Cowan v Lai [2014] NSWSC 1143

Cowan v Lai [2014] NSWSC 1143

Mr Lai, as trustee, would be justified in compromising the proceedings on the terms of settlement embodied in the Short Minutes of Order and the further terms agreed between the parties as referred to in paragraph 22 of the Statement of Facts. The Court gives judicial advice accordingly under s 63 of the Trustee Act 1925 (NSW).

Parties
First Plaintiff/first Cross Defendant: Joanne Rebecca Cowan; Second Plaintiff/second Cross Defendant: Crystal Cowan; Defendant/cross Claimant: Mark Bartholomew Lai
Jurisdiction
Australia
Judgment Date
21 August 2014
Procedural Posture
Application for Judicial Advice Under Trustee Act / Judicial Advice on Proposed Compromise/settlement
Outcome
Judicial advice given that the trustee would be justified in compromising proceedings on the proposed terms.
Legal Topics
Judicial Advice to Trustee, Compromise of Proceedings, Trust Management, Variation and Rectification of Mortgage, Interests of Minor Beneficiaries
Equity Trusts and Trustees Judicial Advice to Trustee Compromise of Proceedings Trust Management Variation and Rectification of Mortgage Interests of Minor Beneficiaries

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Parties

Joanne Rebecca Cowan

First Plaintiff/first Cross Defendant

Crystal Cowan

Second Plaintiff/second Cross Defendant

Mark Bartholomew Lai

Defendant/cross Claimant

Procedural Posture

Application for Judicial Advice Under Trustee Act / Judicial Advice on Proposed Compromise/settlement

Legal Issues

  1. 1 Whether the trustee (Mr Lai) would be justified in compromising proceedings regarding the mortgage and trust on the proposed settlement terms
  2. 2 Whether the mortgage accords with the Financial Agreement
  3. 3 Whether Mr Lai has the power to compromise or vary the mortgage under the trustee powers and statutory provisions

Ratio Decidendi

Mr Lai, as trustee, would be justified in compromising the proceedings on the terms of settlement embodied in the Short Minutes of Order and the further terms agreed between the parties as referred to in paragraph 22 of the Statement of Facts. The Court gives judicial advice accordingly under s 63 of the Trustee Act 1925 (NSW).

Court Disposition

Judicial advice given that the trustee would be justified in compromising proceedings on the proposed terms.

Orders

  • The Court advises pursuant to s 63 of the Trustee Act 1925 (NSW) that the defendant would be justified in compromising the proceedings on the terms of settlement embodied in the Short Minutes of Order and the further terms agreed between the parties as referred to in paragraph 22 of the Statement of Facts.