Sutton v NRS(J) Pty Ltd [2020] NSWSC 826

“We’ve lost the trust deed!”

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A trust was settled in 1972 with 3 trustees, all brothers. The trustees’ dad was settlor: [4] – [6]

The trust was dormant until 2007 when, after the sale of a business, it was reactivated: [7]

Around this time each brother was replaced by a separate Co as trustee, leaving 3 corporate trustees: [8]

The trust assets were substantial and generated significant income: [10] The trust had been administered based on a photocopy. No one knew where the original was!

A bank used by the trust required production of the original deed as part of its “know your customer” program (the interpretation of which the Court left as an open question): [11], [12]

Searches were conducted for the original deed, including of the records of the father’s solicitor. Only a photocopy, identical to the photocopy that was already being relied on, was found: [14], [15]

One of the brothers sought a declaration that the photocopy was a true copy of the original. However, the Court found that a declaration like this was not appropriate: [20] – [22]

Instead, the Court provided s63 judicial advice to the trustees that they would be justified in continuing to administer the trust on the basis of the photocopy: [25]

As the trustees might agree: phew!