Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5 (04 February 2021) (Gleeson JA at [1], Leeming JA at [336], Emmett AJA at [337])


Catchwords:


EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances

CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust

EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions

EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive