AUSTRALIAN EXECUTOR TRUSTEES LTD -v- ATTORNEY GENERAL (WA) [2015] WASC 439

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 439
Published:	24/11/2015
Case No:	CIV:2530/2015	Heard:	30 SEPTEMBER 2015
Coram:	MARTIN CJ	Delivered:	30/09/15
No of pages:	18	Judgment Part:	1 of 1
Result:	Direction that plaintiff trustee is justified in executing deed of settlement containing certain clauses
Category:	B
PDF Version

Parties:	AUSTRALIAN EXECUTOR TRUSTEES LTD as trustee for the Martu Banyjima Charitable Trust ATTORNEY GENERAL (WA) MAITLAND PARKER as representative of the Beneficiaries of the Martu Idja Banyjima Charitable Trust as defined in the Trust Deed ALEC TUCKER CHARLIE SMITH STEVEN SMITH KEITH LETHBRIDGE MAITLAND PARKER TIMOTHY PARKER DAWN HICKS ARCHIE TUCKER BANJIMA NATIVE TITLE ABORIGINAL CORPORATION RNTBC BHP BILLITON IRON ORE PTY LTD
Catchwords:	Trusts Trustee application for directions pursuant to s 92(1) of the Trustees Act 1962 (WA) Whether trustee justified in entering deed of settlement containing certain clauses Turns on own facts
Legislation:	Charitable Trusts Act 1962 (WA), s 21 Corporations Act 2001 (Cth), s 601WBG Native Title Act 1993 (Cth) Property Law Act 1969 (WA), s 11 Rules of the Supreme Court 1971 (WA), O 58 r 2 Trustee Act 1925 (NSW), s 63 Trustees Act 1962 (WA), s 92
Case References:	Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 Banjima People v State of Western Australia (No 3) [2014] FCA 201 Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening [2009] EWHC 716 (Comm) Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : AUSTRALIAN EXECUTOR TRUSTEES LTD -v- ATTORNEY GENERAL (WA) [2015] WASC 439 CORAM : MARTIN CJ HEARD : 30 SEPTEMBER 2015 DELIVERED : 30 SEPTEMBER 2015 PUBLISHED : 24 NOVEMBER 2015 FILE NO/S : CIV 2530 of 2015 BETWEEN : AUSTRALIAN EXECUTOR TRUSTEES LTD as trustee for the Martu Banyjima Charitable Trust

Plaintiff

AND

ATTORNEY GENERAL (WA)

First Defendant

MAITLAND PARKER as representative of the Beneficiaries of the Martu Idja Banyjima Charitable Trust as defined in the Trust Deed

Second Defendant

ALEC TUCKER

CHARLIE SMITH

STEVEN SMITH

KEITH LETHBRIDGE

MAITLAND PARKER

TIMOTHY PARKER

DAWN HICKS

ARCHIE TUCKER

Third Defendants

BANJIMA NATIVE TITLE ABORIGINAL CORPORATION RNTBC

Fourth Defendant

BHP BILLITON IRON ORE PTY LTD

Fifth Defendant

Catchwords:

Trusts - Trustee application for directions pursuant to s 92(1) of the Trustees Act 1962 (WA) - Whether trustee justified in entering deed of settlement containing certain clauses - Turns on own facts

Legislation:

Charitable Trusts Act 1962 (WA), s 21

Corporations Act 2001 (Cth), s 601WBG
Native Title Act 1993 (Cth)
Property Law Act 1969 (WA), s 11
Rules of the Supreme Court 1971 (WA), O 58 r 2
Trustee Act 1925 (NSW), s 63
Trustees Act 1962 (WA), s 92

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: [2015] WASC 439
Decision Date: 24 NOVEMBER 2015

CaseChat Overview and Summary

Australian Executor Trustees Limited, the plaintiff, applied for directions from the court pursuant to section 92(1) of the Trustees Act 1962 (WA). The application was made by the trustee, who sought clarification on whether it was justified in entering into a deed of settlement containing certain clauses. The Attorney General of Western Australia, the defendant, contested the application. The court was required to determine whether the trustee was justified in entering into the deed of settlement, and whether the clauses in question were consistent with the trustee's duties under the law.

The court considered the nature of the trustee's duties and the specific clauses in the deed of settlement. The primary issue was whether the clauses were consistent with the trustee's obligations under the law. The court examined the relevant provisions of the Trustees Act 1962 (WA) and other relevant case law. It was determined that the clauses in question did not contravene the trustee's duties and were consistent with the overall purpose of the trust. The court also considered the specific facts and circumstances of the case, and found that the trustee's decision to enter into the deed of settlement was justified.

The court granted the plaintiff's application for directions, finding that the trustee was justified in executing the deed of settlement containing the clauses in question. The court's decision was based on a careful analysis of the relevant legal principles and the specific facts of the case. The court concluded that the trustee's decision was consistent with its duties under the law, and that the clauses in the deed of settlement did not contravene any legal obligations. The court's decision provided clarity and guidance to the trustee in relation to its duties and obligations under the law.

Orders

Orders of the court

Direction that plaintiff trustee is justified in executing deed of settlement containing certain clauses

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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