether it was expedient under s 70 of the Trustee Act 1925 (NSW) to appoint Bazicus Pty Ltd as trustee of the residuary estate in place of the original trustees.' 'Whether the trust property should vest in the new trustee under s 71 of the Trustee Act 1925 (NSW).' "Whether adverse stamp duty consequences if an alternate trustee under the Will were appointed supported the Court's intervention."]

Ratio Decidendi

It was expedient to appoint Bazicus Pty Ltd as the new trustee because Ms Astor-Smith wished to retire as trustee, appointment of the alternate trustee Mr Huw Jones would cause adverse stamp duty consequences to the Trust, and the plaintiffs could not achieve the change under the Will or s 6(6) of the Trustee Act 1925 (NSW). The consent of the remainder beneficiaries supported the orders, and the Court was satisfied that the property subject to the Trust should vest in the defendant.

Court Disposition

Application granted; Bazicus Pty Ltd appointed trustee of the residuary estate and trust property vested in it, with plaintiffs' costs payable from the estate on the indemnity basis.

Orders

  • ['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 in place of the original trustees, Susan Frances Astor-Smith and Robert George Pettener.' 'Order pursuant to s 71 of the Trustee...