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Category: Principal judgment

Parties: Justin McCarthy (First Plaintiff)
The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation (Second Plaintiff)
Attorney General of NSW (Interested Party)

Representation: Counsel:
A J McInerney SC (Plaintiffs)
P Singleton (Interested Party)
Solicitors:
MacRae Lawyers (Plaintiffs)
Crown Solicitor’s Office (Interested Party)

File Number(s): 2026/129322

Publication restriction: Nil

EX-Tempore JUDGMENT – Revised

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

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

5 Definition of “charitable trust proceedings”

(1) In this Part, charitable trust proceedings means proceedings in the Court brought, whether by any trustee of a charitable trust or by any other person, under the Court’s statutory or general jurisdiction with respect to any breach or supposed breach of a charitable trust, or with respect to the administration of a charitable trust.

(2) However, in this Part charitable trust proceedings does not include:

(a) proceedings for the bringing of any appeal, or

(b) proceedings relating merely to the construction of a trust instrument.

6 Bringing of certain charitable trust proceedings to be authorised by Attorney General or by leave

(1) Charitable trust proceedings are not to be commenced in the Court unless:

(a) the Attorney General has authorised the bringing of the proceedings, or

(b) leave to bring the proceedings is obtained from the Court.

(2) The Court is not to give such leave unless satisfied that the Attorney General has been given an opportunity to consider whether to authorise the proceedings or that the referral of the matter to the Attorney General is not appropriate because of the urgency of the matter or other good cause.

(2A) Any such authority or leave may also be given after charitable trust proceedings have been brought so as to enable the continuation of those proceedings.

7. 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.

8. 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”.

9. 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.

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

11. 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].

12. I am satisfied of the following things:

13. the Plaintiffs are justified in prosecuting proceedings 2025/470242 which relates to the construction and operation of the Will;

14. the Plaintiffs are justified in defending and continuing to defend proceedings 2025/483164 brought by Messrs Atkinson and Farr against, amongst others, the Original Trustee (which they presently control);

15. the proceedings proposed to be commenced by way of the Proposed Summons earlier referred to (and which is annexed to the Amended Summons) are charitable trust proceedings under s 5(1) of the Charitable Trusts Act;

16. the Plaintiffs are justified in bringing those proceedings; and

17. the Plaintiffs should be given leave in those proceedings to file the Notice of Motion (which I have done) seeking expedition and various pertinent interlocutory orders, and that the Motion should be made returnable instanter and stood over before Kunc J on 2 April 2026 (which I have also done).

18. 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).

19. 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.

20. I make the following orders:

21. Pursuant to s 63 of the Trustee Act 1925 (NSW), the Court is of the opinion and advises that the Plaintiffs would be justified in:

(a) commencing and continuing to prosecute proceedings 2025/470242; (b) defending and continuing to defend proceedings 2025/483164; and (c) commencing and continuing to prosecute proceedings in this Court in accordance with the Proposed Summons annexed to the Amended Summons filed on 30 March 2026 in these proceedings.

2. Pursuant to s 6(1)(b) of the Charitable Trusts Act 1993 (NSW), the Plaintiffs have leave to bring the proceedings referred to in Order (1)(c). The operation of this Order is stayed until 12 noon on 1 April 2026 and will be dissolved if by then the Attorney General has authorised the bringing of those proceedings.

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