Application of Dev Menon & anor [2014] NSWSC 1888

Application of Dev Menon & anor [2014] NSWSC 1888

The trustees were justified in proceeding with the agreed distribution for pragmatic reasons, including the adult beneficiaries' consent and the likely disproportionate cost of further disputation, and were justified in paying their costs and remuneration under the prior orders. Christine's share should not be paid into court under (NSW) Civil Procedure Act 2005, s77 because the proceeds of sale under (NSW) Conveyancing Act 1919, s 66G were not money recovered in the proceedings; the appropriate course was payment to the New South Wales Trustee under (NSW) Trustee Act 1925, s 47.

Jurisdiction
Australia
Judgment Date
31 October 2014
Procedural Posture
Application for Judicial Advice Under (nsw) Trustee Act 1925, S 63(1) / Ex Tempore Judgment on Summons Filed 12 September 2014
Outcome
Judicial advice given.
Legal Topics
["trustee's Application for Judicial Advice" 'statutory Trust for Sale Under (nsw) Conveyancing Act 1919, S 66 G' 'compromise Involving Infant Beneficiary' "payment of Infant Beneficiary's Share"]
['equity' 'trusts and Trustees' 'civil Procedure'] ["trustee's Application for Judicial Advice" 'statutory Trust for Sale Under (nsw) Conveyancing Act 1919, S 66 G' 'compromise Involving Infant Beneficiary' "payment of Infant Beneficiary's Share"]

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Procedural Posture

Application for Judicial Advice Under (nsw) Trustee Act 1925, S 63(1) / Ex Tempore Judgment on Summons Filed 12 September 2014

Legal Issues

  1. 1 ['Whether the trustees would be justified in paying Michael Abadir and Daniel Abadir amounts claimed for cleaning and preparation of the property for marketing.' "Whether any amount payable to Ms Rijks and Mr Prince in respect of the 2011 contract should be charged against Merry's share." 'Whether the trustees would be justified in paying their legal costs, expenses and remuneration from the trust fund.' "Whether Christine's one fifth share should be paid into court under (NSW) Civil Procedure Act 2005, s77 or paid to the New South Wales Trustee under (NSW) Trustee Act 1925, s 47."]

Ratio Decidendi

The trustees were justified in proceeding with the agreed distribution for pragmatic reasons, including the adult beneficiaries' consent and the likely disproportionate cost of further disputation, and were justified in paying their costs and remuneration under the prior orders. Christine's share should not be paid into court under (NSW) Civil Procedure Act 2005, s77 because the proceeds of sale under (NSW) Conveyancing Act 1919, s 66G were not money recovered in the proceedings; the appropriate course was payment to the New South Wales Trustee under (NSW) Trustee Act 1925, s 47.

Court Disposition

Judicial advice given.

Orders

  • ['The plaintiffs as trustees would be justified in paying from the trust the amount of $13,860 to Michael Abadir for cleaning and preparation of the property for marketing, and the amount of $7,200 to Daniel Abadir for cleaning and preparation of the property for marketing.' 'The plaintiffs as trustees would be...