Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544

Factual background and summary of the evidence

1. The following factual background is drawn from the affidavit and documentary evidence.

Relevant entities and persons

1. DEK was established by Mr Mulla, Mr Tanovic and Mr Yim in 1999 and, since then, it has grown to include multiple companies and international subsidiaries.
2. Mr Mulla is a director and shareholder of DEK Technologies, and a director and shareholder (the latter being in his capacity as trustee of the Mulla Trust) of DEK Corp. He is also the Chief Executive Officer of DEK.
3. Mr Tanovic is a director and shareholder of DEK Technologies, and a director and shareholder (the latter being in his capacity as trustee of the Tanovic Trust) of DEK Corp.
4. Mr Yim is a director and the secretary of Wisdom Consultancy. Mr Yim's wife, Ming Wai Tang, is the other director of Wisdom Consultancy. Mr Yim is also a director and shareholder of DEK Technologies, and a director of DEK Corp. Wisdom Consultancy, in its capacity as trustee of the Yim Tang Trust, is a shareholder in DEK Corp.
5. According to a diagram of the DEK group structure as at 1 September 2021 (CB355), each of the Mulla Trust, Tanovic Trust and Yim Tang Trust hold 33.3% of the units in the DEK Unit Trust and 33.3% of the shares in DEK Corp. Mr Mulla says that the trusts and unit holdings shown on the diagram reflect his understanding of the correct position and the basis upon which DEK Technologies' accounts have been kept for the past 20 years.
6. In relation to the various corporate entities and the trusts in issue, the historical extracts from the Australian Securities and Investments Commission (ASIC) and the searches of the Australian Business Register in evidence record the following: 1. DEK Technologies was registered on 19 April 2000. Its registered office and principal place of business were originally located in Queensland but are now in Victoria and have been since 5 May 2000 and 19 April 2000 respectively; 2. DEK Corp was registered on 26 June 2006 and its registered office and principal place of business have been located in Victoria since that time; 3. Wisdom Consultancy was registered on 4 January 1999 in Victoria. Its registered office and principal place of business were originally located in Queensland but are now in Victoria and have been since 14 January 1999 and 4 January 1999 respectively; 4. the DEK Unit Trust was registered on 15 June 2000. It is currently registered as a "Fixed Unit Trust" and its main business location is Victoria; 5. the Mulla Trust and the Tanovic Trust were registered on 19 July 2001. They are currently registered as "Discretionary Investment Trusts" and their main business location is Victoria; and 6. the Yim Tang Trust was registered on 22 April 2000. It is currently registered as a "Discretionary Trading Trust" and its main business location is Victoria.
7. In these reasons, I refer to the Mulla Trust, the Tanovic Trust and the Yim Tang Trust together as the Family Trusts.

Background to establishing the trusts and entities

1. Mr Mulla, Mr Tanovic and Mr Yim started the DEK business as a vehicle to carry out project-specific technology consultancy work. In around January or February 1999, they sought advice from an accountant, Paul Scopelliti of Vision Consulting Group, trading as Vision Accounting (Vision Consulting), about setting up a company or other structure from which to carry out that work.
2. In a letter dated 8 February 1999, Mr Scopelliti gave advice to Mr Mulla, Mr Tanovic and Mr Yim about a proposed structure by reference to the establishment of a company and various trusts (8 February Advice). The letter states: "… we advise that the most appropriate structure for your business is a Company acting as trustee for a Special Hybrid Trust, together with a Discretionary Family Trust for each of you which holds units in the Hybrid Trust (Please see Diagram attached)."
3. The diagram attached to the letter sets out a structure that refers to a "Trustee Company", a "Special Hybrid Trust" and each of the Family Trusts holding 33.33% of the units in the special hybrid trust.
4. Mr Scopelliti's letter went onto state: "A Special Hybrid Trust endeavours to combine the best elements of a unit trust with the best elements of a discretionary trust in one entity. The Special Hybrid Trust has two types of beneficiaries; unitholders and discretionary beneficiaries. The units are not ordinary units. They have voting rights (number of votes depends on the number of units held) and the right to receive income and capital that has not been distributed to the discretionary beneficiaries. The discretionary beneficiaries are grouped into classes. Each class is entitled to receive income and capital in priority to the unitholders. The income and capital is to be distributed to the classes in the same proportions that the unitholders hold units. Each class of discretionary beneficiaries is "related" to a particular unitholder. The discretionary beneficiaries in each class are essentially the same beneficiaries that are found in any ordinary discretionary trust. The Classes of beneficiaries are described in the special hybrid (sic) trust deed not by name but by (sic) relationship with whoever holds units at that point of time. As a result the trust deed need not be amended each time the units change hands. If a company, trust or superannuation fund owns the units the class is "related" to the individuals who "own" that company, trust or superannuation fund. The advantages of this structure are: …. (2) Each party has an interest, ie; Units, which can be easily sold or otherwise disposed. … (6) There is maximum flexibility for splitting of income and capital among Family Groups. (7) Independent parties are comfortable knowing that they have a set proportion of the income, capital and voting rights in the trust. (8) The income is distributed on a discretionary basis among each unitholder's family including companies and trusts. (9) Asset protection if the units are held by discretionary trusts and an individual goes bankrupt, as that individual has no interest in the assets of the special hybrid trust (the individual is merely a discretionary beneficiary), the assets in the special hybrid trust are protected from the individual's creditors. (10) The flexibility and tax effectiveness of a discretionary trust is obtained with the security of a unit trust."
5. Mr Mulla, Mr Tanovic and Mr Yim cannot recall all the details of their discussions with Mr Scopelliti regarding the 8 February Advice. They recall that Mr Scopelliti told them about the proposed structure, that it involved a unit trust and that there were tax advantages. They say that they went along with what Mr Scopelliti recommended and left it to him to arrange for the entities and trusts to be set up.
6. Mr Mulla, Mr Tanovic and Mr Yim have no direct recollections of the establishment of DEK Technologies or the DEK Unit Trust. Mr Mulla and Mr Yim do not recall receiving a copy of a trust deed for the DEK Unit Trust when it was set up. Mr Tanovic recalls signing some documents but cannot recall whether a trust deed was among the documents he signed.
7. Mr Mulla does not recall the setup of the Mulla Trust and does not remember if he was given a copy of the trust deed at the time it was set up or later. He did, however, sign a power of attorney that authorised Roderick Neibling to execute the Mulla Trust's trust deed that was sent by facsimile to Vision Consulting in around July 2001.
8. In relation to the Tanovic Trust, Mr Tanovic did not sign a trust deed but signed a power of attorney that authorised Mr Neibling to execute the Tanovic Trust's trust deed on Mr Tanovic's behalf which was faxed to Nino Italiano at Vision Consulting, who was DEK and Mr Tanovic's accountant at the time. Mr Tanovic does not remember receiving a copy of the trust deed for the Tanovic Trust.
9. As to Wisdom Consultancy and the Yim Tang Trust, Mr Yim explains that Wisdom Consultancy was set up by Mr Scopelliti after he and his wife received advice from Mr Scopelliti in late 1998 to establish a discretionary family trust with a corporate trustee for tax purposes relating to Ms Tang's IT consultancy business. Mr Yim cannot explain the gap between the incorporation of Wisdom Consultancy in early 1999 and the registration of the Yim Tang Trust in 2000; he thought they were set up together.
10. Mr Yim cannot recall what documents he signed in relation to the setup of these entities, including whether he signed a trust deed for the Yim Tang Trust although he assumes he did at the time. He cannot recall ever seeing the original trust deed for the Yim Tang Trust or receiving a copy, and he does not know where the trust deed could be now. Ms Tang also cannot recall signing a trust deed for the Yim Tang Trust but says she is certain that one existed, although I note that the basis of that assertion is unclear.

Searches for the trust deeds

1. Mr Mulla, Mr Tanovic and Mr Yim reviewed all of their records and could not locate the originals or copies of the trust deeds for the DEK Unit Trust or for the Family Trusts.
2. Mr Mulla, Mr Tanovic and Mr Yim say that the first time they recall any discussions within DEK about locating the trust deeds was 2006. Those enquiries arose out of discussions they had with Mr Italiano about changes to DEK's structure and the subsequent incorporation of DEK Corp.
3. Emails exchanged between Mr Italiano, Mr Mulla, Mr Tanovic and Mr Yim in May 2006 regarding the incorporation of DEK Corp include a "Structure Report" from Mr Italiano. The report refers to the "Current Structure" and "Options A, B and C", each of which refer to the Family Trusts. The "Current Structure" and Option B (which according to Mr Mulla was the structure ultimately set up) also refer to DEK Technologies as the trustee company and the DEK Unit Trust. The emails exchanged at that time also include emails from Mr Tanovic stating that he did not remember ever seeing the "trust deed" and that he could not find the deed for the "family trust".
4. Further emails exchanged between Mr Mulla, Mr Tanovic, Mr Yim and Mr Italiano in 2006 refer to requests for copies of the trust deeds to be provided which were not forthcoming. In response to a further request, on 31 July 2007, Mr Italiano sent an email to Mr Yim in which he asserted that the originals of the trust deeds had been given to Mr Mulla, Mr Tanovic and Mr Yim and that copies could be retrieved from his archive records for a fee (CB177-8; CB193-8).
5. According to Mr Mulla, they never paid Mr Italiano to get copies of the trust deeds out of storage. It appears that the relationship of Mr Mulla, Mr Tanovic and Mr Yim with Mr Italiano had broken down by mid-2007 and that they and DEK Technologies moved on from Vision Consulting (which had merged with VI Partners) to new accountants. In early 2007, they appointed Brown Baldwin and Associates (Brown Baldwin) and then, from mid-2019, SN Partners Accountants & Business Advisors Pty Ltd (SN Partners).
6. Simone Pavitt, the practice manager of SN Partners, gives evidence that the files referrable to the Trustee Clients (namely, Mr Mulla as trustee for the Mulla Trust, Mr Tanovic as trustee for the Tanovic Trust, Wisdom Consultancy as trustee for the Yim Tang Trust and DEK Technologies as trustee for the DEK Unit Trust) were requested by Brown Baldwin from VI Partners in March 2007 and then from Vision Consulting in June 2011. The only response received in respect of those requests was an email from Vision Consulting to Brown Baldwin dated 22 June 2011 in which Mr Italiano advised that it was company policy to give the originals of trust deeds to clients and that if they were lost, replacements or reprints could be requested from "ACIS", who Mr Italiano described as the lawyers who set up the trust registers.
7. Ms Pavitt's searches of Brown Baldwin's files and electronic databases have not produced copies of trust deeds for the DEK Unit Trust or the Family Trusts, or any other records relating to their establishment.
8. Ms Yu, the principal of SN Partners, has provided accounting services to the Trustee Clients since early 2007, at which time she was an accountant at Brown Baldwin. When Ms Yu established SN Partners, the Trustee Clients retained her as their accountant. She gives evidence that throughout that time, she never saw the trust deeds for any of the Family Trusts or the DEK Unit Trust except for a replacement trust deed for the Yim Tang Trust.
9. The plaintiff trustees, through their lawyers or directly, have made enquiries about the possible location of the trust deeds and information concerning the establishment of the Family Trusts and the DEK Unit Trust with the following entities: the Australian Taxation Office; Commonwealth Bank Australia; Macquarie Group Limited; Macquarie Investment Management Limited; National Australia Bank Limited; Queensland Revenue Office; State Revenue Office Victoria; NTAA Corporate Pty Ltd; and the National Tax and Accountants' Association. None of those enquiries resulted in the trust deeds being located, either the originals or copies, nor gave an indication of where copies could be located.

Enquiries of Mr Scopelliti and ACIS Services

1. Mr Scopelliti was a director of Vision Consulting between mid-1998 and mid-2000. He sent the 8 February Advice, referred to at [17] above, but does not recall the specifics of his discussions with Mr Mulla, Mr Tanovic and Mr Yim at that time.
2. Mr Scopelliti gives evidence that during his time at Vision Consulting any trusts set up for clients had their trust deeds purchased from ACIS Services Pty Ltd (ACIS Services), which was located in Queensland, and that he made no changes to the terms of the deeds provided by ACIS Services. He does not have the originals or copies of the trust deeds for the DEK Unit Trust or the Family Trusts in his possession.
3. Shane Topping worked at ACIS Services in various roles between September 1992 and 30 November 2020 and assisted in the management of its document storage databases.
4. Mr Topping gives evidence about the practices of ACIS Services during that time in relation to the preparation and provision of trust deeds to clients. He deposes that: 1. ACIS Services had a number of template trust deed documents that included all relevant terms except for specific details concerning the trust name, establishment date, settlement sum, applicable law and details of the settlor, trustee and beneficiaries (Specific Trust Deed Information); 2. the Specific Trust Deed Information was collected by ACIS Services by a client populating a standard order form (Order Form Information) from which ACIS Services would then populate the relevant template trust deed; 3. the Order Form Information was stored on ACIS Services' databases together with information that identified the amounts invoiced to clients and whether the deeds had been customised by lawyers retained by ACIS Services; and 4. ACIS Services did not keep copies of completed or executed trust deeds.
5. Mr Topping undertook searches of ACIS Services' archived records which produced information (including Order Form Information and invoices) relating to the purchase of each of the trust deeds for the Family Trusts but did not identify any records relating to the purchase or creation of the DEK Unit Trust, or any records of a hybrid trust deed used by ACIS Services prior to 13 September 2002.
6. Emily Pritchard is the legal and client services director of ACIS Services. Ms Pritchard carried out searches of ACIS Services' current computerised records which identified billing records relating to the creation of the Mulla Trust and the Tanovic Trust in 2001.
7. The information obtained from the searches undertaken by Mr Topping and Ms Pritchard is as follows: 1. the Yim Tang Trust was established on or about 4 January 1999; 2. the Mulla Trust and the Tanovic Trust were established on or about 6 July 2001; 3. Mr Italiano of Vision Consulting was ACIS Services' client in respect of the establishment of each of the Family Trusts; 4. invoices were issued by ACIS Services with respect to each of the Family Trusts; and 5. each of the Family Trusts were discretionary trusts.
8. In relation to the Mulla Trust, Mr Topping's search results record the following information (CB129): 1. an invoice dated 26 June 2001 was issued to Vision Consulting with the description "The Mulla Trust" in the amount of $240 and was paid on 31 July 2001 by credit card; 2. the ACIS Services' trust deed version of the Mulla Trust was dated 15 June 2001, the trust type was "Discretionary Trust" and the stamp duty date was 10 July 2001, the amount was $1.50 and the state was Queensland; 3. the trust name was "The Mulla Trust", the establishment date was 6 July 2001, the settlement sum was $10, the applicable law was that of Victoria, the settlor name was ACIS Settlements Pty Ltd, the trustee name was Drini Mulla and the primary and default beneficiary names were Drini Mulla and Sevdie Mulla; and 4. there was a power of attorney in the name of Mr Neibling.
9. In relation to the Tanovic Trust, Mr Topping's search results record the following information (CB130): 1. an invoice dated 26 June 2001 was issued to Vision Consulting with the description "The Mulla Trust" in the amount of $240 and was paid on 31 July 2001 by credit card; 2. the ACIS Services' trust deed version was dated 15 June 2001, the trust type was "Discretionary Trust" and the stamp duty date was 10 July 2001, the amount was $1.50 and the state was Queensland; 3. the trust name was "The Tanovic Trust", the establishment date was 6 July 2001, the settlement sum was $10, the applicable law was that of Victoria, the settlor name was ACIS Settlements Pty Ltd, the trustee name was Kerim Tanovic and the primary and default beneficiary names were Kerim Tanovic and Azra Tanovic; and 4. there was a power of attorney in the name of Mr Neibling.
10. In relation to the Yim Tang Trust, Mr Topping's search results record the following information (CB128): 1. an invoice dated 4 January 1999 was issued to Vision Consulting with the description "The Yim Tang Family Trust" in the amount of $225 and was paid on 11 January 1999 by cheque; 2. the ACIS Services' trust deed version of the Yim Tang Trust was dated 3 February 1998, the trust type was "Discretionary Trust" and the stamp duty date was 6 January 1999, the amount was $1.50 and the state was Queensland; 3. the trust name was "The Yim Tang Family Trust", the establishment date was 4 January 1999, the settlement sum was $10, the applicable law was that of Queensland, the settlor name was ACIS Settlements Pty Ltd, the trustee name was Wisdom Consultancy, the principal name was Ting Shing Yim and the primary beneficiary names were Ting Shing Yim and Ming Wai Tang; and 4. there was a power of attorney in the name of Mr Neibling.
11. Mr Topping says that, based on his searches and experience at ACIS Services, the trust deeds for the Family Trusts comprised no more than the relevant template trust deed used by ACIS Services at the time they were established and the Order Form Information, which is contained in the search results outlined at [42]-[44] above.
12. Copies of ACIS Services' template discretionary trust deeds in use at the time of the creation of the Yim Tang Trust (that is, the template in use during the period between 3 February 1998 and 15 January 1999) and at the time of the creation of the Mulla Trust and the Tanovic Trust (that is, the template in use during the period between 15 June 2001 and 6 September 2001) are at pages 12-44 and 45-75 of Exhibit ST-1 respectively.

Other evidence relating to the Family Trusts and the DEK Unit Trust

1. Financial statements and tax returns have been prepared for the Mulla Trust since the year ending 30 June 2001. Those records refer to Mr Mulla as the "individual trustee" (see, for example, the tax return for the year ending 30 June 2001).
2. Financial statements and tax returns have been prepared for the Tanovic Trust since at least the year ending 30 June 2003. The tax return for the tax year ending 30 June 2003 refers to Mr Tanovic as the trustee of the Tanovic Trust.
3. Financial statements and tax returns have also been prepared for the Yim Tang Trust since the year ending 30 June 1999. The income tax return for that year refers to Wisdom Consultancy as the non-individual trustee for the Yim Tang Trust and the director's report for Wisdom Consultancy refers to the principal activity of the company as acting as trustee for the Yim Tang Trust.
4. Financial statements and tax returns have also been prepared and lodged for the DEK Unit Trust since the year ending 30 June 2000.
5. The DEK Unit Trust financial statements for the year ending 30 June 2000 refer to the following: DEK Technologies is the trustee for the DEK Unit Trust; "DEK Technologies Pty Ltd acts solely as trustee of the trust and liabilities have been incurred on behalf of that trust in the company's capacity as corporate trustee"; and the "Beneficiary Current Accounts" and the trust distribution statement indicate that the beneficiaries are Mr Mulla, Mr Tanovic and the Yim Tang Trust.
6. Mr Mulla gives evidence that he assumes that the reason why the Mulla Trust and the Tanovic Trust were not listed as beneficiaries in the DEK Unit Trust's financial statements for the year ending 30 June 2000 was because those trusts had not yet been set up. Mr Mulla deposes that he has no personal interest in the DEK Unit Trust other than as a trustee. Mr Tanovic also deposes that the Tanovic Trust is a unitholder in the DEK Unit Trust and he is the trustee of the Tanovic Trust.
7. The tax returns for the DEK Unit Trust have at times marked the "Trust Type" as "H" meaning "Hybrid Trust", "T" meaning "Discretionary Trading Trust" and "U" meaning "Fixed Unit Trust". Since 30 June 2007, Ms Yu has caused the "Trust Type" to be marked "U" based on her belief that the DEK Unit Trust is a fixed unit trust in accordance with the result of the ABN Lookup search result from the Australian Business Register and instructions from the trustee of the DEK Unit Trust with respect to distributions to the beneficiaries.
8. Mr Mulla gives evidence that he approved the DEK Units Trust's financial statements on the basis of his understanding that: 1. all business conducted through DEK Technologies has been on the basis that it was the trustee of the DEK Unit Trust; 2. under the terms of the DEK Unit Trust, each of the Family Trusts are entitled to equal thirds of the profits of the DEK Unit Trust (save for the first financial year ending 30 June 2000 for the reasons set out at [52] above); and 3. to the extent that profits are distributed to the Mulla Trust, he has been able to distribute them to himself, his family members or to companies in which they have an interest.
9. Mr Tanovic and Mr Yim give evidence of their understanding of the terms of the DEK Unit Trust and how profits may be distributed to the Tanovic Trust and the Yim Tang Trust consistent with the matters referred to by Mr Mulla, as referred to at [54] above.

Applications for judicial advice

1. The plaintiffs' applications seek judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (Victorian Rules), s 96 of the Trusts Act 1973 (Qld) (Queensland Trusts Act), s 63 of the Trustee Act 1925 (NSW) (NSW Trustee Act), the applicable cross-vesting legislation of those jurisdictions and/or the exercise of the inherent equitable jurisdiction of the Supreme Court of New South Wales that: 1. DEK Technologies is justified in managing and administering the DEK Unit Trust pursuant to the terms outlined in the 8 February Advice, with particular terms identified in relation to the identity of "unitholders" and "discretionary beneficiaries", and their entitlements to income and capital; and 2. Mr Mulla, Mr Tanovic and Wisdom Consultancy are justified in managing and administering each of the Family Trusts pursuant to the terms of the applicable template trust deeds contained in ST-1 (referred to at [46] above) and the details applicable to each of the Family Trusts based on the search result information (described at [42], [43] and [44] above).
2. The issues raised by the applications concern whether this Court has jurisdiction to grant judicial advice and whether the Court is satisfied that there is sufficient evidence from which to determine the existence of the trusts and their terms.

Jurisdiction to provide advice

1. Mr Mulla, Mr Tanovic and DEK Technologies seek judicial advice in relation to the DEK Unit Trust, the Mulla Trust and the Tanovic Trust under r 54.02 of the Victorian Rules pursuant to the application of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), and/or the exercise of the inherent equitable jurisdiction of the Supreme Court of New South Wales.
2. Wisdom Consultancy seeks judicial advice in relation to the Yim Tang Trust under s 96 of the Queensland Trusts Act pursuant to the application of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), and/or the exercise of the inherent equitable jurisdiction of the Supreme Court of New South Wales.
3. As outlined at [42]-[44] above, the search results indicate that the applicable law of the Mulla Trust and the Tanovic Trust is that of Victoria and the applicable law of the Yim Tang Trust is that of Queensland.
4. There is more doubt as to the applicable law of the DEK Unit Trust in the absence of any ACIS Services' records relating to that trust. That said, the ABN Lookup search and the tax returns for the DEK Unit Trust refer to Victoria as its main business location and postal address since 2002, suggesting a strong connection with that state.
5. The plaintiff trustees submit that, despite these matters, this Court has jurisdiction to deal with the applications for judicial advice. I agree.
6. It has been held that this Court may give judicial advice in respect of foreign trusts under s 63 of the NSW Trustee Act: BTA Institutional Services Australia Ltd v BNY Trust (Australia) Registry Ltd (2009) 3 ASTLR 207; [2009] NSWSC 1294; and Re Dion Investments Pty Ltd [2013] NSWSC 1941. However, as Parker J commented obiter dicta in Re Application of Rinehart (2020) 104 NSWLR 274; [2020] NSWSC 1624 (Rinehart) at [111]-[113], there is room to argue about the correctness of this position and it seems preferrable for this Court to proceed under its cross-vesting jurisdiction and/or its inherent equitable jurisdiction where the proper law of the trusts may be that of another state or territory.
7. This Court has the power and jurisdiction to give judicial advice of the kind sought by the trustees both within its inherent jurisdiction and under the cross-vesting legislation of Victoria and Queensland: Rinehart at [94] and [114] per Parker J, noting that the application in that case was in the context of Western Australia's cross-vesting legislation.
8. The cross-vesting laws of Victoria and Queensland provide that this Court has and may exercise its original jurisdiction with respect to matters in which the Supreme Courts of Victoria and Queensland have jurisdiction, otherwise than by reason of the law of the Commonwealth or of another state: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), ss 3(1), 4(3); and Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 4(1). Section 9(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) provides that this Court may exercise jurisdiction conferred on it by a cross-vesting law of another state.
9. Rule 54.02 of the Victorian Rules provides: 54.02 Relief without general administration … (2) Without limiting paragraph (1), a proceeding may be brought for - (a) the determination of any question which could be determined in an administration proceeding, including any question - (i) arising in the administration of an estate or in the execution of a trust; (ii) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or (iii) as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust; (b) an order directing an executor, administrator or trustee to - (i) furnish and, if necessary, verify accounts; (ii) pay funds of the estate or trust into court; or (iii) do or abstain from doing any act; (c) an order - (i) approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or (ii) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
10. It has been observed that r 54.02 of the Victorian Rules confers on the Court "very broad powers" to give directions to trustees and reflects the long-standing practice that "[w]here an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do": Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 at [41]; and Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 at [75].
11. Section 96 of the Queensland Trusts Act provides: 96 Right of trustee to apply to court for directions (1) Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee. (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.
12. The High Court majority (Gummow ACJ, Kirby, Hayne and Heydon JJ) in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church) at [58], emphasised that the only jurisdictional bar to a trustee obtaining judicial advice under s 63 of the NSW Trustee Act is that the trustee must be able to "point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument".
13. The plurality also observed in Macedonian Church (at [34], footnote 40) that the powers given by s 63 of the NSW Trustee Act are similar to s 96 of the Queensland Trusts Act and r 54.02 of the Victorian Rules is derived from O 55 r 3 of the Rules of the Supreme Court 1883 (UK). The High Court went on to outline "the similarity of the alternatives", being the legislative schemes in Australia (for example, s 63 of the NSW Trustee Act and s 96 of the Queensland Trusts Act) and the UK equivalents (at [43]-[49]).
14. Rule 54.02 of the Victorian Rules, s 63 of the NSW Trustee Act and s 96 of the Queensland Trusts Act may be drafted in different terms but the judicial advice procedures in each state are substantially similar, with the procedures being directed to the same end, namely, to provide advice, direction or opinion to trustees which, if followed, will provide guidance to trustees where doubts emerge as to how to act and avoid later complaint that they should have acted otherwise: Macedonian Church at [45].
15. The plaintiff trustees also submit, and I accept, that in addition to the judicial advice procedures in each state being substantially similar, the applicable legal principles and evidentiary issues in relation to judicial advice applications in circumstances of lost trust deeds do not differ between the relevant states and there is a matter of efficiency that supports this Court dealing with the applications, namely, the legal advisors for the trusts are located in New South Wales.
16. In this case, doubts have emerged as to the terms of the trusts in circumstances where the trust deeds cannot be located. As these issues arise from the execution of the various trusts and concern the management and administration of the property held by them, I am satisfied that the applications engage the jurisdiction under s 96 of the Queensland Trusts Act, r 54.02 of the Victorian Rules and/or the inherent jurisdiction of this Court to provide the judicial advice sought. In coming to that view, I also note that this and other Courts have provided judicial advice in similar circumstances: see, for example, Re Porlock Pty Ltd [2015] NSWSC 1243 (Porlock); In the Application of Brailey Holdings Pty Limited ACN 001 190 441 [2018] NSWSC 1493 (Brailey Holdings); Re Cleeve Group Pty Ltd [2022] VSC 342; and Re Adam John Dove Pty Ltd [2022] VSC 625.
17. The trustees did not formally serve a copy of the summons and all of the supporting evidence on all interested persons. I am, however, satisfied that formal service was unnecessary. There is evidence that the trustees' legal representatives notified the beneficiaries of each of the trusts and all but two of the other persons and entities who have received distributions from the trusts over the years that an application was expected to be made by the trustees for orders regarding the administration and management of the trusts and the reasons for the application (namely, that the trust deeds could not be located). There is also evidence that signed consent letters were received from each notified person or entity stating that they/it did not need to be notified of the proposed application to the Court and/or they consented to orders regarding the administration of the trusts. The only persons who were not notified of the application were related to the Yim Tang Trust, being: Mr Yim's father, who is now deceased; and Mr Yim's mother who lives in Hong Kong, has very poor eyesight, does not understand English and received her last distribution from the Yim Tang Trust in the financial year ending 30 June 2012.

Should judicial advice be provided in the terms sought?

1. In this case, the trustees do not ask the Court to set up or establish a trust. Rather, they seek to obtain judicial advice as to whether they are justified in managing and administering the trust property of the respective trusts pursuant to the terms provided for in prayers one to four of the Amended Summons, in particular, the terms that identify who is entitled to the trust property and in what circumstances, and the powers of the trustees.
2. The trustees' written submissions refer to the evidentiary burden of determining the terms of a trust.
3. Reference was made to Maks v Maks (1986) 6 NSWLR 34 (Maks v Maks), a case in which McLelland J (as his Honour then was) considered circumstances where a party to the proceedings claimed that the other party had declared a trust with respect to a part of real property pursuant to a document which was not produced at the hearing. His Honour stated (at 36): "... where the original writing is not produced and secondary evidence is relied on, there must be clear and convincing proof not only of the existence, but also of the relevant contents, of the writing, of the same order as the proof required to establish an entitlement to the rectification of a written instrument..."
4. The need for "clear and convincing proof, not only of the existence of the document, but also of the relevant contents" was adopted by Young J (as his Honour then was) in Mack v Lenton (1993) 32 NSWLR 259, also in relation to a dispute regarding the existence of a trust.
5. Other first instance cases in this Court have adopted the "clear and convincing proof" test in relation to the contents of a missing trust deed: see, for example, Barp Nominees Pty Ltd [2016] NSWSC 990 at [6] and Brailey Holdings at [13].
6. In the recent case of Vanta Pty Ltd v Mantovani [2023] VSCA 53 (Vanta v Mantovani), the Victorian Court of Appeal (Kyrou, Sifris JJA and J Forrest AJA) departed from that approach, holding that the trial judge was incorrect to refuse to make a declaration that the trustee was justified in continuing to administer the trust on the basis that there was no clear and convincing proof of the contents of the trust deed. The Court observed that the requirement for clear and convincing proof imposes too high a burden on a party endeavouring to prove the existence of a relevant fact and that proof of the contents of a missing trust deed by secondary evidence is an ordinary factual question to be determined on the balance of probabilities applying s 140(1) of the Evidence Act 1995 (NSW) (Evidence Act) and, if necessary, the criteria set out in s 140(2): at [85]-[86] and [92]. The Court of Appeal in Vanta v Mantovani also noted that the decision of Maks v Maks was made under the common law prior to the introduction of the Evidence Act: at [72].
7. In my view, the reasoning of the Court of Appeal in Vanta v Mantovani is compelling. I do not consider that "clear and convincing proof, not only of the existence of the document, but also of the relevant contents" of a missing trust deed must be established by the evidence in this case. In my view, the relevant questions are whether the Court is satisfied, on the balance of probabilities, that trust deeds were executed and contained the terms proposed and/or of the existence and terms of the trusts, which may be established by secondary evidence.
8. In Porlock, Young AJA accepted secondary evidence in the form of a letter written by an accountant of the trustee which outlined the beneficiaries of the trust. His Honour considered the letter to amount to sufficient evidence of the terms of the trust in the context of a lost trust deed: at [3]-[5].
9. In Brailey Holdings, Kunc J noted that there was no evidence that the misplaced trust deed had been seen prior to it being misplaced. His Honour referred, amongst other items, to evidence that the trustee had in fact managed and administered the property that it held as trustee in support of giving judicial advice as to the terms of the lost trust deed: at [15]-[19].
10. Applying these principles to the facts in this case, I am satisfied that the evidence supports the grant of judicial advice on the trustees' applications notwithstanding that there is no direct evidence from anyone that they have seen trust deeds for the DEK Unit Trust or the Family Trusts.
11. Dealing first with the Family Trusts, the evidence from Mr Mulla, Mr Tanovic and Mr Lim (at [16]-[34] above) together with the ABN Lookup records, the search results of ACIS Services' records and invoices identified by Ms Pritchard and Mr Topping (referred to at [40]-[41] above) provide the evidence necessary to satisfy me that the Family Trusts were established on 6 July 2001, 6 July 2001 and 4 January 1999 respectively and that trust deeds were created, executed (most likely by Mr Niebling as power of attorney) and stamped for duty at around those times. The search records and Mr Topping's evidence are, in my view, satisfactory evidence of the essential terms applicable to each trust, namely the date of the trust deed, the place of settlement, the name of the trust, the settled sum, the applicable law, the identities of the trustee, the settlor, the principal and the beneficiaries of the trust, and also the general terms of each of the trusts, by reference to the template trust deeds for discretionary trusts held by ACIS Services at the relevant times.
12. The ABN Lookup records, the search results of ACIS Services' records and the financial reports and tax returns of the trusts also establish that the Family Trusts were discretionary trading trusts, that they have operated as such for many years and that regular distributions have been made to beneficiaries (including the persons identified as beneficiaries in the search results).
13. Irrespective of whether the original binder of the trust deeds was provided to one of Mr Mulla, Mr Tanovic or Mr Yim personally in accordance with the company policy referred to in Mr Italiano's email of 22 June 2011, overall, the inevitable inferences that arise from the evidence adduced is more than adequate to persuade the Court of the terms of the lost trust deeds in respect of the Family Trusts.
14. The position in relation to the DEK Unit Trust is, in my view, less clear although I am satisfied that judicial advice should be given in the terms sought. The issue in relation to the DEK Unit Trust is that there is very little evidence that a trust deed setting out the terms of the DEK Unit Trust was actually created by ACIS Services or any other entity at or around the time the DEK Unit Trust was first registered on 15 June 2000.
15. The plaintiff trustees submit that on the evidence the Court should be satisfied that the three certainties required to create a trust have been met, being the certainties of intention, subject matter and objects: Kauter v Hilton (1953) 90 CLR 86 at 97; [1953] HCA 95; see also Vanta v Mantovani at [105]-[115] and the cases there cited.
16. I accept that submission. The evidence from Mr Mulla, Mr Tanovic, Mr Yim and Mr Scopelliti indicates an intention to create a unit trust in accordance with the 8 February Advice.
17. As to the nature of the DEK Unit Trust, the 8 February Advice describes the proposed trust as a special hybrid trust. Although Ms Yu has identified the DEK Unit Trust as a fixed unit trust in the tax returns since 2007 (reflecting the descriptor in the ABN Lookup search, referred to at [53] above), in my view, the evidence supports a finding that the parties intended to and did create a hybrid unit trust in 2000. This finding is supported by the terms of the 8 February Advice, the evidence from Mr Mulla, Mr Tanovic and Mr Yim at [20] above, Mr Scopelliti's evidence that he recalls setting up such a structure for a number of clients and using trust deeds from ACIS Services, the initial tax returns for the DEK Unit Trust which refer to the trust type as a hybrid trust and the hearsay evidence that Mr Italiano recalls getting "special hybrids from ACIS" and giving the "Unit Trust Deed" to Mr Mulla (pages 5-7 of Exhibit SY-1).
18. There is also evidence that supports a finding that such a trust was in fact created, see, in particular: 1. the ABN Lookup search that identifies that the DEK Unit Trust was registered on 15 June 2000 (CB364); 2. the letter from the Australian Taxation Office dated 24 March 2004 that refers to DEK Technologies as the trustee for the "DEK Technologies Unit Trust" (CB165); 3. the "Structure Report" from Mr Italiano dated 18 May 2006 that identifies the "Current Structure" as "Dek Tek Pty Ltd" as the trustee company and "Dek Tek" as the unit trust, with the "unitholder/beneficiary" of the unit trust being "The Mulla Trust", "The Tanovic Trust" and " The Yim Tang F/Trust" (CB168-71); 4. the financial statements and tax returns for the DEK Unit Trust for the period from the year ending 30 June 2000 to 30 June 2021 (CB524-869) which identify that there have been "assets" held by the DEK Unit Trust (see, for example, at CB527, CB619, CB797) and that distributions have been made to the Mulla Trust, the Tanovic Trust and the Yim Tang Trust as beneficiaries; 5. the DEK group structure diagram that identifies each of the Family Trusts as holding 33.3% of the units in the DEK Unit Trust (CB355); and 6. the financial statements of the Mulla Trust, the Tanovic Trust and the Yim Tang Trust which identify units in the DEK Unit Trust as assets of the Family Trusts (see, for example, in respect of the Mulla Trust, at CB875 and CB1128).
19. As to certainty of objects, the 8 February Advice provided that there were two types of beneficiaries: unitholders and discretionary beneficiaries. I accept the plaintiff trustees' submission that the better construction of the 8 February Advice is that the discretionary beneficiaries are the objects of the power to appoint income and capital, with the unitholders being the takers-in-default of appointment of both income and capital. The 8 February Advice refers to the unitholders as having "voting rights… and the right to receive income and capital that has not been distributed to the discretionary beneficiaries", and each class of discretionary beneficiaries being "entitled to receive income and capital in priority to the unitholders" with the income to be "distributed on a discretionary basis among each unitholder's family including companies and trusts." As the plaintiff trustees submit, the interests of the unitholders may be defeated if the donee of the power to appoint (that is, the trustee of the unit trust, DEK Technologies) exercises its power to appoint income and or capital in favour of the objects of the power of appointment, namely the discretionary beneficiaries.
20. The plaintiff trustees also submit, and I accept, that on the proper construction of the 8 February Advice, the discretionary beneficiaries are those related to the unitholders, as well as companies and trusts, given the references to the "class of beneficiaries" being described by "relationship", the class of unitholder being "'related' to the individuals who 'own' that company, trust or superannuation fund" and the wording of item (8) (as set out at [19] above). Further, the discretionary beneficiaries are determined by the unitholders as the "[u]nits… can be easily sold or otherwise disposed".
21. In my view, the test in respect of the conceptual certainty of the objects of the DEK Unit Trust was satisfied at the time the trust was created in 2000. Further, the evidence from Mr Mulla, Mr Tanovic and Mr Yim also indicates that the classes of discretionary beneficiaries are ascertainable.
22. As to certainty of subject matter, the financial statements make clear that fees and income were generated by the DEK business, were held on trust for the benefit of the beneficiaries and were the subject of distributions, and that other "assets" were also held on trust.
23. While there may be a lack of clarity around the terms of the DEK Unit Trust (for example, terms that set out the management powers of the trustee), I am persuaded by the plaintiff trustees' submission that the essential terms are those set out in the 8 February Advice. That document sets out, amongst other things: the purpose of the trust as part of an appropriate structure for the DEK business; the nature of the trust being a special hybrid unit trust; the identity of the proposed trustee being a newly established company (that became DEK Technologies); and the conceptual identity of the beneficiaries of the trust and their entitlements. I am also satisfied that the three certainties required to establish the creation of an express trust have been demonstrated by the evidence and there is utility in providing the advice sought. This is particularly in the context where the DEK Unit Trust has carried on business for some years, it is clear that the trustee recognises that it holds the trust property on trust for the beneficiaries of that trust and the grant of judicial advice will confirm the identity of the beneficiaries and their entitlements in the context of some past uncertainty as to the terms and nature of that trust. In the circumstances set out above, the Court should assist those responsible for the administration of the DEK Unit Trust by ensuring that they can continue to administer it in accordance with the intent of the parties and the 8 February Advice.
24. This Court has no power to recreate a trust deed for the DEK Unit Trust: Porlock at [2]. Rather, the Court is simply advising DEK Technologies as trustee that it is justified in managing and administering the DEK Unit Trust by reference to the terms set out in the 8 February Advice with the powers of the DEK Unit Trust being otherwise as provided for in the Trustee Act 1958 (Vic). For the reasons set out above, I consider that such advice reflects the terms of the DEK Unit Trust in existence and that there is utility in granting the relief sought.

Orders

1. For these reasons, I make the following orders: 1. Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and/or via the exercise of the Court's inherent equitable power, DEK Technologies Pty Ltd, in its capacity as trustee of the DEK Technologies Unit Trust, is justified in managing and administering the DEK Technologies Unit Trust according to the terms outlined in the letter from Mr Paul Scopelliti of Vision Consulting Group dated 8 February 1999 as contained in pages 18-22 of the exhibit marked "DM-1" to the affidavit of Drini Mulla affirmed on 20 January 2023, with the following in particular: 1. the "unitholders" being the trustee of the Mulla Trust, the trustee of the Tanovic Trust and the trustee of the Yim Tang Family Trust; 2. the "discretionary beneficiaries" being those related to the trustee of the Mulla Trust, the trustee of the Tanovic Trust and the directors of the trustee of the Yim Tang Family Trust; 3. the "unitholders" and their related "discretionary beneficiaries" are each entitled to one-third of the income and capital of the DEK Technologies Unit Trust while the "unitholders" each hold one-third of the total units on issue; 4. the "discretionary beneficiaries" are objects of the power to appoint income and capital of the DEK Technologies Unit Trust with respect to the one-third interest referrable to the relevant "unitholder"; 5. the "unitholders" are entitled in default of appointment of income and capital in the event that the trustee of the DEK Technologies Unit Trust does not appoint income or capital to the "discretionary beneficiaries"; and 6. the powers of the DEK Technologies Unit Trust are otherwise provided for in the Trustee Act 1958 (Vic). 1. Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and/or via the exercise of the Court's inherent equitable power, Drini Mulla, in his capacity as trustee of the Mulla Trust, is justified in managing and administering the Mulla Trust according to the terms contained in pages 45-75 of the Exhibit marked "ST-1" to the affidavit of Shane Topping sworn on 17 June 2022, with the following details in Schedule 1 to those terms: 1. "Place of Settlement" being Queensland; 2. "Date of Deed" being 6 July 2001; 3. "Trustee" being Drini Mulla; 4. "Settlor" being ACIS Settlements Pty Ltd; 5. "Settlement Sum" being $10; 6. "Name of Trust" being The Mulla Trust; 7. "Applicable Law" being that of Victoria; 8. "Principal" being Drini Mulla; 9. "Primary Beneficiaries" being Drini Mulla and Sevdie Mulla; and 10. "Default Beneficiaries" being Drini Mulla and Sevdie Mulla. 1. Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and/or via the exercise of the Court's inherent equitable power, Kerim Tanovic, in his capacity as trustee of the Tanovic Trust, is justified in managing and administering the Tanovic Trust according to the terms contained in pages 45-75 of the Exhibit marked "ST-1" to the affidavit of Shane Topping sworn on 17 June 2022, with the following details in Schedule 1 to those terms: 1. "Place of Settlement" being Queensland; 2. "Date of Deed" being 6 July 2001; 3. "Trustee" being Kerim Tanovic; 4. "Settlor" being ACIS Settlements Pty Ltd; 5. "Settlement Sum" being $10; 6. "Name of Trust" being The Tanovic Trust; 7. "Applicable Law" being that of Victoria; 8. "Principal" being Kerim Tanovic; 9. "Primary Beneficiaries" being Kerim Tanovic and Azra Tanovic; and 10. "Default Beneficiaries" being Kerim Tanovic and Azra Tanovic. 1. Pursuant to section 96 of the Trusts Act 1973 (Qld) and/or via the exercise of the Court's inherent equitable power, Wisdom Consultancy (Vic) Pty Ltd, in its capacity as trustee of the Yim Tang Family Trust, is justified in managing and administering the Yim Tang Family Trust according to the terms contained in pages 12-44 of the Exhibit marked "ST-1" to the affidavit of Shane Topping sworn on 17 June 2022, with the following details in Schedule 1 to those terms: 1. "Place of Settlement" being Queensland; 2. "Date of Deed" being 4 January 1999; 3. "Trustee" being Wisdom Consultancy (Vic) Pty Ltd; 4. "Settlor" being ACIS Settlements Pty Ltd; 5. "Settlement Sum" being $10; 6. "Name of Trust" being The Yim Tang Family Trust; 7. "Applicable Law" being that of Queensland; 8. "Principal" being Ting Shing Yim; and 9. "Primary Beneficiaries" being Ting Shing Yim and Ming Wai Tang.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2023