Porlock Pty Ltd [2015] NSWSC 1243

Porlock Pty Ltd [2015] NSWSC 1243

Because there was evidence that the trust deed had existed, diligent searches had failed to locate it, and the best available secondary evidence was the former accountant's letter supported by his affidavit, the plaintiff did not hold the trust property beneficially and was justified in administering the trust according to the terms set out in that letter.

Jurisdiction
Australia
Judgment Date
28 August 2015
Procedural Posture
Application Under Section 63 of the Trustee Act 1925 for Judicial Advice / Principal Judgment; Order Made Giving Judicial Advice
Outcome
Order made giving judicial advice that the plaintiff is justified in managing and administering the trust pursuant to the terms contained in the 22 August 1984 letter from W M Samuels.
Legal Topics
['lost Trust Deed' 'judicial Advice to Trustee' 'secondary Evidence of Trust Terms' 'administration of Trust Property']
['trusts'] ['lost Trust Deed' 'judicial Advice to Trustee' 'secondary Evidence of Trust Terms' 'administration of Trust Property']

Case Brief

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Procedural Posture

Application Under Section 63 of the Trustee Act 1925 for Judicial Advice / Principal Judgment; Order Made Giving Judicial Advice

Legal Issues

  1. 1 ['Whether the trustee would be justified in managing and administering the JDB Carr Family Trust No 2 according to the terms evidenced by a letter from the former accountant when the trust deed could not be found.' 'Whether secondary evidence was sufficient to support judicial advice as to the content of the trust terms.']

Ratio Decidendi

Because there was evidence that the trust deed had existed, diligent searches had failed to locate it, and the best available secondary evidence was the former accountant's letter supported by his affidavit, the plaintiff did not hold the trust property beneficially and was justified in administering the trust according to the terms set out in that letter.

Court Disposition

Order made giving judicial advice that the plaintiff is justified in managing and administering the trust pursuant to the terms contained in the 22 August 1984 letter from W M Samuels.

Orders

  • ["Order pursuant to section 63 of the Trustee Act 1925 (NSW) that the plaintiff is justified in managing and administering the JDB Carr Family Trust No 2 (Trust) pursuant to the terms contained in a letter dated 22 August 1984 from W M Samuels to James David Brownlow Carr as contained in pages 11 to 15 of Exhibit...