Allen v Smalberger - [2021] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ALLEN -v- SMALBERGER [2021] WASC 306
CORAM:   MASTER SANDERSON
HEARD:   24 AUGUST 2021
DELIVERED          :   6 SEPTEMBER 2021
FILE NO/S:   CIV 1246 of 2021
BETWEEN:   SUZANNE GAYE ALLEN
First Plaintiff
RIVERSIDE ASSET PTY LTD
Second Plaintiff
AND
THOMAS MARTHINUS SMALBERGER
First Defendant
DAVID PETER SELDEN
Second Defendant
NICOLE MAREE BINGHAM
Third Defendant
KRISTIE LOUISE SELDEN
Fourth Defendant
MARK LIONEL SELDEN
Fifth Defendant

Catchwords:

Trust & perpetual amendment to Trust Deeds for replacement of Appointor - Turns on own facts

Legislation:

Nil

Result:

Declarations made

Category: B

Representation:

Counsel:

First Plaintiff	:	M Curwood SC
Second Plaintiff	:	M Curwood SC
First Defendant	:	Mr A Van der Vyver
Second Defendant	:	JJ Hockley & JW Fickling
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Frichot Lawyers
Second Plaintiff	:	Frichot Lawyers
First Defendant	:	Fort Knox Legal
Second Defendant	:	D'Angelo Legal
Third Defendant	:	Croftbridge
Fourth Defendant	:	Haynes Leeuwin
Fifth Defendant	:	In Person

Case(s) referred to in decision(s):

Mercanti v Mercanti [2015] WASC 297

MASTER SANDERSON:

By originating summons filed 30 March 2021, the plaintiffs sought relevantly the following orders:
1.a declaration that:
(1)immediately upon the death of Peter John Selden, Suzanne Gaye Allen was the lawful trustee, appointor and guardian of the Peter Selden Family Trust;
(2)immediately upon the death of Peter John Selden, Suzanne Gaye Allen was the lawful appointor and guardian of the Peter Selden Family Trust No 2;
(3)as a consequence of the execution of a:
a.Deed of Retirement of Trustee and Appointment of New Trustee; and
b.Deed of Retirement of Appointor and Appointment of New Appointor,
for the Peter Selden Family Trust, that from 6 October 2020 the Trustee of the Peter Selden Family Trust is (and has been) Riverside Asset Pty Ltd, the Appointor, Riverside Asset Pty Ltd, and the Guardian, Suzanne Gaye Allen;
(4)as a consequence of the execution of a Deed of Removal of Trustee, Retirement of Appointor and Appointment of New Trustee and Appointor for the Peter Selden Family Trust No 2, that from 6 October 2020 the Trustee and Appointor of the Peter Selden Family Trust No 2 is (and has been) Riverside Asset Pty Ltd and the Guardian, Suzanne Gaye Allen.
The relevant facts were not in dispute. What follows is taken from the affidavit of the first plaintiff sworn 30 March 2021 and filed in support of the application. There are a number of documents which are relevant to the resolution of this dispute. When summarising the facts, I will refer to these documents in passing and later in these reasons I will come back to individual documents as and when necessary.
Peter John Selden (Peter) passed away on 11 February 2019. The plaintiff had been in a defacto relationship with Peter for a number of years prior to his death. Peter made a will on 17 December 2018. Probate of that will…

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.

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Details

Case: [2021] WASC 306
Decision Date

CaseChat Overview and Summary

The case of Allen v Smalberger was heard in the Supreme Court of Western Australia, where the plaintiffs, Suzanne Gaye Allen and Riverside Asset Pty Ltd, sought declarations regarding the lawful appointment of trustees and guardians for two trusts established by the deceased, Peter John Selden. The first defendant, Thomas Martinus Smalberger, opposed the application. The court was required to determine the validity of various deeds of variation and the appointment of trustees and guardians, particularly in light of Peter's incapacity and death.

The key legal issues revolved around the interpretation and validity of the Deed of First Variation of Trust dated 6 October 2001, the effectiveness of Peter's appointment of Suzanne as his "successor controller," the legitimacy of the July 2011 Deed in amending the definitions of appointor and guardian, and whether Peter's incapacity resulted in the cessation of his role as appointor and guardian prior to his death. The court also had to assess the admissibility of certain medical evidence presented by the second defendant.

The court found that the Deed of First Variation of Trust was valid, and Peter's appointment of Suzanne as his "successor controller" was effective. The July 2011 Deed was deemed invalid as it did not constitute a valid amendment to the trust deed. The court further ruled that Peter had become incapacitated prior to his death, which would have resulted in the cessation of his role as appointor and guardian if the July 2011 Deed had been valid. However, since the Deed was invalid, Peter remained the appointor and guardian until his death. The court also struck out certain portions of the medical evidence provided by the second defendant, finding them to be conclusions of law rather than expert medical opinions.

The court made orders largely in line with the plaintiffs' requests, declaring Suzanne Gaye Allen as the lawful trustee, appointor, and guardian of both trusts upon Peter's death. The court further declared that Riverside Asset Pty Ltd is the current trustee of the Peter Selden Family Trust and the trustee and appointor of the Peter Selden Family Trust No 2. The costs of the application were to be taxed and paid out of the assets of the Peter Selden Family Trust, subject to any objections from the parties within 7 days of the publication of the reasons.

Orders