Application by South Melbourne Continental Pty Ltd - [2018] VSC 398

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 04859

IN THE MATTER OF an application for judicial advice in respect of the THEO TOTOS FAMILY TRUST
-and-
IN THE MATTER OF an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015
APPLICATION BY:
SOUTH MELBOURNE CONTINENTAL PTY LTD (ACN 006 258 573) as trustee for the THEO TOTOS FAMILY TRUST		Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 July 2018
CASE MAY BE CITED AS:	Application by South Melbourne Continental Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 398

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EVIDENCE — Where trust deed lost — Where plaintiff seeks declaration for reconstruction of trust deed and orders for trustee to enter and approve past transactions of trustee — Whether all reasonable efforts to locate trust deed were made — Insufficient evidence of contents of trust deed — Application dismissed — Supreme Court (General Civil Procedure) Rules 2015, r 54.02 — D. R. McKendry Nominees Pty Ltd [2015] VSC 560 — Maks v Maks (1986) 6 NSWLR 34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Grayson Morison	Rankin & Co
Contradictor	Mr P Pascoe

HER HONOUR:

Plaintiff’s application

By originating motion filed 30 November 2017, the plaintiff seeks advice as to the reconstruction of a deed of settlement for the Theo Totos Family Trust (‘the trust’), a declaration that the deed of trust be reconstructed and advice as to whether the plaintiff as trustee of the trust had power to effect ‘the relevant transactions’ pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, or alternatively, an order conferring on the plaintiff the power to enter into the ‘proposed transactions’, pursuant to s 63 of the Trustee Act 1958 and orders approving the ‘relevant transactions’, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

In its final submissions, the plaintiff sought other declarations to those sought in the originating motion, namely, declarations as to the content and execution of the trust deed, including the date of execution, trustee, settlement sum, settlor of the trust and stamping of the trust deed for duty. The plaintiff also sought a declaration that the assets of the trust are held by the plaintiff upon the terms of the deed for the beneficiaries of the trust. No orders were sought in respect of approval of the relevant transactions or powers to enter into the proposed transactions and the plaintiff also did not pursue the relief sought pursuant to s 63 of the Trustee Act1958.

The ‘relevant transactions’ are described by the plaintiff as the running of ‘the business’ on the basis of the operative parts of the trust deed for approximately 35 years, including paying distributions to the principal and secondary beneficiaries of the trust, paying rates in respect of properties it owns and selling property,…

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: [2018] VSC 398
Decision Date: 20 July 2018

CaseChat Overview and Summary

The case of Application by South Melbourne Continental Pty Ltd involved a plaintiff seeking to reconstruct a lost trust deed and obtain declarations and orders for the trustee to approve past transactions. The matter was heard in the Supreme Court of Victoria. The plaintiff, South Melbourne Continental Pty Ltd, had lost the trust deed and was unable to produce it, despite reasonable efforts to locate it. The plaintiff sought relief to reconstruct the trust deed and to have the trustee approve past transactions that had occurred under the trust.

The court was required to determine whether the plaintiff had made all reasonable efforts to locate the trust deed and whether there was sufficient evidence of the contents of the trust deed. The court considered the case law on the issue of lost trust deeds and the requirements for reconstructing such documents. The court also considered the provisions of the Supreme Court (General Civil Procedure) Rules 2015, r 54.02, which govern the procedure for lost documents.

The court found that the plaintiff had not made all reasonable efforts to locate the trust deed and that there was insufficient evidence of its contents. The court dismissed the application and held that the plaintiff was not entitled to the relief sought. The court noted that the case of D. R. McKendry Nominees Pty Ltd [2015] VSC 560 and Maks v Maks (1986) 6 NSWLR 34 were relevant to the issues in the case, and that the principles set out in those cases applied to the present matter. The court concluded that the plaintiff had not discharged the onus of proving that all reasonable efforts had been made to locate the trust deed and that the application should be dismissed.

The court dismissed the plaintiff's application and made no orders. The court held that the plaintiff had not demonstrated that it had made all reasonable efforts to locate the trust deed, and that there was insufficient evidence of its contents. The court also held that the plaintiff was not entitled to the declarations and orders sought, and that the application should be dismissed. The court noted that the case law and legal principles applicable to lost trust deeds supported this conclusion.

Orders