Published Date: 1 Jul 2023
Several recent Supreme Court decisions highlight issues that can arise if a trust deed is lost.
The consequences of a trust deed being lost have arisen with surprising frequency over the years.
This article considers three recent Supreme Court decisions where the issues that can arise where a trust deed is lost have been considered. These are a decision of the Victorian Court of Appeal and two decisions of single justices of the New South Wales Supreme Court.
The decision of the Victorian Court of Appeal is particularly significant in that the court held that the relevant burden of proof in an application to the court in a lost trust deed case is not (as the prevailing view has been) “clear and convincing” evidence, but the ordinary civil burden of proof on a balance of probabilities. That approach was endorsed by one of the decisions of the NSW Supreme Court.
The other and most recent decision of the NSW Supreme Court is significant in that it opens up the possibility that relatively recent amendments to the Trustee Act 1925 (NSW) may, in some circumstances, provide a better remedy.
Cases also arise where the original trust deed has been lost but there is a copy of the deed in existence. This situation was recently considered by the Western Australian Supreme Court in a decision which is also noted in this article.
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