Background
In October 2019, Jason Stone was appointed as trustee for sale of five rural properties in Victoria pursuant to orders made under the Property Law Act 1958 (Vic). The original appointment order authorised Mr Stone’s firm, PKF, to charge remuneration at specified hourly rates set out in the order. The rates reflected PKF’s standard charge-out rates in 2019 and ranged from $92 for junior staff to $602 for principals.
The properties were owned by Andrew Boyd French and Christopher Piers Julian Bremner, who were locked in complex Commercial List proceedings. Sales of all five properties were ultimately completed in January 2025, with total proceeds of $2.17 million net of selling costs. However, the administration was significantly delayed—the original deadline for sale had long passed, and disputes arose requiring multiple extensions and variations to the original orders in 2023.
By 2025, Mr Stone sought remuneration totalling $303,239, comprising $286,739 for work already performed and an undisputed estimate of $16,500 for final administration tasks. The claim included two contested elements: charges based on PKF’s updated rates (which had increased 15–20% by 2025–2026) and charges for staff members at their promoted salary grades rather than their 2019 ranks.
The Court’s Holding
Parker J rejected the Sale Trustee’s application. While acknowledging the court’s inherent jurisdiction to increase trustee remuneration for future services (as established in Re Duke of Norfolk’s Settlement Trust [1982] Ch 61), His Honour concluded that the same power does not justify retrospectively increasing remuneration for work already performed. The question of retrospective increases presents a materially different legal problem from prospective ones. The court noted that the Duke of Norfolk decision turned on cases where trustees would not otherwise continue unless assured of increased future remuneration—a justification absent here, where Mr Stone had already accepted office and completed most of the work under the 2019 rates.
As to the formal power to vary the 2019 orders, His Honour found that under Victoria’s Property Law Act (unlike New South Wales legislation containing express variation powers), the original order was final and could only be varied by appeal or on narrow grounds of material change in circumstances. While the court had previously extended deadlines on grounds of changed circumstances, the claim for retrospective rate increases did not qualify. The Sale Trustee bore the onus of explaining the delay—particularly a period of over two years (October 2020 to November 2022) with no apparent progress—and the evidence fell short of justifying the increased cost. The court also rejected arguments based on unforeseen events (bushfires, COVID-19 lockdowns, the PIA Trustee’s involvement, and Aesthete Companies litigation), finding these were either inadequately explained or not sufficiently extraordinary to displace the 2019 bargain struck at the outset.
Key Takeaways
- The court’s inherent power to authorise trustee remuneration applies prospectively to future services, not retrospectively to work already completed.
- A trustee who has accepted appointment on specified terms and performed work cannot later claim an increased rate for that same work merely because market rates have risen.
- Unexplained or protracted delay in trust administration, and responsibility for that delay, weighs against a trustee seeking higher compensation.
- A trustee’s evidence supporting increased remuneration must be full, candid, and detailed—conclusory assertions of proper delegation and efficient conduct are insufficient.
- A beneficiary’s previous consent to a proposed variation does not bind the court if the variation was never formally ordered.
Why It Matters
This decision clarifies important boundaries around court-appointed trustee remuneration in Australia. It establishes that trustees cannot circumvent the terms of their appointment by seeking retrospective pay increases, even when general inflation or market-rate movements would justify higher charges for new appointments. The judgment protects beneficiary interests by enforcing the finality of original fee arrangements and requiring trustees to accept the commercial risks inherent in long-duration administrations where costs prove lower than anticipated market rates. The distinction between prospective and retrospective increases also preserves the settled expectations of all parties when a trustee accepts appointment.
The decision carries practical significance for complex trust administrations in Australia, particularly those spanning multiple years. Trustees must either negotiate adequate initial fee structures (with escalation clauses or adjustment mechanisms) or accept that delays, changed circumstances, and market inflation do not justify reopening compensation issues mid-administration. Courts will scrutinise any delay and demand detailed explanation of causes beyond the trustee’s control, signalling that passive administration or unexplained inactivity will not be rewarded with retrospective adjustment of agreed terms.