Nicholls v Nelson [2006] NSWSC 813

Nicholls v Nelson [2006] NSWSC 813

It is appropriate to remove Vincenta Nelson as trustee and appoint the Public Trustee, not Jonathan Nicholls, having regard to the potential for conflict of interest, the desirability of an institutional trustee, lack of necessary affidavit of fitness for Mr Nicholls, and the willingness of Allianz to cover Public Trustee's fees. The property was always intended to be held on trust for the benefit of Dylan Gregory Nelson.

Jurisdiction
Australia
Judgment Date
09 August 2006
Procedural Posture
Trust Dispute / Final Orders; Judgment
Outcome
Declaration that Vincenta Nelson holds the property on trust for Dylan Gregory Nelson; removal of her as trustee; appointment of the Public Trustee as trustee; vesting order in favour of the Public Trustee; no order as to costs.
Legal Topics
['removal and Appointment of Trustee' 'declarations of Trust' 'interests of Minor Beneficiaries']
['equity' 'trusts'] ['removal and Appointment of Trustee' 'declarations of Trust' 'interests of Minor Beneficiaries']

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Procedural Posture

Trust Dispute / Final Orders; Judgment

Legal Issues

  1. 1 ['Whether Vincenta Nelson holds property upon trust for Dylan Gregory Nelson' 'Whether Vincenta Nelson should be removed as trustee' 'Who should be appointed as replacement trustee: Jonathan Nicholls or the Public Trustee' 'Considerations relevant to appointment of a trustee for a minor beneficiary']

Ratio Decidendi

It is appropriate to remove Vincenta Nelson as trustee and appoint the Public Trustee, not Jonathan Nicholls, having regard to the potential for conflict of interest, the desirability of an institutional trustee, lack of necessary affidavit of fitness for Mr Nicholls, and the willingness of Allianz to cover Public Trustee's fees. The property was always intended to be held on trust for the benefit of Dylan Gregory Nelson.

Court Disposition

Declaration that Vincenta Nelson holds the property on trust for Dylan Gregory Nelson; removal of her as trustee; appointment of the Public Trustee as trustee; vesting order in favour of the Public Trustee; no order as to costs.

Orders

  • ['Declare first defendant Vincenta Nelson holds the property upon trust for Dylan Gregory Nelson.' 'Order that Vincenta Nelson be removed as trustee of the trust.' 'Upon undertaking of Allianz to pay, order Public Trustee be appointed trustee of the trust.' 'Order the land to vest in the Public Trustee as trustee...