Australian Incentive Plan Pty Ltd (in its capacity as Trustee of the Australian Incentive Trust) v Attorney-General for Victoria (No 2)

A trustee who appeals against the court's advice at first instance ordinarily does so at its own risk as to costs, but departure from this rule is warranted where the advice below was given on a basis not argued (due to the non-appearance of a party invited to participate), the trustee acted on competent counsel's advice, and the divergence of views on appeal confirms the reasonableness of the appeal. [name withheld]'s observation suggests a broader reluctance to deprive trustees of costs from the fund where the appeal is pursued in performance of fiduciary duties.