Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales

Judgment

1. LEEMING JA: On 1 November 2018, final orders were made for the administration of the George Nesbitt High School Scholarship, Adina Nesbitt High School Scholarship, and George and Adina Nesbitt High School Scholarships cy-près: Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) [2018] NSWSC 1646. After business hours on 15 November 2018, a notice of motion attaching proposed revised orders sought to be made by consent was filed electronically. It is not necessary to determine whether there would be power under UCPR r 36.16 to accede to the motion (noting the restrictions in rr 36.16(3A) and 36.16(3C)). Because the application is consented to by all relevant parties, there is power under r 36.15(2).
2. The notice of motion was accompanied by a short explanation for two of the changes, which are addressed below. There were another three changes proposed, which were unaccompanied by any explanation, one of which appeared to contain an error. On 19 November 2018, in response to an inquiry from my Associate, the parties advised that they did not press two of the changes, and now proposed a different third change.
3. Annexure "A" is a marked-up version of the proposed revised orders (as refined by the parties on 19 November 2018).
4. Two of the changes are substantial, in the sense that they will affect the timing, and the amount, of distributions to some scholarship recipients. I have formed the view that I should provide reasons for why I accede to the changes, because otherwise there will be no explanation for the discrepancy between the operative orders and those in my judgment of 1 November 2018. That said, the result of the changes for any individual scholarship recipient is apt to be relatively minor.
5. The first change concerns the distribution of eight years of accumulated income for the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship. In circumstances described in the previous judgments, the trustee has accumulated the income for the financial years ended 30 June 2010 to date. I determined that a pool should be created of the entirety of the income and interest for the financial years ended 30 June 2010 to 30 June 2017, which would be divided among the scholarship winners for the 8 academic years 2010 to 2017: Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) at [20]. I also noted that there was a point which might not have been fully worked out in the draft orders provided to me, in that scholarships were awarded on calendar years, while the Trustee accounted on financial years.