Brougham v Edwards (No 2)

This matter concerned an appeal from a decision of the primary judge regarding the trusteeship of the Brougham Farm Trust. The dispute arose after the appellant, the original trustee, fell into disagreement with his father, the appointor, over the control of the Trust and its principal asset. The appointor subsequently replaced the appellant and appointed himself and the respondent as joint trustees. The respondent, as executor of the deceased appointor's estate, sought declarations confirming the validity of these appointments and that the appellant's subsequent transfer of the farm to himself was invalid. The primary judge upheld the respondent's appointment and rejected the appellant's transfer. The appellant's appeal to this Court focused on whether the declarations and orders made by the primary judge exceeded the proper scope of an application for advice or direction.

The Court was required to determine whether the appellant could raise new issues concerning the jurisdiction of the primary judge and the breadth of the declarations made, and whether the appellant had failed to raise his entire case at trial. Specifically, the Court considered whether it was too late for the appellant to argue that the power of appointment exercised was fiduciary and that his own appointment as a joint trustee raised the doctrine of fraud on a power. The Court also had to consider the costs of the appeal, including the reimbursement of the respondent's costs and expenses from the Trust and the apportionment of the first interested party's costs.

The Court rejected the appellant's attempt to raise new issues on appeal, finding that it was incumbent upon him to present his whole case at trial. Consequently, the appellant's appeal was dismissed. The Court ordered that the appellant pay the costs of the respondent and one half of the costs of the first interested party on a standard costs basis. The appellant was also ordered not to be indemnified for adverse costs or his own appeal costs from the Trust. Following these orders, the respondent was to be reimbursed his appeal costs and expenses from the Trust on a solicitor-client basis. The appellant was further ordered to pay the costs of the respondent and the first interested party concerning the resolution of the appeal costs.