John Leslie Kennedy v Glenn Raymond Kennedy [2011] NSWSC 1619

John Leslie Kennedy v Glenn Raymond Kennedy [2011] NSWSC 1619

The defendant had disappeared for almost three years, had not administered the Kennedy Family Trust, and had allowed mortgage payments and rates on the sole trust asset to fall into arrears, exposing the property to possible sale by the mortgagee or council. The trust's appointment mechanism had failed because the defendant was both trustee and appointor. Special circumstances justified appointing the plaintiffs, although beneficiaries, as trustees because they had effectively administered the uncomplicated family trust responsibly and preserved the single property asset.

Jurisdiction
Australia
Judgment Date
04 November 2011
Procedural Posture
Application to Appoint New Trustees to the Kennedy Family Trust and Remove the Existing Trustee / Ex Tempore Judgment
Outcome
Defendant removed as trustee; plaintiffs appointed as trustees; vesting order made; new appointor inserted in the trust deed.
Legal Topics
['appointment of Trustees' 'removal of Trustees' 'vesting of Trust Property' 'substituted Service' 'discretionary Family Trust']
['trusts'] ['appointment of Trustees' 'removal of Trustees' 'vesting of Trust Property' 'substituted Service' 'discretionary Family Trust']

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Procedural Posture

Application to Appoint New Trustees to the Kennedy Family Trust and Remove the Existing Trustee / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the defendant trustee should be removed because he could not be found and had failed to administer the trust.' 'Whether the plaintiffs, who were beneficiaries, should be appointed as new trustees of the Kennedy Family Trust.' 'Whether the trust property should be vested in the new trustees.' 'Whether a new appointor should be inserted into the trust deed.']

Ratio Decidendi

The defendant had disappeared for almost three years, had not administered the Kennedy Family Trust, and had allowed mortgage payments and rates on the sole trust asset to fall into arrears, exposing the property to possible sale by the mortgagee or council. The trust's appointment mechanism had failed because the defendant was both trustee and appointor. Special circumstances justified appointing the plaintiffs, although beneficiaries, as trustees because they had effectively administered the uncomplicated family trust responsibly and preserved the single property asset.

Court Disposition

Defendant removed as trustee; plaintiffs appointed as trustees; vesting order made; new appointor inserted in the trust deed.

Orders

  • ['That Glenn Raymond Kennedy be removed as Trustee of the Kennedy Family Trust;' 'That John Leslie Kennedy and Sylvia Joan Kennedy be appointed as Trustees of the Kennedy Family Trust;' 'Pursuant to Section 71 of the Trustee Act , 1925 the land contained in Folio Identifier 3/1110685 be vested in John Leslie Kennedy...