Thorne Developments Pty Ltd v Thorne
[2016] QCA 63
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- Unreported Judgment
- Appeal Determined (QCA)
- Thorne Developments Pty Ltd v Thorne[2016] QCA 63
- Add to List
Thorne Developments Pty Ltd v Thorne[2016] QCA 63
Reported at [2017] 1 Qd R 156
Thorne Developments Pty Ltd v Thorne[2016] QCA 63
Reported at [2017] 1 Qd R 156
SUPREME COURT OF QUEENSLAND
CITATION: | Thorne Developments Pty Ltd v Thorne & Anor [2016] QCA 63 |
PARTIES: | THORNE DEVELOPMENTS PTY LTD |
FILE NO/S: | Appeal No 6679 of 2015 SC No 10187 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2015] QSC 156 |
DELIVERED ON: | 18 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 February 2016 |
JUDGES: | Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The appeal be dismissed with costs. |
CATCHWORDS: | CORPORATIONS – FORMATION – REGISTRATION OR INCORPORATION – DEREGISTRATION – where the appellant was trustee of a family discretionary trust – where the appellant was deregistered – where the Commonwealth became a trustee by operation of s 601AE(1) of the Corporations Act 2001 (Cth) upon the appellant’s deregistration – where the respondent was appointed as a trustee during the period of the appellant’s deregistration – where the appellant was subsequently reinstated – where it was accepted that the Commonwealth becoming a trustee did not preclude appointment of a trustee under the s 12(1)(h) of the Trusts Act 1973 (Qld) or the Deed of Trust – whether the respondent’s appointment pursuant to the Deed of Appointment was a valid appointment under s 12(1)(h) of the Trusts Act 1973 (Qld) EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – APPOINTMENT OF NEW TRUSTEES – UNDER POWER – VALIDITY OF EXERCISE OF POWER – OTHER PARTICULAR CASES – where the appellant was trustee of a family discretionary trust – where the appellant was deregistered – where the respondent was appointed as a trustee during the period of deregistration under a deed of appointment – where the appellant submitted that the Deed of Appointment did not validly appoint the respondent as a trustee – where it was not contested that dissolution and deregistration were the same for the purposes of s 12(1)(h) of the Trusts Act 1973 (Qld) – where the appellant submitted the factual basis for the appointment was an erroneous belief of the appointor that deregistration of the appellant left the office of trustee vacant – where the appellant submitted the appointment was ineffectual as it was made on an erroneous basis – whether the respondent was validly appointed as a trustee EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – RETIREMENT OR REMOVAL – REMOVAL BY THE COURT – GROUNDS FOR REMOVAL – where the Deed of Trust provided that the trustee must vacate office if the trustee becomes subject to any bankruptcy law – where the respondent was served with a bankruptcy notice – where the appellant submitted that service with a bankruptcy notice made the respondent subject to a bankruptcy law – where the appellant further submitted that the respondent became subject to any bankruptcy law by seeking to set aside the bankruptcy notice – whether the respondent was subject to any bankruptcy law Bankruptcy Act 1966 (Cth), s 188 Corporations Act 2001 (Cth), s 601AD, s 601AE, s 601AH Trusts Act 1973 (Qld), s 10, s 12, s 80(1) Danich Pty Ltd; Re Cenco Holdings Pty Ltd (2005) 53 ACSR 484; [2005] NSWSC 293, cited Harrison v Inala Plaza Pty Ltd [2002] QCA 543, cited Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71; [1988] HCA 34, cited Lewis v Nortex Pty Ltd (in liq) [2012] FCA 621, cited Orr (as trustee of the bankrupt estate of Tettis) v Tettis [2013] FCA 785, cited Revian v Dasford Holdings Pty Ltd [2002] FCA 1119, considered Silverstone Holdings Pty Ltd (as Trustee for the Devereux Property Trust) v American Home Assurance Co (1997) 18 WAR 516, cited Thorne Developments Pty Ltd v Thorne [2015] QSC 156, approved |
COUNSEL: | P O Land for the appellant A M Musgrave for the respondent P Dunning QC, with D E F Chesterman, for the intervenor |
SOLICITORS: | No appearance for the appellant Morrow Petersen for the respondent Crown Solicitor for the intervenor |
- GOTTERSON JA: I agree with the order proposed by Philippides JA and with the reasons given by her Honour.
- MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.
- PHILIPPIDES JA: Background The appellant, Thorne Developments Pty Ltd, was the trustee of a family discretionary trust known as the Thorne Family Trust No 3 (the Trust) under a Deed of Trust made on 21 June 2004. The appellant was deregistered on 4 December 2011. At that time its sole director was Brett John Thorne (Mr Thorne), who was subsequently declared bankrupt on 26 March 2012.
- On 4 September 2013, the appellant’s registration was administratively reinstated by ASIC pursuant to s 601AH(1) of the Corporations Act 2001 (Cth). This occurred at the request of Mr Thorne’s trustee in bankruptcy, who, upon the appellant’s reinstatement, appointed a Mr Casey as its sole director.
- By Deed of Appointment dated 22 August 2012, Mr Thorne, as nominator under the Trust Deed,[1] appointed his wife, the respondent, as well as his brother, Craig Thorne, as trustees of the Trust. Craig Thorne relinquished his office prior to the appellant’s reinstatement.
- The appellant failed at first instance in obtaining declarations as to the invalidity of the appointment of the respondent, whilst the applicant was deregistered, as a trustee of the Trust. The learned primary judge held that:
- the Deed of Appointment validly appointed the respondent as a trustee of the Trust;
- the contention that the appointment of the respondent as trustee was not a bona fide exercise of the power of appointment was without substance;
- the respondent was not required by cl 17.1 of the Trust Deed to vacate the office of trustee.
- At first instance, the appellant also raised a constitutional issue concerning the proper construction of Ch 5A Pt 5A.1 (s 601AD – s 601AH) of the Corporations Act. It provides that upon deregistration, a company ceases to exist (s 601AD(1)). All the property that the company held on trust immediately before deregistration vests in the Commonwealth (s 601AD(1A) which holds it subject to its obligations as trustee (s 601AD(3A)). If property vests in the Commonwealth under s 601AD(1A), it may continue to act as trustee or apply to a court for the appointment of a new trustee (s 601AE(1). The issue raised was whether s 601 constituted an exclusive code, which was inconsistent with s 12 of the Trusts Act 1973 (Qld), with the consequence that the respondent was precluded from being appointed as a trustee unless the Commonwealth so consented and a court so ordered. That issue was determined against the appellant.
- The Attorney-General for Queensland elected to intervene on the appeal and filed an outline addressing the constitutional issue. However, at the hearing of the appeal, the appellant indicated that the constitutional issue was conceded and that the Attorney-General’s submissions were accepted. In particular, the appellant accepted, as the Attorney-General submitted, that while the effect of s 601AE(1) of the Corporations Act was that the Commonwealth became a trustee by operation of law on deregistration of the appellant, that did not preclude the appointment of a trustee under s 12(1)(h) of the Trusts Act or the Deed of Trust.
- Consequently, the Attorney-General did not seek and was not required to be heard further on the appeal.
Grounds of Appeal
- As a result of the appellant’s concession concerning the Attorney-General’s submissions, the appellant abandoned a number of grounds of appeal. The ambit of the grounds of appeal pressed were limited to those addressed in the appellant’s amended outline, which raised the following issues:
- whether there was a valid exercise of the power of appointment, which centred on the proper construction of the Deed of Appointment (referring to grounds 2.6[2] to 2.8 of the Notice of Appeal).
- whether the respondent was required to vacate the position of trustee (even if validly appointed) which concerned the proper construction of cl 17.1 of the Trust Deed (referring to grounds 2.11 to 2.12 of the Notice of Appeal).
Whether there was a valid appointment of the respondent pursuant to the Deed of Appointment?
- Grounds 2.7 and 2.8 of the Notice of Appeal asserted that the primary judge erred:
- in concluding that the power of appointment under the Deed of Appointment was triggered by the factual circumstance of deregistration.
- in failing to conclude that on the proper construction of the Deed of Appointment the exercise of the power of appointment was triggered by a belief that there was a vacancy in the office of the trustee of the trust with the result that the Deed of Appointment was ineffectual to appoint the respondent as trustee.
Relevant provisions of the Trusts Act
- Sections 10 and 12 are contained in Pt 2 of the Trusts Act, which deals with appointment of trustees. Section 10 provides:
“Except where otherwise provided in this part, the provisions of this part shall apply whether or not a contrary intention is expressed in the instrument (if any) creating the trust.”
- Section 12 of the Trusts Act, which confers the power of appointing new trustees relevantly provides:
“(1)Where a trustee, whether original or substituted, and whether appointed by the court or otherwise –
…
(h)being a corporation, has ceased to carry on business, is under official management, is in liquidation or has been dissolved;
then the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustee or trustees for the time being, or the personal representative of the last surviving or continuing trustee, may by writing appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the trustee first in this subsection mentioned.” (emphasis added)
- Apart from s 12 of the Trusts Act, power is conferred on the Court by s 80(1) of the Trusts Act to appoint a new trustee wherever it is inexpedient, difficult or impracticable to do so without the assistance of the Court.
The Trust Deed
- Clause 16 of the Trust Deed provided for the manner of appointment of a new trustee:
“16.1The Trustee may by instrument in writing appoint a new Trustee in addition to or in place of the Trustee at any time.
16.2On the appointment of a new Trustee in the place of the Trustee, the Trustee replaced is discharged from all future responsibility in respect of the Trust.
16.3 If the Trustee is a sole trustee and has resigned or vacated its office under clauses 17 or 18 or (being a corporate trustee) has been dissolved and the Trustee has not appointed a new Trustee under clause 16.1, the Nominated Person may by instrument in writing appoint a new Trustee.” (emphasis added)
The Deed of Appointment
- The recital of the Deed of Appointment provided:
“…
C.On 4 December 2011 Thorne Developments became deregistered.
D.Consequent upon the deregistration of Thorne Developments the office of Trustee of the trust has become vacant and it has been determined by the parties to these presents that it is necessary, appropriate, convenient and/or expedient that the Appointees be appointed to be a trustees of ‘Thorne Family Trust No. 3’…”
- Clause 1 of the Deed of Appointment stated:
“Pursuant to Clause 16.3 of the trust deed dated 21st June, 2004 the Nominated Person hereby appoints the Appointees to be Trustees of ‘Thorne Family Trust No. 3’.”
- Clause 6 of the Deed of Appointment stated:
“The parties hereto agree and acknowledge that these presents serve only to effect the appointment of the Appointees to the office of Trustee of ‘Thorne Family Trust No. 3’ as provided for herein by reason of the vacancy of that office due to the deregistration of the erstwhile trustee, Thorne Developments.”
The primary judge’s reasons
- The primary judge observed that, in contending that the Deed of Appointment did not validly appoint the respondent a trustee of the Trust, the appellant argued that no occasion arose for the exercise by Mr Thorne of the power to nominate a new trustee, whether under s 12(1) of the Trusts Act or pursuant to cl 16.3 of the Trust Deed. The argument was that there was no vacancy in the office of trustee occupied by the applicant, because of the operation of s 601AD and s 601AE of the Corporations Act. Her Honour held that the answer to that argument was the same as that which resolved the constitutional issue, namely, “that part 5A.1 of chapter 5A of the [Corporations Act] does not displace the operation of the laws that apply generally to trusts”.[3]
- Her Honour held that, although the Deed of Appointment referred to the appointment of the respondent and Craig Thorne being made pursuant to cl 16.3 of the trust deed, the application of s 10 of the Trusts Act meant that the source of the power for making a new appointment of a trustee was s 12(1) of the Trusts Act.[4] Her Honour stated:[5]
“Section 12(1) of the [Trusts Act] provides for the process of appointment of a new trustee by the person nominated under a trust deed for the purpose of appointing new trustees. This avoids uncontentious applications to court for appointment of new trustees and enables the trust to be conducted in the manner that was anticipated by the settlor. In the case of a natural person who has been a trustee, the circumstances applying to a trustee which trigger the exercise of the power under s 12(1) of the [Trusts Act] are death, remaining out of the State for more than one year without having properly delegated the execution of the trust, refusal to act, unfitness to act, incapacity or being an infant. Special provision is then made in s 12(1)(h) for the exercise of the power of appointing a new trustee where specified circumstances apply to a trustee which is a corporation.”
- Relying on Danich Pty Ltd; Re Cenco Holdings Pty Ltd,[6] the respondent had submitted that the concept of deregistration was the same as the concept of dissolution for the purposes of s 12(1)(h) of the Trusts Act. The respondent also submitted that, if the power under clause 16.3 of the Trust Deed was applicable, it also applied where a corporate trustee had been dissolved and “dissolved” should be given the same meaning in that provision as in s 12(1)(h) of the Trusts Act. Her Honour observed that when the Trusts Act “was enacted, the relevant companies’ legislation provided for dissolution of a corporation, rather than deregistration. The concept of deregistration was introduced by the Company Law Review Act 1998 (Cth).”[7]
- The primary judge observed:[8]
“The concepts of dissolution and deregistration are not different. That is made clear by s 601AD(1) of the [Corporations Act] that expressly states that a company ceases to exist on deregistration. The fact that there is provision for reinstatement of a deregistered company in certain circumstances does not alter the nature of deregistration when it takes effect. Section 12(1)(h) of the [Trusts Act] identifies the circumstances which affect the capacity of a corporate trustee to act as trustee and which warrant the exercise of the power of the appointor under the relevant trust deed to appoint new trustees. Deregistration of the corporate trustee fits within that description. The word ‘dissolved’ in s 12(1)(h) of the [Trusts Act] should be construed as covering deregistration of a company under part 5A.1 of Chapter 5A of the [Corporations Act].
The fact the deed of appointment incorrectly identified the source of power for making the appointment of the new trustees as clause 16.3 of the trust deed rather than s 12(1) of the [Trusts Act] and overlooked the statutory vesting of the trust property in the Commonwealth as the automatic consequence of the deregistration of the applicant is of no significance, as the deed of appointment correctly identified the factual circumstance of deregistration of the applicant that triggered the exercise of the power of appointment.” (emphasis added)
Consideration
- The appellant challenged the conclusion reached in the last paragraph extracted above. It is significant to note that, in so doing, the appellant did not challenge the primary judge’s determination that “dissolution” included deregistration. There was no argument that s 12(1)(h) of the Trusts Act was inapplicable because there was no dissolution of a corporate trustee.[9]
- An argument advanced by the appellant was that s 12(1)(h) of the Trusts Act could not be availed upon because the Deed of Appointment did not expressly invoke that provision may be immediately dismissed. There was no requirement that the Deed of Appointment do so and there is no substance in the argument that the provision was only applicable if expressly invoked.
- The appellant’s principal submission was, however, that the trial judge should have concluded that the Deed of Appointment was ineffectual for the purposes of s 12(1)(h) of the Trusts Act. It was contended that her Honour erred in finding that the factual circumstance on which the appointment was made was the appellant’s deregistration. Rather, it was contended that the factual basis for the exercise of the power was the erroneous belief of the appointor (the nominated person) that deregistration had brought about a vacancy in the office of trustee, whereas there was no vacancy because of the operation of s 601AD.
- In this regard, reliance was placed on the reference in recital D of the Deed of Appointment to the belief of the nominating person that, consequent upon the deregistration of the appellant, the office of Trustee of the trust had become vacant and that it had been “determined … that it [was] necessary, appropriate, convenient and/or expedient” that the appointees be appointed to be trustees of the Trust. Reference was also made to the agreement and acknowledgement in cl 6 “that these presents service only to effect the appointment of the Appointees to the office of Trustee of [the Trust] as provided for herein by reason of the vacancy of that office due to the deregistration of the erstwhile trustee …”.
- In support of its submission the appellant argued that the legal context in which the deed of appointment was brought into existence must be considered in construing the document.[10] In the present case, the legal context that was said to be significant was that the document was prepared by a solicitor and that the power of appointment was expressly exercised on the basis (erroneously) that there was at the time a vacancy of the office of trustee.
- The judge was clearly correct in identifying that there was no erroneous belief as to the fact of deregistration. That the legal consequence of deregistration did not result in there being a vacancy in the office of trustee, because of the operation of s 601AD of the Corporations Act, was irrelevant for the application of s 12(1)(h) of the Trusts Act. It was sufficient for the purpose of that section that the corporate trustee had been dissolved, in which case the Nominated Person became entitled to appoint a trustee in the place of the corporate trustee, if the appointment was made in writing. That is what occurred.
- I would add that the appellant’s submissions at first instance (repeated on appeal) appeared to be premised on the basis that cl 16.3 of the Trust Deed was not available as a source of the power of appointment because it was only available if there was a “vacancy” in the office of trustee. That is, because of the automatic appointment of the Commonwealth upon the appellant’s deregistration, there was no relevant vacancy and cl 16.3 was not applicable. However, in the circumstances of this case, it is not apparent that cl 16.3 was not a source of the power of appointment. The preconditions for the exercise of the power of appointment under that clause were satisfied, namely, that:
- the sole trustee, being a corporate trustee, had been dissolved; and
- that trustee had not appointed a new trustee under cl 16.1.
- Even if there was an error as to the effect of deregistration, because s 601AD was overlooked, that was immaterial. There was no misconception as to the fact of dissolution. It remained the case that the sole trustee had been dissolved without having appointed a new trustee. The requirements of cl 16.1 had thus been met.
Whether the respondent became subject to any bankruptcy law
- Grounds 2.11 – 2.12 asserted that the primary judge erred in concluding that:
- clause 17.1 of the Trust Deed should be construed as requiring the respondent to vacate the office as trustee under the Trust Deed only if the Bankruptcy Act 1966 (Cth) effected a change in the status of the respondent; and
- on the proper construction of cl 17.1, the settlor required vacation of the office of trustee because by being “subject to any bankruptcy law” the welfare of the beneficiaries may be jeopardised because the trustee may be suffering financial distress or lack of financial stability and the trust property may not be safe.
Relevant provision of the Trust Deed
- Clause 17 of the Trust Deed provided:
“17.1A Trustee, being an individual, must vacate that office and cease to act as such if that person is found to be of unsound mind or becomes subject to any bankruptcy law.
17.2A Trustee, being a corporation, must vacate that office and cease to act as such if that corporation enters into liquidation, whether compulsory or voluntary (other than in the case of a voluntary liquidation, solely or predominantly, for the purpose of amalgamation or reconstruction).”
The submissions and primary judge’s reasons
- The appellant argued that even if the respondent had been validly appointed as trustee, she was disqualified by a supervening event. In submitting that cl 17.1 operated to disqualify the respondent because she had become “subject to any bankruptcy law”, the appellant relied on the respondent having been served with a bankruptcy notice on 28 February 2015 (issued on 27 February 2015 by Ozibar Pty Ltd as Trustee of the Ozibar Unit Trust) and, additionally, that the respondent had applied to set aside the bankruptcy notice. (At the time of the hearing before the primary judge its outcome was not known.)
- The primary judge noted the appellant’s contention (repeated before this court) that the respondent became “subject to any bankruptcy law” because of the issue of a bankruptcy notice, which was a proceeding under the Bankruptcy Act, as was recognised in Kleinwort Benson Australia Ltd v Crowl.[11] The appellant relied on the characterisation by Deane J who observed that a bankruptcy notice was “the foundation of a bankruptcy”.[12] The appellant also submitted that because the respondent had engaged the Bankruptcy Act to bring the application to have the bankruptcy notice set aside, she was subject to the Bankruptcy Act, being the law dealing with bankruptcy.
- The primary judge noted the contrary argument advanced by the respondent was that:[13]
“The respondent contends that a common sense approach should be taken to the construction of “subject to any bankruptcy law” in clause 17.1 of the trust deed and that a person becomes subject to any bankruptcy law only upon becoming a bankrupt or, possibly, upon signing an authority under s 188 of the [Bankruptcy Act]. The respondent submits that it is an overly literal approach to treat proceedings under the [Bankruptcy Act] anterior to a sequestration order as sufficient to disqualify a trustee from continuing in office as the trustee, when it is the sequestration order that has the effect of altering the status of the bankrupt.”
- Her Honour concluded as follows:[14]
“Clause 17.1 of the trust deed specifies when a trustee must vacate office, because the trustee suffers from a condition or state that the settlor decided (by the terms of the trust deed) disqualifies the trustee from performing that role. Bankruptcy or an assignment for the benefit of creditors has been considered sufficient justification for removing a trustee: Miller v Cameron (1936) 54 CLR 572, 575, 579 and 582. The service of a bankruptcy notice on a trustee may lead nowhere. The trustee’s affairs are not subject to the regulation of the [Bankruptcy Act] until the sequestration order or other assignment for the benefit of creditors is made. I therefore do not consider that clause 17.1 of the trust deed should be construed as requiring the respondent to vacate office as the trustee under the trust deed, unless the [Bankruptcy Act] has effected a change in the status of the respondent. The respondent would not be subject to the [Bankruptcy Act] until the [Bankruptcy Act] had that effect on the respondent.”
Consideration
- The true meaning of the expression “subject to any bankruptcy law” is a question of the proper construction of the trust deed. In the context of this Trust Deed, the objective of the clause is to disqualify a trustee where the capacity of the trustee to perform the powers and duties conferred by the Trust Deed has been compromised by the operation of a bankruptcy law in respect of the trustee. That scenario, as the respondent submitted, arises where the trustee has been made bankrupt or where an authority has been signed under s 188 of the Bankruptcy Act.
- The expression “subject to a law” connotes that a person is required to comply with a provision of it or that it regulates the activity of the person subject to it. As the respondent submitted, a person who is served with a bankruptcy notice is not obliged to do anything. Upon the expiry of a bankruptcy notice, a person commits an act of bankruptcy which is akin to a presumption of insolvency. However, even that does not result in the operation of any law compelling any action by the recipient of such a notice. Thus, the mere issue and service of a bankruptcy notice does not result in the respondent becoming “subject to” any bankruptcy law. Moreover, it would be a perverse outcome if the fact that a trustee elected to challenge the validity of a bankruptcy notice disqualified the trustee from acting as trustee.
- It is not uncommon for trust deeds to contain a clause to the effect that a trustee ceases to be a trustee if the trustee has become “subject to any bankruptcy law”.[15] In Revian v Dasford Holdings Pty Ltd,[16] which concerned the construction of a clause in almost identical terms to that in cl 17.1 and 17.2, French J (as he then was) found that trustees who had entered into a deed of arrangement governed by Part X of the Bankruptcy Act were incapable of acting in the office of trustees because they had become “subject to any bankruptcy law”.
- The approach adopted by the primary judge results in cl 17.1 being construed in a manner that is consistent and consonant with cl 17.2. Clause 17.2 requires a corporate trustee to vacate the office of trustee if it enters into liquidation. Liquidation affects the corporate trustee’s capacity to act independently; its affairs being controlled by the liquidators. Likewise, cl 17.1, which is concerned with the situation where a trustee is an individual, requires the office of trustee to be vacated in two specified situations where the persons capacity to act is compromised; by being “found to be of unsound mind” or where the person “becomes subject to any bankruptcy laws”. Both situations refer to an objectively ascertainable factual status of an individual, in the one case of a person who is “found” to be of unsound mind and in the other of a person who “is subject” to any bankruptcy law. In both cases, the commencement of a legal process is insufficient to result in disqualification.
- There is no substance to this argument.
Whether declaratory relief should be granted
- A third matter was raised on the hearing of the appeal. The appellant contended that, if it failed on the two issues already dealt with, this Court should nevertheless make declarations as to whether the respondent was a joint or sole trustee and over what period. The primary judge dismissed the originating application seeking orders that the respondent’s appointment while the applicant was deregistered was invalid. Her Honour held that, given the finding as to the validity of the respondent’s appointment, a declaration would be made in terms to that effect. The declarations now sought were not pressed before the primary judge, and it would be inappropriate to permit the appellant to do so now, particularly given that the Commonwealth will not have had an opportunity to be heard on the matter.
Order
- The appeal should be dismissed with costs.
Footnotes
[1] See cl 16.3 of the Trust Deed.
[2] Ground 2.6 was not in fact pursued, the appellant accepting at the hearing of the appeal that a deregistered company came within the ambit of s 12(1)(h) of the Trusts Act, being a corporation that had been “dissolved”.
[3] [2015] QSC 156 at [40].
[4] [2015] QSC 156 at [41].
[5] [2015] QSC 156 at [42]-[43].
[6] (2005) 53 ACSR 484; [2005] NSWSC 293 at [25].
[7] [2015] QSC 156 at [43].
[8] [2015] QSC 156 at [47]-[48].
[9] In that regard, as noted, ground 2.6 was not pursued.
[10] See Harrison v Inala Plaza Pty Ltd [2002] QCA 543 at 13.
[11] (1988) 165 CLR 71 at 77.
[12] (1988) 165 CLR 71 at 81.
[13] [2015] QSC 156 at [58].
[14] [2015] QSC 156 at [59].
[15] See Revian v Dasford Holdings Pty Ltd [2002] FCA 1119; Silverstone Holdings Pty Ltd (as trustee for the Devereux Property Trust) v American Home Assurance Co (1997) 18 WAR 516; Orr (as trustee of the bankrupt estate of Tettis) v Tettis [2013] FCA 785; Lewis v Nortex Pty Ltd (in liq) [2012] FCA 621.
[16] [2002] FCA 1119 at [9].