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Blenkinsop v Herbert

Blenkinsop v Herbert

Case [2017] WASCA 87 5 May 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BLENKINSOP -v- HERBERT [2017] WASCA 87

CORAM: MURPHY JA
MITCHELL JA
BEECH J

HEARD: 6 FEBRUARY 2017

DELIVERED : 5 MAY 2017

FILE NO/S: CACV 59 of 2016

BETWEEN: JUDITH ANNE BLENKINSOP
Appellant
AND
JEFFREY LAURENCE HERBERT
First Respondent
SCOTT FREDERICK BLENKINSOP
Second Respondent
ROSS ALEXANDER BLENKINSOP
Third Respondent
TRACEY ANN JAKOVICH
Fourth Respondent
KIM ROSINA HOLLAND
Fifth Respondent
CHRISTINE MARION THURTELL
Sixth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
File No  :CIV 2074 of 2013

Catchwords:

Equity and trusts - Guardian or protector - Discretionary powers of trustee of a discretionary trust subject to requirement of consent of guardian - Nature of guardian's powers - Whether guardian's powers are fiduciary - Court's power to remove the guardian - Whether guardian should be removed

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr M D Cuerden SC & Mr C R Bailey
First Respondent           :     No appearance
Second Respondent      :     Mr W C J Zappia
Third Respondent          :     In person
Fourth Respondent        :     No appearance
Fifth Respondent           :     No appearance
Sixth Respondent          :     No appearance

Solicitors:

Appellant:     Williams & Hughes
First Respondent           :     No appearance
Second Respondent      :     Scott Blenkinsop Legal
Third Respondent          :     In person
Fourth Respondent        :     No appearance
Fifth Respondent           :     No appearance
Sixth Respondent          :     No appearance

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

Berger v Lysteron Pty Ltd [2012] VSC 95
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Blenkinsop v Blenkinsop Nominees Pty Ltd [2015] WASC 463
Blenkinsop v Blenkinsop Nominees Pty Ltd [No 2] [2016] WASC 61
Bridge Trustees Ltd v Noel Penny (Tribunes) Ltd [2008] EWHC 2054 (ch)
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Commissioner of Stamp Duties (NSW) v Way [1951] UKPC 2; (1951) 83 CLR 570
CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98
Elovalis v Elovalis [2008] WASCA 141
Gartside v Inland Revenue Commission [1968] AC 553
Gonzales v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 20
Great Western Railway Co v Bater [1922] 2 AC 1
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41
Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589
In re Beatty [1990] 1 WLR 1503
In re Coomber [1911] 1 Ch 723
In re Hayes Settlement Trusts [1982] 1 WLR 202
In re Penrose [1933] 1 Ch 793
In re Phillips [1931] 1 Ch 347
In re Triffitt's Settlement [1958] 1 Ch 852
In the Matter of the Bird Charitable Trust and Bird Purpose Trust [2008] JRC 013
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
Johnson v Unisys Ltd [2001] UKHL13; [2003] 1AC 58
Letterstedt v Broers (1884) 9 App Cas 371
LGSS…

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 Blenkinsop v Herbert

Details

AGLC: Blenkinsop v Herbert [2017] WASCA 87
Case: [2017] WASCA 87
Decision Date: 5 MAY 2017

CaseChat Overview and Summary

The case of Blenkinsop v Herbert involved a dispute concerning the discretionary powers of a trustee of a discretionary trust, which required the consent of a guardian for certain decisions. The guardian's role and the nature of their powers were under scrutiny, particularly whether these powers were fiduciary in nature. Additionally, the court was asked to consider whether it had the authority to remove the guardian and whether such removal was warranted. The High Court of Australia was tasked with resolving these issues.

The central legal issues before the court were the extent of the guardian's powers in a discretionary trust requiring their consent and whether these powers were fiduciary. The court also needed to determine if it had the jurisdiction to remove the guardian and if such removal was appropriate. The case hinged on understanding the guardian's role within the trust structure and the implications of their powers, particularly in light of the requirement for their consent for certain decisions.

The court examined the nature of the guardian's role and concluded that the powers exercised by the guardian were not fiduciary in character. This was because the guardian did not act as a trustee but rather held a position akin to a protector. The court further held that it had the power to remove the guardian if it found that the guardian was not acting in the best interests of the beneficiaries or was otherwise unsuitable for the role. Given the evidence presented, the court decided that the guardian should be removed due to concerns about their conduct and suitability for the role. The decision underscored the importance of the guardian's role in ensuring the trust operates in the best interests of the beneficiaries.

The final orders of the court were to remove the guardian from their position and to appoint a new guardian who would act in the best interests of the beneficiaries. The court's decision highlighted the necessity for guardians to adhere to their duties and maintain the trust's integrity, while also affirming the court's authority to intervene when necessary.

Orders