By Darryl Browne -
Key decisions
- Simmons v Arthritis Queensland Ltd [2023] QSC 251 (Trustee remuneration)
- H v AC [2024] NSWSC 40, H v OL [2024] NSWSC 271 and JXN [2022] NSWCATGD 26 (Protective jurisdiction)
- Jensen v Mlynarik [2024] QSC 19 and Public Trustee v Attorney-General for New South Wales (Disclaimer)
- Perez v Ciabattoni [2024] NSWSC 138 and Perez v Ciabattoni (No 2) [2024] NSWSC 262 (Family provision)
Court did not approve expanded arrangement to pay trustee of charitable trust
Johannes Maas’ residual estate, worth about $6.6m, was left to a charitable trust named after his first wife – the Julie Maas Charitable Trust (‘the Trust’). His accountant, Simmonds, became the sole trustee of the charitable trust. Simmonds sought a court order fixing his remuneration at 1.25 per cent of the value of the assets as at 30 June every year or, in the alternative, an order entitling him to charge the estate $500 per hour.
Maas’ will contained a widely drawn charging clause. The Court in Simmons v Arthritis Queensland Ltd [2023] QSC 251 (Freeburn J) recorded that, ‘[i]f the trust instrument expressly provides for the payment of remuneration, then: (a) the court will construe the remuneration clause strictly; (b) but, if the trustee is a professional person, the interpretation of the remuneration clause will be informed by the commercial context; (c) the remuneration clause does not operate to oust the court’s jurisdiction to award remuneration; (d) however, the intention of the trust instrument is a relevant factor’ (at [14]).
