Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Sutton v NRS(J) [2020] NSWSC 826. We will talk about the absence of a original trust deed in relation to a trust settled in 1972 with three brothers as trustees.

A trust was settled in 1972 with 3 trustees, all brothers. The trustees’ dad was settlor: [4] – [6] The trust was dormant until 2007 when, after the sale of a business, it was reactivated. [7] Around this time each brother was replaced by a separate Co as trustee, leaving 3 corporate trustees. [8] The trust assets were substantial and generated significant income. [10] The trust had been administered based on a photocopy. No one knew where the original was! A bank used by the trust required production of the original deed as part of its “know your customer” program (the interpretation of which the Court left as an open question). [11], [12] Searches were conducted for the original deed, including of the records of the father’s solicitor. Only a photocopy, identical to the photocopy that was already being relied on, was found. [14], [15] One of the brothers sought a declaration that the photocopy was a true copy of the original. However, the Court found that a declaration like this was not appropriate: [20] – [22] Instead, the Court provided s63 judicial advice to the trustees that they would be justified in continuing to administer the trust on the basis of the photocopy. [25] As the trustees might agree.