The Court held that a former trustee's right of indemnity (by way of exoneration or recoupment) against trust assets survives replacement by a successor trustee, applying Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1, and that this established a prima facie case sufficient to justify an interlocutory restraint on dissipation of trust assets. The Court restrained the new trustee from reducing the cash assets of the AMPB Trust below $250,000 pending trial, taking into account estimated tax liabilities of up to approximately $129,000 in primary tax plus potential interest and penalties, and $50,000 for legal costs. The Court left open for trial the questions of whether the former trustee's specific liabilities (including tax penalties arising from failure to lodge returns, and legal costs incurred in resisting removal) were 'properly incurred' so as to enliven the indemnity, and did not finally determine the plaintiff's argument that the indemnity was lost upon cessation of office.
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