(1) Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff is justified in distributing the judgment sum awarded pursuant to the judgment of Stevenson J in Kerr v Australian Executor Trustees

Consideration

1. The Distribution Costs consist of: 1. $375,000 in trustee remuneration; 2. $248,304.80 in legal costs relating to the distribution; 3. $332,971 in administration costs (including the cost of hiring a third party to administer the distribution); 4. $10,375 for the costs of retaining Mr Dent; and 5. $75,000 in contingencies.
2. Mr Kerr is entitled to be indemnified for expenses properly incurred in the administration of the trust: Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 at [83] per Bell, Gageler and Nettle JJ. Each category of cost appears to be reasonable. The proper administration of the trust is complicated by the complexity of the distribution, the number of beneficiaries involved and the fact that the Beneficiaries made their investments 37 to 42 years ago. The costs appear to be proportionate to the amount to be distributed. It is appropriate to make an allowance for contingencies having regard to those complexities and the fact that it is intended to distribute the whole amount of the trust fund.
3. As to Mr Kerr's own remuneration, the Court has power in its inherent jurisdiction to allow remuneration to a trustee which "extends to the approval of remuneration for future work done, as well as past work done in administering the trust": see In the matter of Creditors' Trust of Jackgreen (International) Pty Ltd [2011] NSWSC 748 at [42] per Ward J and the cases cited there. The remuneration claimed by Mr Kerr includes $139,474 for tasks that he has been performing. Those tasks are set out in detail in an affidavit sworn by Mr Kerr on 17 March 2022. It also includes $201,675 for tasks that Mr Kerr will be required to complete together with $33,851 in contingencies. Again, Mr Kerr has provided a detailed budget in his affidavit. The amounts appear to be reasonable and are proportionate to the amount to be distributed.
4. In his affidavit, Mr Kerr also sets out how the amount of $36,567,368.48 is to be distributed between the Beneficiaries. The calculations, which are largely contained in a report prepared by Mr Dent, are complicated. In essence, they seek to divide the balance of the amount recovered between the categories of recovery referred to above in the proportions that the amounts recovered in each category bear to the total amount recovered. They then seek to divide that head of recovery between the Beneficiaries who have an interest in it in proportion to the value of their interests. So, for example, the amount referable to the amount recovered in respect of standing timber of $30,718,516.20, together with pre-judgment interest on that amount, is to be distributed in proportion to the value attributed to the Beneficiaries' interests in the standing timber by grower years as determined by a valuation undertaken by VDFC Forestry Consultants as at 30 June 2011. Mr Dent explains why in his opinion that valuation provides a reliable foundation for determining the value of standing timber belonging to each of the Beneficiaries. The amount recovered in respect of land sale proceeds and the 2011 and 2012 harvest proceeds are dealt with in similar ways. The general categories of recovery (costs and post judgment interest) are divided between the other categories in the proportions that the amounts to be distributed in respect of each of those categories bear to the total of the amounts in those categories to be distributed.
5. I am satisfied that Mr Dent has the appropriate qualifications and experience to undertake the necessary calculations and that the approach of seeking to allocate the amount recovered in proportion to the interest of each of the Beneficiaries in the land or standing or harvested timber is a reasonable approach to take. Consequently, I am satisfied that it is reasonable for Mr Kerr to adopt Mr Dent's approach and calculations.
6. Mr Kerr gives evidence that, having regard to the available information, the most efficient way of distributing the settlement proceeds is by cheques posted to the Beneficiaries' last known addresses. In view of the passage of time, some of those cheques may be returned or may not be cashed. I accept that the question of what should happen to that money is best determined once it is known how much is involved. Accordingly, I accept that no advice should be given in relation to the distribution of that amount now and that the matter should be reconsidered 12 months after the distributions have been made.
7. Finally, I accept that Mr Kerr is entitled to the costs of the current application.

Orders

1. Accordingly, the orders of the Court are: 1. Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff is justified in distributing the judgment sum awarded pursuant to the judgment of Stevenson J in Kerr v Australian Executor Trustees (SA) Ltd [2019] NSWSC 1279 and the orders made by Stevenson J in those proceedings (being Commercial List proceeding No 2017/00164674) on 22 October 2019 (Judgment Sum) in the manner which is set out in Annexure A; 2. The Plaintiff is entitled to remuneration incurred in the distribution of the Judgment Sum in an amount not exceeding $375,000 excluding GST; 3. The Plaintiff's remuneration fixed pursuant to order 2 be paid from the assets of the S.E.A.S. Sapfor Forests Pty Limited Scheme; 4. An order that the costs of this application be paid from the assets of the S.E.A.S. Sapfor Forests Pty Limited Scheme; and 5. The application for the relief sought in paragraphs 1.2 and 3 of the notice of motion filed on 17 March 2022 be stood over until 2 June 2023.

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