Right to Approach the Court

Beneficiaries have a right to approach the Court for the determination of questions of construction and administration.

Jacob’s Laws of Trusts in Australia provides the historical context of this right at [2306]

Under the old Chancery practice any trustee or beneficiary was entitled as of right to have the trust administered by the Court of Chancery and to that end obtain a degree for general administration. However this required the trust to be placed in general administration by the Court.

The history of this practice was summarised by Young J in McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633ff.

The need for general administration has now been replaced by a simpler procedure #1, however exceptional cases may arise where there have been sustained breaches of trust over many years requiring such an order#2.

Jacob’s Laws of Trusts in Australia advises at [2307]:

“In all jurisdictions there is available to a beneficiary a simple procedure by way of originating summons whereby specific questions of construction of the trust instrument may be determined by the court, and specific questions of administration of the trust may be dealt with without the necessity for any decree for general administration.”

In South Australia the procedure is provided by Section 206 of the Supreme Court Civil Rules 2006 (SA)

In Victoria the procedure is provided by Section 54.02 of the Supreme Court (General Civil Procedure) Rules 2005.

Under this procedure a beneficiary may take out an originating summons for the determination, without an administration of the trust, of any question affecting the beneficiary’s rights and interests.

Notes

(#1)Pope v DRP Nominees Pty Ltd (1999) 74 SASR 78 at [41].

(#2) Re Morish [1939] SASR 305; Re Flavelle (dec’d) [1969] 1 NSWR 361.


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This tab updated on 27 January 2016