David Kerr as additional trustee for the S.E.A.S. Sapfor Forests Pty Limited Scheme (No 2) [2022] NSWSC 612

David Kerr as additional trustee for the S.E.A.S. Sapfor Forests Pty Limited Scheme (No 2) [2022] NSWSC 612

The proposed distribution methodology was reasonable because it allocated the recovered amounts between categories of recovery in proportion to their contribution to the total recovery and then among Beneficiaries according to the value of their relevant interests, supported by Mr Dent's calculations and experience. The distribution costs and the plaintiff's remuneration were reasonable and proportionate given the complexity, age of the investments, number of Beneficiaries and intention to distribute the whole fund. It was preferable to defer any decision about unclaimed moneys until the amount was known after distribution.

Jurisdiction
Australia
Judgment Date
18 May 2022
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Distribution of a Judgment Sum and Related Remuneration and Costs / On the Papers; Consequential Orders
Outcome
Judicial advice and orders granted substantially as sought; issue of specified unclaimed moneys stood over until 2 June 2023.
Legal Topics
['judicial Advice' 'distribution of Trust Assets' 'trustee Remuneration' 'trustee Indemnity for Expenses' 'costs of Application']
['equity' 'trusts and Trustees'] ['judicial Advice' 'distribution of Trust Assets' 'trustee Remuneration' 'trustee Indemnity for Expenses' 'costs of Application']

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Distribution of a Judgment Sum and Related Remuneration and Costs / On the Papers; Consequential Orders

Legal Issues

  1. 1 ['Whether the plaintiff would be justified under s 63 of the Trustee Act 1925 (NSW) in distributing the Judgment Sum in the manner set out in Annexure A.' 'Whether the plaintiff was entitled to remuneration for work incurred in the distribution of the Judgment Sum.' 'Whether distribution costs and the costs of the application should be paid from the assets of the S.E.A.S. Sapfor Forests Pty Limited Scheme.' 'Whether advice should be given at this time about moneys remaining unclaimed after distribution.']

Ratio Decidendi

The proposed distribution methodology was reasonable because it allocated the recovered amounts between categories of recovery in proportion to their contribution to the total recovery and then among Beneficiaries according to the value of their relevant interests, supported by Mr Dent's calculations and experience. The distribution costs and the plaintiff's remuneration were reasonable and proportionate given the complexity, age of the investments, number of Beneficiaries and intention to distribute the whole fund. It was preferable to defer any decision about unclaimed moneys until the amount was known after distribution.

Court Disposition

Judicial advice and orders granted substantially as sought; issue of specified unclaimed moneys stood over until 2 June 2023.

Orders

  • ['Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff is justified in distributing the judgment sum awarded pursuant to the judgment of Stevenson J in Kerr v Australian Executor Trustees (SA) Ltd [2019] NSWSC 1279 and the orders made by Stevenson J in those proceedings (being Commercial List proceeding No...