Dulhunty v Dulhunty [2010] NSWSC 1465

Dulhunty v Dulhunty [2010] NSWSC 1465

Court held that although the minority trustee (Roger) did not properly notify co-trustees in his application for judicial advice, the Court can now authorise payment of his defence costs and judicial advice costs out of trust assets, subject to delivery of materials and budgetary constraint, as the best interests of the Trust estate require resolution of contested issues; mediation ordered to facilitate settlement.

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Equity Proceedings / Interlocutory Application—orders for Disbursement and Mediation
Outcome
Order for disbursement made; mediation ordered; costs reserved.
Legal Topics
["trustees' Power" 'indemnity From Trust Assets' 'majority Trustee Decisions' 'judicial Advice Under Trustee Act' 'procedural Joinder of Beneficiaries']
['equity' 'trusts'] ["trustees' Power" 'indemnity From Trust Assets' 'majority Trustee Decisions' 'judicial Advice Under Trustee Act' 'procedural Joinder of Beneficiaries']

Case Brief

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Procedural Posture

Equity Proceedings / Interlocutory Application—orders for Disbursement and Mediation

Legal Issues

  1. 1 ['Whether a minority trustee can obtain judicial advice and indemnity from trust assets without notice to majority trustees' 'Whether all trustees must be joined in applications for judicial advice under Trustee Act, s 63' 'Whether majority of trustees should now be ordered to disburse funds for minority trustee’s costs' 'Whether April 2008 agreement is enforceable or involves fetter/conflict of interest']

Ratio Decidendi

Court held that although the minority trustee (Roger) did not properly notify co-trustees in his application for judicial advice, the Court can now authorise payment of his defence costs and judicial advice costs out of trust assets, subject to delivery of materials and budgetary constraint, as the best interests of the Trust estate require resolution of contested issues; mediation ordered to facilitate settlement.

Court Disposition

Order for disbursement made; mediation ordered; costs reserved.

Orders

  • ['The defendant’s legal costs (defence and judicial advice proceedings) to be paid out of Trust assets, subject to provision of materials and subject to budgetary constraint (~$150,000).' 'All parties directed to participate in mediation of proceedings.' 'Costs of the present application reserved.']