Wareham v Marsella [No 2]

[2020] VSCA 118

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Trusts
2. › Trustees
3. › Costs
4. › Indemnity from trust fund
5. › Trustee pursuing appeal against removal
6. › Whether litigation in trustee's personal interest or in execution of trust
7. › Whether indemnity clause in trust deed extends to adversarial litigation for trustee's own purposes
1. Trusts
2. › Trustees
3. › Removal
4. › Costs of proceedings
5. › Distinction between adversarial litigation and trust administration proceedings
6. › Onus on trustee to establish entitlement to indemnity
1. Costs
2. › Trustees
3. › Self-managed superannuation fund
4. › Personal costs orders against trustees
5. › Whether trust deed indemnity clause displaces court's costs discretion
6. › Superannuation Industry (Supervision) Act 1993 (Cth), s 56
1. Trusts
2. › Trust deeds
3. › Construction
4. › Indemnity and limitation of liability clauses
5. › Distinction between limitation of liability clause and indemnity clause
6. › Whether costs order is independent liability not foreclosed by limitation clause

Quick Take

Trustees of self-managed superannuation funds who unsuccessfully appeal their removal cannot claim indemnity from the trust fund for the costs of the appeal where the appeal was pursued in their personal interests rather than in the execution of the trust. A trust deed indemnity clause covering liabilities incurred 'in the exercise or purported exercise' of the trust does not extend to adversarial litigation undertaken for the trustee's own purposes. A costs order creates an independent payment obligation that is not foreclosed by a limitation of liability clause in a trust deed.