HAROLD JOSEPH MARTIN CADWALLENDER by his next friend STAVROULLA CADWALLENDER -v- THE PUBLIC TRUSTEE [2003] WASC 72
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 72 | |
| Case No: | CIV:1901/2002 | 12 MARCH 2003 | |
| Coram: | EM HEENAN J | 11/04/03 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Declaration that beneficiary no longer disabled Order to terminate trust and distribute trust property to beneficiary | ||
| A | |||
| PDF Version |
| Parties: | HAROLD JOSEPH MARTIN CADWALLENDER by his next friend STAVROULLA CADWALLENDER THE PUBLIC TRUSTEE |
Catchwords: | Party under disability Rules of the Supreme Court O 70 Trust fund for damages recovered in District Court Application to declare beneficiary no longer under disability Termination of court appointed trust Parens patriae jurisdiction Jurisdiction of District Court to entertain application and to determine trust |
Legislation: | Administration Act 1903 District Court of Western Australia Act (1969) Family Law Act 1975 (Clth) Guardianship and Administration Act 1990 Public Trustee Act (1941) Rules of the Supreme Court, O 70 Supreme Court Act 1935 Trustees Act 1962 |
Case References: | AMS v AIF (1999) 199 CLR 160 Carseldine v Director of the Department of Children's Services (1974) 133 CLR 345 Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208 Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 375 Hunt v Severs [1994] 2 AC 350 Johnson v Director General of Social Welfare (Vic) (1976) 135 CLR 92 Jones v Moylan (1997) 18 WAR 492 Jones v Moylan (No 2) (2000) 23 WAR 65 Kars v Kars (1996) 187 CLR 354 Morris v Zanki (1997) 18 WAR 260 Naso v Cottrell [2001] WADC 7 Newton v The Public Trustee [1999] WASC 179 Newton v The Public Trustee [2000] WASC 118 P v P (1994) 181 CLR 583 Perpetual Trustees (WA) Ltd v Naso (1999) 21 WAR 191 Queen Street Hotels Pty Ltd v Byrne [1980] CLC 34,094 (40-611) Saunders v Vautier (1841) 4 Beav 114; 49 ER 282 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 281 T'Hart & Anor v Director-General of the Department for Community Development & Ors [2002] WASC 245 Wood v The Public Trustee of Western Australia (1995) 16 WAR 58 ZP v PS (1994) 68 ALJR 554 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE PUBLIC TRUSTEE
Defendant
Catchwords:
Party under disability - Rules of the Supreme Court O 70 - Trust fund for damages recovered in District Court - Application to declare beneficiary no longer under disability - Termination of court appointed trust - Parens patriae jurisdiction - Jurisdiction of District Court to entertain…
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- AGLC
- Cadwallender v The Public Trustee [2003] WASC 72
- Case
- [2003] WASC 72
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CaseChat Overview and Summary
In the Supreme Court of Western Australia, Harold Joseph Martin Cadwallender, through his next friend Stavroulla Cadwallender, applied for a declaration that he was no longer a person under a disability, and for orders terminating the trust and transferring the trust property to him. The Public Trustee, who held the trust property, did not object to the application. The District Court had established the trust in 1994, following a settlement of a personal injury claim brought by Cadwallender. The court had to decide whether it had the power to make the declaration and terminate the trust, and if Cadwallender had recovered sufficiently to manage his own affairs. The court held that it had the power to make the declaration and terminate the trust, as it derived from the parens patriae jurisdiction of the court. The court found that Cadwallender had recovered sufficiently to manage his own affairs and ordered the termination of the trust and the transfer of the trust property to him. The court also considered the jurisdiction of the District Court to entertain and determine applications for the termination of such trusts and concluded that it would generally be preferable for such applications to be brought in the court whose order established the trust in question.
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