Sutton v NRS(J) Pty Ltd [2020] NSWSC 826

Sutton v NRS(J) Pty Ltd [2020] NSWSC 826

The evidence, including signed photocopies and an identical copy found in Clayton Utz records from 1972, made it overwhelmingly likely that the photocopy Trust Deed was a copy of an original deed that could not now be found. Declaratory relief was inappropriate because it would declare a factual matter and could affect interested parties who had not been heard, but judicial advice under Trustee Act 1925 (NSW), s 63 was appropriate to allow the trustees to administer the trust on the basis of the photocopy deed.

Jurisdiction
Australia
Judgment Date
26 June 2020
Procedural Posture
Equity Duty List; Trusts and Trustees / Application Concerning Lost Original Trust Deed; Ex Tempore Judgment and Orders
Outcome
Judicial advice given; trustees justified in administering the trust on the basis of the photocopy deed.
Legal Topics
['lost Trust Deed' 'administration of Trust' 'presumption of Regularity' 'declaratory Relief' 'judicial Advice Under Trustee Act 1925 (nsw), S 63']
['equity' 'trusts and Trustees'] ['lost Trust Deed' 'administration of Trust' 'presumption of Regularity' 'declaratory Relief' 'judicial Advice Under Trustee Act 1925 (nsw), S 63']

Case Brief

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Procedural Posture

Equity Duty List; Trusts and Trustees / Application Concerning Lost Original Trust Deed; Ex Tempore Judgment and Orders

Legal Issues

  1. 1 ['Whether the photocopy Deed of Trust should be treated as a true copy of the original trust deed that cannot be found.' 'Whether declaratory relief was appropriate in relation to the photocopy Trust Deed.' 'Whether the Court should give judicial advice under Trustee Act 1925 (NSW), s 63 allowing the trustees to administer the trust on the basis of the photocopy Trust Deed.']

Ratio Decidendi

The evidence, including signed photocopies and an identical copy found in Clayton Utz records from 1972, made it overwhelmingly likely that the photocopy Trust Deed was a copy of an original deed that could not now be found. Declaratory relief was inappropriate because it would declare a factual matter and could affect interested parties who had not been heard, but judicial advice under Trustee Act 1925 (NSW), s 63 was appropriate to allow the trustees to administer the trust on the basis of the photocopy deed.

Court Disposition

Judicial advice given; trustees justified in administering the trust on the basis of the photocopy deed.

Orders

  • ['The trustees of the trust settled by Frederick Walter Sutton by Deed of Trust dated 23 October 1972 are justified in administering the trust on the basis that the document annexed to this order and marked "A" is a true copy of that Deed.' 'The costs of all parties to these proceedings be paid out of the assets of...