Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Sutton v NRS(J)  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:  –  The trust was dormant until 2007 when, after the sale of a business, it was reactivated.  Around this time each brother was replaced by a separate Co as trustee, leaving 3 corporate trustees.  The trust assets were substantial and generated significant income.  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). ,  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. ,  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:  –  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.  As the trustees might agree.