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Campbell v Campbell

Campbell v Campbell

Case [2022] NSWSC 554 9 May 2022

Trustee Act 1925 s 86A

Trusts & Equity

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Campbell v Campbell [2022] NSWSC 554
Hearing dates: 10, 22-26, 29-30 March 2021, 15 July 2021, and 10 August 2021
Date of orders: 6 May 2022
Decision date: 09 May 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Declaration made that the property is held beneficially upon the terms of the discretionary trust. Trustee Act, s 86A orders made.

Catchwords:
TRUSTS – trusts and trustees – estate planning in rural family property – as part of the estate planning transactions were entered into purporting to transfer a grazing property into a family discretionary trust – whether the grazing property was successfully beneficially transferred to the discretionary trust or whether it remained with the transferor – whether the vesting of the discretionary trust should be brought forward from 2035 by an application of Trustee Act 1925 s 86A

Legislation Cited:
Conveyancing Act 1919, ss 23C, 54A
Limitation Act 1969, ss 27, 36
Succession Act2006, Chapter 3
Trustee Act 1925, ss 81, 86A

Cases Cited:
Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747
Francis v Francis [1952] VLR 321
Golden Mile Property Investments Pty Ltd v Cudgewong Australia Pty Ltd (2015) 89 NSWLR 237
In Re Plator Nominees [2012] VSC 284
Manks vGolden Mile Property Investments Pty Ltd (In liq) v Cudgegong Australia Pty Ltd (2016) 18 BPR 36
Martin v Martin (1959) 110 CLR 297
Noack v Noack [1959] VR 137, 140
Orr v Ford (1988) 167 CLR 316
Phung v Phung [2019] NSWSC 117
Pipikos v Trayans (2018) 265 CLR 522
Re Dion Investments Pty Ltd (2014) 87 NSWLR 753
Yard v Yardoo Pty Ltd [2007] VSCA

Texts Cited:
RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths)
PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters)

Category: Principal judgment
Parties:
2018/00184327
Plaintiff: Richard Birrell Campbell
First Defendant: Beth Campbell
Second Defendant: Carolyn Luise Campbell
Alwyn Ian Tonking

2018/00188534
Plaintiff: John Bruce Campbell
First Defendant: Beth Frances Campbell
Second Defendant: Carolyn Luise Campbell
2019/374756
First Plaintiff: Beth Frances Julian Campbell
Second Plaintiff: Carolyn Luise Campbell
First Defendant: John Bruce Campbell
Second Defendant: Bruce Campbell Nominees Pty Ltd
Third Defendant: Richard Birrell Campbell
Fourth Defendant: Alwyn Ian Tonking
Fifth Defendant: John Campbell Nominees Pty Ltd ACN 646545282
Representation:
Counsel:
Beth Frances Campbell/Carolyn Luise Campbell: Mr C Wood SC, Mr C Birtles
John Bruce Campbell/JCN Nominees: Mr T O’Brien
Richard Campbell: Ms M Pringle
Solicitors:
Beth Frances Campbell/Carolyn Luise Campbell: Ms Anthea Kennedy, Bridges Lawyers
Richard Birrell Campbell: Mr Michael Daniel, Resolve Litigation Lawyers
Mr John Campbell: Mr John Stinson, Diamond Conway Lawyers
Alwyn Ian Tonking: Mr J Townsend

File Number(s): 2018/00184327; 2018/00188534; 2019/374756
Publication restriction: No

Judgment

The Campbell family have farmed “Mundooie” via Warren for nearly 100 years. Over three generations the Campbell family enterprise formed a substantial cattle, wheat, and irrigated cotton property. When 43-year-old Bruce Campbell was near death…

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 Campbell v Campbell

Details

AGLC: Campbell v Campbell [2022] NSWSC 554
Case: [2022] NSWSC 554
Decision Date: 09 May 2022

CaseChat Overview and Summary

In the matter of Campbell v Campbell, the dispute centred around the ownership of a grazing property that was intended to be transferred into a family discretionary trust as part of the estate planning of the transferor. The respondents, who were the beneficiaries of the discretionary trust, sought a declaration that the transfer was valid and that the property was now beneficially owned by the trust, rather than remaining with the transferor. The matter was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide included whether the grazing property had been successfully transferred to the discretionary trust and, if so, whether the vesting of the discretionary trust should be brought forward from 2035. The court was required to consider the relevant estate planning transactions, including the execution of a transfer document, and the provisions of the Trustee Act 1925. The court also needed to determine if the application of section 86A of the Trustee Act 1925 was appropriate in this case.

The court examined the evidence and found that the transfer of the grazing property to the discretionary trust had been properly executed and that the property was now beneficially owned by the trust. The court then considered the application of section 86A of the Trustee Act 1925, which allows the court to bring forward the vesting of a discretionary trust if it is just and equitable to do so. The court found that it was just and equitable to bring forward the vesting of the discretionary trust in this case, and accordingly made the appropriate orders. The court determined that the property was indeed beneficially owned by the discretionary trust and that the vesting of the trust should be brought forward from 2035.

Orders