Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.
Successful application for judicial advice as to lost trust deed and ownership of trustee shares.
EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Jurisdiction of court to provide advice – Factors relevant to discretion to provide advice – Degree of satisfaction required before the court should give advice – When court may provide advice even though advice affects persons not represented at hearing.
JUDICIAL ADVICE – Advice sought that consolidated deed the operative deed of the trust – Not all copies of amending deeds available – Degree of satisfaction required before the court should give advice – Presumption of regularity – Court satisfied to a reasonable degree of satisfaction on inferences and presumption of regularity – Advice provided.
JUDICIAL ADVICE – Advice sought that shares in plaintiff trustee held by directors of plaintiff personally and not on behalf of trust – Court satisfied to a reasonable degree of satisfaction that shares held personally – Advice provided.
JUDICIAL ADVICE – Whether trustee justified in determining a fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Fee so determined not in contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether plaintiff established that it intended to determine fee in accordance with judicial advice – Whether court would exercise discretion to give advice when the plaintiff did not establish that it intended to determine fee in accordance with judicial advice – Advice refused.
Judgment:
Re Care Super (No 1) [2021] VSC 805 (Lyons J)