Section 59(4) of the Trustee Act 1925 (NSW) is a general empowering provision that underpins a trustee's right to recover litigation costs from the trust estate, but does not govern the specific question of what costs order should be made in trustee litigation; that question is governed by ss 93(2) and (3). A trustee who unsuccessfully seeks judicial advice may still be indemnified from trust assets if the application was reasonably arguable, the grounds of error were not apparent at first instance, and the trustee acted in good faith. However, where a trustee uses the judicial advice procedure adversarially to protect its own position against breach of trust claims, the question whether this constitutes acting 'for its own benefit rather than for the benefit of the fund' under Pt 42 r 25(2)(b) may only be determinable after the substantive proceedings are resolved.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.
1 of the 6 citing cases carry a classified treatment. How each court treated it is available to signed-in members.