PAUL HERMAN HENRI CORBIERE AND ANDREW FRANCIS MONK as trustees for THE JEFFERSON LANE PROPERTY TRUST and as executors/trustees for THE WILL OF DUDLEY ERNEST SANDFORD DULLEY (applicants) v BRUCE SANDFORD DULLEY (first respondent) YAS YO PTY LTD (second respondent) YASMIN LE BERYL DULLEY (third respondent) YOLANDE LE AURELIA DULLEY (fourth respondent) JACOB CHARLES SANDFORD DULLEY (fifth respondent)
FILE NO/S:
SC No 8958 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
13 June 2016
DELIVERED AT:
Brisbane
HEARING DATE:
24 and 25 November 2015; schedule of costs, outlays and expenses received on 25 February 2016; further submissions on behalf of the second and third respondents dated 26 February 2016; further submissions on behalf of the applicants dated 29 February 2016; further submissions on behalf of the fifth respondent dated 4 March 2016
JUDGE:
Burns J
ORDER:
The parties are directed to bring in minutes of order to reflect these reasons.
CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where the trustees commenced legal proceedings against beneficiaries of a trust for misuse of trust property – where the trustees seek a declaration from the court under s 96 of the Trusts Act1973 (Qld) or, alternatively, s 6 of the Succession Act1981 (Qld) – whether it is proper for the trustees to continue to prosecute the principal proceedings
SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR'S INTENTION – GENERALLY – where the deceased granted a life interest to the first respondent in respect of two properties – where the first respondent subsequently paid maintenance costs and outgoings associated with those properties – whether upon the proper construction of the will the first respondent is entitled to be reimbursed for the outgoings paid by him
[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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AGLC
Corbiere v Dulley [2016] QSC 134
Case
[2016] QSC 134
Decision Date
CaseChat Overview and Summary
In the case of Corbiere v Dulley, the trustees of two trusts established by the deceased's will brought an application seeking advice and direction from the court. The trustees were proceeding against the beneficiaries of the trusts, including Bruce Dulley, the son of the deceased, and his children, Yasmin, Yolande, and Jacob. The trustees sought either a declaration under section 96 of the Trusts Act 1973 (Qld) or section 6 of the Succession Act 1981 (Qld), or guidance on whether they should continue to prosecute the principal proceedings against the respondents. The key issues were whether the trustees could continue with their legal action against the respondents, and if Bruce was entitled to reimbursement for maintenance costs and outgoings associated with the properties, given the terms of the will.
The court considered the legal standing of the trustees to seek advice and the appropriate circumstances under which the court should intervene in trust matters. The court determined that the trustees had a valid basis to seek guidance from the court and that it was appropriate for the trustees to continue with their legal proceedings against the respondents. The court examined the terms of the will to ascertain the testator's intention regarding reimbursement of outgoings to Bruce. It was found that the will did not explicitly entitle Bruce to reimbursement for the maintenance costs and outgoings associated with the properties. Therefore, the court did not find it proper for Bruce to be reimbursed under the terms of the will.
The court ultimately directed the trustees to continue with their proceedings against the respondents, allowing for a proper adjudication of the allegations against them. The court did not find that Bruce was entitled to reimbursement for the maintenance costs and outgoings paid by him regarding the trust properties. The parties were directed to bring in minutes of order to reflect these reasons.
Orders
Orders of the court
The parties are directed to bring in minutes of order to reflect these reasons.
Background
Background to the litigation
Accordingly, in much of what follows, particular reliance is placed on the accuracy of the two statements of facts provided by the trustees.[9] The court proceeds with some assurance in that regard because a misstatement of the facts by the trustees would put at risk any indemnity arising under s 97 of the Trusts Act if a direction is given,[10] but it would be wrong to assume that the stated facts will necessarily be established at trial. Here, a number of those facts, if made out, go in support of quite serious allegations against the first respondent who is a senior legal practitioner. Those allegations are, and will remain, in dispute. It should therefore be kept steadily in mind that the giving of advice or directions says nothing more than that it is, in all of the stated circumstances, appropriate for the trustees to continue with their proceeding against the first to fourth respondents so that a proper adjudication on the evidence of those allegations can be made. [9]Written Statement of Facts dated 7 September 2015; Further Written Statement of Facts dated 23 November 2015.[10]Trusts Act 1973 (Qld), s 96(2).Facts The first respondent, Bruce Dulley, is the son of the deceased. The second respondent, Yas Yo Pty Ltd, is a company in respect of which Bruce Dulley is the sole director and a 50% owner. The third, fourth and fifth respondents – Yasmin Dulley, Yolande Dulley and Jacob Dulley – are the adult children of Bruce Dulley and Louise Baker. For ease of reference, each of these persons shall be referred to by their Christian names. At the time of his death, the deceased was the registered proprietor of vacant beachfront land situated at Jefferson Lane, Palm Beach on the Gold Coast and a house property situated at Vista Avenue, Wellers Hill in Brisbane. The deceased’s last will was executed on 28 February 1990. By its provisions:(a)the applicant trustees (together with another man who renounced his executorship on 21 October 1993) were appointed trustees and executors;(b)after the discharge of all due debts, a bequest of $80,000 as well as jewellery that had been owned by the deceased was made to Bruce’s sister;(c)separate trusts were to be created in respect of Jefferson Lane and Vista Avenue pursuant to which:(i) the applicant trustees (and the man who later renounced) were to be the trustees of each trust;(ii) Bruce was to receive a life interest in Jefferson Lane and Vista Avenue and, during the period of his life tenancy;(iii) Upon Bruce’s death, Louise was to be given a licence to reside at Vista Avenue for so long as she was caring for Yasmin, Yolande and Jacob;(iv) Yasmin, Yolande and Jacob were to be the remaindermen with respect to Jefferson Lane; and(v) Jacob was to be the remainderman with respect to Vista Avenue. Following the death of the deceased, and in conformity with the directions contained in the will, the trustees set up the Jefferson Lane Property Trust and the Vista Avenue Property Trust. In 2007, and after consultation with the beneficiaries, the trustees decided to sell Jefferson Lane. For that purpose, the trustees appointed Bruce, in his capacity as a solicitor and principal of the firm, Bruce Dulley Family Lawyers, to act on behalf of the Jefferson Lane Property Trust in relation to the sale. A contract for sale was entered into on 30 November 2007 for a purchase price of $3,600,000, and a deposit of $100,000 was paid to the firm. The contract settled on 20 December 2007 and, in consequence, net settlement proceeds of $3,515,080.52 were paid to the credit of the trust account maintained by Bruce Dulley Family Lawyers.