Bigg v King - [2020] TASSC 41

[2020] TASSC 41

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bigg v King [2020] TASSC 41
PARTIES:	BIGG, Neil Patrick
WORRALL, Peter Royston
SJA CUSTODIANS PTY LTD
ZEALRIDGE CUSTODIANS PTY LTD
v
KING, Jacqueline Louise
FILE NO:	1974/2020
DELIVERED ON:	7 August 2020
DELIVERED AT:	Hobart
HEARING DATE:	23 June 2020
JUDGMENT OF:	Wood J
CATCHWORDS:

Equity – Trusts and trustees – Applications to court for advice and authority – Petition or summons for advice – Jurisdiction – Trustees subject to separate removal proceedings on the basis of breach of trust – Trustees sought judicial advice as to whether entitled to and should defend removal proceedings and whether protection should be given in terms of costs – Court has conferred power to give advice and directions – Jurisdiction notwithstanding advice sought in adversarial proceedings alleging improper conduct by the trustees.

Supreme Court Civil Procedure Act 1932 (Tas), s 6(5), (6).
Supreme Court Rules 2000 (Tas), rr 90(f), (i), 604.
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, 237 CLR 66, applied.
Re Johnson v Reed (1909) 5 TLR 92; Dobson v The Salvation Army Supreme Court of Tasmania 15/1983,
referred to.

Aust Dig Equity [1440]

REPRESENTATION:

Counsel:

Applicants: S Taglieri SC
Respondent: S McElwaine SC

Solicitors:

Applicants: Worrall Moss Martin Lawyers
Respondent: Timothy Williams

Judgment Number:	[2020] TASSC 41
Number of paragraphs:	59

Serial No 41/2020 File No 1974/2020

NEIL PATRICK BIGG and PETER ROYSTON WORRALL and
SJA CUSTODIANS PTY LTD and
ZEALRIDGE CUSTODIANS PTY LTD v

JACQUELINE LOUISE KING

REASONS FOR JUDGMENT

WOOD J
7 August 2020

1 There are proceedings on foot brought by Jacqueline Louise King for orders seeking that probate of the will granted to Neil Patrick Bigg and Peter Royston Worrall be revoked, that they be removed as executors and trustees of the estate of the late Stephen James Atkinson, that SJA Custodians Pty Ltd be removed as trustee of SJA Trust, and Zealridge Custodians Pty Ltd be removed as trustee of S Atkinson Family Trust. Ms King is the wife of the late Mr Atkinson and under the will is the primary beneficiary. It is pleaded that Mr Bigg and Mr Worrall breached their duties and obligations in their capacity as executors of the estate and also in their capacity as the directors of the corporate trustees.
2 The respondents to those "removal proceedings" now bring an originating application for the determination of the following questions and/or directions:

"1

Whether, Neil Patrick Bigg and Peter Royston Worrall, SJA Custodians Pty Ltd, and Zealridge Custodians Pty Ltd are entitled to and should defend application number 2885 of 2019;

2

Whether the legal costs incurred by Neil Patrick Bigg and Peter Royston Worrall, SJA Custodians Pty Ltd, and Zealridge Custodians Pty Ltd in application 2885 of 2019 should be paid from the estate of Stephen James Atkinson and/or…

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 Bigg v King

Details

AGLC: Bigg v King [2020] TASSC 41
Case: [2020] TASSC 41
Decision Date: 7 August 2020

CaseChat Overview and Summary

In the matter of Bigg v King, the dispute arose between the trustees of a trust and the beneficiaries, with the case being heard in the Supreme Court of Queensland. The trustees sought judicial advice on whether they were entitled to defend removal proceedings brought against them for alleged breaches of trust and whether they should be granted protection in terms of costs. The beneficiaries, represented by Mr. Bigg, opposed the application, arguing that the court's jurisdiction did not extend to providing such advice in the context of adversarial proceedings where improper conduct by the trustees was alleged.

The primary legal issue before the court was whether it had the jurisdiction to provide the trustees with advice and directions on the defence of the removal proceedings and the associated costs, despite the adversarial nature of the case. The court was required to determine whether the power to give such advice and directions extended to situations where the trustees' conduct was being contested. Additionally, the court needed to consider whether the application for advice was an abuse of process given the adversarial context.

The court found that it had the jurisdiction to provide the trustees with advice and directions, notwithstanding the adversarial nature of the proceedings. It held that the power to give advice and directions was conferred by statute, and this power extended to providing guidance on the defence of removal proceedings and the associated costs. The court emphasised that the adversarial context did not preclude it from exercising its jurisdiction to give advice and directions, provided that the application was not an abuse of process. The court concluded that the application for advice was not an abuse of process and that it was appropriate to provide the trustees with the requested advice and directions.

Consequently, the court granted the trustees' application for advice and directions. It advised the trustees on the defence of the removal proceedings and the associated costs, emphasising that the advice was intended to assist the trustees in managing the proceedings and did not constitute a determination on the merits of the case. The court also noted that the advice did not preclude the beneficiaries from pursuing their claims in the removal proceedings.

Orders