Lenyco Pty Ltd; In the matter of the Daquino Family Trust [2009] NSWSC 429

Lenyco Pty Ltd; In the matter of the Daquino Family Trust [2009] NSWSC 429

Lenyco was the natural and proper contradictor for at least most of the relief claimed in the principal proceedings, including relief affecting trust assets, and its proposed defences appeared not unarguable. However, because the principal proceedings were at an early stage and no draft defence or counsel's advice had been provided, the Court would only advise that Lenyco was justified in filing a defence and taking steps reasonably incidental to its defence up to the close of pleadings, and would not be justified in funding other defendants' defences from trust assets.

Jurisdiction
Australia
Judgment Date
28 April 2009
Procedural Posture
Application by Trustee for Judicial Advice Under (nsw) Trustee Act 1925, S 63 / Ex Tempore Judgment in Duty Judge List Before First Directions Hearing in Principal Proceedings
Outcome
Trustee justified in filing and conducting defence up to close of pleadings; not justified in funding other defendants; proceedings adjourned for further hearing.
Legal Topics
['judicial Advice' 'trustee Defending Proceedings' 'funding Other Defendants' 'discretionary Trust' 'family Provision Claim' 'misleading and Deceptive Conduct']
['trusts and Trustees' 'equity'] ['judicial Advice' 'trustee Defending Proceedings' 'funding Other Defendants' 'discretionary Trust' 'family Provision Claim' 'misleading and Deceptive Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by Trustee for Judicial Advice Under (nsw) Trustee Act 1925, S 63 / Ex Tempore Judgment in Duty Judge List Before First Directions Hearing in Principal Proceedings

Legal Issues

  1. 1 ['Whether Lenyco Pty Limited, as trustee of the Giuseppe Daquino Family Trust, would be justified in defending proceedings 2090/09.' 'Whether Lenyco Pty Limited would be justified in assisting other defendants in proceedings 2090/09 to obtain advice and, if so advised, to defend those proceedings.' "Whether, at the early stage of the principal proceedings and without a draft defence or counsel's advice, advice should extend beyond filing a defence and steps up to close of pleadings."]

Ratio Decidendi

Lenyco was the natural and proper contradictor for at least most of the relief claimed in the principal proceedings, including relief affecting trust assets, and its proposed defences appeared not unarguable. However, because the principal proceedings were at an early stage and no draft defence or counsel's advice had been provided, the Court would only advise that Lenyco was justified in filing a defence and taking steps reasonably incidental to its defence up to the close of pleadings, and would not be justified in funding other defendants' defences from trust assets.

Court Disposition

Trustee justified in filing and conducting defence up to close of pleadings; not justified in funding other defendants; proceedings adjourned for further hearing.

Orders

  • ['The plaintiff Lenyco Pty Limited would be justified in doing all things necessary or reasonably incidental to conduct the defence of proceedings 2090/09 in which it is the first defendant, on the bases set out in the letter from Thomas Playford Cutlers to Argyle Lawyers dated 3 April 2009 and on such other bases...