Porlock Pty Ltd

This is an application under section 63 of the Trustee Act 1925 for judicial advice. The plaintiff is the trustee of the JDB Carr Trust No.2. That trust was set up about 1957 though it is unclear who the settlor was. It has some substantial assets. The problem is that no one can find a copy of the Trust Deed and the trustee wishes to be confirmed in its belief as to how it holds the trust property.

The court has no power to actually recreate a Trust Deed. We are not in the same situation as one is when there is a lost will. What the court is doing is advising the trustee as to whether it would be justified in dealing with the trust property in the way in which it proposes. It is clear that the trustee recognises that it does not hold the trust property beneficially.

The question then is on what trust does it hold the property. There is secondary evidence as to that matter. Until he retired Mr W M Samuel who was an accountant who practised not only in the Sydney area but also at Crookwell, close to where the natural persons who are associated with the plaintiff live, wrote a letter to a member of the family saying that:

and then he gives further details.

Mr Samuel has actually sworn an affidavit in these proceedings and he says that he believed that letter accurately sets out the assets and terms of the trust as at that stage and he believes that the letter is accurate partly because the letter is written in a form which would seem to him to be him quoting the actual Trust Deed.

Mr Samuel's affidavit says that the deed establishing the trust was stored at his Crookwell office up until his retirement in 1985. The solicitors for the plaintiff have made diligent search for a copy of the Trust Deed without any success.

There have been relatively few authorities as to what one does when one cannot find a Trust Deed. Right back in 1874 Faucett, PJ dealt with Hewitt v Farrell (1874) 12 SCR (NSW) (Eq) 94. His Honour was troubled about the Statute of Frauds in holding that there was a trust when it was not clear to him whether there was an actual Trust Deed in existence. He also was concerned that there was no secondary evidence of the terms of the trust. Accordingly he declined to make an order.

However, there are three differences in the present case:

Mr Barlin of counsel has given a very thorough advice. I am indebted to him for that and with respect I think it is correct. The plaintiff does not hold the property beneficially. The best evidence there is as to what is the trusts is the letter from the accountant and the trustees would be justified in acting on it. If at some time in the future the deed happens to turn up and the people see that they may have a claim against the trustees they can then mount that claim but this advice will give some protection to the trustees.

Accordingly, the court by order makes the following orders: