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Cadwallender v The Public Trustee

Cadwallender v The Public Trustee

Case [2003] WASC 72 11 April 2003

Trusts

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Specific Performance

Rule in Saunders v Vautier

Parens Patriae Jurisdiction

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HAROLD JOSEPH MARTIN CADWALLENDER by his next friend STAVROULLA CADWALLENDER -v- THE PUBLIC TRUSTEE [2003] WASC 72

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 72
Case No:	CIV:1901/2002	Heard:	12 MARCH 2003
Coram:	EM HEENAN J	Delivered:	11/04/03
No of pages:	28	Judgment Part:	1 of 1
Result:	Declaration that beneficiary no longer disabled Order to terminate trust and distribute trust property to beneficiary
Category:	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

CITATION : HAROLD JOSEPH MARTIN CADWALLENDER by his next friend STAVROULLA CADWALLENDER -v- THE PUBLIC TRUSTEE [2003] WASC 72 CORAM : EM HEENAN J HEARD : 12 MARCH 2003 DELIVERED : 11 APRIL 2003 FILE NO/S : CIV 1901 of 2002 BETWEEN : HAROLD JOSEPH MARTIN CADWALLENDER by his next friend STAVROULLA CADWALLENDER

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…

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 Cadwallender v The Public Trustee

Details

AGLC: Cadwallender v The Public Trustee [2003] WASC 72
Case: [2003] WASC 72
Decision Date

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.

Orders