Blenkinsop v Herbert

Case [2017] WASCA 87


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

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Blenkinsop v Herbert [2017] WASCA 87
Case
[2017] WASCA 87
Decision Date

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

Orders of the court

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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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