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Winding up Corporate Trustees and Trusts - Is it a completely different regime now?

For some time practitioners and the courts have been wrestling with the winding up of corporate trustee companies and trusts. The general trend has been
towards increasing court supervision and legal expense.

But given some of the recent developments, particularly Justice Brereton’s decision in Independent Contractor (No 2) [2016] NSWSC 106, it now appears there is effectively a very different insolvency regime that applies when dealing with trusts.

Charity avoids $230,000 costs order in estate dispute

In the recent decision of Wright v Wright [2016] QDC 74, the Royal Children’s Hospital Foundation (“CHF”) was very nearly disadvantaged to the tune of $230,000 when the Court considered making an adverse costs order against it.

In Wright, the deceased’s Will gifted a pension benefit (worth approximately $630,000) to CHF and the balance of his estate (worth approximately $1.1 million) to his two siblings. His Will made no provision for his two adult children, so they made an application against the estate for further provision.

Parties ordered to pay their own costs of estate dispute

In the recent decision of Carter v Brine (No 2) [2016] SASC 36, the Supreme Court of South Australia ordered that an applicant and beneficiaries involved in a complex estate challenge must pay their own legal costs of the dispute, instead of having their costs paid by the estate or an opposing party.

In Brine (No 1), the deceased’s de facto spouse made various claims against the deceased’s estate in relation to interests in property and to receive increased provision. The beneficiaries of the estate were heavily involved in and defended the claim made by her.

Interpreting a Will: description or condition?

In the recent Western Australian case of Blyth v Wilken [2015] WASC 486, the Court was required to interpret the Will of a deceased person to determine if his former de facto spouse was entitled to receive a gift left to her.

The deceased’s Will stated:

“I give devise and bequest the rest and residue of my real and personal estate … upon trust for my de facto wife Kathrine Mary Murray absolutely …”

When are costs orders provable debts in a winding up?

Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63.

The Full Court of the Federal Court of Australia has revisited the question of whether costs orders are provable debts in Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63.

The appeal concerned (among other things) the issue of whether certain claims against a company subject to a deed of company arrangement (DOCA) were compromised by the DOCA.

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