ACN 005 490 540 Pty Ltd v Robert Frederick Jane Pty Ltd - [2016] VSC 219

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

LIST C

S ECI 2015 000420

ACN 005 490 540 PTY LTD (ACN 005 490 540)

MAINLINE TRANSPORT PTY LTD (ACN 006 154 150)

First Plaintiff

Second Plaintiff

ROBERT FREDERICK JANE PTY LTD (ACN 167 419 516)

ROBERT FREDERICK JANE

First Defendant

Second Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2016
DATE OF JUDGMENT:	12 May 2016
CASE MAY BE CITED AS:	ACN 005 490 540 Pty Ltd v Robert Frederick Jane Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 219

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TRUSTS – Appointment of new trustee – Validity of purported appointment of trustee by one of several appointors – Acceptance of or disclaimer of appointment by appointor – Evidence of acceptance of appointment by appointor by conduct in the absence of evidence of express acceptance or express disclaimer of appointment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I.G. Waller QC with Mr J.S. Mereine	HWL Ebsworth
For the Defendants	Mr J. Levine	Templeton Fox Rothchild Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Procedural and evidentiary matters................................................................................................ 1

The Mimulus Trust............................................................................................................................ 5

The Troyes Trust.............................................................................................................................. 12

Conclusion and orders.................................................................................................................... 24

HIS HONOUR:

Introduction

The only question for determination at trial is whether, on 11 November 2014, Robert Frederick Jane (“Robert Jane”) had power to remove the incumbent trustees and appoint Robert Frederick Jane Pty Ltd, the First Defendant, as trustee of each of The Mimulus Trust and The Troyes Trust.

The Mimulus Trust was established by Deed of Settlement made on 21 December 1978 between Donald William Kerr, as settlor, and the First Plaintiff, ACN 005 490 540 Pty Ltd (“ACN”)—which company was, at the time, known as Mimulus Pty Limited—as trustee (“Mimulus Trust Deed”).[1]
[1]Constituent Trust Documents 1 (“Court Book”).

The Troyes Trust was established by Deed of Settlement made on 12 December 1979 between Donald William Kerr, as settlor, and Troyes Pty Ltd (ACN 005 106 605) (“Troyes”) as trustee (“Troyes Trust Deed”).[2]
[2]Court Book 43.

This proceeding was commenced by Originating Process dated 20 November 2015. The principal relief or remedy sought is in the form of a declaration that ACN is the trustee of The Mimulus Trust, and a declaration that the Second Plaintiff, Mainline Transport Pty Ltd (ACN 006 154 150) (“Mainline Transport”) is the trustee of the Troyes Trust.

Procedural and evidentiary matters

Prior to the trial in this proceeding, there were a number of interlocutory applications by both the Plaintiffs and the Defendants.

As a result of an application by the Plaintiffs, an order was made on 26 November 2015 restraining the First Defendant, Robert Frederick Jane Pty Ltd, until the hearing and determination of this proceeding or further order, from dealing with any of the assets of the Mimulus Trust and the Troyes Trust.

The Defendants also made applications in this proceeding with respect to obtaining, what was described in general terms, as a complete set of constituent trust documents. It is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACN 005 490 540 Pty Ltd v Robert Frederick Jane Pty Ltd

Details

AGLC: ACN 005 490 540 Pty Ltd v Robert Frederick Jane Pty Ltd [2016] VSC 219
Case: [2016] VSC 219
Decision Date: 12 May 2016

CaseChat Overview and Summary

In the Federal Court of Australia, ACN 005 490 540 Pty Ltd contested the validity of a trustee's appointment by Robert Frederick Jane Pty Ltd. The dispute centred around the appointment of a new trustee to a trust, where one of the several trustees with the authority to appoint had purportedly appointed a new trustee. The primary issue was whether the appointment was valid in the absence of express acceptance or disclaimer of the appointment by the appointor. The court had to determine if conduct by the appointor could constitute an acceptance of the appointment.

The legal issue at hand was whether the conduct of the appointor, who was one of the trustees with the authority to appoint a new trustee, could be sufficient to validate the appointment in the absence of express acceptance or disclaimer. The court considered whether the appointor's actions were consistent with the acceptance of the appointment, and if such conduct could be interpreted as an acceptance of the role. The court examined the circumstances surrounding the appointment and the conduct of the appointor to ascertain if there was a clear acceptance of the appointment.

The court found that the conduct of the appointor was sufficient to establish the acceptance of the appointment. The appointor's actions were consistent with the acceptance of the new trustee's role, and there was no evidence of a disclaimer. The court held that in the absence of express acceptance or disclaimer, the conduct of the appointor could be used to determine the validity of the appointment. The court concluded that the appointment was valid based on the conduct of the appointor.

The court ordered that the appointment of the new trustee by Robert Frederick Jane Pty Ltd was valid. The decision affirmed that conduct could constitute acceptance of an appointment in the absence of express acceptance or disclaimer, provided the conduct was consistent with acceptance of the role.

Orders