EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE
AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE –
GENERALLY –
where the deceased and a developer entered a joint venture agreement for the
Source
Original judgment source is linked above.
Catchwords
EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICEAND AUTHORITY – PETITION OR SUMMONS FOR ADVICE –GENERALLY –where the deceased and a developer entered a joint venture agreement for thecompletion of a project – where,pursuant to a statutory will, thedeceased gave to the applicant, his interests in the joint venture to hold ontrust – wherean issue has arisen which requires the applicant to decidewhether to pursue a certain course of action in relation to the jointventureagreement – where the applicant seeks judicial advice pursuant to s 96(1)of the Trusts Act 1973 (Qld) – where the respondents support theapplication – where the court must be satisfied that it has jurisdictionandthat it is appropriate to provide the directions sought – where thediscretionary power of the court to give judicial adviceto a trustee isinherently discretionary – where the propriety of the proposed course of
conduct falls to be considered –
whether it is appropriate for the court
to exercise its discretion to give the judicial advice sought by the
Commission for England and Wales v Mountstar (PTC) Ltd [2016] Ch 612,
cited
Hopkins v Edwards (2020) 20 ASTLR 329,
considered
Macedonian Orthodox Community Church St Petka Inc v His
Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of
Australia
and New Zealand [2008] HCA 42
(2008) 237 CLR 66, cited
Public Trustee v
Cooper [2001] WTLR 901, considered
Re Care Super Pty Ltd [2021]
VSC 805, cited
Re Evans [1986] 1 WLR 101, cited
Judgment (21 paragraphs)
[1]
[1] On 11 May 2007, Leslie William Aynsley ("Mr Aynsley") appointed Sean Patrick McMahon ("Mr McMahon") as his power of attorney for health, personal and financial matters if he lost capacity. Mr McMahon was also appointed as Mr Aynsley's attorney for the purposes of a joint venture agreement ("the JVA") entered on 20 June 2007 between Mr Aynsely, as the land owner, and GWM Properties Pty Ltd ("GWM"), as the developer. The joint venture concerned the development and sale of land at Helensvale ("the project").
[2] In or about 2013, Mr Aynsley lost capacity. Mr McMahon's appointment as Mr Aynsley's attorney was affirmed by the Queensland Civil and Administrative Tribunal. On 27 September 2017, a statutory will was made for Mr Aynsley ("the will"). On 3 February 2022, Mr Aynsley died.
[3] Pursuant to the will:
[2]
(a) Mr McMahon became the sole trustee (and in that capacity is referred to as "the JVTT Trustee") of the Joint Venture Testamentary Trust established under the will ("the JVTT");
(b) Mr McMahon and a Mr Hellen became co-trustees (and in that capacity are referred to as "the LATT Trustees") of the Leslie Aynsley Testamentary Trust established under the will ("the LATT)");
(c) Mr McMahon and Mr Hellen became co-executors of the estate of Mr Aynsley (and in that capacity are referred to as "the Executors").
[3]
[4] Pursuant to cl 6.1 of the will, Mr Aynsley gave to the JVTT Trustee, his interests in the joint venture to hold on trust pursuant to the terms of the JVTT. This bequest included, relevantly, the "JV Agreements" and "all matters related to the conduct of the joint venture pursuant to the JV Agreements". The term "JV Agreements" is defined in cl 19.3 of the will to mean, essentially, the JVA as amended from time to time. Pursuant to cls 6.2 and 6.7 of the will, the sole beneficiary of the JVTT is the LATT.
[5] An issue has arisen which requires the JVTT Trustee to decide whether to fund and pursue a certain course of action in relation to the JVA ("the potential course of action").
[6] By this application, the JVTT Trustee seeks directions, in the nature of judicial advice, pursuant to s 96(1) of the Trusts Act1973 (Qld) ("the Trusts Act"). The judicial advice is sought by reference to a confidential further amended statement of facts dated 30 October 2025 ("the statement of facts").
[7] In addition to the statement of facts, the JVTT has read and relied upon the following material:
[4]
(a) Originating Application filed 25 July 2025.
(b) Application filed 15 August 2025.
(c) Confidential Outline of Submissions of the Applicant dated 17 October 2025.
(d) Confidential Supplementary Outline of the Applicant dated 30 October 2025.
(e) The material as listed as read in the Outlines in subparagraphs 7(c) and (d).
[5]
[8] The JVTT Trustee has obtained independent legal advice.
[9] The LATT Trustees and Executors are the respondents to this application. They are separately represented. They relied upon an outline of written submissions dated 20 October 2025.[1] The LATT Trustees and Executors support the application.
[10] I am satisfied on the material that the persons who have an interest in the application for the purpose of s 96(2) of the Trusts Act have been served.
[11] Before providing directions of the type contemplated by s 96(1) of the Trusts Act, the court must be satisfied that it has jurisdiction and that it is appropriate to provide the directions sought. I am satisfied that the information contained within the statement of facts and the affidavit material sufficiently identifies the relevant factual matters which establish the existence of a question respecting the management or administration of trust property and/or the exercise of a power or discretion vested in a trustee. Those facts having been established, I am satisfied that the court has a discretion whether to provide the requested advice.
[12] The discretionary power of the court to give judicial advice to a trustee is inherently discretionary and "there are no express words ... and no implications ... making some discretionary factors ... more significant or controlling than others".[2] Every application depends on its own facts[3] and ultimately the court is concerned with determining what ought to be done in the best interests of the trust.[4] The discretion of the court to give advice "should not be yoked to a general first principle that, where there is a contest or where there are adversaries, it is not appropriate to give advice".
[6]
"The second category is where the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no real doubt as to the nature of the trustees' powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have resolved and which is within their powers. Obvious examples of that, which are very familiar in the Chancery Division, are a decision by trustees to sell a family estate or to sell a controlling holding in a family company. In such circumstances there is no doubt at all as to the extent of the trustees' powers nor is there any doubt as to what the trustees want to do but they think it prudent and the court will give them their costs of doing so to obtain the court's blessing on a momentous decision. In a case like that, there is no question of surrender of discretion and indeed it is most unlikely that the court will be persuaded in the absence of special circumstances to accept the surrender of discretion on a question of that sort, where the trustees are prima facie in a much better position than the court to know what is in the best interests of the beneficiaries."
[7]
[15] The function of the court on that kind of application has been described in the following terms by learned commentators:[9]
[8]
"... to see that the proposed exercise of the trustees' powers is lawful and within the power and that it does not infringe the trustees' duty to act as ordinary, reasonable and prudent trustees might act, ignoring irrelevant, improper or irrational factors; but it requires only to be satisfied that the trustees can properly form the view that the proposed transaction is for the benefit of beneficiaries or the trust estate, that the proposed exercise of their powers is untainted by any collateral purpose such as might amount to a fraud on the power, and that they have in fact formed that view. In other words, once it appears that the proposed exercise is within the terms of the power, the court is concerned with limits of rationality and honesty; it does not withhold approval merely because it would not itself have exercised the power in the way proposed."
[9]
[16] Having regard to the material, I am satisfied that the JVTT Trustee has:
[10]
(a) since 2022, taken steps to seek to understand, in appropriate detail, the factual and legal issues relevant to the potential course of action;
(b) sought and considered appropriate legal advice from suitably experienced solicitors and counsel;
(c) given appropriate consideration to all relevant issues; and
(d) formed conclusions which are reasonable, genuinely held and which might be reached and held by an ordinary, reasonable and prudent trustee who has ignored irrelevant, improper or irrational factors.
[11]
[17] I am satisfied that it is appropriate to give the judicial advice sought by the application and I exercise my discretion in favour of providing that advice.
[12]
[18] The orders I make are as follows:
Pursuant to s 96(1) of the Trusts Act 1973 (Qld), the applicant is justified in taking the course of action set out in paragraphs 40(a) and 40(b) of the further amended statement of facts dated 30 October 2025.
The applicant's costs of this application are to be paid or reimbursed out of the assets of the Joint Venture Testamentary Trust on an indemnity basis.
[13]
[1] The respondents' lawyers were provided with the statement of facts and all of the material referred to in paragraphs 7(a) to (e).
[14]
[2]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66 at 90 [59].
[5]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[2008] HCA 42; (2008) 237 CLR 66 at 90 [60].
[7]Bastion v Gideon Investments Pty Ltd (in liq) (2000) 35 ACSR 466 at 476 [48]. See also Re Application of Doolan[2023] NSWSC 320 at [308].
[20]
[8] The relevant passage from Public Trustee v Cooper[2001] WTLR 901 at 922-4 has recently been quoted in Charity Commission for England and Wales v Mountstar (PTC) Ltd[2016] Ch 612 at 630 [61].
[21]
[9] Tucker, Poidevin & Brightwell, Lewin on Trusts (Sweet & Maxwell, 20th ed, 2020) at [39-095].
[13] In Hopkins v Edwards,[6] Lyons J identified a relevant consideration as being whether the trustee has taken proper legal advice and that a reasonable trustee might well abide by that advice. The propriety of the proposed course of conduct falls to be considered. The matters relevant to the propriety of any course of action should not be exhaustively stated. In any particular case, the matters may include the circumstances of the trust and the resources available to the trustee, the steps taken by a trustee to understand and consider the issues in dispute. A particular matter which has been recognised as relevant to the propriety of a proposed course of action by a trustee is whether the trustee has made "all reasonable inquiries ... to establish the true facts".[7]
[14] In Public Trustee v Cooper,[8] Hart J referred to a judgment of Robert Walker J which had been given in chambers in 1995. Hart J quoted from that judgment which had identified four distinct situations when courts are asked to adjudicate on a course of action proposed by or actually taken by a trustee. The judgment of Robert Walker J described one situation as follows: