Application of Aesthete Pty Ltd [2019] NSWSC 965

Application of Aesthete Pty Ltd [2019] NSWSC 965

The Court had jurisdiction under s 63 Trustee Act 1925 (NSW) to give judicial advice to the Trustees regarding their conduct in defending claims and funding their legal defences out of the trust assets, including where those claims involved both breaches of duty and claims under the Competition and Consumer Act/ACL. In exercising discretion, it was appropriate to provide such advice under the circumstances presented; the concerns raised by Gilmore Finance regarding disentanglement of claims and possible bad faith did not outweigh the Trustees’ entitlement to advice and the use of indemnity provisions pending adverse findings on the merits. The advice was granted on limited terms as set...

Jurisdiction
Australia
Judgment Date
31 July 2019
Procedural Posture
Application for Judicial Advice / Post Hearing, Judgment Delivered
Outcome
Judicial advice granted in part; orders made per paragraph 64 and confidential judgment.
Legal Topics
['trusts and Trustees' 'judicial Advice' 'breach of Trust' 'removal of Trustees' 'indemnity of Trustees' 'statutory Interpretation']
['equity'] ['trusts and Trustees' 'judicial Advice' 'breach of Trust' 'removal of Trustees' 'indemnity of Trustees' 'statutory Interpretation']

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Procedural Posture

Application for Judicial Advice / Post Hearing, Judgment Delivered

Legal Issues

  1. 1 ['Whether the Supreme Court has jurisdiction under s 63 Trustee Act 1925 (NSW) to provide judicial advice to trustees facing claims for breach of duty and other related reliefs' 'Whether the Court should exercise its discretion to provide such advice, particularly in relation to funding defence from trust assets including claims involving alleged past breaches and statutory claims under ACL' 'Whether trustees are justified in defending the claims and funding their defences and/or the defence of a co-defendant using trust assets']

Ratio Decidendi

The Court had jurisdiction under s 63 Trustee Act 1925 (NSW) to give judicial advice to the Trustees regarding their conduct in defending claims and funding their legal defences out of the trust assets, including where those claims involved both breaches of duty and claims under the Competition and Consumer Act/ACL. In exercising discretion, it was appropriate to provide such advice under the circumstances presented; the concerns raised by Gilmore Finance regarding disentanglement of claims and possible bad faith did not outweigh the Trustees’ entitlement to advice and the use of indemnity provisions pending adverse findings on the merits. The advice was granted on limited terms as set...

Court Disposition

Judicial advice granted in part; orders made per paragraph 64 and confidential judgment.

Orders

  • ['Advice that the Trustees are justified in defending the claims made by Gilmore Finance Pty Ltd in proceedings 2016/257478, per confidential judgment.' 'Advice that the Trustees are justified in funding their defences out of the assets of the Real Money Unit Trust and Hospital Precinct Unit Trust, per confidential...