Application of Roger Dulhunty Alina Dulhunty Trust [2010] NSWSC 1023

Application of Roger Dulhunty Alina Dulhunty Trust [2010] NSWSC 1023

The plaintiff was justified in defending the substantive proceedings because it was arguable, with reasonable prospects, that clause 15 of the deed was unenforceable as binding trustees in relation to a future exercise of discretion, and the Court was not required on the judicial advice application to finally determine the defence. On that basis, and with other potential defences also appearing to have substance, the plaintiff was entitled to have recourse to trust assets for his reasonable legal costs of defending the substantive proceedings.

Jurisdiction
Australia
Judgment Date
03 September 2010
Procedural Posture
Application for Judicial Advice Under Section 63 of the Trustee Act 1925 / Ex Tempore Judgment
Outcome
Advice granted that the plaintiff is justified in defending the substantive proceedings and entitled to use trust funds for his reasonable legal costs.
Legal Topics
['judicial Advice to Trustees' 'trustee Costs' 'defence of Proceedings by Trustee' 'exercise of Trustee Discretion']
['equity' 'trusts and Trustees'] ['judicial Advice to Trustees' 'trustee Costs' 'defence of Proceedings by Trustee' 'exercise of Trustee Discretion']

Case Brief

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Procedural Posture

Application for Judicial Advice Under Section 63 of the Trustee Act 1925 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the plaintiff trustee would be justified in defending proceedings 2010/269851 in the Equity Division of the Supreme Court of New South Wales.' 'Whether the plaintiff trustee is entitled to have recourse to the assets of the Alina Dulhunty Family Trust for the purpose of paying his reasonable legal costs of defending those proceedings.' 'Whether proposed defences to the substantive proceedings, including that clause 15 bound trustees as to a future exercise of discretion, were sufficiently arguable to justify the trustee defending the proceedings.']

Ratio Decidendi

The plaintiff was justified in defending the substantive proceedings because it was arguable, with reasonable prospects, that clause 15 of the deed was unenforceable as binding trustees in relation to a future exercise of discretion, and the Court was not required on the judicial advice application to finally determine the defence. On that basis, and with other potential defences also appearing to have substance, the plaintiff was entitled to have recourse to trust assets for his reasonable legal costs of defending the substantive proceedings.

Court Disposition

Advice granted that the plaintiff is justified in defending the substantive proceedings and entitled to use trust funds for his reasonable legal costs.

Orders

  • ['Advise that the plaintiff would be justified in defending proceedings 2010/269851 in this Division of this Court.' 'Advise that the plaintiff is entitled to have recourse to the assets of the Alina Dulhunty Family Trust for the purpose of paying his reasonable legal costs of defending those proceedings.' "Order...