A person who denies being a trustee cannot invoke the judicial advice jurisdiction under s 63 of the Trustee Act 1925 (NSW) or the general equitable advisory jurisdiction. Where the existence of a trust is disputed, the appropriate procedure for determining whether the alleged trustee may have recourse to alleged trust assets is an interlocutory injunction application by the plaintiff, not a judicial advice application by the defendant. Counsel's opinion on a trustee's prospects of success in litigation should be obtained in stages, beginning with a preliminary opinion, and the Court may impose a cap on expenditure from trust assets for that purpose.
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