Colston v McMullen

Case [2010] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen [2010] QSC 292

PARTIES:

Douglas Benjamin COLSTON

(originating applicant)

v

Brian McMULLEN (as Executor and Trustee of the Estate of Malcolm Arthur Colston, as Executor and Trustee of the Estate of Dawn Patricia Colston, and as Trustee and Appointer of The Dawn Colston Estate Trust)

(originating respondent)

FILE NO/S:

BS 12943 of 2008

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2010

JUDGE:

White J

ORDERS:

1.          The originating application filed 12 December 2008 be dismissed.

2.        Orders by consent filed 6 January 2009 be            discharged.

3.        The originating applicant, Douglas Benjamin            Colston, pay:

(i)       the respondent’s costs of and incidental to the originating application, to be assessed on the standard basis;

(ii)      the respondent’s costs of and incidental to the respondent’s application to dismiss the originating application, including the hearing on 23 March 2010, to be assessed on the indemnity basis.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – GROUNDS FOR REMOVAL – where beneficiary applied for removal of the executor and trustee of his father’s estate, the executor and trustee of his mother’s estate and the trustee and appointor of his mother’s trust – where applicant says the respondent has failed to administer his father’s estate and has poorly administered his mother’s estate and trust - where respondent applied to have the originating application dismissed – where applicant seeks general order for  disclosure of trust administration documents – where administration accounts have been exhibited to respondent’s affidavit - whether the court should order removal of the respondent in the circumstances – whether general order for documents should be made

Succession Act 1981 (Qld), s 6, s 47(1A), s 52(2)

Trusts Act 1973 (Qld), s 5, s 80

Bates v Messner (1967) 67 SR (NSW) 187, cited
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, cited
In The Goods of Loveday [1900] P 154, cited
Letterstedt v Broers (1884) 9 AC 371, cited
Miller v Cameron (1936) 54 CLR 572, cited
Re: Whitehouse [1982] Qd R 196, cited

Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] 3 All ER 76, cited

COUNSEL:

A C Barlow for the originating applicant

D J Morgan for the originating respondent

SOLICITORS:

Gleeson Lawyers for the originating applicant

McCullough Robertson Lawyers for the originating respondent

  1. By an originating application filed 12 December 2008, Douglas Benjamin Colston (“Douglas”) sought the removal of the respondent, Brian McMullen, (“Mr McMullen”) as the executor and trustee of his father, Malcolm Arthur Colston and as the executor and trustee of his mother, Dawn Patrician Colston and as the trustee and appointor of The Dawn Colston Estate Trust (“the Trust”).

  1. By consent orders made on 6 January 2009 that application was adjourned to enable the parties to engage in mediation, with liberty…

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AGLC
Colston v McMullen [2010] QSC 292
Case
[2010] QSC 292
Decision Date

CaseChat Overview and Summary

The case of Colston v McMullen involved a beneficiary seeking the removal of multiple trustees and executors associated with his father’s estate, his mother’s estate, and his mother’s trust. Douglas Benjamin Colston, the applicant, contended that the respondent, who was both the executor of his father's estate and trustee of his mother's estate and trust, had failed to properly administer these estates and trusts. The respondent, in turn, filed an application to dismiss the originating application and requested the dismissal of the applicant's broader request for a general order to disclose trust administration documents.

The legal issues before the court encompassed whether the applicant's grievances were sufficient grounds for the court to order the removal of the respondent and whether a general order for the disclosure of trust administration documents should be granted. The court had to evaluate the merits of the applicant’s claims against the respondent’s conduct and decide if there was a justifiable basis for the intervention of the court in the administration of these estates and trusts.

The court found that the applicant had not presented a compelling case for the removal of the respondent. It held that the applicant's dissatisfaction with the administration of the estates and trust was not sufficient to warrant such a significant remedy. Additionally, the court ruled that the general order for the disclosure of trust administration documents should not be made, as the administration accounts had already been exhibited in the respondent’s affidavit. Consequently, the court dismissed the originating application and ordered the applicant to pay the respondent's costs on both the standard and indemnity bases.

Orders

Orders of the court

1. The originating application filed 12 December 2008 be dismissed.

2. Orders by consent filed 6 January 2009 be discharged.

3. The originating applicant, Douglas Benjamin Colston, pay:

(i) the respondent’s costs of and incidental to the originating application, to be assessed on the standard basis;

(ii) the respondent’s costs of and incidental to the respondent’s application to dismiss the originating application, including the hearing on 23 March 2010, to be assessed on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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