In the Application of Nyasa No. 19 Pty Ltd [2023] NSWSC 578

In the Application of Nyasa No. 19 Pty Ltd [2023] NSWSC 578

The Court found that clear and convincing proof established both the existence and the contents of the lost trust deed by reference to the Labode Trust deed, and further that the proposed arrangement varying and modernising the trust deed is for the benefit of all relevant persons. The Court approved the arrangement under s 86A of the Trustee Act 1925 (NSW), granting certainty and finality as to trust administration.

Jurisdiction
Australia
Judgment Date
30 May 2023
Procedural Posture
Application for Judicial Advice/variation of Trust / Final Orders Following Substantive Application and Further Submissions
Outcome
Arrangement approved; variation of trust deed as specified; costs order in favour of trustee out of trust property.
Legal Topics
['judicial Advice to Trustees' 'variation of Trust Deed' 'lost Trust Deed' "beneficiaries' Interests" 'court Approved Arrangement' 'trust Administration']
['equity' 'trusts'] ['judicial Advice to Trustees' 'variation of Trust Deed' 'lost Trust Deed' "beneficiaries' Interests" 'court Approved Arrangement' 'trust Administration']

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Procedural Posture

Application for Judicial Advice/variation of Trust / Final Orders Following Substantive Application and Further Submissions

Legal Issues

  1. 1 ['Whether the Court can grant judicial advice as to the administration of a trust where the original deed is lost' 'Whether the Court can approve an arrangement to vary the terms of the lost trust deed under s 86A of the Trustee Act 1925 (NSW)' 'Whether there is clear and convincing proof of the existence and terms of the lost trust deed' 'Whether approving an arrangement under s 86A would be for the benefit of all relevant persons, including minors and unborn beneficiaries']

Ratio Decidendi

The Court found that clear and convincing proof established both the existence and the contents of the lost trust deed by reference to the Labode Trust deed, and further that the proposed arrangement varying and modernising the trust deed is for the benefit of all relevant persons. The Court approved the arrangement under s 86A of the Trustee Act 1925 (NSW), granting certainty and finality as to trust administration.

Court Disposition

Arrangement approved; variation of trust deed as specified; costs order in favour of trustee out of trust property.

Orders

  • ['Order pursuant to s 86A of the Trustee Act 1925 (NSW) approving the arrangement specified in the Schedule.' 'Order that the costs of the proceedings be borne and paid out of the income or capital of the Trust on an indemnity basis.' "The schedule specifies the variation of the terms of the R J Canfield Family...