The Court granted judicial advice under s 63 of the Trustee Act 1925 (NSW) that RPW Services was justified in continuing to administer a superannuation fund on the basis of the 1994 and 2021 trust deeds, notwithstanding that the chain of trustee appointments from the original 1979 trustee could not be conclusively established due to missing documents. The Court preferred judicial advice over orders under ss 70-71 of the Trustee Act because the evidence supported an inference (bolstered by the presumption of regularity) that the appointment was valid, making vesting orders potentially unnecessary, and because substantive vesting orders would affect property rights of parties not before the Court. The Court held that even if not validly appointed, RPW Services would be a trustee de son tort holding assets on a constructive trust, and thus qualified as a 'trustee' for the purposes of s 63.
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