On 17 November 2015 His Honour Justice McDonald handed down a decision in respect of an application made by the Trustee of the FRG Investments Trust pursuant to r. 54.02 ( see Re Olrey Pty Ltd  VSC 643). The questions that the Trustee sought advice upon and His Honour’s respective decisions were as follows:
At the time His Honour considered the application on 17 December 2015, the heart of the claims against the trustee were two Barns v Addy (knowing receipt of trust property) claims. After delivery of the judgment, the Plaintiffs gave notice that they would be withdrawing both Barns v Addy claims and seeking entirely new relief against the trustee – removal of Olrey as trustee, declaration that property is held by Olrey on constructive and/or resulting trust.
The Plaintiffs also withdrew the caveat they had lodged over one of the properties, which underpinned the trustee’s counterclaim, seeking to have the caveat withdrawn. The Plaintiffs were subsequently granted leave to amend their statement of claim in this regard, were ordered to pay the trustee’s costs thrown away by reason of the amendments and were also ordered to pay $36,593 by way of security for the trustee’s costs of the proceeding.
After delivery of the amended statement of claim, the trustee issued this fresh section 54.02 application for judicial advice seeking (briefly summarised):
The Court made orders directing that the trustee would be justified in defending only the claims advanced against it. The Court was not prepared to direct that the trustee be justified in leading evidence in relation to any further allegations not made specifically against the trustee. The justification was expanded in the event that the trustee was removed.
The Court ordered that the trustee was permitted to have recourse to the assets of the trust to pay the reasonable costs of its defence only as ordered above.