This article examines the two main pathways available and the relevant pointers that will come in handy should you be placed in such a circumstance.
On the outset, it is prudent to ascertain whether the missing deed can be located from another source.
A good starting point would be to make enquiries with the following third parties:
- Presumed current and past trustees
- Presumed Settlor
- Legal Representatives or Accountants
- Presumed beneficiaries
Should an executed or stamped copy of the deed of trust be found, then it should constitute sufficient evidence under the Evidence Act 1995 (Cth).
In any event, searches or enquiries made will be useful to the party (i.e. trustee or legal representative) who undertakes them, as it will form part of the evidence, should an application to the Court be required to be made.
As stated, there are two main pathways, the first being where recourse is not based on Court proceedings, and the second being a more formalistic proceeding undertaken in the Courts.
In the context of the first pathway, a deed of confirmation can be executed to confirm the original deed, particularly, the key aspects of the trust deed.
However, it should be noted the adoption of this pathway is not without its risks. Primarily, it should be noted that Capital Gains Tax (CGT) and stamp duty liabilities may be applicable should certain circumstances be taken to apply by the Australian Taxation Office (ATO) and the State Revenue Office of Victoria (SRO) accordingly.
On the other hand, if all reasonable steps are taken but no copy of the trust deed can be found, it may be that a formal application to the Supreme Court is taken, seeking to confirm the terms of the lost trust deed and to excuse the trustee from any prior breaches of trust.
This is to be undertaken pursuant to rule 54.02 of the Supreme Court (General Civil Proceeding) Rules 2015 (Vic).
In this regard, the likelihood of success would depend on, but not be limited to, the following:
- Evidence (including extent) detailing the steps undertaken by the relevant parties.
- Detailed affidavits by the trustee(s) confirming that the unexecuted/unstamped version represents and replicates the terms of the lost deed.
It is instructive to consider the case of D.R. McKendry Nominees Pty Ltd  VSC 560. In this case, Digby J highlights required evidence to include:
- Steps being taken to contact surviving descendants and potential beneficiaries.
- Contacting the solicitor who drafted the deed.
- Any relevant communication or correspondence with other professionals (eg. accountants and tax agents) who assisted with affairs of the trust.
- Contacting settlor and revenue authorities.
The Courts have held that the trustee(s) will be required to evince clear and convincing proof; not only of the existence of the document, but also its relevant contents.
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