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  4. JPD as Guardian v DMS as Trustee - [2022] QSC 181

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JPD as Guardian v DMS as Trustee[2022] QSC 181

JPD as Guardian v DMS as Trustee[2022] QSC 181

SUPREME COURT OF QUEENSLAND

CITATION:

JPD as Guardian v DMS as Trustee [2022] QSC 181

PARTIES:

REDACTED

FILE NO/S:

161 of 2022

211 of 2022

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

30 August 2022

DELIVERED AT:

Cairns

HEARING DATES:

1 August 2022, 2 August 2022

JUDGE:

Henry J

ORDERS:

  1. The application in matter 211/22 is dismissed.
  2. The application in matter 161/22 to remove the existing trustee and executor and in substitution appoint Renee Anne Bennett is granted on the terms ordered in order 6 hereof.
  3. I will hear the parties as to costs at 9am 2 September 2022.
  4. The part of this decision’s reasons identifying the parties in the coversheet and the content of order 6 hereof be redacted in any publication of these reasons and orders, except for their publication between or to the parties, Renee Anne Bennett and a Court and for the purpose of Renee Anne Bennett assuming and performing her role as administrator and trustee.
  5. Liberty to apply on the giving of two business days notice in writing.

REDACTED

REDACTED

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – GROUNDS FOR REMOVAL – where the father of the beneficiary children applies for the removal of the trustee under s 80 Trusts Act 1973 (Qld) – where the trustee has made decisions prioritising the children’s wealth in adulthood – where the trustee has breached her undertaking to provide quarterly financial statements of the trust – where the father is not consulted on important trust decisions bearing upon the children’s welfare – where the trustee has made decisions in an attempt to conform to the wishes of the dead mother – where the trustee has attempted to impose a move on the family to a smaller residence also owned by the trust – where the father of the children does not earn working income – where the father sought money from the trust to fund a move to Brisbane from Cairns – where this proposal was rejected – whether it is expedient for the court to interfere – whether the welfare of the beneficiaries is opposed to the trustee’s continuation of office

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where the trustee made a decision to require the family to vacate the premises they were living at the time which the trust owns – where the trustee made a decision to refuse to fund a proposed move to Brisbane – where the trustee seeks directions under s 96 Trusts Act 1973 (Qld) in respect of whether the two decisions made were justified – where the application to the court was made after the decisions were made – whether such an order can be made – whether there is any utility in making such orders – whether s 96’s pre-requisite of a written statement of facts was met

Succession Act 1981 (Qld) s 6

Trusts Act 1973 (Qld) ss 80, 82, 90, 96, 97

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Elovalis v Elovalis [2008] WASCA 141, cited

Finch v Telstra Super Pty Ltd (2010) 242 CLR 254, cited

Harrison v Mills [1976] 1 NSWLR 42, cited

Hartigan Nominess P/L v Rydge (1992) 29 NSWLR 405, cited

Kordamentha Pty Ltd & Anor v LM Investment Management Limited & Anor [2015] QSC 4, distinguished

Macedonian Church v Eminence Petar (2008) 237 CLR 66, cited

Miller v Cameron (1936) 54 CLR 572, applied

Neagle v Rimmington [2002] 3 NZLR 826, cited

Nofz as executor of the estate of Henry Matthew Fitzgerald (dec) v Kane & Ors [2015] QSC 372, distinguished

Noosa Shire Council v TM Burke Estates Pty Ltd [2000] 1 Qd R 398, cited

Re Whitehouse [1982] Qd R 196, considered

Sneath & Anor v Sneath & Ors [2014] QSC 152, distinguished

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, cited

Titterton v Oates (1998) 143 FLR 467, cited

COUNSEL:

C Ryall with J Seccull for the applicant in matter 161/22 and for the respondents in matter 211/22

D de Jersey QC for the respondents in matter 161/22 and for the applicants in matter 211/22

SOLICITORS:

The Will and All for the applicant in matter 161/22 and for the respondents in matter 211/22

MacDonnells Law for the respondents in matter 161/22 and for the applicants in matter 211/22

  1. [1]
    A trustee of several related trusts and the father of the trusts’ four child beneficiaries are in dispute.  The children live with the father, their sole living parent and litigation guardian.  The trustee was a good friend of the children’s deceased mother, who divorced from their father and effectively left her estate on trust for the children. 
  2. [2]
    The trustee has a low opinion of the father, who has no wealth and is not in paid employment.  She places no genuine weight on the importance of his position in the children’s lives and does not try to consult him adequately.  She sees herself as righteously pursuing a protective influence over the children’s lives on behalf of the children’s dead mother.  The well-intentioned result is conduct which overlooks the importance to the children’s present and future interests of them being raised in a family with a secure sense of its own autonomy.
  3. [3]
    Matters have reached the extraordinary point that the trustee has used her control of the trust fund to effectively control what city the family should live in, contrary to its wishes.  The court’s intervention is required.

Relief sought

  1. [4]
    The primary application before this court, matter 161/22, was brought by the father on 22 March 2022.  It seeks the removal of the trustee as executor and various consequential orders which would also see her removed as trustee and be replaced in all her relevant capacities by a solicitor appointed by the Court to act as administrator and trustee.  For the reasons which follow, that application should be granted.
  2. [5]
    On 13 April 2022 the trustee filed a cross-application in matter 211/22 by which she seeks “directions in respect to” whether two decisions she made during 2021 “is justified”.  The cross-application was misconceived and should be summarily dismissed.  To avoid distraction, reasons for that conclusion will be given after these reasons deal with the primary application. 
  3. [6]
    To remove doubt, the affidavits read in both applications were treated by the parties as cross-admissible at the hearing and accordingly the affidavits read in the cross-application will also be regarded as evidence in the primary application.[1] 

Brief background to the primary application

  1. [7]
    The children’s mother died of cancer on 28 August 2017.  She was survived by her four children and their father.  The children’s present ages and the initials by which these reasons will refer to them are: R 16 years, L 12 years, Sn 12 years and Sa 11 years.  L and Sn are twins.
  2. [8]
    The mother and the father were married for many years but had divorced and reached a financial agreement by the time of her death. 
  3. [9]
    The mother’s will bequeathed her property to be held on trust pursuant to a discretionary testamentary trust under which the children are the primary beneficiaries.  The will had the effect of allowing the creation in due course of a minors’ trust fund to hold the mother’s superannuation benefits on trust for the children as beneficiaries. 
  4. [10]
    The will appointed two people as both executors and trustees: the children’s aunt and the mother’s close friend. The aunt renounced in August 2018.  The mother’s friend remains the sole executor and the sole trustee of both the trusts.  As executor she is the sole shareholder and a director of a company trustee for a trust of the mother’s (the visionary trust) which owns units in an investment unit trust.  The children and any trust in which they have an interest are beneficiaries of the visionary trust. 
  5. [11]
    One of the testamentary trust’s assets is a five-bedroom residential property at Cultivation Close, Edmonton.  It was the mother’s home prior to her death.  She and the father had shared custody of the children who, when in the mother’s care, also lived at the Cultivation Close residence.  After the mother’s death the children lived in rental premises with their father.  There was a dispute in connection with a financial contribution a relative of the mother had made to the purchase of the Cultivation Close residence.  That dispute was eventually resolved and the children returned to live at the property with their father. 
  6. [12]
    In addition to consolidating ownership of the mother’s home at Cultivation Close by 15 June 2018, the trust also acquired two residential properties in Bentley Park, at Fitzmaurice Drive and Whela Close, in 2020.
  7. [13]
    There have been various legal disputes between the father and the trustee.
  8. [14]
    On 23 November 2017 the father filed a caveat against the grant of probate, which initially resulted in the making of limited administration orders.  In February 2018 the father also issued proceedings as the children’s litigation guardian, seeking further provision for them from the estate.  That proceeding appears to have been prompted, at least in part, by uncertainty in the wording of the testamentary trust deed annexed to the will about the paramountcy of the children’s interest as beneficiaries.  It culminated in a mediation, and, in turn, a deed of settlement dated 22 January 2019, by which it was agreed probate would be granted and that in the absence of a good and valid reason the trustee would treat the beneficiaries equally when exercising discretion under the testamentary trust deed and would not remove beneficiaries or appoint new ones.  The settlement terms included the trustee undertaking to provide financial information as part of the deed of settlement.  She did not comply with that undertaking.
  9. [15]
    A dispute also arose between the trustee and the father from September 2018 about whether the mother’s superannuation fund payout should be made to her or him as trustee for the children.  At first the fund administrators had determined the payout should be to the father as trustee for the children but the trustee objected on grounds including what was described as the father’s “history of financial mismanagement and ineptitude”.  That description was supported, in a schedule sent to the fund administrator, by particulars of alleged non-compliance by the father in his profession of accountant with the professional obligations of chartered accountants and with corporation and tax law, the failure of one of his companies to pay rent and his alleged misuse of monies.  The fund administrator then reversed its decision in the trustee’s favour.  The father lodged an objection but it was withdrawn as part of the deed of settlement arrived at in the aforementioned mediation.[2]
  10. [16]
    There was also a custody proceeding instituted by the children’s aunt in the Federal Circuit Court of Australia, in which the trustee was an intervenor.  That proceeding culminated in consent orders on 14 September 2020 with it being ordered that the father “have sole parental responsibility for the children” and that the children “shall live with the father”.  That outcome reflected the status quo, the father having had custody of the children, living together with them as a family since their mother’s death.  Orders were also made allowing some contact by the trustee with the beneficiaries.
  11. [17]
    The occupancy of the five-bedroom Cultivation Close residence by the family was pursuant to a lease by which the trustee leased the property rent free to the father and the children for a fixed term commencing 14 July 2018, ending 13 July 2021.  The trustee informed the father, via a letter from her solicitor of 9 July 2021, that the lease would not be renewed, that the family would need to vacate by 10 December 2021 and that the four-bedroom residential property at Whela Close had been acquired by the trust with a view to the father and the children residing there.  A formal notice to leave by 10 December 2021 was not complied with. 
  12. [18]
    On 12 November 2021, the father advised the trustee by letter from his solicitor to hers that he and the children were to relocate to Brisbane for the start of the 2022 school term and sought financial assistance for the children to live and be educated in Brisbane.  On 29 November 2021 the trustee refused that assistance by a letter from her solicitor to the father’s solicitor.  Because of the father’s lack of material independent resources this refusal (the Brisbane refusal) had the practical effect that the family could not live in Brisbane as it wished. 
  13. [19]
    On 15 December 2021 the trustee commenced proceedings in the Queensland Civil and Administrative Tribunal against the family, applying for an order requiring them to leave Cultivation Close.  That application was dismissed on 7 February 2022. 
  14. [20]
    In the meantime, by letter dated 22 December 2021 from the father’s solicitor to the trustee’s solicitor the trustee was given further information about the desirability of the family’s move to Brisbane to live and was asked to re-consider her decision of 29 November 2021.    There was no response to that aspect of the letter.

The nature of relief sought and the issues bearing upon it

  1. [21]
    The father seeks orders having the effect of an independent solicitor, Ms Bennett, replacing the trustee as trustee of the testamentary and minors’ trusts and executor.  The suitability of Ms Bennett to serve as trustee and executor has not been placed in issue.  Further, it is not in issue that the practicalities of the trustee’s removal and replacement as trustee would be most conveniently accommodated by a like change with the executor being replaced by an administrator in exercise of the court’s power in s 6 Succession Act 1981 (Qld), there being no suggestion of any need for the present trustee to remain as executor for some purpose unconnected with her role as trustee.  The form of orders proposed to implement her removal as trustee and executor and substitution by Ms Bennett are uncontroversial and should be made if the trustee is to be removed.  The determinative question is whether she should be removed. 
  2. [22]
    The power of courts of equity to remove a trustee when expedient to do so is now found in s 80 Trusts Act 1973 (Qld) which relevantly provides:

“80 Power of court to appoint new trustees

  1. (1)
    The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees ...
  1. (2)
    In particular and without prejudice to the generality of subsection (1) the court may make an order appointing a new trustee in substitution for a trustee … who for any … reason whatsoever appears to the court to be undesirable as a trustee.”
  1. [23]
    Section 80 does not proscribe the reasons which may render it undesirable for a trustee to continue.  The decision whether a trustee should continue in office inevitably involves a differently focussed inquiry than is required when, pursuant to s 8 Trusts Act, the court is asked to review a particular act or decision of the trustee.  The jurisdiction conferred by s 80 is remedial, not punitive and does not require bad faith, misconduct or breach of trust to be established.[3] 
  2. [24]
    Nonetheless, the starting position is that there must exist good reason to intervene.  On this point Macrossan J observed in Re Whitehouse:[4]

“There must be a proper justification for any relief which is granted, since the trust is entitled to independence from unwarranted interference by the courts, just as the discretion is exercisable under the trust at the discretions of the trustee appointed under it and not of anyone else.”[5]

  1. [25]
    To those observations it should be added that the need for good reason is especially important where, as here, the trustee targeted for removal was settlor appointed and where the proposed replacement trustee will charge for performing the role whereas the targeted trustee does not so charge.  Put another way, the settlor’s wishes as to who should be entrusted with the trustee role and the potential financial impost on trust funds occasioned by the court’s interference are material considerations in weighing whether the court’s interference is justified. 
  2. [26]
    The father’s counsel highlighted the mother’s wishes were that there be two trustees and that wish has already been thwarted by the resignation of one of them – the aunt.  Nonetheless, it remains that the existing trustee was a trustee chosen by the mother and that is a consideration to which weight should be given in assessing whether the court’s intervention is justified.
  3. [27]
    The trustee in the present case has been entrusted with an absolute discretion, which is hers to exercise.  The trust documents do not use language which confine the breadth of the discretion beyond the ordinary requirement, characteristic of trusts generally, that the discretion to apply the trust funds is exercised for “the benefit” of the beneficiaries.[6]  That requirement does not impose a general obligation on a trustee to consult beneficiaries or their guardians, to ascertain their views.[7]  However, the trustee’s broad discretion must be exercised in a proper way, by reference to proper considerations,[8] so that in some cases consultation may be appropriate in order to give proper consideration to what is for the benefit of the beneficiaries.[9]  As will be seen, this is such a case.
  4. [28]
    In determining whether intervention is justified in an application of this kind the guiding consideration will be the welfare of the beneficiaries.[10]  The proper approach was explained by Dixon J in Miller v Cameron[11] as follows:

“In deciding to remove a trustee the court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office.  Such a judgment must be largely discretionary.  A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised.  But in the case where enough appears to authorise the court to act, the delicate question whether it should act and proceed to remove the trustee is one upon which the decision of a primary judge is entitled to especial weight.”[12] (emphasis added)

  1. [29]
    It follows that a trustee’s past conduct may be so concerning as to give good reason to intervene but, in considering whether the court should intervene, the issue is whether the future welfare of the beneficiaries is opposed to the trustee continuing. 
  2. [30]
    In the present case, the father complains that in her pattern of behaviour the trustee has had insufficient regard to the welfare of the beneficiaries in the contemporary context of them being raised together as a family by him.  Various criticisms were alleged of her conduct.  Some were so neutral or inconsequential as to require no material attention.  Those of apparently relevant substance in summary amount to an alleged dual pattern of:
  • lack of respect for the importance of the father’s position in the children’s lives, and
  • disinterest in genuinely attempting to consult him about major decisions bearing upon the children’s contemporary welfare.

The nub of the father’s case is that such a pattern had emerged in the trustee’s conduct by the time of the Brisbane refusal and infected the manner of that refusal, demonstrating the children’s welfare is opposed to her continued occupation of the office. 

  1. [31]
    The trustee contends the Brisbane decision was readily justifiable and that she has administered the trust with proper regard to the children’s welfare, behaving consultatively towards the father, despite him tending to be unresponsive towards her.  If there was some shortcoming in her approach it is contended the circumstances do not warrant this court interfering to replace her.
  2. [32]
    In considering whether there is factual substance to the alleged dual pattern of conduct by the trustee and how it culminated in the manner of the Brisbane refusal it is convenient to marshal the analysis under these overlapping topics:
  • allegiance to the mother’s priority on the children’s wealth in adulthood;
  • the breach of the undertaking to provide quarterly financial statements;
  • not respecting the importance of the father’s position in the children’s lives;
  • lack of consultation of the father;
  • trying to impose a move out of Cultivation Close to Whela Close;
  • the Brisbane refusal.
  1. [33]
    Discussion of the first two topics gives relevant context to the following two, which in turn coalesce in their relevance to the final two topics. 

Allegiance to the mother’s priority on the children’s wealth in adulthood

  1. [34]
    The mother’s will annexed the terms of the testamentary trust, wherein the four children were identified as primary beneficiaries.  Their children were in turn identified as secondary beneficiaries and any other of their lineal descendants were identified as tertiary beneficiaries.  The terms also contemplated the trust could last for 80 years.  That, and the inclusion of references to the secondary and tertiary beneficiaries, reflects an optimistic view of the future scale of the trust fund and of the likely financial needs of the primary beneficiaries during their minority. 
  2. [35]
    The trustee’s accounts of her conversations with the mother show the mother had hoped the father would fund their children’s upbringing and that by the time they were adults the trust could afford to give one house each to each child.  The trustee has retained a zealous allegiance to the wishes of her dead friend, particularly the aspiration of one house each for each child in adulthood. 
  3. [36]
    The mother’s hope that the father would fund the children’s upbringing, helping preserve funds to later fulfill her one house each for each child in adulthood aspiration, was misplaced.  The evidence shows the father has no substantial assets or income.  He has not been in paid employment for some years.  He evidently used to manage his wife’s accountancy practice, which was transferred to him as part of the property settlement.  That seems not to have had a successful financial outcome for him.  In any event, he ceased work as an accountant because of issues with depression and anxiety, which were heightened by the marital breakdown and resurgent following the death of the mother.  The evidence does not expressly identify to what if any degree those issues persist, but it is not suggested they interfere with his parental competence. 
  4. [37]
    The father deposes he does not intend to resume his career while bringing up the children.  That is a choice many parents make in what they assess are the best interests of their children.  No criticism is made of his parental choice in these proceedings but that choice is obviously very disappointing to the trustee in her pursuit of the mother’s wishes.  Her opinion is that the father should have returned to paid work.[13]
  5. [38]
    The father is not said to have material assets and relies upon Centrelink payments.  If he is left to raise the children without the financial assistance of the trust it is obvious that, for the balance of their important formative years, the children will reside in housing and receive a level of economic support in their education and day-to-day living which would be grossly inferior to that which the trust can readily provide. 
  6. [39]
    The welfare of the children as a consideration in administering the trusts does not fall to be assessed in a vacuum.  Relevant considerations obviously include the substantial value of assets held on trust for them, relative to the father’s poor financial capacity, and the well-known importance of raising properly educated children in a secure, nurturing home environment.  Whatever the mother’s hopes may have been it cannot be doubted, had she known the father would not resume gainful employment, that she would have wanted her substantial assets to be administered to fund a more comfortable upbringing for the children than the father can afford. 
  7. [40]
    Having regard to the significant value of trust assets held for the children’s benefit and the father’s poor financial situation, the welfare of the children requires that the trustee contribute trust assets to substantially fund the provision of a family home for them and substantially fund the costs of their day-to-day living and education.  As much is not in dispute, for that is what the trustee has purported to do.[14]  That is as it should be, for a trustee must not merely give effect, without more, to the wishes of the settlor and must consider the instant exercise of the power, which is for the trustee to decide to make.[15]
  8. [41]
    A dynamic underlying this case is that the need for provision of funding for the children’s welfare in childhood, makes it more challenging for the trustee to pursue the priority their mother wished placed on their wealth in adulthood – a situation the trustee resentfully attributes to what she sees as the father’s failure to return to work.  It was likely an influential dynamic in the genesis of the trustee’s dual pattern, discussed hereunder, of lack of respect for the importance of the father’s position in the children’s lives and disinterest in genuinely attempting to consult him about major decisions bearing upon the children’s contemporary welfare.
  9. [42]
    The trustee deposed to having had various meetings with financial advisors Findex Advice Services Pty Ltd (Findex) from 21 November 2019 and has exhibited various records of that process, including advice given.  Findex’s advice to her of 13 December 2019 recommended the testamentary trust maintain a cash reserve and invest in management investment accounts.  By the time of the trustee’s meeting with Findex in early May 2020 the collective trust assets and values were said to be:

Family home (Cultivation Close)$  780,000

NAB working account$         503

NAB bank account$  387,230

NAB term deposit$  332,378

Estate bank account$  389,295

Abbott Street Commercial Property Trust (the visionary trust)$1,032,070

Encircle account$  441,405

Total$3,362,881

  1. [43]
    The trustee’s notes recorded that the potential estimated income from the Abbott Street Commercial Property Trust of about $75,000 per annum was not being received because the property was not tenanted.  Her notes for the meeting included a handwritten reference to the idea of “buy some houses to get income in”.[16]
  2. [44]
    The ensuing record of advice by Findex of 8 May 2020 recommended no investment changes to the existing investment portfolio.[17]  Between then and the next meeting with Findex on 23 September 2020 the trustee, applying her own financial judgment, purchased the Fitzmaurice Drive property for $440,000 on 24 July 2020 and the Whela Close property for $390,000 on 11 August 2020.  
  3. [45]
    To raise the total purchase monies of $830,000 she apparently depleted nearly all of the NAB account funds and about half the estate bank account funds.  In the interim she had also reduced what had hitherto been a pattern of paying $600 a week for the children’s living expenses down to $600 a month. 
  4. [46]
    Of that reduction, which seemingly occurred after May 2020, the trustee deposes:

“Until approximately May 2020, the trusts contributed $600 per week for living expenses.  This regular transaction came up for review in May 2020 and I undertook a review.  I considered the costs of groceries for the 4 children, which I estimated to be approximately $300/week based on my shopping for them when they visited me.  I was aware the Centrelink payments had increased due to COVID subsidies.  I decided to reduce the allowance to $600/month having regard to these matters.”[18]

  1. [47]
    What the trustee means by the transaction coming up for review is unclear.  In any event it was not something she reviewed with the father.  This was simply a unilateral decision by her.  The lawyer then acting for the father, in the yet to be completed custody proceeding, queried the reduction and, in response, the trustee’s solicitor replied by letter of 21 August 2020 asserting:

“The payment of $600 per week had been put in place during the difficult period following [the mother’s] passing to assist in necessary transitions and adjustments for the family.  Our client has now determined that it is appropriate to reduce this discretionary payment to $600 per month.  This level of support is considered reasonable having regard to the following matters:

  1. 1.
    The trust provides considerable additional financial support for the … children including:
  1. (a)
    the provision of the home at Cultivation Close for the family to reside in, including payment of rates, pool maintenance and insurance; and
  1. (b)
    payment of the following direct expenses:
  1. (i)
    school fees of approximately $450 a month;
  1. (ii)
    health insurance of approximately $400 a month;
  1. (iii)
    ASG scholarship fees of $1,000 a month; and
  1. (iv)
    counselling of approximately $1,500 per month, based on $190/session and two sessions per child per month.
  1. (c)
    purchases of clothing and footwear from time to time.
  1. 2.
    The reasonable expectation that your client will also provide financial support for the children and their expenses.  Our client considers that a contribution from the Trust of the above payments and the further discretionary payment of $600 per month is reasonable and that any further expenses should be met by your client.”[19]
  1. [48]
    It is noteworthy the letter’s explanation made no mention of explanations now advanced about there having been a COVID subsidy related Centrelink increase or about the trustee’s estimate of likely grocery costs in a household of which she was not a member.  Neither explanation explains why a change of such magnitude had not occurred gradually.  The change represented a reduction in annual terms from a total of $31,200 to a total of $7,200, a variation of $24,000.  If the explanation for the reduction advanced in the solicitor’s letter, namely that the much larger payments were necessary to assist in transitions and adjustments following the death of the mother, it is difficult to understand why there would not have been a graduated adjustment in the weekly payment over time as the post death transitions and adjustments dissipated.  Instead, there was a sudden drop to a pattern of paying less than one-quarter of the previous pattern of payment for living expenses. 
  2. [49]
    The letter of 21 August 2020 went on to indicate the trustee would consider any request made for additional funding provided sufficient information was provided.   The trustee deposes there was no response to the solicitor’s letter and that she received no request for an increased allowance directly from the father, adding this self-serving commentary:

“As part of my prudent management of the trusts I considered it necessary to have relevant information to support any request for increased payment, including details of other sources of financial support for the children.  This included details of their financial support available from [the father].  I considered this information to be relevant to my reasonable assessment of any increase to living allowances.”[20]

That rather obscures the reality that she had imprudently failed to consult the father in the first place, before her decision to make the dramatic reduction in the previous pattern of living expense payments – payments she presumably had previously assessed were prudent.   Remarkably the trustee’s affidavit subsequently refers to the fact she increased the allowance in the month the primary application was filed but did so without any request from the father, which is at odds with her above quoted commentary about prudence requiring the father to supply information before she assessed an increase to the payment.[21]

  1. [50]
    The decision to lurch to paying less than a quarter of what had previously been paid towards the children’s living expenses must have been motivated by considerations other than the children’s then welfare, for there had been no consultation of the adult uniquely placed to know the children’s living expense needs, their father.  This is not to suggest it might not have been appropriate for the trustee to have reduced the children’s living expenses after consulting the father.  Indeed, the father does not mount a case that there has been inadequate funding and rather takes the position that he prefers to meet shortfalls himself rather than submit to requesting funding and being lectured about not having a job.[22]  The point about the sudden, major reduction in living expenses is that the absence of consultation meant the current welfare of the children was not the subject of properly informed consideration before reaching the decision. 
  2. [51]
    The decision had the consequence that substantially less trust assets would be expended on the children in the short term, helping to preserve and grow trust asset value in the long term, something the trustee plainly rated as important in pursuing the mother’s wishes.  The decision to make such a major reduction without consultation suggests that, as with the Cairns real estate acquisitions of the same year, the children’s wealth in adulthood was a causally influential consideration in the decision.
  3. [52]
    It is uncontroversial that, at least initially, the real estate acquisitions of 2020 were financially beneficial acquisitions for the trust.  Their value increased during the era of substantial growth in Australian house prices of recent years.  In the meantime, they helpfully provided rental income.  Such income was important in the context of an investment strategy which had so markedly reduced the trust’s cash holdings.  However, the Whela Close property fell vacant and thus earned no income from May 2021.  The trustee did not re-let the property because her plan was that Whela Close would be provided to accommodate the children and their father, who would have to move from their family home at Cultivation Close because she would sell it to raise funds to buy two more houses.
  4. [53]
    Evidence that this was her plan appears in Findex’s review meeting notes of the meeting of 18 October 2021.  The notes record the following comment against the asset described as “family home – Cultivation Close”:

“This will be sold with funds to be invested.  The lease expired on this in July 2021.  You will then move the family to … Whela Street.  Given six months notice so the children will not have to relocate during school term.  When this is sold [the trustee] will look at buying two properties.  She wants to try and provide a house for each child if possible.  This was a request of [the mother].  May need to invest $50k-100k to bring it back to its former condition.  Purchased for $890k.  Current market has potential to get above $1.1.  Real estate advised this could go higher.  There is a current market scarcity for a property with acreage.  The house has a separate four-bay shed, outdoor cabana and pool as well as a stable for one-two horses.”[23]  (emphasis added)

  1. [54]
    The notes’ ensuing comment against the asset of Whela Close recorded the trustee’s intention for there to be a seven-year lease for the family to reside at the property, which would see the youngest child through to completion of high school.  Later in the same document there was a comment against the Encircle account asset then valued at $544,700 with an income of $36,014 to this effect:

“You previously advised you don’t want to touch these funds for 10 years.”[24]

Such evidence further illustrates the emphasis the trustee placed upon building wealth for the beneficiaries in adulthood.

  1. [55]
    The document noted a total income of $66,064 and total expenses of $67,066, a shortfall of $1,002.  Obviously, the trust’s financial capacity to more comfortably absorb the trustee’s purchase of the Whela Close and Fitzmaurice Street properties depended upon removing the children and the father from their family home at Cultivation Close to Whela Close.
  2. [56]
    In the present proceeding, the trustee represented that she is not firmly committed to the one house each for each child in adulthood aspiration.  I reject that.  Evidence of her words to others, including the above evidence of what she told Findex, exposed she is firmly committed to that aspiration.  The evidence also exposed her resentment of the father for jeopardising that aspiration by not returning to paid employment.  For example:
  • In an email to the father in early September 2018 the trustee told him of how the testatrix said she wanted to buy each child a house but knew there would not be enough money.  The email went on to refer to a variety of adverse comments other people had made to her about him and his poor past financial conduct in explanation of why she would not relent and allow him to “be in control of the money”.  The email went on to say:

“All believe you should be working and contributing to the household.  If I have to (sic) sacrificed all of my personal and much business life in the past for four years for [the mother].  She gave her life.  I’m not about to give up her fight now.”[25]

These are telling comments, revealing the trustee’s dim view of the father for not earning a living and her passionate view of the pursuit of the mother’s wishes as a “fight” not be given up.

  • In an email to the father of 16 January 2019 the trustee wrote:

“You would be aware, as I and others do, [the mother] never intended for her estate to be used for raising the children.  She wanted the major part of the estate left for the children to inherent (sic) as young adults.  In her words “I have paid for everything, it is his turn to start paying”.”[26]

Such language further evidences the trustee’s loyalty to the mother’s hope the father would pay to raise the children so trust assets would be preserved for the children in adulthood.

  • In the latter half of 2021 the trustee conversed with the four children when driving past houses in Cairns.  The conversation was recorded.  It caught the trustee out telling the children they would have a house each.  The recording was unattractive listening and the trustee’s testimony in explanation of it unconvincing.[27]  It included the following:

“So that’s the house I bought for [R], and I’m now going to show you the house [L] that I bought for you. … When I sell Cultivation Close, I’ll buy two more homes exactly the same, one for [Sn] and one for [Sa], and that was what your mum wanted.  Your mum wanted your dad to go and get a job and start paying and contributing towards raising you children, and that hasn’t happened.  Mum’s money in the estate’s been paying for your medical, your school fees, your scholarship fees, it pays for everything, as well as I put money in an account each week for food, and that’s the truth and when youse are old enough, you’ll know a lot more truth as well, but I’m not going to talk badly about your father the way he talks about me, when it’s not the truth, it’s all lies, and I’m really really upset and disappointed that he would put his own selfishness before you children, ‘cause that’s what it is.”[28]

  1. [57]
    During that recorded conversation, the trustee did more than again affirm her continuing plan to implement the mother’s aspiration of one house for each child in adulthood.  In saying she was “not going to talk badly about” the father to his own children the trustee seems to have overlooked she was doing just that.  Denigrating the father to his children in the way she did suggests the trustee’s low respect for the father as a person has infected her respect for the significance of the position he holds vis-à-vis the children and their family unit.  In any event, whatever the reason for it, this is not the only conduct of the trustee which demonstrates she does not accord genuine weight to the importance of the father’s position in the children’s lives.

The breach of the undertaking to provide quarterly financial statements

  1. [58]
    It will be recalled that, as part of the 22 January 2019 deed of settlement of the further provision proceeding, the trustee undertook to provide financial information.  That undertaking was to provide quarterly financial statements in the form of an unaudited statement of cash flows and balance sheets to the father within 21 days of the end of each quarter. 
  2. [59]
    The trustee failed to comply with that undertaking in any of the ensuing quarters between the execution of the deed of settlement in January 2019 and the filing of the present application.  Her affidavit exhibits cashflow and balance sheets for the last two quarters of 2021 and the first quarter of 2022.  It thus remains that the records undertaken to be provided for any of the quarters of 2019, 2020 or the first half of 2021 have not been provided.  It will be recalled those omitted periods included the era of the acquisitions of the Fitzmaurice Drive and Bentley Park properties and the over three-quarter reduction of the regular living expenses payment for the children.
  3. [60]
    The trustee has proffered no explanation for her failure to comply with her undertaking.  At best for her, the non-compliance is further evidence that she assigns a low priority to the importance of the father’s position in the children’s lives.

Not respecting the importance of the father’s position in the children’s lives

  1. [61]
    The trustee and the mother were old and close friends and interacted with each other’s children over the years.  The trustee is R’s godmother.
  2. [62]
    The trustee sought to maintain contact between her and other members of her family with the children after the mother’s death, doing so in various ways, particularly in respect of the three youngest children.  However, she deposes the contact became minimal from the latter half of 2018 when a dispute developed between the father and her as to which of them should receive the mother’s superannuation fund payout on trust for the children.  She deposes the father stopped communicating with her and did not allow the children to visit her.[29]
  3. [63]
    On 30 April 2019 the trustee emailed the father accusing him of turning the children against her and stating she would now take legal action to gain access to the children.  Four days later, on 4 May 2019 the trustee had her solicitor write to the father, seeking his agreement to a suggested regime of contact between the children and the trustee.  Notably, the reason given for seeking the contact was not to allow the trustee to better discharge her role as trustee or support him in his role as the children’s sole carer.  Rather, it was her belief the children would be missing contact with her and her family and that it was in the interests of the children’s emotional wellbeing “to maintain the friendships and links on their mother’s side”.  The father, who only days earlier had been accused by her of turning his children against her, did not respond.
  4. [64]
    The trustee now deposes, under the subheading “Care of the children after [the mother’s] death”, to her then increasing concerns for the father’s “ability to cope with the sole care of the children and the cumulative effects of the stress of [the mother’s] illness and death”.  Yet she does not in that context actually depose to any instances of the father not coping with the sole care of the children.[30]
  5. [65]
    On 21 August 2019, later in the same month that the children’s aunt had renounced, the trustee made application to intervene in the Family Court proceedings which had been brought by the aunt.  That application, which was made by the trustee in person, sought orders including providing for contact by the trustee with the children.  Notably, it also sought an order that, with the father, she “have equal shared parental responsibility for long-term decisions concerning the health and education of the children”.[31]  That order was not made, unsurprisingly.  That she would seek such a level of control over the internal decision-makings of the family suggests, in light of evidence already canvassed, that she genuinely saw herself as a loyal agent of the children’s dead mother in the children’s ongoing lives.
  6. [66]
    The consent order, made on 14 September 2020, did permit the trustee to “spend time” with the children “as agreed” and failing agreement, for four weekends a year and one week each of the Christmas and Easter school holidays.  It also allowed her to have one telephone or video call with the children a fortnight.  The orders also authorised the children’s’ school to provide the trustee with information about their progress at school and permitted the trustee to attend school related events. 
  7. [67]
    On one view the father was very generous to the trustee in consenting to those aspects of the orders, however he deposes he was advised a court may allow such contact because she was trustee.  The inference, correct or not, seems to be that some contact would be seen by a court as necessary to aid the trustee in administering the trusts in the children’s best interest by informing herself about the children’s welfare.  Because the orders were consent orders there was no articulation by a court as to the purpose of allowing the trustee the forms of contact alluded to.  In any event it is not suggested the contact has a parental purpose and nor could it be, for the consent order clearly indicates sole parental responsibility lies with the father. 
  8. [68]
    The trustee obviously regards the contact orders as doing more than allowing her as trustee to be aware of the children’s needs.  Her dealings with the children have included texts to twelve year old L, sent without the father’s approval, advising he is “too young” to get the Covid 19 vaccination and “Don’t trust the vaccine yet it has not been in use long enough”.[32]  Also, she has from time to time given the children gifts and taken the children on holiday, apparently trying to perpetuate close relations between the children and her and her family. 
  9. [69]
    One holiday, in which she and her husband took the children to Great Keppel Island in April 2021, appears to have been the source of particular tension.  That is because during the trip the trustee took the children to see her mother and one of the children told the father that the trustee had introduced her mother as the children’s grandma.  The trustee denies she did such a thing. 
  10. [70]
    After the Great Keppel holiday, the trustee sought advice from her solicitor as to whether payments could be made from the minors’ trust fund to pay holiday expenses for the children and for gifts for the children.  The advice included:
  1. “10.
    We consider that you’re entitled to use the trust funds for pay for holidays for the children.  In our view, such costs are for the benefit of the beneficiary and could be reasonably paid.  Holiday costs should be apportioned to each child’s trust fund. …
  1. 14.
    We consider that you’re also entitled to use the trust funds to purchase gifts for the children, from their late mother.  This was a specific wish and instruction of [the mother] and you seek to honour it.  Gifts are purchased for the children at birthdays and Christmas.  We consider these gifts are for the benefit of the relevant child beneficiary.”
  1. [71]
    On the topic of holidays for the children, it is noteworthy the trustee has not offered funds for the father to go on holidays with his children.[33]  Of that, the trustee deposes there has been no request made for that to occur and that she would reasonably consider it if it was.[34]  If the trustee genuinely respected the father’s parental position vis-à-vis the children it is difficult to understand why she needed to wait for an approach and would not of her own volition raise with the father the possibility of the trust funding holidays for the children with him.  She could scarcely have overlooked the idea.  After all, she went so far as to seek legal advice about it as it related to her.
  2. [72]
    In respect of the trustee providing gifts, the trustee gives gifts to the children at birthdays and Christmas, purporting to be gifts from their late mother (to remove doubt, I do not overlook exhibits 1 and 2 in this context but perceive them to be of neutral relevance).  The father disapproves of that practice and has clearly requested the trustee to stop it.  She has nonetheless persisted in her conduct, doubtless seeing herself as righteously carrying out the wishes of the children’s dead mother.  Indeed, she testified she will not comply with the father’s request because, “It’s not in the best interest of the children”.[35] 
  3. [73]
    This is a relatively minor aspect of the case overall but it well illustrates the trustee’s lack of insight into her failure to respect the father’s position of sole parental responsibility.

Lack of consultation of the father

  1. [74]
    The trustee’s obviously low regard for the father and his role is reciprocated by the father’s obvious resentment of her for what he doubtless perceives to be the high-handed way she exercises her role of influence over his family.  This has all long manifested in a poor state of communication between them. 
  2. [75]
    Additionally, the Family Court Orders may have been wrongly understood as a general restriction confining communication to texts and emails in other than urgent circumstances.  Of itself that is not a critical problem attending their communication – they at least seem capable of sending texts and emails if needs be. 
  3. [76]
    The more concerning communication problem is that the trustee does not try to communicate consultatively with the father.  It is a failing which further evidences her lack of genuine respect for his important position of sole parental responsibility.  It is a failing which means that in administering the trusts, when making long term or strategic decisions bearing upon the children’s welfare, she does not seek, let alone take into informed account, the views of their sole parent about their welfare.
  4. [77]
    The trustee asserts she tried to contact the father by telephone to discuss the trusts in 2018 and 2019 but that he did not answer her calls.  She does not say what she was seeking to discuss about the trusts or what if any messages she left for the father regarding the content of what she wanted to discuss.  In any event, she accepts that he would on occasions respond to her texts or emails, after a number of reminders.[36] 
  5. [78]
    Plainly it was ever open to the trustee to engage in attempts at consulting him by text, email or letter.  Indeed, the trustee deposes that despite the father’s unresponsiveness she has continued to communicate with the father by email and text with respect to the children, including as to their needs.[37]   She deposes such contact, in combination with her own contact with the children and information from their schools, means she is “sufficiently informed as to the children’s needs to properly manage the trusts and ensure their needs are met”.[38]  I reject that evidence in its application to making major trustee decisions bearing upon the children’s welfare because, in making such decisions, she does not seek to inform herself by trying to consult the father.
  6. [79]
    The examples the trustee exhibited in support of her assertion of communicative dealings with the father involved no attempted consultation about important decision-making relevant to the children’s welfare.[39]Rather, they were notifications or queries about mundane logistical matters, namely:
  • an email of 13 April 2019 requesting that accounts for sport or activity for each of the children be addressed to “the estate” for payment;[40]
  • an email of 25 April 2019 advising she had “transferred money for May so there would be money in the account for the boys’ birthday on the coming weekend”;[41]
  • an email of 8 August 2019 about the logistics of arranging tax file numbers for the children;[42]
  • an email of 19 January 2021 which began with her saying that she had forwarded the Family Court orders to two of the children’s schools and requesting information about school uniform numbers and sizes;[43]
  • an email of 2 March 2022 enquiring which child a PET certificate course payment related to.[44]
  1. [80]
    It is noteworthy in passing that not even the logistical emails were uncontroversial.  Before the email of 19 January 2021 moved to the topic of school uniform numbers and sizes, it commenced with these words:

“I have forwarded the final Court orders dated September 2020 to St Augustine and St Josephs.  It is very much my intention to be part of the children’s school life where possible.” (emphasis added)

  1. [81]
    If that forecast encroachment upon parental space was not enough to dampen the father’s desire to communicate with the trustee, she also adopted a new manner of signing off her correspondence as trustee with the father, adding her educational qualifications after her name and endorsing the base of the email with:

“Children are the sum of what parents contribute to their lives.  Richard Straus

Information is not the problem – lack of knowledge is. Robert Theobold”

  1. [82]
    It is noteworthy that by the time of an email dated 17 May 2022 from the trustee to the father, in this instance about a prospective overseas school trip for one of the children, the trustee had enhanced the condescension of her email sign-off, including not only her educational qualifications and the Straus and Theobold quotes but also the following:

“Education & Experience:

Successful parenting – 30 years

1994 PPP parenting course (6 week) Rob Jones (Regional Councillor for FNQ public primary schools

1997 PET course – parent effectiveness training (8 weeks) Robert Pereira Facilitator for FNQ Catholic Education.

1997 Advanced – Effective Listening Course (4 weeks) Robert Pereira”

  1. [83]
    It is difficult to see why the father would need to know such information about the trustee or how such power signoffs could enhance communication between them. 
  2. [84]
    There does exist one email in evidence, an email of 30 April 2019, in which the trustee invited the father to discuss strategic matters.[45]  Making a virtue of necessity the trustee’s counsel placed much reliance on this email, in support of the submission that she “has reached out”.  However, examination of the context and tone of that email’s remarkable language, demonstrates it was likely to provoke animus, not consultative communication.  The email addressed five subheadings, namely “Lexus vehicle”, “House”, “Estate assets”, “Children’s wellbeing” and “Expenses”.  The discussion of the Lexus vehicle was essentially the trustee’s explanation for having sold the mother’s Lexus motor vehicle.  The discussion of the house, namely the Cultivation Close residence (returned to in another context later in these reasons) informed the father the house would need to be sold at the end of the lease if he was unable to maintain aspects of it.  Under the third heading, Estate assets, the trustee wrote:

“I have previously asked you to advise a suitable time to discuss strategic strategies for other estate assets.  If you do not respond to this communication.  I will not be communicating again re this matter.”

  1. [85]
    Exactly what the trustee meant by strategies “for other estate assets” is not clear but, given the earlier references to the Lexus vehicle and the house, it does not jump out as a generalised invitation to discuss long-term planning for expenditure by the trust in the best interests of the children’s upbringing.  In any event, it was expressly a once-off offer with the trustee indicating she would not communicate again on the matter.  That the father may not have responded on this occasion in 2019 scarcely meant the trustee would be justified in not trying to raise strategic issues with him  ever after.
  2. [86]
    If threatening such a future approach was not enough to deter a response, the remainder of the email certainly was.  Under the heading “Children’s wellbeing” the trustee wrote, in language verging on that of an estranged co-parent:

“It is clear from my visit on Sunday that you have now turned the children against me alongside anyone else from Rose’s family.

Rose always advocated equal access to the children, she did not go for a custody arrangement as she wanted the children to be with whoever they were happy with.

This weekend apart from being ignored, it was the first time the three little ones did not ask again when can we come to the farm.

At a previous visit in the children’s words ‘Dad hates you.” why is that?  “Dad hates everyone on Mums side of the family.  He only likes his side of the family’.  You have obviously told them now they are never coming to the farm again.  From what I have heard and witnessed in the past, this is nothing short of emotional abuse.  I have over the past five years given freely of my time to [the mother] and wasted a lot of time trying to work in with everyone concerned and I am no longer in a position professionally and personally to do so.  It is time to refocus on my businesses and not spend quality time concerned about other people’s failures.

You have two friends trying to help you with your wellbeing and the childrens wellbeing and it is apparent from the children’s behaviour you are not taking any advice or support being offered.  I will now take action to gain legal access to the children so all matters concerning the children can be brought to a head as swiftly as possible.”

  1. [87]
    It is notable in passing that on the father’s account the children were tiring of having to have contact with the trustee.  That would not be a surprising turn of events – time moves on, children grow older, the allure of imposed adult company fades. 
  2. [88]
    In any event, the present point is that the language and tone of this email would have tended to deter a communicative, let alone a consultative relationship.  After dealing briefly with the topic of “Expenses”, the email closed with these spiteful words:

“Also anything I may have said about you in the public space is nothing but the truth.  Unfortunately some people don’t like the truth when it inconveniences them.”

That the trustee’s affidavit and her counsel seized upon such an appalling email as evidence of her supposedly trying to discuss strategic matters with the father speaks eloquently of the dearth of evidence that she was genuinely attempting to consult the father on strategic matters.[46] 

  1. [89]
    The father deposes that as he progressed through the email he “switched off”, feeling like the only content in the email was the trustee attacking him.  He deposes that because she had in “almost all communication showed arrogance, condescension, ignorance and vitriol” that he saw no point in attempting to undertake discussion with her.  He deposes:

“I had just gone through hell, with separation and divorce from [the mother], and then her death, and struggling financially because I committed myself to caring for my children, to then be preached and dictated to about how to raise my children, and how to manage my life in the way the trustee does, was and is intolerable.”[47]

  1. [90]
    It was submitted for the trustee that, even if the trustee is replaced, the father’s sense of humiliation in having to deal with a trustee will continue.  I reject that submission.  It is inherently unlikely that a trustee administering the trust independently of any emotional link to the parties will communicate in a way which deters positive engagement and leaves the father feeling humiliated.
  2. [91]
    It is as well to acknowledge at this point that the trustee may have had good reason to have a poor personal opinion of the father and that he may by his own conduct have provoked such an opinion and contributed to dissention between them. 
  3. [92]
    In an application to remove a trustee care must be taken in having regard to a state of dissention between the protagonists.  Macrossan J explained the point in this way in Re Whitehouse:

“As was pointed out in Forster v Davies (1861) 4 De G. F. & J. 133, it will be necessary to enquire further to see who was to blame for any dissention since otherwise the cestuis que trust will be placed in the falsely powerful position of being able to raise a dispute with their trustee and then apply for his removal.”[48]

His Honour went on to acknowledge that whilst the trustee’s disputes with the beneficiaries in that case were, in part, due to unavoidable clashes of personality, he nonetheless considered that the state of animosity that existed was attributable to the trustee “to an extent sufficient to make me apprehensive as to his future administration of the trust”.[49] 

  1. [93]
    I approach the present matter alive to the possibility the father’s conduct, including his role in legal disputes with the trustee, and clashes of personality may have materially contributed to the state of animus between him and the trustee.  But, even if that possibility was the real state of things, it is apparent from the communications by the trustee quoted in these reasons, that the real state of things and the dissention it involved was also materially attributable to the trustee. 
  2. [94]
    In any event, while the animus between them may have contributed to the trustee’s adverse personal feelings towards the father, the inference is irresistible that she permitted those personal feelings to infect her regard for the importance of the position the father held relative to the children and their welfare.  Whatever she thought of him personally, he was their sole parent.  By virtue of that position, he was the central and obvious source of relevant knowledge about what was in the children’s interests. 
  3. [95]
    Any assessment by the trustee of the children’s interests in administering the trust was, of course, made in the financial context of deciding what funds needed to be expended for their benefit as beneficiaries.  However, in order to be sufficiently informed of those needs it was not enough to make a financial decision in the abstract, without regard to the welfare and happiness of the children.[50]  For so long as the children were minors, being raised within a family unit by their father, their sole living parent, it was inevitable and obvious that he had intimate and informed knowledge of what was in the interests of the children’s welfare and happiness. 
  4. [96]
    The trustee was not a member of their family, living together in the same home as them, let alone the head of that household, caring for them and raising them as their sole living parent.  Her knowledge, gleaned from her occasional contact with the children and their schools, was no substitute for that of the father in considering what was in the children’s interests.  The father’s central position in the children’s existence made him an unavoidably important person to try to consult whenever the trustee, in administering the trusts, was intending to make important decisions bearing upon the children’s welfare. 
  5. [97]
    There is no evidence of the trustee having genuinely pursued consultation with the father before making such major decisions as reducing the children’s general expense funding by over three quarters, buying two residential properties in 2020 intending at least one of them to become “an alternate residence suitable for the family to use as their home”,[51] not re-letting the Whela Close property (after it fell vacant in May 2021) in order to be able to move the family out of Cultivation Close to Whela Close and not agreeing to fund the children to live and be educated in Brisbane. 
  6. [98]
    None of this is to suggest the father would always have been responsive or that the wishes of or the information gleaned from the father would have been determinative in the trustee’s decision making.  The point is that her repeated failure to genuinely attempt to consult the father on matters of importance to the children’s welfare shows she was not seeking to sufficiently inform herself about what was in their best interests in order to administer the trust for their benefit.

Trying to impose a move out of Cultivation Close to Whela Close

  1. [99]
    It will be recalled the lease of Cultivation Close rent-free to the father and children was for a fixed term commencing 14 July 2018 ending 13 July 2021[52] and that the trustee unsuccessfully tried to evict them at the end of the term.  Despite the trustee’s failure to enforce that eviction in the QCAT proceeding it is tolerably clear that as the owner landlord the trustee was legally entitled to evict them because the lease was at an end.  The decision to evict them attracted attention in this proceeding in the context of whether the trustee properly considered the children’s welfare in making the decision. 
  2. [100]
    It will be recalled that the Cultivation Close residence was the mother’s home prior to her death in August 2017 and thus the home at which the children had resided in the course of their mother exercising her shared custody of them with the father.  They resumed living there again from mid-2018.  The children’s growth heights were marked on a door post, R had built sizable bird aviaries on the property to breed lorikeets, the spacious house, pool and large yard was enjoyed by the children and their friends.  In short, the property had long been the children’s family home.  The decision to make the family leave was therefore destined to be a controversial decision.
  3. [101]
    A feature of this aspect of the case attracting voluminous attention in the evidence was the problems posed by the father’s poor maintenance of the property and the alleged impact of that upon its value.  While such evidence was relevant it requires no detailed elaboration here, there being other more influential considerations, particularly the more longstanding reason why the trustee did not want the family to continue residing at Cultivation Close and the trustee’s failure to genuinely attempt to consult the father about where the family should live. 
  4. [102]
    Regardless of whether maintenance issues emerged it appears the trustee had never intended to let the family live at Cultivation Close for longer than the term of the three-year lease.  As much was admitted by the trustee who deposed, as some of her reasons for offering the fixed term lease in the first place:
  • “I was not willing to allow the Cultivation Close property to be the primary residence of the [children] indefinitely as it was an expensive property, requiring substantial ongoing maintenance and upkeep and represented a significant portion of the total value of the Estate.”
  • “I considered a fixed term of 3 years was reasonable to allow the … children time to adjust and transition following the death of their mother;”
  • “At the expiration of the fixed term period, I intended that the Trust would have had sufficient time to purchase an alternate residence suitable for the family to use as their home, but at less cost to the Trust.  This would allow Cultivation Close to be sold and the sale proceeds used for income producing purposes.”[53]
  1. [103]
    None of this is surprising.  It is entirely consistent with the trustee’s continuing plan to implement the mother’s aspiration of one house for each child in adulthood.  Keeping a property as valuable as Cultivation Close for the family to live in rent free for many years would have made that long term plan materially more difficult to achieve. 
  2. [104]
    The trustee does not depose that she informed the father at the outset of the lease of the above reasons for why it would only be a three-year lease.  The father deposes he had never thought of the Cultivation Close home as an investment but rather as a secure home for the children for their childhood as long as they wished to live there.[54]  However, the trustee deposes when she told the father about the time of entering into the lease about the lease’s terms that the father indicated he preferred the estate sell Cultivation Close and they move into a more affordable property in the next three to five years.[55]  The father deposes that he recalls no such conversation, explaining that he may at most have acknowledged the accommodation arrangements would need to be reviewed in the future having regard to what was best for the children and the location of their schools.[56] 
  3. [105]
    This arguable evidentiary conflict received no particular attention at the hearing and it need not be resolved.  Even if the conversation happened as the trustee deposes, it does not alter the prospect that different preferences may have emerged during the period of the lease for good reasons which the trustee may have been unaware of if she did not continue to consult the father from time to time on the topic of where the family should live.  There is no evidence of any genuine attempt at such consultation having been made by the trustee after the commencement of the lease. 
  4. [106]
    It will be recalled that as part of the trustee’s continuing plan to implement the mother’s aspiration of one house for each child in adulthood the trustee had acquired the Whela Close property on 11 August 2020.   By this time she already had in mind using a smaller, cheaper property than Cultivation Close, as Whela Close is, to house the family in.  As much is obvious from the content of the combative email sent by the trustee to the father on 30 April 2019.  That email, discussed earlier in these reasons, addressed a number of subheadings, one of which was “House”.  Under that subheading the email wrote:

“As the adult guardian of the children if you are unable to maintain electricity, house, pool and yard … maintenance, as per

  • any normal tenancy ([the father’s] contribution) and
  • the estate settlement conditions

by December 2019, I now place you on notice as guardian that the house will need to be sold (at the end of the lease period) and downsize to an asset that can be totally afforded by the Estate.  The children will always have a roof over their head.  One does not need a pool, five bedroom house and four bay shed to raise happy and healthy children.  You just need in equal amounts a lot of love, a lot of hard work and good parenting.  Our children (and many others) were raised in three bedroom block homes of 120m2.  They are socially responsible, well mannered respectful adults today.”

  1. [107]
    This aspect of the email heralds the trustee’s incorporation of the issue of the father’s poor maintenance of Cultivation Close as an additional potential reason supporting the execution of the trustee’s pre-existing intention to move the family to another property at the end of the lease. 
  2. [108]
    The email of 30 April 2019 was the only email expressly flagging the non-renewal of the lease until the trustee’s solicitor gave notice thereof on 9 July 2021.  There was an email sent by the trustee to the father on 22 July 2020 which arguably had some implied relevance to this topic.  It attached a market appraisal report which recommended, to obtain maximum price for the property, consideration should be given to the following:
  1. “–Residence must be professionally cleaned and repainted throughout internally.
  1. –New kitchen and bathrooms be considered.
  1. –Timber pool decking be re-oiled, and any damaged timbers replaced.
  1. –Replace damaged pool cover if required.
  1. –Residence be washed down externally.
  1. –Driveway be cleaned and gardens re-established to manicured.
  1. –All fencing be checked and any damage be repaired or replaced.”

The appraisal report forecast a substantial difference in price expectation dependent upon whether such works were performed.[57]  The trustee’s email asserted it was evident the property had deteriorated due to lack of care and neglect and explained that the property had been placed with a local real estate agency “to manage for the duration of the lease”. 

  1. [109]
    That email, considered with knowledge of the email of 30 April 2019, arguably implied the lease of Cultivation Close was unlikely to be renewed.  But it was not an attempt to engage with the father to seek any views or information from him.  It merely told him what the trustee had decided would be happening.
  2. [110]
    The trustee’s solicitor wrote to the father on 9 July 2021, notifying him that the trustee would be serving a notice to leave the Cultivation Close property, requiring vacation of it by 10 December 2021.  The letter explained the trustee would be making available “a suitable residence” for the father and his children to reside in, namely a residential house at Whela Close, Bentley Park.  It was explained the lease over that property would be offered until the youngest child finishes high school in December 2028. 
  3. [111]
    The notice to leave (by 10 December 2021) was issued on 29 July 2021, endorsed as having been issued “without grounds”.  However, the letter of 9 July 2021 provided reasons for the decision not to extend the current lease, namely:
  1. “1.
    the current lease was offered for a fixed term of 3 years to allow a reasonable transition period for the Children, following the passing of their mother, in recognition that the Property was previously [the mother’s] home.
  1. 2.
    the Property has shown considerable deterioration during the rental period.  In this regard we advise, that:

(a)the Trust has had the property regularly valued;

  1. (b)
    the valuation as at October 2019 was estimated to be between $820,000 to $870,000;
  1. (c)
    the valuation as at June 2020 had reduced to $700,000 to $720,000, with cleaning, maintenance and some refurbishment works, being required to increase the value to $800,000 to $850,000; and
  1. (d)
    the valuation as at June 2021 has shown further deterioration.  The current price expectation is $650,000 to $700,000.  Following refurbishment works being completed, including professional cleaning, yard and garden maintenance, repairs, repainting and some refurbishment of areas, the property is expected to increase its value to approximately $840,000 to $890,000.
  1. 3.
    inspection reports undertaken throughout the tenancy period indicate that regular cleaning and routine maintenance is not being undertaken to a satisfactory standard.
  1. 4.
    it is evident that the Property is not suitable as the family residence as the maintenance and cleaning requirements are not able to be met.
  1. 5.
    in addition to the deteriorating value, the Property is:
  1. (a)
    expensive to retain, including with respect to rates and insurance;
  1. (b)
    expensive to maintain, particularly having regard to long term maintenance requirements, the pool and the extensive gardens; and
  1. (c)
    not suitable for ongoing use as the family residence, given the high value of the property and the inability to otherwise utilise this value for income-producing purposes.  It is considered preferable to transition the family to a suitable alternative residence, that will allow capital to be made available for income producing purposes or to meet ongoing regular maintenance expenses for the beneficiaries.
  1. 6.
    given the above matters the Trustee considers that it is in the interests of the Trust and the beneficiaries for the Property to be sold and an alternate residence to be provided for the family’s use.  This will:
  1. (a)
    prevent any further loss of value of the Property.  The Trustee will undertake the necessary works to ensure maximum value of the Property is received prior to sale;
  1. (b)
    allow the family to reside in a more suitable residence with less onerous maintenance and cleaning requirements;
  1. (c)
    reduce Trust expenses associated with the ownership of the Property; and
  1. (d)
    convert this current non-incoming producing asset to a more valuable Trust resource.  The current market is buoyant and the Trustee considers it to be an opportune time to sell.”
  1. [112]
    Paragraphs 2 and 3 of that letter summarise the effect of the voluminous evidence about the topics in those paragraphs which was exhibited by the trustee in this proceeding.  The valuations and inspection reports were all provided by the same real estate agency with whom the trustee dealt in connection with the property for an extended period.  Their reports provided subsequent to the letter were also exhibited and were of a similar theme, though comparatively less objective in their expression.[58] 
  2. [113]
    The father did not seek to litigate the accuracy of the reports, their relevance not being the truth of their information but that it was information known to the trustee.  It is clear from their content and other evidence about the state of the premises[59] that the father does not maintain a clean and tidy home and does little outdoor maintenance.  It is unclear from the reports whether all the works said to be necessary to put the property to market in good condition are specifically a product of the father’s poor maintenance, indeed there is little evidence of the state of the property when the family moved into it.  Accepting though that in the trustee’s eyes the need for at least some of the recommended works derived from the father’s poor maintenance it was evidently not so concerning to her as to have caused her to take earlier eviction action or exercise her right of entry per s 192 Residential Tenancies Act 2008 (Qld) to make repairs or carry out maintenance during the period of the lease.  Further, it is clear from the evidence of works recommended to put the property to market in good condition that it had not been irreparably harmed.  As one market appraiser wrote, “It’s a great property underneath”.  It is likewise apparent that the cost of the recommended works would be far less than the forecast resulting increase in likely sale price.
  3. [114]
    The concerning aspect of the trustee’s decision to evict the family, proffering them the Whela Close property to live in instead, is not that it was inappropriate in making the decision to take into account: the fact of the father’s apparently poor maintenance and its apparent consequences, the fact the lease had only been for three years, or the fact of the trustee’s long term asset planning strategy.  Of course, they were proper matters to consider.  But they did not fall for consideration in isolation.  The concerning aspect is that the trustee did not attempt to engage in genuine consultation with the father before making the decision conveyed in her solicitor’s letter of 9 July 2021.  Once it was accepted, as the trustee properly had, that the welfare of the children required her to fund where they lived, the issue of where they should be funded to live was inevitably an issue about which she should have attempted to consult their father before deciding it. 
  4. [115]
    Instead, the trustee made the unilateral determination not merely that the family should leave Cultivation Close but that they should live at Whela Close.  Of that determination the trustee’s solicitor letter of 9 July 2021 wrote:

“Our client has determined:

  1. 1.
    she will not grant a further fixed term agreement for the [Cultivation Close] Property;
  1. 2.
    she will be serving a Notice to Leave in respect to the Property, requiring you to vacate the Property by 10 December 2021;
  1. 3.
    from 10 December 2021 she will make available to the Children and yourself as guardian, a suitable residence for the family to reside in.  The property that will be made available is a residential house located at … Whela Close, Bentley Park.  This property has four bedrooms, 2 bathrooms, 2 garages, a 2 bay shed and is fully fenced.  Prior to the occupation of this property, you will be required to enter into a new residential lease in the standard form for this property;
  1. 4.
    the Trust will meet reasonable relocation costs to the new property and the cost to relocate R’s bird cages to the new property; and
  1. 5.
    a lease over the new property at Whela Close will be offered until [S] finishes high school in December 2028.”[60]
  1. [116]
    Before the trustee made her determination of the family’s accommodation fate there had been no attempt at consulting the father.  There would be many matters which a trustee, genuinely seeking to be properly informed about the children’s welfare, would have been interested in finding out from the father because of his unique position as the children’s sole parent and only adult within the family unit.  They might for example have included his knowledge or assessment of matters such as:
  • the force of the family’s attachment to Cultivation Close and reasons for it;
  • the physical qualities of Cultivation Close which had been most beneficial to the family unit and to the children in their pursuit of their education, interests and friendships;
  • whether he could advance any credible proposal to remedy his poor pattern of residential maintenance at Cultivation Close;
  • where the family preferred to live in the event they had to move from Cultivation Close and why;
  • the desirability of that alternative residence being rented by the father or owned by the trust;
  • any special needs of the family unit and of individual children and how they may be relevant to the nature and location of a suitable residence;
  • the physical qualities of an alternative residence which would likely be most beneficial to the family unit in the foreseeable future and to the children in their likely future pursuit of their education, interests and friendships.
  1. [117]
    They might also have included more minor matters.  A minor example emerging at the hearing was that the trustee had the inside of the Whela Close house painted after the tenants left, in anticipation the family would move to there, but did not inquire of the father what paint colour preferences the children may have.[61] 
  2. [118]
    It is noteworthy that in respect of those aspects of the Whela Close property which are obviously inferior to Cultivation Close the trustee seems to have rationalised them away as inconsequential.  Whela Close is a four-bedroom home without a pool in densely populated suburbia, whereas, Cultivation Close is a five-bedroom home with a pool on a much larger block in less densely populated surrounds.  One of the children had two aviaries in the yard at Cultivation Close which the trustee allegedly thought could be maintained at Whela Close but it would be controversial to keep them in a yard as small, in as densely populated surrounds, as Whela Close.[62]  The trustee assumed two of the children could share the same bedroom but one of the twins has ADHD, making their co-habitation impractical and it is unappealing to force either their materially older brother or their much younger sister to become candidates to share a bedroom.  Of course, those are not determinative considerations, but they are the type of matters which the trustee may have developed a more correct understanding of had she consulted the father.
  3. [119]
    By letter of 3 November 2021 the trustee’s solicitor wrote to the father referring to the already issued notice to leave Cultivation Close by 10 December and enclosing a lease to the family for Whela Close of just over one year’s duration.  The letter explained the trustee’s intention was to offer successive one-year terms until the end of 2028 when S “will have finished high school”.[63]
  4. [120]
    Again, before the sending of the lease for Whela Close there had been no attempt at consulting the father about where the family ought live or what type of residence would best meet the children’s needs or desires or for how long it might meet them. 

The Brisbane refusal

  1. [121]
    By letter dated 12 November 2021, nine days after the trustee’s solicitor had sent the father the proposed lease for the family to live at Whela Close, the father’s solicitor wrote to the trustee’s solicitor advising that the father and his family had decided to relocate to Brisbane.  The letter requested an indication that the trustee would provide support by committing to pay for the children’s educational expenses and accommodation expenses. 
  2. [122]
    Some criticism was made at the hearing by the trustee’s counsel of how long after the July service of the notice the father left his request regarding Brisbane.  However, it was the trustee who took the high-handed approach of making the July decision without first attempting to consult the father, for example by double-checking with him where the family wanted to live.  The fact was that the trustee had already left the Whela Close property untenanted and thus not earning income without any assurance from the father that the family wanted to or would move there.  That past loss of potential rental income would not be altered by whatever decision was made regarding the Brisbane request.  In any event, the Brisbane request was made only nine days after the lease for Whela Close was sent and there is no suggestion the trustee needed more time to consider the request than she in fact took before responding.
  3. [123]
    The Brisbane request was in these terms:

“The purpose of this correspondence is to notify your client that [the father] and his children, [R], [Sn], [L] and [Sa] have decided to relocate to Brisbane prior to the commencement of the 2022 school term.

[The father] has engaged us to assist him with obtaining an indication from your client that she will support the move by committing to pay from the trusts the costs associated with the children’s educational expenses and accommodation expenses.

We enclose the Southern Cross Catholic College 2022 schedule of fees and levies together with three suitable rental properties for your consideration.

The school fees and ancillary school costs applicable for the 2022 school year are as follows –

[R] (Child 1)

6,418

[Sn] (Child 2)

4,640

[L] (Child 3)

3,092

[Sa] (Child 4)

2,064

Family Levy

922

Subject Levy for [R]

210

Subtotal

17,346

Uniforms (4 Children)

2,400

School books and supplies

600

School sporting activities

1,200

Sub-Total

17,346 (sic – 4,200)

Grand-Total

$21,546

In relation to accommodation, we enclose three rental proposals for suitable houses in the vicinity of the school, noting the average rental of $800 per week.

If the Trustee prefers to acquire a suitable property in the area for the purpose of accommodating the children, please let us know.

[The father] and the children wish to be moved and settled by mid January 2022.

Please let us have your client’s confirmed commitment to the expenditure set out above as soon as may be.”[64]

  1. [124]
    The trustee decided to refuse this request, communicating her decision through her solicitor on 29 November 2021.  The trustee deposed she “gave careful consideration to this request” and “considered the needs of the beneficiaries as were known to me”.[65]  The evidence shows otherwise.  The qualifying words, “as were known to me”, herald the obvious point that hers was not a properly informed, and thus not a careful, consideration.  She needed more information in order to know what it was about the children’s needs that had led to the request.  The request had not been met with any attempt to consult the father, not even via his solicitor, to seek more information or clarification about the request, such as why the family wanted to relocate to Brisbane and the practicalities of them doing so. 
  2. [125]
    In the refusal letter of 29 November 2021, to the father’s solicitor, the trustee’s solicitor advised the trustee was “not prepared to fund from the trusts those fees set out in” the correspondence of 12 November 2021.  It was explained the trustee had reached that conclusion because:
  1. “1.
    The Trusts have already taken committed to substantial capital steps in acquiring a number of Cairns properties, both for the present and future accommodation of your client and the Beneficiaries, and as an investment for the future benefit of the Beneficiaries, being the properties at:
  1. (a)
    Cultivation Close, Bentley Park;
  1. (b)
    Whela Close, Bentley Park; and
  1. (c)
    Fitzmaurice Drive, Bentley Park.
  1. 2.
    A decision to commit the Trusts to the expenses of accommodation and school fees in Brisbane is not a financially sound decision for the Trusts because:
  1. (a)
    of the substantial increased cost in both the costs of housing, the costs of schooling and the costs of living.
  1. (b)
    the current capital investments in Cairns.
  1. (c)
    the lack of exposure to the Brisbane market of the Trusts, the increased costs of the Brisbane market, and increased costs of management of assets and expenses across multiple cities, and the present investments made in the Cairns region and the achievable returns from those investments.
  1. (d)
    the likely requirement that the Trustee guarantee or enter into a tenancy agreement because your client would be unlikely to obtain a rental property in his own name given:
  1. (i)
    his very poor rental history, which includes multiple evictions from prior tenancies; and
  1. (ii)
    his lack of stable employment history.
  1. (e)
    the increased likelihood of further urgent or unforeseen expenditure in the event that a lease is obtained because of:
  1. (i)
    the risk of damage to any Brisbane rental property, given your client’s failure to maintain the property at Cultivation Close.  That failure your client will be aware led to the acquisition of the property at Whela Close to provide a property with less maintenance requirements.
  1. (ii)
    the potential need for urgent accommodation, given your client’s prior history of evictions from tenancies, and the lack of Trust assets in Brisbane to house the Beneficiaries.
  1. 3.
    There is a lack of a corresponding need by one or more beneficiaries to reside in Brisbane, as opposed to Cairns, for their maintenance, education, advancement or benefit which would justify the increased exposure and further expense of the Trust, and that presently the beneficiaries are doing well academically, socially and in extracurricular activities.  Furthermore, [R] has secured local employment.
  1. 4.
    There is a need to carefully manage and consider not only the present, but future needs of the beneficiaries and the corresponding finite financial resources of the Trusts, so as to be able to also provide for the future benefit of the beneficiaries.”
  1. [126]
    It may be observed at the outset that it is an unremarkable incident of life in a decentralised state like Queensland that, just as some Brisbane families elect to move to live in Cairns, so too do some Cairns families elect to move to live in Brisbane.  Indeed, the trustee knew that when the mother was alive she too had at one stage planned to move with the children for them to live and be educated in Brisbane.[66] 
  2. [127]
    In the present proceeding the trustee’s counsel submitted the trustee’s decision did not prevent the family moving to Brisbane if it wished but that is to ignore the reality of their circumstances.  The trustee knew, and in her administration of the trust had clearly accepted, that the welfare of the children required the trusts to fund their education and housing.  She well knew her refusal decision would likely have the consequence the family could not live in and have the children educated in the city of their choosing.  Her refusal had the practical effect of controlling what city the family could live in, yet she had not so much as asked why they wanted to move. 
  3. [128]
    Her counsel submits the evidence does not support an inference that her refusal was actuated by a desire to control.   It appears that submission was directed to the possibility I would consider the merits of the cross-application and thus considerations such as capriciousness or perhaps conflict.  I need not do so for the cross-application will be summarily dismissed.  While the trustee’s Brisbane refusal had the knowing effect of controlling where the family could live I need express no concluded view as to whether it was that effect which specifically motivated her decision.  The focus of present concern lies with the deficient manner of the decision making, not the mix of motivations driving the decision.
  4. [129]
    The starting point for discussion of the manner of the trustee’s Brisbane refusal begins with the point that it is surely in the interests of the children’s welfare and happiness that they are raised in a family with a secure sense of its own autonomy.  It should have been a very weighty consideration for the trustee, in arriving at her decision, that the family had made a decision of a character which is quintessentially one for a family to make, namely what city it chooses to live in and have its children educated in.  Of course, family autonomy was not an inevitably determinative consideration.  However, its significance highlights how important it was that the trustee take it into account before deciding such a weighty consideration was outweighed by countervailing considerations.  The letter of refusal exhibited no sign it had even been considered, let alone given the significant weight it deserves.  It is noteworthy that even now, after the trustee has deposed in hindsight detail as to her decision making, she does not mention consideration of family autonomy as a consideration with which she grappled in making her decision.[67] 
  5. [130]
    The trustee’s explanation for her decision, given in the refusal letter, turned largely upon the additional cost of housing and educating the children in Brisbane and the supposed lack of corresponding need for that cost to be incurred for the children’s “maintenance, education, advancement or benefit”.  But the Brisbane request letter had not given the reasons why the family was intending to relocate.  The refusal letter’s reference to the trustee’s personal view of how well the children were doing academically, socially and in extracurricular activities and to the fact the child in year ten had some employment, is suggestive of a one sided, not relative or “corresponding” needs assessment.  After all, if they were seemingly good reasons for the family to stay, surely the trustee ought similarly have been interested in what the reasons were for them leaving? 
  6. [131]
    Remarkably the trustee deigned to arrive at a relative needs assessment of the children’s “education, advancement or benefit” without enquiring at all of the father.  She evidently had a high regard for her personal view of what was appropriate for the children’s welfare but not for the inevitably more informed view of their sole parent.  She sought no information from him, not even via his solicitor, about why the family had decided the children should live and be educated in Brisbane and in what ways such a step was in the children’s interests.  Nor did she inquire of him what the likely cost of housing and educating the children in Brisbane would be.  Without such information the trustee could not have conducted a properly informed assessment of whether the benefits of the family’s decision to the children’s welfare and happiness warranted the potential additional cost of the trust supporting it.
  7. [132]
    Her failure to at least try and consult by seeking such information before making such an important decision in the children’s lives - even if only by correspondence in reply - is powerful evidence that the welfare of the children as beneficiaries was not being properly considered by her.   Her counsel argued it can be inferred such attempted consultation would not have assisted, given the father’s past tendency of unresponsiveness to her contacts.  I infer to the contrary.  It was the father who was the initiator of the contact, albeit through solicitors, and the topic of the request made was a very important matter for the family.  He obviously would have provided more information about it if consulted.  I am fortified in so concluding by the fact that, even after not being consulted and having the request refused, he provided more information in support of the trustee reconsidering the request. 
  8. [133]
    Another feature of the explanation in the refusal letter was its reliance upon the father’s poor history as a tenant.  Some evidence of that history was adduced in the present proceedings.  It is reasonable to infer that unfavourable history could complicate the process of the father leasing a home in Brisbane.  But the minutiae of the process of the father securing a lease was the father’s responsibility.  In any event I do not accept the trustee’s counsel’s submissions that the father’s tenancy history presented an insurmountable problem or would have required the imprudent additional cost of retaining reserve accommodation “in case something went wrong in Brisbane”.  There was insufficient information available to the trustee to arrive at any such conclusions.  Whether the father’s tenancy history would in fact have resulted in Brisbane rental agents declining applications or alternatively seeking some above average bond or guarantee from another, and whether that guarantor inevitably would have to be the trustee (as distinct, for example, from a friend or relative of the father) is impossible to know.  It was certainly impossible for the trustee to know back when she made her refusal decision because she did not even try to consult the father to find out what his solutions to the potential complications might be.  In cross-examination her telling explanation for not doing so was, “Unfortunately, prior experience possibly skewed my judgment”.[68]   
  9. [134]
    A further feature of the explanation in the refusal letter was its reliance upon the trustee’s investment strategy of having invested significantly in real estate, specifically in Cairns based residential real estate.  If there was substance to this explanation it would only serve to highlight the risk of so concentrating trust assets, particularly bearing in mind the trustee had acquired and later left one residence untenanted on the assumption, without consultation of the father, that the family would move there.  However, the explanation lacked substance because there remained substantial other assets within the control of the trustee which could be deployed in the short term to cover the potential additional cost of the children living and working in Brisbane. 
  10. [135]
    It is important to appreciate in this context that the total value of assets variously held for the four child beneficiaries was and remains well over three million dollars.[69]  The effective annual increase in the children’s education costs flagged in respect of Brisbane would have been about $9,000 annually.  Relative to overall asset value this was not a particularly significant variation in annual trust expenditure.  It will be recalled, for example, that prior to the 2020 variation in living expense funding that funding had been $24,000 higher annually. 
  11. [136]
    The father’s counsel criticises the absence of any comparative calculation about the increased cost of residing in Brisbane rather than Cairns by the trustee.  But, even accepting that there may have been an increased cost, it was inherently unlikely to be a prohibitively expensive increase relative to overall asset value. 
  12. [137]
    By letter dated 22 December 2021 the father’s solicitor wrote to the trustee’s solicitor, urging the trustee to revisit her decision to decline the request for support associated with the move to Brisbane.  That component of the letter noted:

“[The father] was devastated by the separation, and he suffered terribly.  [He] was further devastated by [the mother’s] death on a personal level, and in regard to the children.  He was left with the sole responsibility for four small children, having to secure suitable accommodation, and run a small business whilst struggling with the emotional load associated with this background.

[The father] committed himself to the care and the support of his children who lost their mother very prematurely when they were aged 11, eight and seven.

[The father’s] decision to cease paid employment for the purposes of devoting himself to the care and support of his children is admirable.  The benefits of his provision of a dedicated stay-at-home sole parent for the purpose of providing a safe, secure and supported childhood are evident in that the children are doing very well academically, socially and in their extra-curricular and outside school activities.

They are happy, well-adjusted kids, thanks to [the father’s] devotion to them.

The children’s needs and happiness continue to be [his] sole focus.

The … family intention to move to Brisbane

Having established a stable emotional environment for the children, and consolidated the sole parent family, the … family now wish to choose where to live for the next stage of their life.

[The father] has identified a range of factors that support the decision that the whole of the family has made, including but not limited to:

  1. 1.
    Brisbane provides a greater choice of educational opportunities for all of the children.

[R] wants to complete university studies in Brisbane.  He is ready to move, and to complete his senior years in Brisbane.  If he wishes to continue his weekend hobby job with Intersport, he can transfer to the Kippa-Ring store which is close to Scarborough.

[Sn] will have in-school access to support specific to his ADHD which he does not have in Cairns.

[L] is particularly excited about their choice of school for the children which provides a convenient transition from primary to high school within the one campus.  He is very unhappy that this might not happen if the family does not have the support of the trust.

All of the children will have the benefit of better transition from high school to university with [the father’s] support nearby rather than all the way from Cairns.

The children will have a greater choice of higher education facilities to meet their various individual needs.

  1. 2.
    The majority of the [father’s] family is located in the Brisbane region: two uncles reside in the vicinity of the area selected by the family as being close to their chosen school.  Other close family members live nearby, including cousins whom the children are keen to get to know better.

Your client’s rationale for refusing [the father’s] reasonable request is wholly disputed.

[The father] disputes the appropriateness of your client’s investment strategy which appears to be confined investing in one relatively illiquid investment sector in residential properties only, located in the one geographical area.  The single type of investment strategy is highly risky and not one that a prudent person properly advised would make, had she taken into account all of the usual relevant factors, and the particular factors obtaining in this circumstance, and had she obtained and implemented independent and impartial investment advice from a reasonably competent investment advisor.

We anticipate that your client has been advised that if she has failed to adopt an appropriate investment strategy, or if she has not exercised her duties to the necessary standard of an ordinary prudent business person, she could be liable to the trust.

[The father] and the children have researched the costs of living and made a comparison between those in Brisbane and those in Cairns, and have found no substantial increase.  The costs of schooling is similar, noting that costs will increase as the children move into higher grades in any event.

The primary purpose of the trusts is to make provision for the children’s health, education and maintenance during their minorities.  The so-called “lack of need of corresponding need” is not an appropriate judgement, the decision to relocate being concerned with the primary matters affecting the health and well-being of minor children, namely their family relationships, their health, and education.

Accordingly, your client’s reasoning is flawed, and she should reconsider.”

  1. [138]
    The letter thereafter advised that in the absence of the trustee’s “reasonable response” to the letter, the father’s solicitor held instructions to apply to have the trustee removed as trustee and relieved of her power of appointment (the letter went on to explain the basis of the foreshadowed application).
  2. [139]
    There was no response to the request to revisit the trustee’s decision.  Yet the request clearly identified good reasons in connection with the welfare of the children in favour of them living in and being educated in Brisbane.  It is difficult to see how those reasons were not enough to persuade the trustee she should agree to fund the children to live and be educated in Brisbane, unless there lingered some concern as the prospective arrangements for funding their accommodation there.  But if that were so it should at least have prompted some attempt at consultation of the father, even if via solicitors.  That did not occur.
  3. [140]
    That the letter of 22 December 2021 did not provoke a change of heart, or at least provoke some consultation, compels the already obvious inference that the trustee’s problematic dual pattern of conduct will continue if she continues as trustee.
  4. [141]
    I acknowledge for completeness that in the course of the hearing it emerged that because R has now commenced year 11 of his schooling the family presently prefer for him to complete year 12 before they move to Brisbane.  That does not alter the relevance and force of the concerning issues identified above.

Conclusion on primary application

  1. [142]
    That the trustee was entrusted with her role by the mother and that replacing her with a solicitor will increase the costs of administering the trust are weighty considerations in favour of the status quo.  Regrettably, despite those considerations and as righteous and loyal to the mother as the trustee doubtless thinks her conduct has been, the trustee’s conduct compels the conclusions that the jurisdiction to remove and replace her has been enlivened and that it should be exercised. 
  2. [143]
    The trustee’s dual pattern of a lack of respect for the importance of the father’s position in the children’s lives and her disinterest in genuinely attempting to consult him about major decisions bearing upon the children’s contemporary welfare has adversely affected her approach to properly informing herself as to the children’s welfare for some time now.   Just how adverse the coalescing impact of that pattern had become was incontrovertibly exposed by the manner of the Brisbane refusal. 
  3. [144]
    When the trustee is making decisions of the highest importance to the interests of the beneficiaries, who are minors being raised in a sole parent family, it is inescapable that the central, most important source of relevant knowledge about those interests is the person in the position of their sole parent.  The trustee has proved herself so unwilling to give that position the weight it deserves vis-à-vis the children’s interests that when making such decisions she fails to even attempt to sufficiently inform herself about those interests by trying to consult the father.  Her failure to try and sufficiently inform herself about what was in the children’s best interests was inconsistent with her obligation to administer the trust for their benefit. 
  4. [145]
    The nature and persistence of the shortcoming, even in the face of the reasonable request of 22 December 2021 to revisit her decision making, is powerful evidence of the probability of a future similar shortcoming.  The entrenched nature of the shortcoming, the trustee’s seeming lack of insight into it and its divisive impact upon the prospect of improved future consultative communication with the father all compel the conclusion that the future welfare of the beneficiaries is opposed to the trustee’s continued occupation of office. 
  5. [146]
    It follows the primary application must be granted.

Summary dismissal of cross-applications

  1. [147]
    On 13 April 2022, three weeks after the filing of the primary application, the trustee filed a cross-application – matter 211/22 – by which, purportedly pursuant s 96 Trusts Act 1973 (Qld), she seeks “directions in respect to” whether her decisions of 9 July 2021 to require vacation of the Cultivation Close property and of 29 November 2021 refusing the funding request associated with the proposed move to Brisbane “is justified”. 
  2. [148]
    Section 96 Trusts Act provides:

“96 Right of trustee to apply to court for directions

  1. (1)
    Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or direction vested in the trustee.
  1. (2)
    Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.”
  1. [149]
    Section 96’s language, in referring to directions concerning property, management, administration and the exercise of trustee power or direction, appears to carry the ordinary meaning that the court directions sought are directions as to prospective future actions by the trustee. 
  2. [150]
    Section 96’s meaning is also informed by s 97 Trusts Act, which provides:

“97 Protection of trustees while acting under direction of court

  1. (1)
     Any trustee acting under any direction of the court shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied.
  1. (2)
    This section does not indemnify any trustee in respect of any act done in accordance with any direction of the court if the trustee has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the direction or in acquiescing in the court making the order giving the direction.”
  1. [151]
    The effect of s 97(1) is to protect the trustee, by deeming a trustee who acts under a “direction” of the court to have discharged the trustee’s duty, unless, as provided in s 97(2), there has been fraud, wilful concealment or misrepresentation in obtaining the direction.  When s 96 is read in light of s 97 it can be seen the obvious purpose of s 96 is to allow a trustee, who is contemplating making a decision to act and who holds some doubt as to whether the action would be a proper exercise of the trustee’s duty, to seek the court’s direction regarding that action.  Armed with such a direction, if the trustee does decide to take the contemplated action, the trustee will have the protection of s 97. 
  2. [152]
    Section 97’s operation in conjunction with s 96 confirms the ordinary meaning identified above.  As Paterson J explained of a like New Zealand provision to s 96, in Neagle v Rimmington,[70] the section “is designed to remove doubts about the propriety of any contemplated course of action”.
  3. [153]
    In contending for the application of s 96 to the trustee’s past decisions the trustee’s counsel urged that the utility in the proposed directions was the future protection of the trustee from liability in the event that in the future the children pursued her personally for a breach of trust.  However, it is open to a trustee seeking such retrospective protection for past conduct, to do so by meeting the conditions of s 76 Trusts Act, which provides:

“76 Power of court to relieve trustee from personal liability

If it appears to the court that a trustee, whether appointed by the court or otherwise, is, or may be, personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which the trustee committed the breach, then the court may relieve the trustee either wholly or partly from personal liability for that breach.”  (emphasis added)

  1. [154]
    Part of the excusal contemplated by s 76 is for “omitting to obtain the directions of the court”. This confirms the interpretation that s 96 relates to contemplated future conduct, not to past conduct.  As much was also confirmed by these observations of the plurality in Macedonian Church v Eminence Petar[71] (referring to ss 63 and 85 of NSW’s Trustee Act 1925, which correspond respectively to Qld’s ss 96 and 76):

“The legislative scheme, then, is that it is desirable that trustees in doubt as to a cause of action should not proceed with it and seek relief under s 85 afterwards, but rather seek s 63 advice first.  That is because one of the things which a trustee invoking s 85 requires to be excused from is failure to seek s 63 advice.”[72]

  1. [155]
    In the present case, the actions to which the cross-application applies are not apt to s 96 because they are not contemplated actions. They are actions which have already been taken, namely the decision of 9 July 2021 to require vacation of the Cultivation Close property and the decision of 29 November 2021 to refuse the funding request associated with the proposed move to Brisbane.  The trustee’s counsel seeks to avoid that conclusion because the family remains living at Cultivation Close so that the “action consequent upon the decision hasn’t occurred”.  That is not to the point.  It is the decisions already made to which the application expressly relates.  The protection of s 97 could not apply to those decisions because the trustee did not seek directions first pursuant to s 96(1) prior to making those decisions and was not acting under a direction of the court when she made them. 
  2. [156]
    In substance the so-called directions sought by the cross-application would be declarations about the propriety of past conduct.  The court has power to grant declaratory relief but that form of relief was not sought and there are in any event two considerations telling firmly against the appropriateness of such relief in a case like the present. 
  3. [157]
    Firstly, where a trustee is seeking the court’s protection from liability for past conduct the Trusts Act specifically empowers the court to grant such relief in s 76.  That statutory conditions are to be met under s 76 before granting such relief tells against the circumvention of s 76 by the exercise of a general power to make declarations.[73] 
  4. [158]
    Secondly, declarations should not be made unless there is some utility in making them.[74]  At the time of the filing of the cross-application the primary application and the affidavit of the father in support of it had already been filed.  It was obvious from the content of that affidavit that, in determining that application to remove the trustee, this court would need to consider the two decisions of 9 July 2021 and 29 November 2021.  It was also obvious that, as important as the propriety of those two decisions was to the primary application, the application to remove the trustee also required consideration of broader aspects of the trustee’s conduct.  The cross-application thus had no utility as a potential vehicle for a preliminary hearing which might supersede the need for the determination of the application to remove the trustee.  Nor did it have potential to shorten the hearing of that application, for it inevitably would not have been, and was not listed to be, heard prior to the primary application.  Those considerations all demonstrate the absence of utility in the application if it were treated as an application for declarations. 
  5. [159]
    Further to all of these reasons why the cross-application should be summarily dismissed, the application failed to meet a threshold requirement of s 96, namely that the application is made “upon a written statement of facts”. 
  6. [160]
    The evident purpose of s 96(1)’s requirement of a written statement of facts is that the court will know upon what facts it is to proceed to give the directions sought.  It may be that the facts upon which the court is asked to proceed are regarded as uncertain or wrong by parties other than the trustee but that does not of itself preclude a s 96 application for, rather than resolving a factual contest, the Court simply assumes the written statement of facts to be true for the purposes of the application.[75]  If it transpires there has been misrepresentation or wilful concealment of the facts upon which the court’s direction is procured then the effect of s 97(2) is that s 97(1)’s indemnity of the trustee will not apply.  That a s 96 application is to be determined on the premise of the statement of facts’ accuracy explains why courts have observed, for such an application, it is not apt to resolve issues involving substantial factual disputes or allegations of breach of trust.[76]
  7. [161]
    No document styled as a “written statement of facts” accompanied the present application or the material subsequently filed in support of it.  Single judge decisions of this court have, from time to time, taken a liberal view as to whether the written material before the court comes within s 96’s meaning of “a written statement of facts”.  So, for example, in Sneath & Anor v Sneath & Ors[77], the court treated the affidavits as a written statement of facts in circumstances where there was some divergence of fact in them, but the applicant was content for the facts to be taken at their most favourable to the aggrieved first respondent.  In Kordamentha Pty Ltd & Anor v LM Investment Management Limited & Anor[78] Martin J, noting the Court’s function under s 96 was not to decide disputed questions of fact, proceeded on the basis the applicant’s written outline of submissions and draft statement of claim contained the written statement of facts.  In Nofz as executor of the estate of Henry Matthew Fitzgerald (dec) v Kane & Ors[79] affidavit material was treated as constituting the written statement of facts but the factual content of the affidavits was not materially inconsistent.[80]
  8. [162]
    In each of those cases, there was clarity or consensus as to the factual basis, contained in written materials before the court, upon which the court was asked to give directions.[81]  There is no such clarity or consensus here.  As much is well illustrated by the fact that pp 7 to 10 of a “statement of agreed facts and facts in genuine dispute” filed by the parties identifies a substantial list of disputed facts. 
  9. [163]
    The cross-application cannot be said to have been made “upon a written statement of facts”.  That provides a further, indeed a threshold, reason why the cross-application should be summarily dismissed.

Orders

  1. [164]
    It will be necessary to hear the parties as to costs. 
  2. [165]
    This hearing proceeded in open court and no application has been made for any non-publication order.  However, in an era when court decisions are published online, it appears to be in the interests of the children’s privacy that the Court not broadcast searchable identifying information in publishing its judgment.  To that end these reasons did not identify the children or the parties by name.  I will publish two copies of these reasons and the orders made to the parties, one of which will redact the coversheet and order content which tends to identify the parties and children.  I will make orders ensuring only the redacted version may be published without constraint.
  3. [166]
    My orders should allow for liberty to apply to allow for the prospect any broader non-publication is sought and of any unforeseen logistical issues in connection with the orders.
  4. [167]
    My orders are:
  1. 1.
    The application in matter 211/22 is dismissed.
  1. 2.
    The application in matter 161/22, to remove the existing trustee and executor and in substitution appoint Renee Anne Bennett, is granted on the terms ordered in order 6 hereof.
  1. 3.
    I will hear the parties as to costs at 9am 2 September 2022.
  1. 4.
    The part of this decision’s reasons identifying the parties in the coversheet and the content of order 6 hereof be redacted in any publication of these reasons and orders, except for their publication between or to the parties, Renee Anne Bennett and a Court and for the purpose of Renee Anne Bennett assuming and performing her role as administrator and trustee.
  1. 5.
    Liberty to apply on the giving of two business days notice in writing.

REDACTED

REDACTED

Footnotes

[1] See, eg, T1-4 L38.

[2]Matter 161/22 Court doc 10 Ex 36.

[3]Elovalis v Elovalis [2008] WASCA 141 [30], [40].

[4][1982] Qd R 196.

[5][1982] Qd R 196, 200.

[6]See, eg, Matter 161/22 Court doc 3 Ex JPD1 at p 12 [5.1] and the broad power relating to maintenance and advancement at pp 19-20 [2.1].

[7]Hartigan Nominess P/L v Rydge (1992) 29 NSWLR 405, 431.

[8]Hartigan Nominess P/L v Rydge (1992) 29 NSWLR 405, 427.

[9]See, for example, the reasoning relating to superannuation trustees in Finch v Telstra Super Pty Ltd (2010) 242 CLR 254, 280-281.

[10]Letterstedt v Broers (1884) 9 AC 371, 387.

[11](1936) 54 CLR 572.

[12](1936) 54 CLR 572, 580-581.

[13]T1-41 L27.

[14]I say “purported” because her decision-making about the extent and nature of the funding provided has not always been consultative of the father.

[15]Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 427.

[16]Matter 161/22 Court doc 10 Ex DMS56.

[17]Matter 161/22 Court doc 10 Ex DMS57.

[18]Matter 161/22 Court doc 10 [170].

[19]Matter 161/22 Court doc 10 Ex DMS88.

[20]Matter 161/22 Court doc 10 [173].

[21]Matter 161/22 Court doc 10 [174].

[22]T1-32 LL20-27.

[23]Matter 161/22 Court doc 10 Ex DMS65.

[24]Matter 161/22 Court doc 10 Ex DMS65.

[25]Matter 161/22 Court doc 3 Ex JPD14.

[26]Matter 161/22 Court doc 3 Ex JPD15.

[27]T1-39.

[28]Matter 161/22 Court doc 3 Ex JPD11.

[29]Matter 161/22 Court doc 10 p 7.

[30]Matter 161/22 Court doc 10 p 5.

[31]Matter 161/22 Court doc 10 Ex DMS30, p 8.

[32]Matter 161/22 Court doc 3 Ex JPD20 [72].

[33]T1-48 L35.

[34]Matter 161/22 Court doc 10, p 27.

[35]T1-38 L39.

[36]Matter 161/22 Court doc 10, p 22.

[37]Matter 161/22 Court doc 10, p 23.

[38]Matter 161/22 Court doc 10, p 24.

[39]Matter 161/22 Court doc 10, p 23.

[40]Matter 161/22 Court doc 10 Ex DMS80.

[41]Matter 161/22 Court doc 10 Ex DMS81.

[42]Matter 161/22 Court doc 10 Ex DMS82.

[43]Matter 161/22 Court doc 10 Ex DMS83.

[44]Matter 161/22 Court doc 10 Ex DMS84.

[45]Matter 161/22 Court doc 3 Ex JPD17.

[46]Matter 161/22 Court doc 10 [162]; also see matter 211/22 Court doc 2 [32].

[47]Matter 211/22 Court doc 7, p 4.

[48][1982] Qd R 196, 206.

[49][1982] Qd R 196, 206; see also Benson v Deloraine Pty Ltd (2015) 13 ASTLR 156.  Cf TS (by his tutor PS) v Malouf (2010) 5 ASTLR 251.

[50]Titterton v Oates (1998) 143 FLR 467, 481.

[51]Matter 211/22 Court doc 2, p 5.

[52]Matter 161/22 Court doc 3 Ex JPD9, pp 118-126.

[53]Matter 211/22 Court doc 2, p 5.

[54]Matter 211/22 Court doc 7, pp 2-3.

[55]Matter 211/22 Court doc 2, p 5.

[56]Matter 211/22 Court doc 7, p 3.

[57]Matter 211/22 Court doc 2 Ex DMS9.

[58]For instance, the market appraisal of 11 April 2022 spoke without particularity of the kind previously given of the property “being run into the ground” (Matter 211/22 Court doc 2 Ex DMS15) and the author of the rental appraisal of 12 April 2022 declined to give a rental appraisal for the property, “because in its current condition it is not rentable” (Matter 211/22 Court doc 2 Ex DMS16), whereas a previous such appraisal listed the works necessary for the property to be leased (Matter 211/22 Court doc 2 Ex DMS14).

[59]See, eg, exhibit 3 at the hearing (a very recent inspection report) and exhibits DMS6, 7 and 8 to Court doc 2 in matter 211/22 (the complaints of the pool service company).

[60]Matter 161/22 Court doc 3 Ex JPD3.

[61]T1-49 L18.

[62]T1-31 L2.

[63]Matter 161/22 court doc 3 Ex JPD6.

[64]Matter 161/22 Court doc 3 Ex JPD7.

[65]Matter 211/22 Court doc 2, [70].

[66]Matter 161/22 Court doc 3 Ex JPD14, p 143.

[67]See, eg, Matter 211/22 Court doc 2, [70].

[68]T1-53 L12.

[69]Matter 211/22 Court doc 2, p 23.

[70][2002] 3 NZLR 826, 836 [31].

[71](2008) 237 CLR 66.

[72](2008) 237 CLR 66, 83 [36].

[73]Noosa Shire Council v TM Burke Estates Pty Ltd [2000] 1 Qd R 398.

[74]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 618 [28].

[75]Macedonian Church v Eminence Petar (2008) 237 CLR 66, 95.

[76]See Harrison v Mills [1976] 1 NSWLR 42, 44-45; Neagle v Rimmington [2002] 3 NZLR 826, 833.

[77][2014] QSC 152.

[78][2015] QSC 4.

[79][2015] QSC 372.

[80]See also Re GARDA Capital; Re GARDA Funds Management [2019] QSC 279.

[81]Cf Buckingham v Buckingham [2020] QSC 230.

Close

Editorial Notes

  • Published Case Name:

    JPD as Guardian v DMS as Trustee

  • Shortened Case Name:

    JPD as Guardian v DMS as Trustee

  • MNC:

    [2022] QSC 181

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    30 Aug 2022

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Benson v Deloraine Pty Ltd (2015) 13 ASTLR 156
1 citation
Jump To
Cite 1 - (2015) 13 ASTLR 156
Buckingham v Buckingham [2020] QSC 230
1 citation
Jump To
Cite 1 - [2020] QSC 230
Elovalis v Elovalis [2008] WASCA 141
2 citations
Jump To
Cite 1 - [2008] WASCA 141
Cite 2 - [2008] WASCA 141
Finch v Telstra Super Pty Ltd (2010) 242 CLR 254
2 citations
Jump To
Cite 1 - (2010) 242 CLR 254
Cite 2 - (2010) 242 CLR 254
Forster v Davies (1861) 4 De G. F. & J. 133
1 citation
Jump To
Cite 1 - (1861) 4 De G. F. & J. 133
Harrison v Mills [1976] 1 NSWLR 42
2 citations
Jump To
Cite 1 - [1976] 1 NSWLR 42
Cite 2 - [1976] 1 NSWLR 42
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
4 citations
Jump To
Cite 1 - (1992) 29 NSWLR 405
Cite 2 - (1992) 29 NSWLR 405
Cite 3 - (1992) 29 NSWLR 405
Cite 4 - (1992) 29 NSWLR 405
Kordamentha Pty Ltd v LM Investment Management Ltd (in liq) [2015] QSC 4
2 citations
Jump To
Cite 1 - [2015] QSC 4
Cite 2 - [2015] QSC 4
Letterstedt v Broers (1884) 9 AC 371
1 citation
Jump To
Cite 1 - (1884) 9 AC 371
Macedonian Orthodox Community Church St Petka Inc v Petar (2008) 237 CLR 66
4 citations
Jump To
Cite 1 - (2008) 237 CLR 66
Cite 2 - (2008) 237 CLR 66
Cite 3 - (2008) 237 CLR 66
Cite 4 - (2008) 237 CLR 66
Miller v Cameron (1936) 54 CLR 572
3 citations
Jump To
Cite 1 - (1936) 54 CLR 572
Cite 2 - (1936) 54 CLR 572
Cite 3 - (1936) 54 CLR 572
Neagle v Rimmington [2002] 3 NZLR 826
3 citations
Jump To
Cite 1 - [2002] 3 NZLR 826
Cite 2 - [2002] 3 NZLR 826
Cite 3 - [2002] 3 NZLR 826
Nofz v Kane [2015] QSC 372
2 citations
Jump To
Cite 1 - [2015] QSC 372
Cite 2 - [2015] QSC 372
Noosa Shire Council v TM Burke Estates Pty Ltd [2000] 1 Qd R 398
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 398
Cite 2 - [2000] 1 Qd R 398
Re GARDA Capital; Re GARDA Funds Management [2019] QSC 279
1 citation
Jump To
Cite 1 - [2019] QSC 279
Re Whitehouse[1982] Qd R 196; [1981] QSC 245
5 citations
Jump To
Cite 1 - [1982] Qd R 196
Cite 2 - [1982] Qd R 196
Cite 3 - [1982] Qd R 196
Cite 4 - [1982] Qd R 196
Cite 5 - [1982] Qd R 196
Sneath v Sneath [2014] QSC 152
2 citations
Jump To
Cite 1 - [2014] QSC 152
Cite 2 - [2014] QSC 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
2 citations
Jump To
Cite 1 - (2007) 235 ALR 609
Cite 2 - (2007) 235 ALR 609
Titterton v Oates (1998) 143 FLR 467
2 citations
Jump To
Cite 1 - (1998) 143 FLR 467
Cite 2 - (1998) 143 FLR 467
TS (by his tutor PS) v Malouf (2010) 5 ASTLR 251
1 citation
Jump To
Cite 1 - (2010) 5 ASTLR 251

Cases Citing

Case NameFull CitationFrequency
Elks v Melgear Pty Ltd [2023] QSC 1502 citations
Smith v Kennedy [2025] QSC 272 citations
1

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