Application by Justin McCarthy and The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation

There are three applications before the Court. Two are brought by way of an Amended Summons filed today with leave, in which the Plaintiffs, Mr Justin McCarthy and a company, The Hulak Foundation Pty Ltd ACN 681 394 525, seek judicial advice that they would be justified in commencing and continuing to prosecute certain proceedings which relate to the construction and operation of the will of the late Ernest Anton Hulak dated 22 December 2017 (the Will) and defending certain other proceedings which are on foot also in relation to the Will, and things done under it or in connection with it. The deceased left an estate worth well over $120 million.

Under cl 5.5.2 of the Will, the deceased made provision for the establishment of a charitable trust, the trustee of which is to be a company incorporated by him during his lifetime or by his Trustees after his death. There is a somewhat heated controversy as to whether a particular company which has assumed that position (the Original Trustee) has validly done so, or whether the Second Plaintiff company cited on the Amended Summons is and should be that person. The Second Plaintiff company is controlled by the First Plaintiff, Mr McCarthy. The Trustees under the Will are Messrs Anthony Atkinson and Stephen Farr who co-opted Mr McCarthy as a third Trustee but who have latterly sought to remove him.

There are various controversies arising out of this underlying factual substratum (including as to the purported removal of Mr McCarthy) which are not necessary presently to describe. It is apt, however, to observe that there are revenue issues in which the Chief Commissioner of State Revenue has an interest. It is also apt to mention that counsel for the Attorney General of NSW appeared on the applications to lend whatever assistance he could, to the Court.

The substantive disputes, as they are presently framed, are being litigated in the Expedition List of this Division of which the List Judge is presently Kunc J. The various suits so far filed are before his Honour for directions this Thursday 2 April 2026, there being no list this Friday because it is Good Friday.

The remaining application is for judicial advice that the Plaintiffs would be justified in commencing and continuing to prosecute certain further proceedings in this Division in accordance with a Proposed Summons which is annexed to the Amended Summons and, to the extent necessary, granting them leave under s 6 of the Charitable Trusts Act 1993 (NSW) to bring them. In these proceedings the Plaintiffs seek both interim and final relief in relation to dealings by Messrs Atkinson and Farr and the Original Trustee in relation to the charitable trust established under the Will.

Sections 5, 6(1), (2) and (2A) of the Charitable Trusts Act provide:

The facts and circumstances are set out in a Statement of Facts under Uniform Civil Procedure Rules 2005 (NSW) r 55.1 dated 26 March 2026. It runs to 145 paragraphs and has been marked Exhibit B.

The Court has also had the benefit of comprehensive confidential written advices prepared by Mr A J McInerney of Senior Counsel dated respectively 26 March 2026 (running to 320 paragraphs over 89 pages) and 29 March 2026 (running to 162 paragraphs over 39 pages). They have been marked Exhibits D1 and D2 respectively and placed in an envelope with the notation “not to be opened without the order of a Judge”.

The immediate circumstances which prompted the bringing of the Amended Summons are described in an affidavit of Mr Hamish MacRae, the Plaintiffs’ solicitor, affirmed on 26 March 2026, which is Exhibit A.

The documentary material consists of three lever-arch volumes of material.

The approach to be taken by the Court in applications of this kind is well settled. It is not necessary to determine factual matters and it is common and often appropriate to give advice on the basis of facts either proved by affidavits or alleged in a written statement. I have studied the material provided by the Plaintiffs and this is the approach I have taken: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at 95 [79].

I am satisfied of the following things:

Section 6(1) of the Charitable Trusts Act provides that charitable trust proceedings must not be commenced unless the Attorney General has authorised them or the Court has given leave to bring them. Section 6(2) provides that the Court must not grant leave unless the Attorney General has been given an opportunity to consider whether to authorise them or that referral of the matter to him is not appropriate because of the urgency of the matter or other good cause. The Attorney General has had notice of the present application only since Friday 27 March 2026 (that is, over a weekend). I do not think that the urgency of this matter or some other good reason warrants finally making an order under s 6(1)(b) without the Attorney General being given a little further time to have the consideration contemplated by s 6(2).

That having been said, I am of the opinion that if the Attorney General determines not to authorise the proceedings, the Court should do so. Accordingly, I will make the order granting leave and stay its operation until 12 noon on Wednesday 1 April 2026 to permit the Attorney General to consider whether he should authorise the proceedings. If the Attorney General authorises the proceedings, the order will be vacated. If he does not, the order will take final effect immediately after 12 noon on Wednesday.

I make the following orders: