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Verhelst v Tondeleir Pty Ltd

 

[2015] QSC 68

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Verhelst v Tondeleir Pty Ltd as Trustee for the Verhelst Discretionary Trust & Anor [2015] QSC 68

PARTIES:

MONIQUE VERHELST

(applicant)

v

TONDELEIR PTY LTD AS TRUSTEE FOR THE VERHELST DISCRETIONARY TRUST

(first respondent)
and
MARK TONDELEIR
(second respondent)

FILE NO:

1925 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2015

JUDGE:

Applegarth J

ORDER:

Proposed orders:

  1. A consent order substantially in terms of paragraph 3 of the application in the event the second respondent’s instructions have not resulted in rectification of ASIC’s records;
  2. Liberty to apply;
  3. The application otherwise be dismissed.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – APPOINTMENT OF NEW TRUSTEES – UNDER POWER – VALIDITY OF EXERCISE OF POWER – where trust was created for the benefit of the second respondent’s children, the applicant and others – where applicant is sole director of the company initially appointed trustee – where second respondent who is the applicant’s son was made Appointor in the trust deed – where son purported to remove the company as trustee and appoint another company in its place – where the document purporting to do these acts were erroneously dated the day before incorporation of the new company –whether original trustee was validly removed as trustee – whether the new company was validly appointed as trustee

EQUITY – TRUSTS AND TRUSTEES – PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES – where Appointor authorised to exclude  beneficiaries by giving written notice to trustee – where applicant’s son as Appointor purported to exclude her as beneficiary – where the document recording the exclusion was erroneously dated the day before incorporation of new trustee – whether notice of removal of beneficiary given to trustee – whether purported removal of applicant as beneficiary was valid

Civil Proceedings Act 2011 (Qld), s 12, s 80

Corporations Act 2001 (Cth), s 175

Trusts Act 1973 (Qld), s 8

Andco Nominees Pty Ltd v Lestato Pty Ltd (1995) 17 ACSR 239; (1995) 126 FLR 404, cited

Berger v Lysteron Pty Ltd [2012] VSC 95, cited

Dowdle v Coppel [1987] VR 1024, cited

Duke of Portland v Topham (1864) 11 HL Cas 32 (11 ER 1242), cited

Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285, cited

Pope v DRP Nominees Pty Ltd [1998] SASC 6933, cited

Re Burton, Wily v Burton (1994) 126 ALR 557, cited

COUNSEL:

I Klevansky for the applicant

G J Radcliff for the respondents

SOLICITORS:

Worcester & Co Solicitors for the applicant

Cooper Maloy Legal for the respondents

  1. This is a dispute between an elderly mother and her adult son about the administration of a trust.  The essential issue is whether the son, as Appointor, validly removed a company as trustee and also validly removed the applicant as a beneficiary.  The son says he did these things on 29 July 2014.  The mother questions this because the relevant documents were dated 28 July 2014 by the son. 
  2. If the son is correct and the first respondent was validly appointed as trustee on 29 July 2014, then the mother seeks its removal as trustee and the appointment of Verhelst Pty Ltd in its place.  She is the sole director of Verhelst.  She also seeks orders with respect to the payment of $80,000 from the trust’s bank account to her son in July 2014.  However, the evidence is that this was part payment of a debt owed to the son by the trust.

Background

  1. The Verhelst Discretionary Trust was established 11 September 1998.  In late 1998 and early 1999 the applicant gifted almost $183,000 to it.  This was done to ensure that the applicant’s husband was not able to withdraw funds from a joint bank account and to maximise the applicant’s pensions. 
  2. Verhelst Pty Ltd was appointed the trustee.  On legal advice, the second respondent, who is the applicant’s son, was named as the Appointor in the deed of trust.  The Appointor is empowered by cl 5 of the trust deed to declare that a person shall cease to be a beneficiary as from the date on which notice in writing is received by the trustee, and any beneficiary so excluded ceases to be a beneficiary from that date.  Clause 25(a) of the trust deed empowers the Appointor to remove a trustee from office and to appoint another person to be trustee, either alone or jointly with any continuing trustee. 
  3. The primary beneficiaries of the trust were the second respondents’ three children and the applicant.
  4. Apart from her initial gifts in late 1998 and early 1999, the applicant did not make any further financial contribution to the trust.  The second respondent undertook most, if not all, of the business of the trust.  It acquired and renovated residential properties and then rented them to tenants.  The second respondent liaised with financiers and solicitors about those properties.  The trust currently owns seven properties which the applicant estimates to have a value of about $2,800,000.  A bank holds mortgages over them and appears to be owed about $1,500,000.  The applicant guaranteed the obligations to make payments to the bank.
  5. In 2001 the trust purchased a unit in which the applicant has lived rent-free over the years.  The unit is worth about $420,000.  The second respondent tried to persuade his mother to move.  He was not personally in a financial position to offer her another property to live in, and he says that “the economy forced me to top up the loans, with my own wages for the past few years”.  He was aware that the applicant had the benefit of Australian and Belgian pensions, and incurred only her own personal expenses. 
  6. One of the units owned by the trust was sold in May 2014.  The same purchasers were interested in buying the unit in which the applicant resided.  The second respondent proposed that the unit be sold in order to reduce the debt of the trust.  When he tried to communicate this to his mother, she indicated that selling the unit was not an option.  Communications between the second respondent and the applicant became strained.  The second respondent thought that it was unfair that the beneficiaries other than the applicant were receiving “literally nothing from the trust” whilst the applicant took all the benefits, including rent-free accommodation and the payment of rates, electricity, maintenance and upkeep in relation to the premises she occupied.
  7. In late May 2014, acting out of frustration, and upon taking advice from the trust’s accountants, the second respondent as Appointor purported to have the applicant removed as a director of Verhelst Pty Ltd.  The second respondent has been informed in recent times that the advice from the accountants was wrong and he has instructed his solicitors to execute all documents as are necessary to rectify the records of Verhelst Pty Ltd and to rectify ASIC records in relation to the directorship and shareholding of Verhelst Pty Ltd. 
  8. In early July 2014 the second respondent advised the applicant that he required her to vacate the unit.  He offered her the opportunity to relocate to a three bedroom flat at Ashmore where she could live rent-free, with free power and with the furniture that was in the unit she had occupied.  The applicant refused this offer and refused to vacate the unit.  This led to acrimony. 
  9. The applicant and the second respondent have been signatories to the bank accounts of the trust.  By July 2014 the first respondent had advanced in excess of $80,000 to the trust for various purposes.  Once the bank account’s balance stood at $85,000, the second respondent made two payments to himself, one for $60,000 on 7 July and one for $20,000 on 18 July 2014.  The second respondent formed the opinion that if he had not withdrawn those monies, then the applicant would have transferred them to herself.  In fact, at about the same time, she paid the balance in the account to herself. 
  10. Later in July 2014, and because of his concern that the applicant was unfairly receiving all of the benefits of the trust, the second respondent sought legal advice about his position as Appointor.  As a result, he says that on 29 July 2014 he acted in his capacity as Appointor to:

(a)remove Verhelst Pty Ltd as trustee and appoint Tondeleir Pty Ltd as trustee; and

(b)exclude the applicant as a beneficiary of the trust.

His evidence in this regard is sworn in an affidavit, and also appears in a statutory declaration given on 5 September 2014.  That statutory declaration was made after the first respondent’s solicitors realised there was a mistake in the date written by the second respondent on the two documents which he signed.

  1. The fact that the two documents were dated 28 July 2014 attracted the attention of the applicant’s lawyers.  This was because Tondeleir Pty Ltd was not incorporated until 29 July 2014.  The applicant argues that any purported appointment of Tondeleir Pty Ltd on 28 July 2014 would be ineffective because it was not incorporated at that time.  This point was raised in the applicant’s written submissions on the morning of 18 March 2015 and, as a result, the first respondent relied upon the statutory declaration that he gave in September 2014.  I permitted the second respondent to be cross-examined. 
  2. He explained that he attended his solicitors on 29 July 2014.  He attended there for a number of purposes, and it seems that one of them was to incorporate Tondeleir Pty Ltd.  The second respondent’s recollection, although it was more in the form of a reconstruction, was that documents in relation to the company were signed first so as to then allow a change in trustee.  The second respondent could not recall where he was when he signed the two documents, one of which appointed a new trustee and the other which excluded the applicant as a beneficiary.  He explained that he signed a lot of documents during that time.  The second respondent gave evidence that he did not believe that he had the documents at his home before signing them.  His evidence is that they were not signed on 28 July before he went to see his solicitor.  His evidence, which I accept, is that he signed them on 29 July after he attended his solicitor’s office in order to incorporate Tondeleir Pty Ltd.

This proceeding

  1. This proceeding was commenced by originating application on 23 February 2015.  Paragraph 1 sought an account of the trust, seemingly from the date of its inception.  This relief was not pressed and it would have been inappropriate to grant it in circumstances in which the applicant had allowed the second respondent to administer matters in connection with the trust, without complaint, for a period of more than 15 years.
  2. Paragraph 2 of the originating application sought pursuant to s 8 of the Trusts Act 1973 (Qld) a review of the decisions of Tondeleir Pty Ltd to withdraw $60,000 on 7 July 2014 and $20,000 on 18 July 2014 and to terminate the occupancy of the applicant at the unit she has occupied.  However, as I pointed out at the hearing, Tondeleir Pty Ltd was not in existence on those dates and did not make the decisions which paragraph 2 sought to review. 
  3. Paragraph 3 sought orders pursuant to s 175 of the Corporations Act 2001 (Cth) for ASIC records in relation to Verhelst Pty Ltd to be rectified.  As noted, the second respondent has instructed his solicitors to rectify those records.  This probably makes an order unnecessary.  However, I will grant liberty to apply if there remains some problem with rectification of the ASIC records.  In that event, there will be a consent order in accordance with paragraph 3.
  4. Paragraph 4 sought an order pursuant to s 8 of the Trusts Act 1973 (Qld) and the inherent jurisdiction of the Court to appoint The Public Trustee of Queensland to be the trustee of the trust.  However, this part of the application was not pressed because The Public Trustee was not prepared to accept the appointment.  Paragraph 5 sought the appointment of Verhelst Pty Ltd to be trustee in lieu of Tondeleir Pty Ltd.
  5. Paragraph 6 of the application sought the appointment of a receiver to the trust pursuant to s 12 of the Civil Proceedings Act 2011 (Qld).  However, this relief was not pressed.
  6. Towards the end of the hearing I sought clarification about the orders which were sought by each party.  On 25 March 2015 the solicitors for the applicant submitted a form of order in respect of the relief sought by her.  The draft order sought certain declarations for the first time, including that:

(a)the declaration by the second respondent dated 28 July 2014 appointing Tondeleir Pty Ltd as trustee and removing Verhelst Pty Ltd is invalid, and that Verhelst Pty Ltd is the trustee of the trust;

(b)the declaration by the second respondent dated 28 July 2014 that the applicant cease to be a beneficiary is invalid, and that the applicant is a beneficiary under the trust.

  1. Paragraph 2 of the draft order sought orders that the second respondent repay to the trust’s bank account the amounts totalling $80,000 which were drawn by him on 7 and 18 July 2014. 
  2. Paragraph 3 sought an order for rectification of ASIC records.  Paragraph 4 sought the delivery to the applicant’s solicitors of the balance sheet and tax return of the trust for the financial year ending 30 June 2014 and the balance sheet for the period 1 July 2014 to 25 March 2015.  Paragraph 5 sought, without justification in the light of the exchange that occurred at the hearing, the same relief sought in paragraph 2 of the originating application.  Paragraph 6 of the draft order sought the relief sought in paragraph 5 of the originating application.  Paragraph 7 of the draft order sought for the first time an order that the second respondent in his capacity as Appointor of the trust be restrained:

(a)from removing the applicant as a beneficiary of the trust; and

(b)from substituting the trustee of the trust

without the approval of the Supreme Court.

Was Verhelst Pty Ltd validly removed as trustee on 29 July 2014?

  1. The applicant’s argument that the appointment of Tondeleir Pty Ltd as trustee was not valid rests on the proposition that Tondeleir Pty Ltd was not incorporated at the time of the purported appointment and that, as a result, Verhelst Pty Ltd remains the trustee.  The applicant’s case is that the relevant declaration was made on 28 July 2014, such that Tondeleir Pty Ltd could not be appointed that day.  Its argument requires me to reject the sworn evidence of the second respondent that he did not sign the document on 28 July 2014, but instead signed it on 29 July 2014 and, on that day, acted in his capacity as Appointor to appoint Tondeleir Pty Ltd and remove Verhelst Pty Ltd. 
  2. Although the second respondent had a poor recollection of where he was when he signed the two declarations, I accept his evidence.  It seems probable that the relevant documents were prepared by his solicitors and that they had them when the second respondent attended at their offices on 29 July 2014.  Tondeleir Pty Ltd was incorporated that day and it is logical to suppose that the relevant instrument of appointment was signed that day.  It is unremarkable that someone might erroneously date a document on 29 July 2014, thinking that day was 28 July 2014.  The erroneous dating was detected by the respondents’ solicitors and the matter corrected well before the point was raised by the applicant’s solicitors.  The point seemingly was only raised by the applicant’s solicitors on the morning of the hearing.  If the matter had been adjourned, then further evidence might have been called from the respondents’ solicitors of persons in their office about the circumstances in which the documents were prepared and signed.  The absence of corroboration in that form is not a reason to reject the second respondent’s evidence that he erroneously dated the documents.
  3. I find that it is more probable than not that the documents were signed after the second respondent attended upon his solicitors on 29 July 2014.  In all the circumstances, there is no sound basis to reject the second respondent’s sworn evidence. 
  4. I decline to make the declarations sought in subparagraphs 1(a) and (d) of the draft order because I do not accept the applicant’s argument that the instrument of appointment was signed and intended to have effect on 28 July 2014.  I find that it was signed on 29 July 2014, after steps were taken to incorporate Tondeleir Pty Ltd, and that Tondeleir Pty Ltd was appointed trustee that day.  Upon its appointment, Verhelst Pty Ltd was removed as trustee in accordance with the terms of the instrument which appointed Tondeleir Pty Ltd.
  5. The applicant made no direct challenge to the validity of the appointment of Tondeleir Pty Ltd by way of a challenge to the exercise of the power of the Appointor under cl 25(a) of the trust deed to appoint a trustee.  Instead, the applicant’s written submissions contended that if the appointment of Tondeleir Pty Ltd was valid, it should be removed as trustee.  Reliance was placed in this regard upon the Appointor’s exercise of the power to appoint it.  I shall return to the issue of whether Tondeleir Pty Ltd should be removed as trustee after addressing the validity of the exclusion of the applicant as a beneficiary.

Was the purported removal of the applicant as a beneficiary of the trust invalid?

  1. Clause 5 of the trust deed authorises the Appointor by notice in writing to the trustee to declare that a person shall cease to be a beneficiary.  The applicant’s argument about the alleged invalidity of her exclusion as a beneficiary depends, like her first argument in relation to the appointment of a trustee, upon the proposition that the relevant notice was given on the date appearing on the document, and that because Tondeleir Pty Ltd was not incorporated until 29 July 2014, notice could not have been given to it on 28 July 2014.  On this argument, the second respondent gave notice to himself prior to Tondeleir Pty Ltd being incorporated.  However, in the light of my findings, the factual premise for the argument is missing.  The document was signed on 29 July 2014.  Notice in writing was given to Tondeleir Pty Ltd, which became trustee on 29 July 2014.  Incidentally, and in any event, notice in writing of the exclusion of the applicant was given to the applicant’s solicitors on 31 July 2014 and, had Verhelst Pty Ltd remained trustee as at that date, the notice would have been effective to exclude the applicant as a beneficiary as from the date the notice was received by it.
  2. I conclude that the notice, wrongly dated 28 July 2014 by the second respondent, removed the applicant as a beneficiary of the trust.

The application to remove Tondeleir Pty Ltd as trustee and to appoint Verhelst Pty Ltd

  1. Section 80 of the Trusts Act 1973 (Qld) empowers the Court, whenever it is expedient, to appoint a new trustee in circumstances in which it is found “inexpedient, difficult or impracticable to do so without the assistance of the court”.  The Court may make an order appointing a new trustee either in substitution for or in addition to an existing trustee.  The Court also has an inherent power to remove a trustee.  This power will be exercised in respect of a trustee “who acts in antagonism to the trust”.[1]
  2. The applicant relies upon the circumstances of the second respondent’s appointment of Tondeleir Pty Ltd in substitution for Verhelst Pty Ltd and contends that the substitution was not in good faith.  Reliance is placed upon authority to the effect that the removal and “appointment power must be exercised for the benefit of beneficiaries, not for the benefit of the person upon whom the power is conferred.”[2]
  3. The respondents’ counsel proffered a folder of authorities which were said to support the proposition that as Appointor (as distinct from a trustee) the second respondent had what was described as a “bare” power or a “personal power” which was not fiduciary in nature.  The additional bold submission was made that “it is relatively clear that the donee of a bare power will not be the subject of any Court supervision or interference.”  The authorities that were handed to me by the respondents’ counsel do not seem to support that proposition and I do not accept it.  Because the respondents’ counsel did not assist me, as his written submissions previewed his oral submissions would, with the authorities, I do not intend in these reasons to work through the authorities that were given to me.  It is sufficient to observe that the respondents’ counsel did not persuade me that the power of appointment was conferred upon the second respondent for his own benefit.[3]  There may be a fraud on the power where the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power.[4]
  4. I am prepared to proceed on the basis of the authorities cited by counsel for the applicant to the effect that powers of the kind under present consideration must be exercised with “good faith and sincerity” and with a view to the real purpose and object of the power, and not for the purpose of “accomplishing or carrying into effect any bye or sinister object”, namely an object which is beyond the purpose and intent of the power.[5]  It has been said that the donee of a power contained in a deed of trust is “constrained to act in the interests of the person for whose benefit the power was conferred.”[6]
  5. In simple terms, the applicant has the burden, in seeking the removal of Tondeleir Pty Ltd as trustee, to make good its argument that the second respondent’s appointment of Tondeleir Pty Ltd in substitution for Verhelst Pty Ltd was “not in good faith” and was not exercised for the purpose for which the power of appointment was created.  If I was persuaded that the second respondent as Appointor had not acted in good faith in respect of the appointment of Tondeleir Pty Ltd and intended through Tondeleir to act “in antagonism to the trust” then it would be appropriate to order Tondeleir’s removal.  One would hesitate to appoint a new trustee in circumstances in which there is a clear power of new appointment vested in the Appointor.  But the authorities recognise that a party might be restrained from exercising a power of appointment if the persons to be appointed were not able to discharge their duties in a totally objective and independent manner by reason of their associations with the appointor.[7]
  6. The difficulty for the applicant is that the evidence does not persuade me that the second respondent did not act in good faith in substituting the trustee in July 2014.  The evidence of the second respondent indicates that he sincerely believed that the applicant, through her control of Verhelst Pty Ltd, was acting contrary to the duties imposed upon a trustee, and unfairly preferring her interests to the interests of other beneficiaries.  The second respondent proposed a resolution which would have enabled the trust to reduce its debts, whilst allowing the applicant to live, free of charge, in a flat.  The applicant declined that offer.  I am reluctant to find that the second respondent’s actions were not in good faith.
  7. The applicant does not seek the appointment of some independent person or persons as trustee who might fairly consider whether it is in the best interests of the trust and its beneficiaries to sell certain properties or to allow the applicant to live rent-free in one of them.  If her application was granted, then Verhelst Pty Ltd of which she is sole director, would be reinstated as trustee.  She has been excluded as a beneficiary.  However, even if she had not been, I would not be confident that she would be able to discharge, through Verhelst Pty Ltd, the duties of a trustee in a totally objective and independent manner.  She would likely prefer her interests to the interests of other beneficiaries.  I have no confidence that if Verhelst Pty Ltd was appointed as trustee it would demand, for the benefit of the trust, a fair market rent for the applicant’s continued occupation of the unit she currently occupies.
  8. In the circumstances, I am not persuaded that it is expedient to appoint Verhelst Pty Ltd as a new trustee in substitution for Tondeleir Pty Ltd.  I am not persuaded that Tondeleir Pty Ltd, since its appointment on 29 July 2014, has acted in antagonism to the trust or that the conduct of the second respondent in connection with its appointment justifies its removal as trustee. 

Other matters

Application to review decisions of Tondeleir Pty Ltd

  1. For the reasons earlier given there is no jurisdiction to review decisions allegedly made by Tondeleir Pty Ltd in July 2014, prior to its incorporation.

Money claim

  1. The basis upon which the applicant seeks an order for the second respondent to repay the sum of $80,000, as sought in paragraph 2 of the draft order, has not been explained.
  2. The uncontested evidence is that the trust owed the second respondent more than $80,000.  During the hearing I questioned the second respondent’s authority to make the payments which he did.  My apprehension was that he had purported to make those payments, assuming that he was a director of Verhelst Pty Ltd.  However, both the applicant and the second respondent were made signatories to the accounts.  The second respondent was authorised by the trust to manage its financial affairs, including the payment of debts.  The material before me does not clearly establish, in the applicant’s favour, that the second respondent was not authorised to pay debts of the trust in July 2014.  In paragraph 2 of the draft orders the applicant, in effect, seeks summary judgment on a money claim.  In circumstances in which it is not clear that the payment was unauthorised, I decline to make the order.  If I had been persuaded to make an order for repayment then it would have been subject to appropriate terms including recognition of the entitlement in the second respondent to set off any debt.  I decline to make the order sought in paragraph 2 of the draft order.

Delivery of documents

  1. Paragraph 4 of the draft order seeks an order that the respondents deliver to the applicant’s solicitors the balance sheet and tax return for the trust for the financial year ending 30 June 2014 and its balance sheet for the period 1 July 2014 to 25 March 2015. 
  2. The basis for an order requiring the trustee to provide these documents to a past beneficiary has not been adequately explained.  During oral argument the request for documents was seemingly confined to accounts in respect of the withdrawal of the $80,000.  Counsel for the respondent said that “the books and records are available to them [the applicant’s solicitors] if they want them” and accepted that it was possible for the relevant records to be photocopied and given to the applicant so as to confirm that the trust in fact owed the second respondent at least $80,000.  Counsel for the respondent indicated that the applicant would be provided with that evidence the next day.  There is no material before me that this was not done. 
  3. In some circumstances the beneficiary of a trust will establish an entitlement to be shown certain books and records of the trust.  Presently, the applicant has not established such an entitlement in respect of the period when she was a beneficiary.  If, however, the respondents have not provided, as their counsel indicated they would, documents in relation to the payment of the $80,000 debt and that the trust’s debts to the second respondent exceeded $80,000 at the time of the payment, then I will consider making such an order.  I will grant liberty to apply to the applicant for an order in that regard.

Restraint upon the second respondent in his capacity as Appointor

  1. Paragraph 7 of the draft order appears to be premised upon the making of a declaration that Verhelst Pty Ltd is the trustee of the trust, and that the applicant is a beneficiary under the trust.  I have declined to make those declarations.  I decline to make orders restraining the second respondent in his capacity as Appointor in the circumstances. 

Proposed orders

  1. The issue of costs has not been argued before me.
  2. The applicant has been largely unsuccessful both in respect of the relief sought in the originating application and in respect of the orders sought in the draft order which was submitted on 25 March 2015.  I will grant liberty to apply in the event that a consent order is necessary to have the ASIC records in relation to Verhelst Pty Ltd rectified.  I also grant liberty to apply in the event that the promised documents have not been provided to the applicant’s solicitors. 
  3. The application was not without foundation insofar as the applicant and her legal advisers were induced to believe that the purported appointment was made on 28 July 2014, before Tondeleir Pty Ltd was incorporated.  That said, the point raised in that regard seemingly was not raised until the morning of the hearing.
  4. The second respondent indicated in his affidavit filed on 12 March 2015 that he had instructed his solicitors to execute documents to rectify the records of Verhelst Pty Ltd and, if necessary, to consent to orders as contained in paragraph 3 of the originating application.  The application in respect of paragraph 3 was properly brought. 
  5. I urge the parties to resolve the issue of costs rather than incur further legal costs in arguing the matter before me.  The first respondent would seem to have an indemnity in respect of its costs against the trust.  I will hear the parties in relation to costs, if necessary. Any written submissions or material in relation to costs should be confined so as to limit costs.
  6. Subject to an appropriate order as to costs, the appropriate orders would be:
  1. A consent order substantially in terms of paragraph 3 of the application in the event the second respondent’s instructions have not resulted in rectification of ASIC’s records;
  1. Liberty to apply;
  1. The application otherwise be dismissed.
  1. I direct the parties to confer within seven days about the appropriate orders to be made in the light of these reasons and to resolve the question of costs, if possible.  I will otherwise adjourn the matter to a date to be fixed to determine any issue concerning the form of orders, including orders as to costs.

Footnotes

[1] Ford & Lee, Principles of the Law of Trusts [8370].

[2] Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285 at [38]; Berger v Lysteron Pty Ltd [2012] VSC 95 at [80] citing Duke of Portland v Topham (1864) 11 HL Cas 32 at 54; Ford & Lee [8180].

[3] In some cases an appointor may exercise a power of appointment in a way that may benefit himself or herself: see Dowdle v Coppel [1987] VR 1024 at 1030 – 1031.

[4] Andco Nominees Pty Ltd v Lestato Pty Ltd (1995) 17 ACSR 239 at 262 and the authorities cited therein by Santow J.

[5] The quoted words are drawn from Duke of Portland v Topham (1864) 11 HL Cas 32 and have been adopted by the High Court in the cases cited by Santow J in Andco Nominees (supra).

[6] Hillcrest at [39] citing Re Burton, Wily v Burton (1994) 126 ALR 557 at 559 – 560.

[7] Pope v DRP Nominees Pty Ltd [1998] SASC 6933.

Close

Editorial Notes

  • Published Case Name:

    Verhelst v Tondeleir Pty Ltd as Trustee for the Verhelst Discretionary Trust & Anor

  • Shortened Case Name:

    Verhelst v Tondeleir Pty Ltd

  • MNC:

    [2015] QSC 68

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    10 Apr 2015

Litigation History

No Litigation History

Appeal Status

No Status