March 24, 2022

M & L Richardson Pty Limited [2021] NSWSC 105

4 minutes

(I don’t know why these short lost trust deed cases appeal to me so much. Perhaps it is the intersection of the capital “L” Law with all its tradition and solemnity, with the very human problem of losing a few old pieces of paper.)

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A trustee administered a trust in accordance with an unexecuted (or unsigned) trust deed. When the original was needed, no one could find it.

The trustee sought the Court’s advice that it would be justified in administering the trust in accordance with the unexecuted copy: [2]

To give this advice the Court will require (i) evidence that the executed deed actually existed, and (ii) evidence of the deed’s terms: [4]

The Court had evidence from the service provider engaged to settle the trust that it did indeed establish the trust. The Court also heard the service provider’s practice was not to keep executed copies of deeds once trusts are settled. It only kept copies: [5], [8]

The Court heard evidence of a bank operating an account in the trust’s name. The Court accepted the bank would not have permitted this had it not seen an executed deed, or a copy, at some time. (And would have taken judicial notice of this had it not been proved.) Sadly, the bank did not itself have a copy of the deed: [6]

There was evidence of extensive searches conducted of the records of 3 accounting firms that had previously acted for the trust. All to no avail: [7]

Based on the above the Court accepted the original had been searched for and could be located, finding (i) the trust had been established, and (ii) the terms were as set out in the unexecuted copy: [9]

The Court advised the trustee would be justified in administering the trust based on the copy: [10]

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