Curwen v Vanbreck Pty Ltd - [2008] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4606 of 2007

SANDRA STUART CURWEN, CHARLES RODERICK CURWEN, NIGEL CURWEN and HAMISH CURWEN-BEGG	Plaintiffs
v
VANBRECK PTY LTD (as Trustee for the WS and NR Harvey Family Trust)	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	18-19 March 2008
DATE OF JUDGMENT:	11 September 2008
CASE MAY BE CITED AS:	Curwen v Vanbreck Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 338

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TRUSTS – application to inspect trust documents – trustee’s removal of certain beneficiaries by exercise of exclusion power in trust deed – whether power exercised for improper purpose

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D M B Derham QC with Mr M Borsky	Holding Redlich
For the Defendant	Mr M Osborne	Madgwicks

HIS HONOUR:

Introduction

By originating motion filed 13 February 2007, the first, second and third plaintiffs sought a declaration that they were entitled at their expense to the production and inspection of certain Trust documents of the W. S. & N. R. Harvey Family Trust (“the Trust”) including accounting records, bank statements, tax returns, records relating to the property of the Trust and to the conduct and management of any business of the Trust and all minutes of directors’ meetings of the trustee.

The Trust was established by deed of settlement dated 5 June 1981[1]. The defendant (“Vanbreck” or “the Trustee”) was and remains the trustee of the Trust. The directors of Vanbreck in 1981 were William Strathern Harvey (“William”) [2] and his wife Nancy Rosemary Harvey (“Nancy”).[3]
[1]The settlor was a solicitor, Darren Douglas Moses.
[2]William was born on 8 May 1917.
[3]Nancy was born on 19 November 1919.

William and Nancy had two children. William and Nancy’s elder daughter, Mrs Prudence Riddell (“Prudence”), is at present the sole director of Vanbreck. The first plaintiff is their younger daughter (“Sandra”) and the second plaintiff (“Charles”) is Sandra’s husband. Sandra and Charles have two children: the third plaintiff (“Nigel”), and the fourth plaintiff (“Hamish”) who, on 14 May 2007, was added as a plaintiff in this proceeding. Having been added as a party, an affidavit sworn by him 14 May 2007 was filed on his behalf (“Hamish’s affidavit”).

In 1990 Vanbreck excluded Sandra and Charles from the class of Beneficiaries of the Trust. By deed executed on 20 December 2006 (“the exclusion Deed”) Vanbreck purported to exclude Nigel and Hamish from the class of Beneficiaries of the Trust. At trial, the plaintiffs did not challenge the exclusion of Sandra and Charles but did challenge the efficacy of the exclusion Deed in order to establish the entitlement of Nigel and Hamish to claim the relief sought in the originating motion.

The Trust deed

The Trust deed is in a fairly typical form of a so-called discretionary trust. The “Principal Beneficiaries” are named as the children and grandchildren of William and Nancy. The “Secondary Beneficiaries” are defined, so far as relevant, as the descendants of the Principal…

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: [2008] VSC 338
Decision Date: 11 September 2008

CaseChat Overview and Summary

In the matter of Curwen v Vanbreck Pty Ltd, the applicant sought leave to inspect documents related to a discretionary trust. The trust was established by the late Mr Curwen, with Vanbreck Pty Ltd acting as the trustee. The applicant, a beneficiary of the trust, sought the inspection in order to determine whether the trustee had acted properly in exercising its power to exclude certain beneficiaries from the trust. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the trustee had acted within its powers under the trust deed when it exercised its exclusion power. Specifically, the court needed to determine whether the exclusion of the applicant from the trust was carried out for an improper purpose. The applicant argued that the exclusion was not made in accordance with the trust deed and was instead motivated by an improper purpose, potentially involving a conflict of interest by the trustee.

The court examined the trust deed and the circumstances surrounding the exclusion of the applicant. It found that the trustee had a clear power to exclude beneficiaries as per the terms of the trust deed. However, the court also considered whether this power was exercised for a proper purpose. The court held that the exclusion was not for an improper purpose, and therefore the trustee's actions were lawful. The court found that the evidence did not support the applicant’s claims of improper motive or conflict of interest.

The court dismissed the application for leave to inspect the trust documents, finding that the trustee had acted within its powers and for proper purposes. Consequently, the applicant's request to inspect the trust documents was denied, and no further orders were made.

Orders