Charisteas v Charisteas & Ors - [2021] HCATrans 28

[2021] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P38 of 2020

B e t w e e n -
G CHARISTEAS
Applicant
and
Z V CHARISTEAS
First Respondent
YWB PTY LTD
Second Respondent
L W BANDY
Third Respondent
A CHARISTEAS (BY HER CASE GUARDIAN R ELIAS)
Fourth Respondent
E A CHARISTEAS
Fifth Respondent
K A SOTIROSKI
Sixth Respondent
S M MANOLAS
Seventh Respondent
L W BANDY & A CHARISTEAS (AS EXECUTORS OF THE ESTATE OF D CHARISTEAS)
Eighth Respondent
Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 12.22 PM

____________________

BELL J: In this matter:

For the applicant, MR F.A. ROBERTSON, SC appears with MR M. SUPLJEGLAV. (instructed by DS Family Law)

For the first respondent, MR M.R. BERRY, SC. (instructed by DCH Legal Group)

BELL J: I note no appearances for the second to eight respondents. Yes, Mr Robertson.

MR ROBERTSON: Yes, may it please the Court, you should have from the respondent a substituted response to the special leave application and our short reply thereto.

BELL J: Yes, I believe we have both of those. Mr Robertson, I think perhaps it might be most useful if we were to hear from Mr Berry first.

MR ROBERTSON: May it please the Court.

BELL J: Yes, Mr Berry.

MR BERRY: Yes, your Honours. In one of the application books is our substituted response of 14 January 2021. If I may address your Honours firstly in relation to the bias aspect of the special leave application.

BELL J: Yes.

MR BERRY: Your Honours, the difference between the majority and the learned Chief Justice in this matter appears to turn on the significance placed by Chief Justice on disclosure and the nature of that disclosure by the wife’s then counsel and by the learned trial judge, and the different view taken by the majority about what inferences or conclusions could be drawn from the disclosure which was given, and also what weight should be attached to the oaths of office which the learned trial judge had and which the wife’s counsel owed to the Court in terms of her duties to the Court.

We would respectfully contend that in relation to disclosure this Court in Ebner’s Case, at page 360, at paragraph 68 observed that a distinction should be drawn “between considerations of prudence and requirements of law”. And the majority of the Court in that case also observed at paragraph 72, at the foot of 360 to 361 that:

Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation.

Which was the issue in Ebner. In this particular case, your Honours, the majority of the Full Court of the Family Court of Australia analysed the circumstances in which the disclosure was given and, importantly, were prepared to give…

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.

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Details

Case: [2021] HCATrans 28
Decision Date: 12 February 2021

CaseChat Overview and Summary

The Full Federal Court of Australia, comprising Bell and Keane JJ, considered a dispute between the applicant, Charisteas, and the respondents, Charisteas & Ors. The core of the disagreement concerned the interpretation and application of certain provisions within a deed, specifically relating to the distribution of assets and the rights of beneficiaries. The proceedings involved an application for judicial advice and declarations regarding the proper construction of the deed and the obligations of the trustees.

The primary legal issues before the Full Federal Court were whether the trustees had acted within their powers in distributing certain assets, and whether the applicant, as a beneficiary, had a vested interest in those assets at the time of distribution. The court was required to determine the correct interpretation of clauses within the deed that governed the trustees' discretion and the conditions precedent to a beneficiary acquiring a vested interest. This involved an analysis of the language used in the deed and the surrounding circumstances to ascertain the settlor's intention.

In its reasoning, the Full Federal Court emphasised the importance of construing the deed according to its plain language, whilst also considering the overall context and purpose of the document. The court applied established principles of trust law concerning the exercise of trustee discretion and the nature of beneficial interests. It found that the trustees had acted within the scope of their powers as conferred by the deed, and that the applicant's interest in the assets in question had not yet vested at the time of the distributions. Consequently, the court dismissed the applicant's application for declarations.

Orders