Re Public Trustee of Queensland
[2013] QSC 183
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- Unreported Judgment
- Re Public Trustee of Queensland[2013] QSC 183
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Re Public Trustee of Queensland[2013] QSC 183
Re Public Trustee of Queensland[2013] QSC 183
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | Delivered ex tempore on 19 June 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 June 2013 |
JUDGE: | Fryberg J |
ORDERS: | 1. Pursuant to s 95 Trusts Act 1973 the arrangement proposed by the Public Trustee for varying the trusts established by the judgments of the Supreme Court of New South Wales on 3 January 2001 in proceedings no. 13960 of 1992 and proceedings no. 20295 of 1998 by enlarging the powers of The Public Trustee of Queensland thereunder to empower him from time to time to apply, as he considers necessary, the whole or any part of the capital and income of those trusts for the maintenance, welfare, advancement or otherwise for the benefit of Lisa Marie Tracey, be approved. 2. The hearing of the Originating Application filed on 11 June 2013 otherwise be adjourned to 31 July 2013. |
CATCHWORDS: | EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INVESTMENT OF TRUST FUNDS – MODE OF INVESTMENT – GENERALLY – Power to invest in superannuation funds under Trusts Act 1973 (Qld), s 21 EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – APPLICATIONS FOR AUTHORITY NOT CONFERRED BY TRUST INSTRUMENT – UNAUTHORISED INVESTMENTS – Power to invest in superannuation funds Trusts Act 1973 (Qld), s 21 Perpetual Trustee Co Ltd v Cheyne [2011] WASC 225, cited Re Hoang Minh Le; Ex parte Public Trustee [2012] WASC 31, cited |
COUNSEL: | R Whiteford for the applicant |
SOLICITORS: | Official Solicitor to the Public Trustee for the applicant |
[1] FRYBERG J: In this matter the Public Trustee holds on trust two substantial sums of money awarded to the beneficiary, Lisa Marie Tracey, by the Supreme Court of New South Wales as damages resulting from her injury and the death of her parent in a motor vehicle accident. The money was ordered to be paid to the Public Trustee of Queensland “...for investment by it for the benefit of [the beneficiary] in accordance with the Damages (Infants and Persons of Unsound Mind) Act 1929 (NSW).”
[2] The words “in accordance with” clearly refer to an order that the monies be paid in accordance with that Act, and in particular section 4 of that Act. They do not qualify the words “for investment by it for the benefit of [the beneficiary]”. However, there remains a problem for the Public Trustee, even on that construction, in that the terms establishing the trust provide only for the money to be used “for investment by it for the benefit” of the beneficiary. Difficulty has been expressed in some cases in Western Australia, particularly Perpetual Trustee Co Ltd v Cheyne [2011] WASC 225 and Re Hoang Minh Le; Ex parte Public Trustee [2012] WASC 31 as to whether the power conferred by the equivalent of section 21 of the Trusts Act 1973 (Qld) is sufficiently wide to permit the investment of trust monies in a superannuation fund.
[3] The evidence discloses that such an investment would clearly be of significant benefit to the beneficiary. If the trust were not limited to being a trust for investment of monies there would be no problem. The Public Trustee is concerned that he does not have the general power to apply monies for the benefit of the beneficiary when such an application may be inconsistent with a limited power only to invest. The Western Australian decisions regarding the equivalent of section 21 are, in my tentative view, of a dubious correctness. However, I would not refuse to follow them without giving a considered judgment, and the application is urgent as the benefit from investing in the fund is a taxation benefit and 30th of June is approaching.
[4] In those circumstances, it is not desirable that I should reserve the matter and consider the applicability of section 21 in the circumstances of the case. The matter can more conveniently be dealt with by varying the terms of the trust in accordance with an arrangement proposed by the Public Trustee, the variation being such as to empower him from time to time, as he considers necessary, to apply the whole, or any part, of the capital and income of the trust for the maintenance, welfare, advancement, or otherwise for the benefit of the beneficiary. The conferral of such powers on the Public Trustee by the Court explicitly will overcome any problem which arises from the terms in which the original trust was created by the order of the Supreme Court of New South Wales.
[5] It must be taken that that court, having directed that the monies be held by the Public Trustee of Queensland, intended to subject the trust to the law of Queensland as regards to trusts, and therefore to the effect of the provisions of section 95 of the Trusts Act 1973 (Qld).
[6] In any event, even if it were otherwise this Court has the powers of the Supreme Court of New South Wales by virtue of the cross-vesting legislation, and I would be minded to consider exercising the equivalent powers of that court. In the circumstances, it is unnecessary to consider what powers exist and how they might be exercised.
[7] There will be an order in accordance with the draft initialled by me and placed with the papers.