Broom v Webster - [2015] NSWSC 1128

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Broom v Webster [2015] NSWSC 1128
Hearing dates: 1 and 9 April 2015
Date of orders: 12 August 2015
Decision date: 12 August 2015
Jurisdiction: Common Law
Before: Lindsay J
Decision:
Subject to submissions as to form of orders and costs:

1. Declaration that the plaintiff, the first defendant and the third defendant hold land at Penrith and Camden on trust for the plaintiff and the first defendant arising out of their beneficial entitlements as residuary beneficiaries in the estate of their late father, subject to the plaintiff’s right of residence in one of the three parcels of land at Penrith.

2. Declaration that neither the first defendant nor the fourth defendant has any right, title or interest in the two remaining parcels of land at Penrith (occupied by them as husband and wife) separate from the first defendant’s interest in the trust.

3. Orders for the removal of the plaintiff, the first defendant and the third defendant as trustees of the trust and, with the consent of the parties, for the appointment of an independent trustee (solicitor for the deceased estate) in their stead, with an entitlement to remuneration.

4. Orders for the first defendant and the fourth defendant to deliver up to the new trustee vacant possession of the parcels of land at Penrith occupied by them.

5. Orders for an orderly sale of all trust property, and for distribution of the proceeds of sale to the plaintiff and the first defendant, as soon as may be practicable, subject to accounts being taken.

6. Ancillary orders, and reservation of liberty to apply, regarding:
(a) an accounting for dealings with trust property by the plaintiff, the first defendant and the third defendant.
(b) an allowance by the first defendant, by way of equitable compensation for the restoration of trust property, for his occupation of trust land at Penrith to the exclusion of the plaintiff.

(c) a distribution of trust property to the plaintiff and the first defendant in specie should they agree to such a distribution as a means of winding up the trust in whole or part.
7. Order that the costs of all parties be paid out of the trust estate on the indemnity basis.
Catchwords: EQUITY – Trusts and trustees – Express trusts constituted inter vivos - Real property – Occupied land – Property held on trust - Right of residence given to a beneficiary by deed – Other trust land occupied by another beneficiary – Orders for winding up trust - Adjustment of rights as between beneficiaries
Legislation Cited: -
Cases Cited: Forgeard v Shanahan (1994) 35 NSWLR 205 at 233-224
Lucas v Mok (1983) 9 Fam LR 180 at 184-186
Maguire v Makaronis (1997) 188 CLR 449 at 469
Miller v Cameron (1936) 54 CLR 572 at 580-581
Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 at 575G-576B
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Patricia Ann Broom
First Defendant: Alwyn…

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 Broom v Webster

Details

AGLC: Broom v Webster [2015] NSWSC 1128
Case: [2015] NSWSC 1128
Decision Date: 12 August 2015

CaseChat Overview and Summary

The case of Broom v Webster involved a dispute concerning an express trust established inter vivos over real property. The trust was created through a deed, which outlined specific rights and obligations for the beneficiaries. The dispute arose when one beneficiary exercised their right of residence on the property, while another beneficiary occupied a different portion of the land. The court was tasked with determining the validity of the trust, the rights of the beneficiaries, and whether there was a need for an adjustment of rights or a winding up of the trust.

The primary legal issues addressed by the court were whether the express trust was validly constituted, the interpretation of the terms regarding the beneficiaries' rights, and whether there was a basis for ordering the winding up of the trust or an adjustment of the beneficiaries' rights. The court had to consider the deed establishing the trust, the rights conferred upon the beneficiaries, and the circumstances of the occupation of the trust property by the beneficiaries. The court's analysis involved interpreting the terms of the trust deed and determining how best to balance the rights of the beneficiaries.

The court found that the trust was validly constituted according to the terms of the deed. It further held that the right of residence given to one beneficiary was clear and enforceable. However, the court also acknowledged that the occupation of the property by another beneficiary was an issue that needed to be addressed to ensure that the trust was administered in accordance with the intentions of the settlor. The court ordered that the trust be wound up and the property be sold, with the proceeds distributed among the beneficiaries according to the terms of the trust deed. The court's decision was aimed at achieving a fair and equitable outcome for all parties involved, taking into account the specific circumstances of the case.

The final orders of the court included the winding up of the trust and the sale of the trust property. The proceeds from the sale were to be distributed among the beneficiaries in accordance with the terms of the trust deed. The court also made orders to ensure that the beneficiaries' rights were adjusted to reflect the court's decision, providing a clear and enforceable framework for the future administration of the trust.

Orders