Please, Your Honour, May I Have Some More (of my fees)? – Lessons from Bremner v French (No 6) [2026] NSWSC 826
Justice Parker’s decision concerns the final remuneration claim of a court-appointed trustee for sale. Mr Jason Stone of PKF Melbourne (Sale Trustee) sold five Victorian properties in January 2025. The properties had been subject to long-running litigation between Dr Bremner and Mr French, with orders originally made for the sale of the properties in October 2019. The judgment serves as a warning to court-appointed trustees to comply with remuneration orders, act promptly, justify fees with proper evidence, actively control costs and not expect the trust fund to bear unsuccessful claims for increased remuneration.
The Sale Trustee brought a motion seeking orders fixing his remuneration at $303,239.00. The claim was challenged by a personal insolvency agreement trustee, Mr Frank Lo Pilato (PIA Trustee), representing Mr French’s creditors in which three issues arose.
First, could the Sale Trustee charge at standard rates as they increased annually after 2019 (by around 15-20% by 2025-2026), despite the original order only authorising 2019 rates?
The Sale Trustee relied on Re Duke of Norfolk’s Settlement Trusts [1982] Ch 61 to argue the Court could retrospectively increase remuneration. Parker J rejected this, finding:
- Re Duke was confined to prospective increases, not retrospective;
- the Sale Trustee could and should have commenced the sale process earlier, so granting the increase would reward unexplained delay; and
- the functus officio doctrine precluded retrospective variation.
Second, could the Sale Trustee charge at promoted staff rates rather than 2019 equivalent rates?
Parker J found the Sale Trustee was under a duty to minimise unnecessary expenditure and failed to justify retaining promoted staff at higher rates. His Honour fixed the total remuneration at $200,000.00.
Third, who should bear the costs of the motion?
Parker J found the dispute between the Sale Trustee and PIA Trustee was adversarial and the Sale Trustee’s right to indemnity from the fund was displaced from 7 October 2025 as he was acting in his own interests rather than those of the beneficiaries. The Sale Trustee was ordered to pay the PIA Trustee’s costs from 13 October 2025.
Some key takeaways for practitioners:
- Trustees are bound by the rates in the appointment order. The inherent jurisdiction to increase remuneration (Re Duke) only applies prospectively, and if circumstances change, then trustees should apply promptly to vary those orders.
- Trustees must actively control costs throughout the administration, including reconsidering the appropriate allocation of work and whether tasks can be done by less senior staff. Delays caused by the trustee cannot justify higher remuneration.
- Trustees acting in their own interests will lose their prima facie entitlement to costs from the trust estate.
- Trustees should engage early with beneficiaries regarding remuneration to resolve issues before filing any motion.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
