NSW Trustee and Guardian v Wardy [2017] NSWSC 1466

NSW Trustee and Guardian v Wardy [2017] NSWSC 1466

The Court declined to give judicial advice because the proposed substitution of property involved a substantive contest between beneficiaries about property values, valuation dates, changes in value, income yields, compliance works and the choice of substitute property, matters that required evidence, cross-examination and judicial fact-finding; the proceedings should instead be reconstituted as a contested application for substantive relief with all interested parties before the Court.

Jurisdiction
Australia
Judgment Date
26 October 2017
Procedural Posture
Application for Judicial Advice Under Trustee Act 1925 (nsw), S 63 / Directions and Leave to File Cross Claim After Court Declined to Give Judicial Advice
Outcome
Court declined to give judicial advice, granted leave to John Wardy to file a Cross-Claim, and gave directions to prepare the contested proceedings for hearing.
Legal Topics
['judicial Advice' 'contested Dispute Between Beneficiaries' 'substitution for Sold Specific Devise' 'valuation of Estate Properties' 'joinder and Reconstitution of Proceedings for Substantive Relief']
['equity' 'trusts and Trustees' 'estates'] ['judicial Advice' 'contested Dispute Between Beneficiaries' 'substitution for Sold Specific Devise' 'valuation of Estate Properties' 'joinder and Reconstitution of Proceedings for Substantive Relief']

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Procedural Posture

Application for Judicial Advice Under Trustee Act 1925 (nsw), S 63 / Directions and Leave to File Cross Claim After Court Declined to Give Judicial Advice

Legal Issues

  1. 1 ['Whether the Court should give judicial advice to the NSW Trustee under Trustee Act 1925 (NSW), s 63 about substituting the George Street property for the Cleveland Street property.' 'Whether the dispute was too complex, contentious and fact-dependent for judicial advice and should instead become a contested application for substantive relief binding all interested parties.' 'What directions should be made to reconstitute the proceedings and prepare the Cross-Summons or Cross-Claim for hearing.']

Ratio Decidendi

The Court declined to give judicial advice because the proposed substitution of property involved a substantive contest between beneficiaries about property values, valuation dates, changes in value, income yields, compliance works and the choice of substitute property, matters that required evidence, cross-examination and judicial fact-finding; the proceedings should instead be reconstituted as a contested application for substantive relief with all interested parties before the Court.

Court Disposition

Court declined to give judicial advice, granted leave to John Wardy to file a Cross-Claim, and gave directions to prepare the contested proceedings for hearing.

Orders

  • ['Grant leave to the first defendant, John Wardy, to file the Cross-Claim initialed by the Court, dated today and placed with the Court papers.' 'Direct that the Cross-Claim and a copy of these reasons be served on the cross defendants by 5pm on 27 October 2017.' 'Make the Cross-Claim returnable before the Court at...