Brougham v Edwards - [2024] SASCA 59

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BROUGHAM v EDWARDS
[2024] SASCA 59
Judgment of the Court of Appeal
(The Honourable Justice Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)
10 May 2024
EQUITY - TRUSTS AND TRUSTEES - APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES
DEEDS - DEED POLL
The appellant and his father, Peter Brougham, operated the Brougham farm before 2016. The farm had been in the Brougham family for some generations. In 2016 the Brougham Farm Trust Deed was settled, under which Peter Brougham and his wife Pamela Brougham were the appointors and their son, the appellant, was trustee. They and other family members were beneficiaries. The appellant assumed operation of the farm and the associated debts. Pamela Brougham died in 2018.
After the appellant and Peter Brougham fell into dispute, in October 2020 Peter Brougham, exercising his power as appointor under the Brougham Farm Trust Deed, removed the appellant as trustee and appointed himself and the respondent as joint trustees. At around the same time, the appellant as trustee of the Brougham Farm Trust, purportedly transferred the farm to himself, which he effected as a distribution of the capital of the trust in specie. Caveats were lodged.
The matter came on urgently in November 2020 on Originating Application supported by affidavits as it was known that Peter Brougham was gravely ill. The appellant filed a Response and a supporting affidavit. The issues raised by the parties concerned the validity of the removal and replacement of the appellant as trustee, and the validity of the transfer of the farm to the appellant. These were bound up in three essential issues or contentions:
1. Whether the respondent had standing to seek relief.
2. Whether the Deed of Appointment dated 15 October 2020, by which the respondent was appointed, was valid and effective (and the date from which it was valid and effective).
3. Whether the appellant’s Deed Poll purporting to transfer the capital of the trust in specie to himself in his personal capacity was null and void.

These issues were argued at hearings on 10 December 2020 and 2 July 2021, after Peter Brougham had died. The appellant did not raise any new or different issues and only hived off an argument about whether he had a claim under a constructive trust.
After a trial held between late 2020 and early 2022, during which the parties awaited the grant of probate on the deceased estate of Peter Brougham, the primary judge found in favour of the respondent and against the appellant: the Deed of Appointment was valid and the Deed of Transfer was ineffectual because the appellant was no longer trustee when he purported to make the transfer. Declarations and consequential orders were made in the terms reflected in the revised Originating Application.
By this appeal the appellant challenged the basis on which the primary judge exercised jurisdiction as well as the terms of the declarations which were said to be too broad. He contended that it was plain on the material before the primary judge that there were issues about whether the power of appointment was a fiduciary power, and it was necessary to consult the beneficiaries including the appellant, before it was exercised. In addition, the appellant contends that the appointment by Peter Brougham of himself as trustee raises the equitable doctrine of fraud on a power. The appellant contended that the form of the first declaration impermissibly foreclosed the two points now sought to be raised. He sought remittal to agitate these matters in the General Division.
HELD (the Court) dismissing the appeal:
1.There is no issue about jurisdiction.
2.The declarations are not impermissibly broad. Observations made about the need for precision in the drafting of court orders, especially declarations.
3.Given the manner in which the proceedings were framed and conducted, it was incumbent upon the appellant to raise his whole case at trial. By analogy with the principles governing estoppel by omission, or ‘Anshun estoppel’, and the need for finality in litigation, the new case now sought to be raised could and should have been raised at the trial. It is too late to do so now.
4.There is no occasion to consider the principles governing when a new case might be pursued on appeal discussed in Suttor v Gundowda Pty Ltd and Metwally v University of Wollongong.

Administration and Probate Act 1919 (SA) s 69; Real Property Act 1886 (SA) ss 64, 191; Stamp Duties Act 1923 (SA) s 71CC; Supreme Court Act 1935 (SA) s 17; Trustee Act 1936 (SA) ss 36, 37, 91; Uniform Civil Rules 2020 (SA) rr 82, 83, 151, referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Australian Conservation Services Pty Ltd v Liladel Holdings Pty Ltd [2017] ACTSC 162; Baba v Sheehan [2021] NSWCA 58; Battye v Shammall (2005) 91 SASR 315; Burke v Public Trustee for the State of South Australia [2022] SASCA 64; Coulton v Holcombe (1986) 162 CLR 1; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Davies v Minister for Urban Development and Planning [2011] SASC 87; Eckert v Roberts [2021] SASCA 73; Edwards v Brougham [2022] SASC 8; H Stanke & Sons Pty Ltd v Stanke [2007] SASC 282; Hall v Carney (No 3) [2021] SASCA 37; Hsiao v Fazzari (2020) 270 CLR 588; Hudson v Hudson (1735) Cases T. Talbot 127; 25 ER 700; JN Taylor Holdings Ltd (in Liq) v Bond (1993) 59 SASR 432; Karbowiak v Mitolo [2024] SASCA 31; Karger v Paul [1984] VR 161; Kinloch v Manzione [2022] ACTSC 76; Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1; Marshall v Sladden (1849) 7 Hare 428; Mercanti v Mercanti (2016) 340 ALR 290; Metwally v University of Wollongong (1985) 59 ALJR 481; McLennan v McCallum [2010] WASCA 45; Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; Montevento Holdings Pty Ltd v Scafffidi (2012) 246 CLR 325; O’Reilly v Alderson (1849) 8 Hare 101; Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482; Pope v DPR Nominees Pty Ltd (1999) 74 SASR 78; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Re Skeats’ Settlement (1889) 42 Ch D 522; Re Burton; Wily v Burton (1994) 126 ALR 557; Rural Press Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 53; Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146; Skorpos v United Petroleum [2013] SASCFC 117; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; University of New South Wales v Moorhouse (1975) 133 CLR 1; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Wareham v Marsella (No 2) [2020] VSCA 118; Water Board v Moustakas (1988) 180 CLR 491; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10, considered.

BROUGHAM v EDWARDS
[2024] SASCA 59
Court of Appeal – Civil: Livesey P, Doyle JA and Buss AJA
THE COURT:
Introduction

This appeal arises out of a dispute between Mr John Brougham (the appellant) and his father, Mr Peter Brougham, over the control of a trust, being the Brougham Farm Trust and its principal asset, the Brougham farm.
Mr Peter Brougham died in November 2020 and his interests are now represented by the executor of his deceased estate, Mr James Edwards (the respondent). The appellant’s mother and Peter Brougham’s wife, Ms Pamela Brougham, died in 2018. Peter and Pamela Brougham had three children, the appellant, Ms Paula Brougham (the first interested party) and Ms Corenna Sally Brougham (the second interested party). The second interested party did not participate in this appeal.
After the appellant and Peter Brougham fell into dispute, Peter Brougham, exercising his power as appointor under the Brougham Farm Trust Deed, removed the appellant as trustee and appointed himself and the respondent as joint trustees.
At around the same time, the appellant purportedly as trustee of the Brougham Farm Trust, transferred the farm to himself, which he effected as a distribution of the capital of the trust in specie.
By this appeal the appellant challenges two declarations and associated orders made by the primary judge in favour of the respondent (then the applicant) on 2 February and 10 March 2022.[1] On 2 February 2022, and in accord with minutes provided to the judge, orders were relevantly made as follows:
1.     The application is allowed such that the following declarations are made:
a.     The Deed of Appointment is valid, such that Mr Peter Brougham and Mr James Edwards became the Trustees with effect on 15 October 2020.
b.     The Deed of Transfer executed by Mr John Brougham purporting to distribute the capital in specie to himself is null and void on the grounds inter alia that:
i. It was not in writing and not irrevocable as required by cl 11.2 of the Trust Deed;
ii. Mr John Brougham was not at the relevant time the Trustee; and
iii. The Deed of Transfer could not be backdated.
[1]     Edwards v Brougham [2022] SASC 8 (Kourakis CJ) (Reasons).
By the first declaration (1(a)), the appellant’s removal and replacement as trustee of the Brougham Farm Trust by a Deed of Appointment was held to be valid. By the second declaration (1(b)), the appellant’s attempt to transfer the farm to himself was held null and void. On 10 March 2022, following further submissions, additional orders were made as follows:
1. Further to the orders made by the Court on 2 February 2022, the following declaration and directions are made by the Court, however, are stayed pending the determination of the Respondent’s appeal or until further order of the Court:
(i) The Court declares that the Transfer dated 30 October 2020 being the instrument bearing dealing number 13399321 regarding the land comprised in Certificate of Title Volume 5784 Folio 178 located at Section 362 Hundred of Yaranyacka, Lipson, from the Brougham Farm Trust to John Victor Henry Brougham is null and void.
(ii) Pursuant to s 64 of the Real Property Act 1886 (SA), and on the basis of the declarations made by the Court in this matter, the Court directs that the registration of the transfer of the land comprised in Certificate of Title Volume 5784 Folio 178 located at Section 362 Hundred of Yaranyacka, Lipson, from the Brougham Farm Trust to John Victor Henry Brougham registered on 29 March 2021 be cancelled and that the Registrar-General record the cancellation of this dealing.
(iii) The Registrar-General is directed to enter a record of Title with respect to the whole of the land comprised and described in Certificate of Title Volume 5784 Folio 178 located at Section 362 Hundred of Yaranyacka, Lipson noting the Appointment of a New Trustee James Robert Murray Edwards, as trustee of the Brougham Farm Trust, and to register the land in his name.
2. The time for the Respondent to file a cross claim is extended until 5 June 2022.
The chapeau to paragraph 1 of these further orders effected a stay pending appeal. Paragraph 1(i) of these further orders concerns the transfer lodged with the lands title office, purportedly in accordance with the Deed of Transfer (or Deed Poll) referred to at paragraph 1(b) of the orders made on 2 February 2022.
The disposition of the appeal
The appeal grounds, amended shortly before the appeal was heard, contended that there was error in the exercise of discretion under s 91 of the Trustee Act 1936 (SA) (the Trustee Act) because the primary judge made “orders akin to a declaration that the Deed of Appointment was valid for all purposes, and then on that premise [his Honour made] the various ancillary orders … on 10 March 2022”.
Essentially, it was contended that the primary judge acted beyond jurisdiction. At the hearing of the appeal the appellant refined his approach, effectively contending that if there was jurisdiction then the declaratory relief which was granted was expressed more broadly than was appropriate.
For the reasons that follow, there was no issue below about jurisdiction or the breadth of the relief granted. The breadth of the relief granted was appropriate given that it reflect the terms in which relief was sought and the manner in which the proceedings were conducted. Insofar as the appellant now wishes to put forward new contentions regarding issues such as the fiduciary nature of the appointment power, and the equitable doctrine of fraud on the power, those issues were not agitated and needed to be advanced at trial if they were to be relied on. It is now too late to entertain them, including on appeal.
The appeal should be dismissed.
The Brougham Farm Trust
The Brougham Farm Trust is a discretionary trust settled by Deed of Settlement made on 9 May 2016 (the Brougham Farm Trust Deed, or deed).
The appointors of that trust were Peter Brougham and his wife, Pamela Brougham. The trustee was their son, the appellant. They and all persons who are relatives of them for the purposes of s 71CC of the Stamp Duties Act 1923 (SA) are beneficiaries.[2]
[2] Exhibit JRME 3 to the affidavit of James Robert Murray Edwards dated 5 November 2020 (Brougham Farm Trust) clause 7.
Factual background
Although affidavits were filed in the court below, the parties proceeded on the basis of an agreed chronology, supplemented by agreed facts. Most of the affidavits were not received, although most of the exhibits were tendered.[3] What follows is largely taken from what was agreed.
[3] Transcript of Proceedings, Edwards & Ors v Brougham (Supreme Court of South Australia, SCCIV‑20‑004859, Kourakis CJ) (Transcript book (10 December 2021), 27.1-28.30).
The Brougham farm comprises 864 hectares of farming land located between Port Neill and Tumby Bay, 70 km north of Port Lincoln. The farm has apparently been valued at a sum in the order of $4 million.
In May 2016, the registered proprietor of Brougham farm was Mr Peter Brougham. The farm had been owned by the Brougham family for several generations.
It was an agreed fact at trial that Mr Peter Brougham and the appellant were in a business relationship concerning the use of the Brougham farm for the business of primary production for 12 months immediately preceding May 2016. At that stage, Peter was in his early 70s and the appellant in his mid-40s. The retirement of Peter Brougham was in prospect.
On 17 May 2016, Mr Peter Brougham transferred the Brougham farm to the Brougham Farm Trust. The Memorandum of Transfer which was executed between Peter Brougham and the appellant as trustee recorded that the consideration was “no consideration” (the transfer).
At the time, the appellant agreed in his capacity as trustee to accept the transfer on the bases that he agreed to take over responsibility for all debt secured under an existing registered mortgage with the National Australia Bank, and that he would “do all that is required to ensure that Peter [Brougham] is released from all personal guarantees given to any lender and agrees to forever indemnify Peter” in relation to those guarantees and all other debts associated with the farm.
Later that month, on 25 May 2016, the mortgage to the National Australia Bank was discharged and, in addition to the lodgement of the Memorandum of Transfer, a new mortgage with the Australia and New Zealand Bank was registered.
Later still in 2019, that mortgage was discharged, and a new mortgage was registered with Westpac Banking Corporation (Bank SA).
October 2020: purported removal of appellant as trustee and the transfer
When the appellant and his father later “fell into dispute”, Mr Peter Brougham was by then in straitened financial circumstances and the appellant had refused his request for money. There was then a great deal of activity during October 2020, which may be summarised as follows:
1.On 2 October 2020, the appellant saw his solicitor and executed a Client Authorisation for transactions concerning the Brougham farm under the Real Property Act 1886 (SA). He instructed that a caveat be lodged on the Brougham farm title. It is not necessary to address the detail of the caveat save to observe that it referred to the appellant’s interest in the farm pursuant to a constructive trust.
2.Peter Brougham saw his solicitor, and on 15 October 2020 he executed a Deed of Appointment in his capacity as appointor under the trust. By that deed, the appellant was removed as trustee and Peter Brougham and his accountant, the respondent, were appointed as the new trustees.
3.On 16 October 2020, the appellant executed a Deed Poll by which, in his purported capacity as trustee of the Brougham Farm Trust, he distributed the Brougham farm in specie to himself in his personal capacity. The Deed Poll was backdated to 2 October 2020.
4.The appellant was notified of his removal as trustee by a letter from Peter Brougham’s solicitors. The primary judge found that the appellant was apprised of his removal by 21 October 2020.[4]
5.On 30 October 2020, the appellant lodged a Memorandum of Transfer by which he transferred the Brougham Farm from himself in his capacity as trustee, to himself in his personal capacity, for no consideration and, in addition, he lodged a second caveat.
6.On 9 November 2020, Peter Brougham and the respondent executed a deed, pursuant to clause 29.1 of the Brougham Farm Trust Deed, to vary clause 18 so that, on and from the death of Peter Brougham, the respondent would take the office of appointor.
[4] Reasons, [7].
By the time proceedings commenced, it was known that Peter Brougham was terminally ill. He died on 29 November 2020.
The proceedings – the respondent’s three essential contentions
On 5 November 2020, these proceedings were commenced by Originating Application, supported by affidavits, pursuant to r 82 of the Uniform Civil Rules 2020 (SA) (the Uniform Civil Rules).
The applicants were Peter Brougham and the respondent in their capacity as trustees of the Brougham Farm Trust. Initially, they sought orders for the removal of the appellant’s caveats and an alteration to the title of the Brougham farm to record their interest, pursuant to ss 191(d) and 64 of the Real Property Act 1886 (SA) and s 36(1)(d) of the Trustee Act.[5]
[5] Brougham v Edwards & Ors (Pleadings book) page 2.
The matter came on urgently before the primary judge on 12 November 2020 because Peter Brougham was gravely ill.
What was in issue was informed by the affidavit evidence though, as mentioned, much of it was not tendered as evidence in the trial (apart from various exhibits). During debate about what was in issue and what was being sought, senior counsel for the respondent submitted that there were disputes over whether the appellant “was able to distribute the land to himself … and then whether [the then applicants] are now [the trustees]”.[6] Later, she submitted that even if the appellant’s distribution of the land to himself “was valid on its face” there would be issues about “whether or not it was done in good faith, and whether or not there was due consideration given to the other beneficiaries …”.[7]
[6] Transcript book (12 November 2020), 2.32.
[7] Transcript book (12 November 2020), 3.23.
Counsel for the appellant made submissions on 12 November 2020 about the limited scope of what was set out in the Originating Application, “most of what my friend put is outside the compass of the current application”,[8] though he later conceded, “we don’t mind if there is a proper application brought to try and deal with the equitable title”.[9]
[8] Transcript book (12 November 2020), 3.30.
[9] Transcript book (12 November 2020), 4.31.

After further debate about the respective cases of the parties, senior counsel for the respondent made it clear that she was seeking urgent final relief, not interlocutory relief.[10] She then referred to the “ample scope for advice and direction to be sought under the Trustee Act as to those issues” and she sought leave to amend her Originating Application,[11] which was granted.[12]
[10] Transcript book (12 November 2020), 7.20-7.25.
[11] Transcript book (12 November 2020), 7.30.
[12] Transcript book (12 November 2020), 11.2.
On 20 November 2020 the respondent’s amended or revised Originating Application was filed and served, seeking declaratory relief regarding the validity of the Deed of Appointment by which the appellant was removed and replaced as trustee, as well as the invalidity of the Deed Poll by which the appellant purported to distribute the capital of the Brougham Farm Trust to himself in specie.[13] The orders sought included an order listing the matter for “urgent final hearing” and proposed declarations were set out.[14]
[13] Brougham v Edwards & Ors (Pleadings book) page 16.
[14] Brougham v Edwards & Ors (Pleadings book) page 17.
The respondent relied on, amongst other statutory provisions, ss 36 and 91 of the Trustee Act and s 69 of the Administration and Probate Act 1919 (SA) (the Administration and Probate Act). Section 36(1) provides:
36—Power of the Court to appoint new trustee
(1)The Supreme Court may, on the application of a person referred to in subsection (1c), make—
(a)     an order removing one or more of the trustees of a trust; or
(b)     an order replacing one or more of the trustees of a trust; or
(c)     an order appointing a trustee or trustees, or an additional trustee or trustees, of a trust; or
(d)     any other order that in its opinion is necessary or desirable.
The appellant’s Response filed on 4 December 2020 pursuant to r 83.1 of the Uniform Civil Rules, together with a supporting affidavit, did not raise any new or different issues.[15] The Response put into issue whether the respondent had standing to seek relief under s 36 of the Trustee Act, as well as whether orders could relevantly be made under that Act. The Response asserted that the deed of removal and replacement dated 15 October 2020 (otherwise referred to as the Deed of Appointment) was “ineffective” as the power of appointment could only be exercised by Peter and Pamela Brougham “during their lifetimes”.[16]
[15] Brougham v Edwards & Ors (Pleadings book) page 20.
[16] Transcript book (10 December 2020), 16.36-19.30.
By 10 December 2020, after Peter Brougham had died, the respondent’s written outline and oral submissions to the primary judge made it clear that he sought the determination of three issues:[17]
1.Whether he had standing to seek relief.
2.Whether the Deed of Appointment dated 15 October 2020, by which he was appointed, was valid and effective (and the date from which it was valid and effective).
3.Whether the appellant’s Deed Poll purporting to transfer the capital of the trust in specie to himself in his personal capacity was null and void.
[17] Applicant Outline of Submissions 10 December 2020, [20]. Transcript book (10 December 2020), 14.7‑15.36). Reflected in the relief claimed and ruled on by the primary judge, Reasons, [12].
These issues were argued at hearings on 10 December 2020 and 2 July 2021.
The respondent’s written materials and oral submissions on 10 December 2020 addressed the issue of his standing to seek relief pursuant to ss 36(1c)(b) and (1c)(e) of the Trustee Act, which are in the following terms:
(1c)The following persons may apply for an order under this section:
(a)     the Attorney-General; or
(b)     a trustee of the trust; or
(c)     a beneficiary of the trust; or
(d)     in the case of a trust established wholly or partly for charitable purposes the following persons may apply for an order in addition to those referred to in the other paragraphs of this subsection:
(i)a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or
(ii)a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or
(iii)a person who in the past has received money or other property from the trustees for the purposes of the trust; or
(iv)a person of a class that the trust is intended to benefit; or
(e)     any other person who satisfies the Court that he or she has a proper interest in the trust.
During the hearing on 10 December 2020, the need for urgency was questioned given the death of Peter Brougham, and it was pointed out that, though the respondent was executor of the will of Peter Brougham, probate had not been granted.[18] It was determined that the hearing would proceed, but that no decision would be made until probate was granted and the estate was given an opportunity to be heard.[19]
[18] Transcript book (10 December 2020), 20.1-20.30; 21.29-21.34. See also Transcript book (10 December 2020), 22 and 24.11-24.16.
[19] Transcript book (10 December 2020), 23.31-23.34.
Depending on whether the primary judge ruled adversely to him on the three issues earlier outlined, the appellant by his counsel told the court that he proposed to agitate an alternative claim for a declaration of constructive trust over the Brougham farm.[20] (At the hearing of this appeal the appellant made it clear that relief of this kind would be sought regardless of the outcome, though the outcome may affect the form and scope of the relief claimed.)
[20] Transcript book (10 December 2020), 13.14-13.24; 19.29ff.
On 10 December 2020 senior counsel for the respondent told the judge that she brought the application under the Trustee Act, but the court had an inherent jurisdiction and could grant declaratory relief under s 17 of the Supreme Court Act 1935 (SA) (the Supreme Court Act).
The essential contentions advanced by the respondent at this and later hearings reflected the three issues earlier outlined. The parties joined issue on these three, essential contentions as follows.
First, the respondent contended that, even if there were some issue about his appointment as trustee, “at the least” he had a “proper interest in the trust” under s 36(1c)(e) in his capacity as the executor of the last will of Peter Brougham, because under that will non-binding directions were given about how the trust assets should be realised and paid into testamentary trusts for the benefit of Peter Brougham’s children, being the appellant and the two interested parties.[21]
[21] Applicant Outline of Submissions dated 10 December 2020, [33]-[34].
Secondly, the respondent contended that Peter Brougham validly exercised his power as appointor to remove the appellant as trustee and appoint new trustees, including the respondent. The respondent submitted that this could be dealt with “purely by reference to the trust deed, because it’s a construction question.”[22]
[22] Transcript book (10 December 2020), 31.22.
Two arguments were advanced by the appellant against recognition of the respondent’s appointment as trustee. The first was that the requisite power of appointment could only be exercised jointly with Pamela Brougham and, in addition, removal did not take effect until after the appellant was notified of his removal.
The respondent’s answer to the first argument relied upon the proper construction of clause 18 of the Brougham Farm Trust Deed, which assumed that the relevant power could be exercised by a surviving appointor. The respondent’s answer to the second argument relied on the absence of any reference to notice in the Brougham Farm Trust Deed,[23] and the terms of the Deed of Appointment which, by clause 2, removed the appellant “with immediate effect”. Similarly, by clause 3, the new trustees were appointed “with immediate effect”.
[23] Transcript book (10 December 2020), 24.1-24.6.
On these bases it was contended by the respondent that the appellant was validly removed as trustee and that this occurred on 15 October 2020, before the appellant purported to transfer the farm to himself for no consideration on 16 October 2020.
As for his third contention, the respondent said that the appellant could not rely upon the purported distribution of the capital of the trust on 2 October 2020.
The appellant’s submissions in answer commenced with the proposition that the distribution took effect on 2 October 2020 because that was the day he instructed his lawyer that he was exercising his discretion in that manner and executed a Client Authorisation. Accordingly, the appellant claimed that when he later signed the Deed Poll on 16 October 2020, he backdated it to 2 October 2020 at his lawyer’s suggestion because that reflected his earlier exercise of discretion. The respondent answered those submissions as follows:
1.Any distribution was required to be in writing by clause 11.2.1 of the Brougham Farm Trust Deed.
2.The appellant had been validly removed as trustee before the date on which he signed the Deed Poll.
3.The Deed Poll could not validly be backdated and was not expressed to be retrospective in its operation.
4.The deed poll did not in any event comply with clause 11.2.1 of the Brougham Farm Trust Deed because it was not expressed to be irrevocable.
On these three contentions, the respondent sought the declarations set out in his revised Originating Application, confirming his appointment as trustee and disclaiming the appellant’s purported transfer of the farm to himself. Consequential orders were sought, including the removal of any caveat lodged by the appellant.
The primary judge did not reserve his decision at the conclusion to the hearing on 10 December 2020.[24]
[24] Transcript book (10 December 2020), 78.15.
After the appellant’s Response filed on 4 December and the hearing on 10 December 2020, no attempt was made by the appellant to raise any other issues during 2021 or 2022. He did not assert or reserve any other basis for challenging the validity of the Deed of Appointment. That is demonstrated by a reading of the transcript of the hearings before the primary judge during 2021 and 2022, including after the respondent’s status as executor was confirmed by the grant of probate on 30 June 2021, following the death of Peter Brougham.[25]
[25] Transcript book (26 May 2021), 80ff; Transcript book (2 July 2021), 90ff; Transcript book (2 February 2022, 114ff).
The same three essential contentions were reflected in and supplemented by the respondent’s amended Originating Applications dated 22 January and 6 April 2021, as well as by the respondent’s written submissions filed and served on 28 June 2021. It is not necessary to address those in any detail because the same three essential contentions were advanced. The final revision of the respondent’s Originating Application dated 6 April 2021 sought the following orders:[26]
[26] Brougham v Edwards & Ors (Pleadings book) page 28; Brougham v Edwards & Ors (Core appeal book) page 78.
The Applicants seek the following orders:
1.That this matter be listed for urgent final hearing.
2.Declaration that the Deed Appointing New Trustees to the Brougham Farm Trust … is valid such that the First and Second Applicants became the Trustees of the Trust with effect on and from 15 October 2020.
3.In the alternative to 2, orders under s 36(1) of the Trustee Act 1936 removing the Respondent and appointing the Applicants as Trustees of the Trust with effect on and from 15 October 2020, or in the further alternative, from the date of the orders.
4.Declaration that the Deed Poll purporting to distribute the capital of the Brougham Farm Trust, … in specie to the Respondent is null and void on one or more of the following grounds, that:
(a)     Any such distribution was required to be in writing under clause 11.2.1 of the Trust Deed;
(b)     The Respondent was validly removed as Trustee prior to the date on which he signed the Deed Poll;
(c)     The Deed Poll could not be validly back-dated, and is not expressed as being retrospective in operation;
(d)     In any event, the Deed Poll does not comply with clause [11.2.1] of the Trust Deed because it is not irrevocable.
It can be seen that there is a close correspondence between these proposed orders and the orders ultimately made, set out earlier.
At the hearing on 2 July 2021, conducted remotely by reason of the pandemic, argument on the three essential contentions continued. Counsel for the appellant (respondent below) referred to the Originating Application and the Response during this hearing as “the pleadings”.[27] At the conclusion to this hearing, the primary judge reserved his decision.[28]
[27] Transcript book (2 July 2021), 102.22.
[28] Transcript book (2 July 2021), 113.24.
When reasons were delivered on 2 February 2022, time was sought to formulate minutes of order and exchange written submissions on costs. Those matters were addressed on 10 March 2022.
The appellant did not ever file an amended Response. Even by the time of the hearing of this appeal, the appellant had not proposed any amended Response which incorporated the new arguments set out in his revised grounds of appeal.
The reasons of the primary judge
This is an unusual case because the appellant did not ever seek to challenge the detailed findings and rulings made by the primary judge, except perhaps in so far as it was said these went beyond the proper scope of a ruling on an application for advice or direction under s 91 of the Trustee Act and s 69 of the Administration and Probate Act. For example, it was not suggested that his Honour made any error in connection with his construction and application of the terms of the Brougham Farm Trust Deed in his reasons.
First, the primary judge held that the respondent “plainly” had standing to seek a declaration about the validity of his own appointment as trustee.[29] That was not affected or rendered futile by the appellant’s purported transfer of the Brougham farm to himself.[30] The primary judge held that the respondent could therefore bring these proceedings where one of the purposes was to seek relief against the appellant for breaches of the Brougham Farm Trust Deed.[31]
[29] Reasons, [13].
[30] Reasons, [13]
[31] Reasons, [13]
Secondly, on the question whether Peter Brougham was empowered to act unilaterally as appointor, the primary judge commenced with the proposition that, absent a contrary intention, the appointment of two or more persons to an office such as the office of executor under a will is both joint and several.[32] His Honour ruled that the terms of the deed indicated that the position of an appointor was in the nature of an office to which this rule applied.[33]
[32] Hudson v Hudson (1735) Cases T. Talbot 127; 25 ER 700.
[33] Reasons, [21].
The primary judge then gave careful consideration to the terms of the deed, particularly clause 18, finding that on its proper construction it “yields the same result”.[34] His Honour concluded that the appointment of Peter and Pamela Brougham was made jointly and severally for the duration of their respective lifetimes.[35] In the event of the death of either of them, the survivor could exercise the powers of an appointor. His Honour drew on those aspects of the clause which permitted Peter and Pamela Brougham to exercise the powers of an appointor jointly or, on the retirement, relinquishment, or disability of one of them, the remaining appointor may alone exercise the powers of an appointor.[36] The primary judge held that there was no apparent reason why a different result would pertain in the event of the death of one of them.[37]
[34] Reasons, [22].
[35] Reasons, [22].
[36] Reasons, [21].
[37] Reasons, [22]-[26].
On the issue whether the removal of the appellant was effective without notice, the primary judge observed that s 36 of the Trustee Act did not expressly require that a trustee who is to be removed must first be given notice.[38] His Honour pointed out that s 36(2) provided that an order made under s 36 did not operate:[39]
… further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
[38] Reasons, [15].
[39] Reasons, [15].
The primary judge also observed that s 37 of the Trustee Act empowered the court to make an immediate order vesting the real property of the trust in a new trustee.[40]
[40] Reasons, [15].
Moreover, the Brougham Farm Trust Deed contained no provision expressly requiring that notice be given, or that the effectiveness of removal was conditioned on the giving of notice. The primary judge explained why this was unlikely to unfairly prejudice a trustee removed without notice.[41] As he pointed out, a power to remove a trustee will usually be exercised contemporaneously with the appointment of a successor. If removal and appointment were only effective on the giving of notice, an irreconcilable conflict might arise should notice not be given contemporaneously.[42]
[41] Reasons, [14], [16]-[17].
[42] Reasons, [14]
On these bases the judge held that the removal and replacement of the appellant as trustee was valid.[43]
[43] Reasons, [30].
Thirdly, the primary judge held that the appellant’s transfer in specie was ineffectual, because he purported to exercise a power with which he was no longer invested.[44] In case the appellant’s removal was not effective until he had been given notice, the primary judge addressed whether the Brougham farm was distributed before notice was given, finding that it was not.[45] Some of his Honour’s reasons accorded with the way in which the respondent addressed the third essential contention, outlined earlier.[46]
[44] Reasons, [19].
[45] Reasons, [31]-[40].
[46] See, for example, Reasons, [35]-[37].
The grounds of appeal
In response to the orders made on 2 February and 10 March 2022, the appellant relied upon the following revised grounds of appeal:
1.The learned primary judge erred in the exercise of jurisdiction under s 91 of the Trustee Act 1936 (SA) in making orders akin to a declaration that the Deed of Appointment was valid for all purposes, and then on that premise making the various ancillary orders made on 10 March 2022, in circumstances where:
a.The jurisdiction had not been properly invoked by the Respondent (Applicant).
b.The Respondent (Applicant) had not identified or framed any matter, question or issue upon which the Court was to exercise its jurisdiction.
c.There was evidence before his Honour or, alternatively, there was material on the Court file, that supported the contentions that:
i. The Deed of Appointment constituted a fraud on the power.
ii. The Deed of Appointment was improperly made where there was a failure to consult with the beneficiaries of the Trust prior to its exercise.
d.His Honour had only determined two issues of construction of the deed related to the issue of validity of the Deed of Appointment.
2.The learned primary judge erred in going on to make the findings or conclusions set out at paragraph [19] of the Judgment in light of the error made in Ground 1 above.
3.The learned primary judge erred, in the circumstances stated above and the Reasons for Judgment given by His Honour, in making the declaration in paragraph 1(b) of the Orders of 2 February 2022.
Appeal ground 2 refers to paragraph 19 of the primary judge’s reasons and is in the following terms:
The Deed Poll executed by John on 16 October 2020 was therefore invalid in that it purported to exercise a power with which he was no longer invested. John as a beneficiary and volunteer can have no right to the distribution of the [Brougham farm] he made in excess of his power.

Appeal ground 3 refers to paragraph 1(b) of the orders made on 2 February 2022 and was effectively that the Deed of Transfer executed by the appellant purporting to distribute the capital in specie to himself was null and void.
The submissions of the parties: the appellant’s new case
Essential to the appellant’s case on appeal was the proposition that what the respondent was seeking were declarations regarding the validity, or otherwise, of the things done by the appellant and Peter Brougham. These declarations, the appellant contended, must have been sought pursuant to s 91 of the Trustee Act and s 69 of the Administration and Probate Act.
Section 91 of the Trustee Act applies ss 69 and 70 of the Administration and Probate Act to “trustees”, as defined. Section 69 of the Administration and Probate Act empowers the court to give advice or direction as to matters connected with the administration of any estate or trust deed.[47]
[47] See, for example, Hall v Carney (No 3) [2021] SASCA 37, [42]-[43] (Doyle, Livesey and Bleby JJA).
Relying upon recent authority of this Court,[48] the appellant submitted that neither the respondent nor the primary judge made clear the nature of the jurisdiction that was being exercised, nor did the respondent frame any questions upon which the court might make binding determinations, assuming it had invoked the jurisdiction conferred by s 91 of the Trustee Act.[49]
[48] Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [41]-[44] (Livesey P, with whom Doyle JA [373]-[377] and Stanley AJA, [480]-[481] agreed).
[49] Burke v Public Trustee for the state of South Australia [2022] SASCA 64, [42] (Livesey P).
The appellant criticised the breadth of the declarations made, contending that they were much broader than the limited scope of the issues before the court. In this way, the appellant contended that the court misconstrued its jurisdiction under s 91 of the Trustee Act. The appellant contended that the exercise of the court’s power and discretion miscarried because the relief should have been confined to the narrower issues that were determined.
At the hearing of the appeal, the appellant’s position was refined. Senior counsel for the appellant, who had not appeared before the primary judge, accepted that there may have been jurisdiction to proceed under s 91 of the Trustee Act, utilising the advice or direction provision. His point was that this was never made clear and that the declarations were expressed more broadly than was necessary in order to resolve the arguments made about the Deed of Appointment. For example, the first declaration could and should have been expressed in terms that made it clear that the Deed of Appointment was not invalid because the power of appointment was exercised by Peter Brougham alone, and that it took effect without notice to the appellant.
The appellant contended that the Court of Appeal should remit the matter to the General Division for further determination. There were matters yet to be determined that were “plain” from a reading of the affidavits. Though they had not been raised, they were not foreclosed by the unnecessarily wide terms in which the first declaration was expressed. The appellant was not required to raise them where senior counsel for the respondent had referred to the court’s power to determine separate issues and defer the balance for determination under r 151 of the Uniform Civil Rules.[50]
[50] Transcript book (10 December 2021), 28.31.
The first matter relied on by the appellant was that the primary judge did not consider the equitable obligations owed by the appointor to the beneficiaries. The appellant contended that, in the circumstances of this case, the primary judge should have held that the power of appointment was fiduciary in nature.[51] Those circumstances related to the terms of the Brougham Farm Trust Deed, the nature of the obligations arising under the initial Deed of Transfer, and the appellant’s assumption of liabilities associated with it. In short, the appellant contended, he took the transfer on the basis that he was required to assume the liabilities of Peter Brougham (though counsel did not address whether this was done by the appellant only as trustee, or personally).
[51] In Re Skeats’ Settlement (1889) 42 Ch D 522, 527; Re Burton; Wily v Burton (1994) 126 ALR 557, [10]; Pope v DPR Nominees Pty Ltd (1999) 74 SASR 78, 89-90 [46]-[48] (Bleby J, with whom Duggan and Debelle JJ agreed).
Secondly, the appellant contended that prior to executing the Deed of Appointment, Peter Brougham did not take into account the appellant’s position, nor did he communicate his intention to remove him as trustee. The appellant relied on the proposition that it was improper to appoint new trustees without first communicating with the beneficiaries and hearing any objections they may have, “particularly … where, as here, … those beneficiaries would oppose the removal and appointment”.[52] Associated with this, the appellant contended that it was fundamental to the exercise of a discretionary power that the donee (here the appointor, Peter Brougham) give genuine consideration to the exercise of discretion.[53] This required that the donee take into account relevant matters such as the views of the beneficiaries, with the result that, if the donee acted on his discretionary powers without doing so, he would be acting in excess of the power conferred on him.
[52] Appellant Written Submissions dated 8 August 2022, [58]; O’Reilly v Alderson (1849) 8 Hare 101, 103‑104; Marshall v Sladden (1849) 7 Hare 428, 439; Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146, [152].
[53] Karger v Paul [1984] VR 161.
These submissions culminated in the contention that an appointor attracted a higher duty to consider the exercise of a power vis-a-vis the beneficiary of a trust where, as here, the beneficiary had assumed the appointor’s former liabilities. No authority was cited in support of that latter proposition.
Finally, the appellant contended that insofar as the primary judge tried the wider issue of the validity of the Deed of Appointment, he should first have found that the Deed of Appointment by which the appellant was removed and replaced constituted a fraud on a power. That is to say, regardless whether the appointment power was fiduciary in nature, the exercise of that power was controlled by the equitable doctrine of fraud on a power.[54] Accordingly, the power must be exercised bona fide and for the purpose for which it was conferred.[55]
[54] Baba v Sheehan [2021] NSWCA 58, [5] (Brereton JA).
[55] Baba v Sheehan [2021] NSWCA 58, [5]-[6] (Brereton JA), [48]-[49] (Emmett AJA) and [58 (Simpson AJA)].
The appellant contended that in this case the purpose for which the power of appointment was conferred was to benefit all beneficiaries or objects of the Brougham Farm Trust in accordance with the terms of the Brougham Farm Trust Deed. Drawing on the evidence before the primary judge, which admittedly had never been tested, the appellant contended that where the intention of Peter Brougham was to benefit himself and only himself as a beneficiary this was a purpose foreign to the proper purposes of the Brougham Farm Trust.
The appellant relied on Baba v Sheehan, where the appointor exercised the power of appointment to appoint a company as trustee of a trust where the appointor and his wife were the sole directors of that company:[56]
The purpose of a trust deed in conferring a power is to benefit the objects of the relevant trust. If the power is exercised for an unauthorised purpose, which benefits the person on whom the power is conferred, the exercise of the power will be for a foreign purpose. Nevertheless, there must be some ulterior purpose, such as an intention to defeat the purpose of the Settlor of the Trust. A power will be exercised for a foreign purpose if it is exercised with the intention of benefiting someone who is not an object of the power. The objects of the Trust, as specified in the Trust Deed, are the Unitholders. The exercise of the power conferred by cl 2 of the Trust Deed must, accordingly, be for the purpose of benefiting the Unitholders. If the power were to be exercised for the purpose of enabling Mr Sheehan to control the Trust Business and the affairs of the Trust, that would be an exercise for a foreign purpose.
In that context, it is relevant that each of Mr Baba, Mr Carney and Mr Sheehan was a director and shareholder of Smart Street. On the other hand, the only directors and shareholders of Silktote are Mr Sheehan and his wife. Thus, the effect of replacing Smart Street with Silktote was to remove from Mr Baba and Mr Carney any capacity to have a say in the affairs of the Trust and to limit those who have such a say to Mr Sheehan and his wife. If that were the purpose and intention of Mr Sheehan in exercising the power, it would be for a foreign purpose and be void and ineffective. However, if Mr Sheehan, as Appointor, in good faith formed the view that it was in the interests of all of the Unitholders that Smart Street be replaced with Silktote because Silktote was better qualified to manage the affairs of the Trust and the Trust Business, there would be no fraud on the power.
[56] Baba v Sheehan [2021] NSWCA 58, [49]-[50] (Emmett AJA); see also Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482, [707]-[710].
In Baba v Sheehan the trial judge found that the power of appointment was not exercised for any improper purpose because the appointor held genuine concerns about the management of the trust. Ultimately, the Court of Appeal agreed, finding that there was no fraud on the power because the ultimate purpose for its exercise was not challenged.
The appellant contended that, unlike Baba v Sheehan, the evidence before the primary judge “precisely represents the mischief” which the Court of Appeal described as constituting a fraud on the power. The appellant contended that, absent evidence from Peter Brougham, or indeed any further evidence from the respondent, the only conclusion was that there had been a fraud on the power.
Again, at the hearing, the appellant refined his position, emphasising that these matters could not be ruled on by this Court and could only be addressed on remittal.
The submissions of the parties: the answer to the new case
The respondent contended that the appellant had failed to identify any material error by the primary judge. In particular, the respondent contended that the relevant declarations were made pursuant to s 36(1)(d) of the Trustee Act and not s 91 of that Act. In any event, the respondent contended that the appellant by his counsel at trial had conceded that the court had power to make the declarations which were sought.
It was submitted that the new contentions made regarding the fiduciary nature of the power of appointment, and any associated need to consult the beneficiaries, together with the asserted fraud on the power, “were not argued before the trial judge and no basis is advanced for them to be considered in this appeal”.[57]
[57] Respondent Written Submission dated 29 August 2022, [1.3].
The respondent contended that the conduct of the trial was material to the hearing and determination of the appeal.[58] Associated with this contention, the respondent objected to an affidavit filed from Mr Duncan Fowler dated 5 August 2022 in the absence of any application to adduce further or fresh evidence on appeal. (As that affidavit was not ultimately relied on, it is not necessary to rule on the objection.)
[58] Relying on Coulton v Holcombe (1986) 162 CLR 1, 7; Skorpos v United Petroleum [2013] SASCFC 117, [22]-[37].
The respondent contended that when one had regard to the conduct of the trial it was plain that the court’s power to make declarations under s 36(1)(d) of the Trustee Act was invoked or, if necessary, pursuant to the inherent jurisdiction of the Court and s 17 of the Supreme Court Act, which had been referred to in the course of argument. In particular, the respondent contended that s 91 of the Trustee Act was simply not invoked.
In particular, the respondent relied on his written outline filed on 10 December 2020 which referred explicitly to s 36 of the Trustee Act and, at paragraph [35], submitted that the declaratory relief sought was “the type of order which can be made under s 36(1)(d)” of that Act. As to this, the respondent also pointed to the transcript of the hearing on 10 December 2020 where counsel for the appellant did not dispute that the court had jurisdiction under s 36 of the Trustee Act.[59]
[59] Transcript book (10 December 2021), 31.4-31.7.
In addition, the respondent pointed to the conduct of the trial as excluding any scope to argue about the obligation to give notice as part of a fiduciary duty and where the argument about fraud of a power was premised on a fact which was agreed by the parties at the hearing on 10 December 2020, namely, that Peter Brougham intended to transfer the capital of the trust to himself and thereafter to sell the farm.[60]
[60] Respondent Written Submissions dated 29 August 2022, [35].
The respondent did not attempt to address the merit of the two new points raised by the appellant.
Finally, the respondent contended that the appellant should be ordered to pay the respondent’s costs of the appeal on a party/party basis and costs should not be paid out of the assets of the trust, as had occurred before the primary judge.[61] It was conceded that this issue, and any consideration of the stay, should await this Court’s decision.
[61] Relying upon Wareham v Marsella (No 2) [2020] VSCA 118, [18]-[21] and Baba v Sheehan [2021] NSWCA 58.
The first interested party generally adopted the submissions of the respondent.[62] The first interested party observed that the appellant’s notice of appeal was initially filed on 23 February 2022 but entirely replaced by the revised grounds filed on 8 August 2022.
[62] First Interested Party Written Submissions dated 2 September 2022, [2].
As for appeal ground 1, which concerned the question of jurisdiction, the first interested party submitted that there was no issue about whether the jurisdiction of the Court had been invoked.[63] She emphasised that the court had power to grant declaratory relief under s 17 of the Supreme Court Act and that s 31 of that Act ensured that the exercise of power was not open to objection.[64] The first interested party also relied on the court’s inherent jurisdiction to grant declaratory relief.[65] It was submitted that flexibility was the greatest merit of the declaratory judgment, and it was free from restrictive technicalities or special procedural rules.[66]
[63] Relying upon Eckert v Roberts [2021] SASCA 73, [38]-[40] (Bleby JA, with whom Kelly P and Doyle JA agreed).
[64] Citing Davies v Minister for Urban Development and Planning [2011] SASC 87, [21]-[22] (Bleby J).
[65] Relying on JN Taylor Holdings Ltd (in Liq) v Bond (1993) 59 SASR 432, 435-436 (King CJ) and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
[66] First Interested Party Written Submissions dated 2 September 2022, [26]-[31], relying on de Smith ‘Judicial Review of Administrative Action’ (Third Edition, 1973), at 430-431 and PW Young ‘Declaratory Orders’ (1975, Butterworths), at p85 [912].
In so far as s 36(1)(d) of the Trustee Act was relied upon, it was submitted that the decision in H Stanke & Sons Pty Ltd v Stanke supported the making of declarations under this provision.[67]
[67] H Stanke & Sons Pty Ltd v Stanke [2007] SASC 282, [91] [121]-[133] (Sulan J).
The first interested party generally supported the submissions of the respondent on the proposition that advice or direction was never in prospect. However it was submitted, relying on Burke v Public Trustee, that it would not matter if that had been relied on because the court could have made orders under s 91 of the Trustee Act.[68]
[68] Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [41]-[44] (Livesey P, with whom Doyle JA [373]-[377] and Stanley AJA, [480]-[481] agreed).
As for the proposition that the appellant was bound by the way he conducted his case before the primary judge, it was submitted that except in the most exceptional circumstances it is contrary to all principle to allow the appellant after the case has been decided against him to “raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”.[69] Relying upon relatively recent High Court authority, it was also submitted that the appeal was “not an opportunity for the appellant to make a case that [he] chose not to make at trial”.[70]
[69] Relying on University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7-8; Water Board v Moustakas (1988) 180 CLR 491, 497; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438.
[70] Hsiao v Fazzari (2020) 270 CLR 588, [53] (Kiefel CJ, Bell and Keane JJ).
The first interested party relied upon r 83.1 of the Uniform Civil Rules which imposes an obligation on the appellant to file a Response addressing the appellant’s answer to the facts alleged in the Originating Application, to plead whether there were other facts which he contended were relevant, and to give his response to the orders sought. By r 83.1(2) the appellant was also obliged to identify any objection to jurisdiction that he wished to advance. That was not done.
Like the respondent, the first interested party put no particular submissions concerning the new grounds, taking the view that these depended upon whether the appellant could succeed with his argument about jurisdiction under appeal ground 1.
In reply, the appellant emphasised that the two new points raised for the first time on appeal were “raised … as a matter of the utility of the appeal”.[71] That is, these points were advanced as a way of demonstrating that there was utility in ordering remittal to the General Division of the Supreme Court.
[71] Appellant Reply dated 5 September 2022, [61].
The appellant questioned whether H Stanke & Sons Pty Ltd v Stanke did support the making of declarations under s 36 of the Trustee Act.
Determination of the appeal
Jurisdiction
The proposition that there has been a failure to properly exercise jurisdiction because the case proceeded under s 91 rather than s 36 of the Trustee Act or the inherent jurisdiction and s 17 of the Supreme Court Act must be rejected.
A review of the transcript and written submissions demonstrates that the parties had in mind s 36 of the Trustee Act as well as the inherent jurisdiction and s 17 of the Supreme Court Act.
The concept of advice or direction, whilst mentioned, was never at the forefront of the respondent’s case. However, for the reasons advanced by the first interested party, it would not have mattered if that provision had been relied on. There was power under that provision to grant substantive relief where that is done on notice to all interested parties.[72]
[72] Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [41]-[44] (Livesey P, with whom Doyle JA [373]-[377] and Stanley AJA, [480]-[481] agreed).
The declarations and orders that were made were made within jurisdiction. Whilst, with hindsight, the declarations could have been better expressed, and terms such as “inter alia” excluded, there is no reason to think that these declarations could not have been made in the terms in which they were made. This is not a case where the declarations, particularly the first declaration, were so objectionable that they must be set aside.
It may be acknowledged that there are cases where the High Court has criticised the broad terms in which declarations have been made, even where these have been made by consent or without objection.[73] In Rural Press Ltd v Australian Competition & Consumer Commission a majority of the High Court was trenchantly critical of what appear to have been declarations that were too vague:[74]
The trial judge’s orders. The trial judge made declarations that Rural Press and Bridge had contravened s 46; that Rural Press, Bridge and Waikerie Printing had contravened s 45; that McAuliffe and Law were directly or indirectly knowingly concerned in the contraventions by Rural Press and Bridge of ss 45 and 46; and that Paul Taylor was directly or indirectly knowingly concerned in the contraventions by Waikerie Printing of s 45. The Rural Press parties made no complaint about these declarations to the Full Federal Court or to this Court. The declarations spoke merely of ‘‘an arrangement’’ having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement.
These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those ‘‘by consent’’, should be paid by primary judges.
[73] University of New South Wales v Moorhouse (1975) 133 CLR 1; Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; Rural Press Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 53.
[74] Rural Press Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 53, [89]-[90] (Gummow, Hayne and Heydon JJ), cf [140]-[142] (Kirby J).

Each case depends on its circumstances. A declaration that is badly drafted or too broad may not necessarily be liable to be set aside. Often, there are more fundamental difficulties with a declaration that is badly drafted or too broad. For example, in University of New South Wales v Moorhouse, the High Court held that the declarations, whilst too broad, were objectionable because they were hypothetical in nature.[75] Similarly, in Minister for Immigration and Ethnic Affairs v Guo Wei Rong,[76] the majority criticised a broadly framed declaration because it lacked utility where it did not specify, for example, the appropriate entry visa by reference to the relevant legislation. However, in that case, the fundamental difficulty remained that the Full Court of the Federal Court should not have made any declaration at all, for it should have remitted the matter to the Tribunal for determination in accordance with law.
[75] University of New South Wales v Moorhouse (1975) 133 CLR 1, 10 (Gibbs J), 19, 23-24 (Jacobs J).
[76] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), 598 (Kirby J).
It may also be accepted that there is a need for precision in the drafting of court orders, especially declarations. The need for precision in the drafting of declarations was recently emphasised in Kinloch v Manzione:[77]
The plaintiffs seek declarations in substance reflecting the conclusions expressed in the previous paragraph. However, while the declaration is undoubtedly a flexible remedy, its primary purpose is the quelling of concrete controversies by authoritatively stating the respective legal rights and obligations of the parties. Thus, it has been said that “the remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment”: Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437, [8]; Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378, [35]. Although it is not uncommon (for example in trade practices cases) for detailed declarations to be made setting out what are in substance findings about breaches of the law, such declarations are justified on the basis that there is utility in orders that define and publicise the type of conduct that constitutes a contravention and leads to the grant of other relief (e.g, Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 at [95]) or the court’s disapproval of the relevant conduct (Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 100). In essence, declarations should not be made “unless there are circumstances that call for their making”: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437–438.
[77] Kinloch v Manzione [2022] ACTSC 76, [45] (Kennett J).
Nonetheless, that was a case where declarations were made by that court in general terms, reflecting the terms of the prayers for relief.[78]
[78] Kinloch v Manzione [2022] ACTSC 76, [46] (Kennett J).
In this case the breadth of the declarations, especially the first declaration, was criticised because it was said to have the effect of foreclosing the new arguments by which the appellant wished to challenge the appointor’s exercise of discretion. No other defect in the declarations was identified. It may be concluded that, but for the appellant’s challenge based on new points, and accepting that these declarations could have been better expressed, they are not otherwise objectionable in form or substance.
The issue is whether, as the appellant contends, the primary judge erred in making the first declaration in broad terms that foreclosed the two points now sought to be raised by the appellant, or whether, as the respondent contends, the breadth of the declaration was appropriate because it reflected the terms in which the relief was sought and the manner in which the trial was conducted.
The matter initially came on urgently and was addressed in a flexible manner by reference to the Originating Application, the Response and the supporting affidavits. Though there was initially some debate over what was being sought and what was being opposed, at the heart of the dispute, from the outset, remained the validity of the Deed of Appointment and the Deed Poll. The respondent propounded the Deed of Appointment and opposed the Deed Poll. The appellant propounded the Deed Poll and opposed the Deed of Appointment. The issues around these two positions soon crystalised. The parties made clear what they intended to litigate and what the effect of any findings should be.
It is clear that the essential contentions were never intended to become, in effect, preliminary questions where, depending on the answers given, the parties expected they would later litigate the balance of their dispute regarding, for example, the meaning and operation of other parts of the Brougham Farm Trust Deed.[79]
[79] Cf, Karbowiak v Mitolo [2024] SASCA 31, [34]-[37] (Livesey P, Doyle and Bleby JJA).
The sole reference made to r 151 of the Uniform Civil Rules and to split issues by senior counsel for the respondent was fleeting and never repeated. It was followed by revisions of the Originating Application which consistently sought urgent final relief. The only issue that was explicitly “carved out” by the parties was, as mentioned, the appellant’s constructive trust case.
Rather, the parties intended that the essential contentions would be ruled on and reflected in orders so as to quell the controversy regarding the dispute before the court. Little was left to implication regarding any issues other than those surrounding the essential contentions and the reservation of the constructive trust claim. The three essential contentions outlined earlier were articulated and litigated in a forensic context where the parties intended that the answers given by the court would be dispositive of the validity of the Deed of Appointment and Deed Poll (or Deed of Transfer).
As mentioned, the Originating Application sought relief in essentially the terms and breadth in which it was ultimately granted. The trial focussed on the particular issues earlier summarised because these were the only matters raised by the appellant (then respondent) as potential obstacles to the relief sought, whether through his Response or otherwise. The appellant’s alternative contention of a constructive trust was hived off on the express understanding that it raised a separate issue that was not an obstacle to the validity of the Deed of Appointment, and would be pursued regardless of the outcome of the disputes in relation to the validity of the Deed of Appointment and the Deed Poll.
In these circumstances, no error has been demonstrated in the primary judge’s decision to order relief in the broad terms he did, effectively foreclosing any subsequent case to the effect now sought to be raised (that is, relying upon the contended fiduciary nature of the power of appointment, or fraud on that power). Given the manner in which the proceedings were framed and conducted, it was incumbent upon the appellant to raise his whole case at the trial. By analogy with the principles governing estoppel by omission, or ‘Anshun estoppel’, [80] and the need for finality in litigation,[81] the case now sought to be raised could and should have been raised at trial. It is too late to do so now.
[80] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 598, 602; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10, [37]; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, [27], “an ‘Anshun estoppel’ will preclude the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it”. See generally, Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1, [93]ff (Doyle, Livesey and Bleby JJA).
[81] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; McLennan v McCallum [2010] WASCA 45, [80]-[88] (Buss JA, with whom McClure P and Newnes JA agreed).
Even if, as the appellant contends, the issues now sought to be raised were obvious on the factual material before the primary judge, that hardly assists the appellant. Rather, it tends to underscore the significance of the failure to raise the issues at trial, and the appropriateness of the appellant now being foreclosed from doing so.
It may be accepted that the new case has at least some potential merit.[82] However, as the appellant accepts, the issues now sought to be raised do not turn solely on issues of law. They are bound up in factual considerations that would need to be determined through a trial of those issues. It cannot be said that the issues could be pursued, whether at trial or on appeal, without significant prejudice to the respondent (and the interested parties) and without significantly compromising the interest in finality which underpins the courts’ usual approach of holding the parties to the manner in which they conduct legal proceedings culminating in final relief.
[82] Though there would be contentions about whether the power of appointment was truly fiduciary in nature, and required that the beneficiaries be consulted, see Pope v DPR Nominees Pty Ltd (1999) 74 SASR 78, 90 [47] (Bleby J, with whom Duggan and Debelle JJ agreed); Mercanti v Mercanti (2016) 340 ALR 290, [230]-[239] (Buss P); Baba v Sheehan [2021] NSWCA 58, [4] (Brereton JA). There would also be contentions about whether on its proper construction this was a kind of trust settled for the benefit of Peter Brougham, and it was open to him to appoint himself trustee, Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146, [151] (Murphy JA and Hall J) (over-ruled in Montevento Holdings Pty Ltd v Scafffidi (2012) 246 CLR 325); Australian Conservation Services Pty Ltd v Liladel Holdings Pty Ltd [2017] ACTSC 162, [22] (Mossop J).
The explanation for the appellant’s late change in strategy before this Court appears to be bound up in the change in legal representation between the trial and the appeal. No real attempt was made by the appellant to demonstrate that it would be in the interests of justice to entertain these new points for the first time on appeal, as was done, for example, in Battye v Shammall.[83] That was a case where the question whether there was a breach of fiduciary duty between impending partners was entertained for the first time on appeal because doing so occasioned no prejudice to the respondents. That was not the appellant’s approach.
[83] Battye v Shammall (2005) 91 SASR 315 (Doyle CJ, Duggan and Gray JJ),
There is, accordingly, no occasion to consider the principles governing when a new case might be pursued on appeal discussed in cases such as Suttor v Gundowda Pty Ltd[84] and Metwally v University of Wollongong.[85] Indeed, the appellant’s reply and oral address to this Court really assumed that this Court would not rule on those points and could not be expected to do so. They were raised only so as to demonstrate that there was utility in the jurisdiction point, in the event that this Court ordered that the appeal be allowed, and the matter was remitted to the General Division for further consideration.
[84] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ).
[85] Metwally v University of Wollongong (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
Where there is no issue about jurisdiction and, where what was argued at trial was intended by the parties to be dispositive, the attempt to raise these new points as demonstrating error in the breadth of relief ordered by the primary judge must be rejected.
Conclusion
In circumstances where no error in the exercise of jurisdiction was made, and the breadth of the declarations was not inappropriate having regard to the way in which the proceedings below were framed and conducted, the appeal should be dismissed.
The parties should be heard as to consequential orders, including as to the stay, and as to costs.