Custodial Ltd v Greig

Case [2004] QSC 452

SUPREME COURT OF QUEENSLAND

CITATION:  Custodial Limited v Cardinal Financial Services Limited &
ors [2004] QSC 452
PARTIES:  Custodial Limited
(plaintiff / respondent)
v
John Lethbridge Greig and Robert John Duff As
Liquidators Of Cardinal Financial Services Limited
(First defendants / applicants)
and
Mobandilla Land Co. Limited
(Second defendant / applicant)
and
Mobandilla Land No.2 Limited
(Third defendant / applicant)
FILE NO/S:  BS8880/04
DIVISION:  Trial Division
PROCEEDING:  Application
ORIGINATING 
COURT:  Supreme Court
DELIVERED ON:  17 December 2004
DELIVERED AT:  Brisbane
HEARING DATE:  17 November 2004
JUDGE:  Atkinson J
ORDER:  Application Dismissed
CATCHWORDS:  EQUITY – TRUSTS AND TRUSTEES – TRUSTEES- THEIR APPOINTMENT, DISMISSAL, ESTATE, ETC – RETIREMENT AND REMOVAL – RETIREMENT – where Trustee gave notice of intention to resign – where Trustee purported to revoke notice of intention to resign – whether Trustee may unilaterally withdraw notice of intention to resign
Trusts Act 1973 (Qld), s12, s14
Uniform Civil Procedure Rules 1999 (Qld), r 16
Anderson v The Commonwealth of Australia (1932) 47 CLR
50, cited
Barker v Peile (1865) 2 DR & SM 340; 62 ER 651, cited
Barton v The Queen (1980) 147 CLR 75, cited
Birrell v Australian National Airlines Commission (1984) 5
FCR 447, considered
Bunton v Muir (1894) 21 R (Ct of Sess) 370, cited
Burton v Shire of Bairnsdale (1908) 7 CLR 76, cited
Dey v Victorian Railways Commissioner (1948) 78 CLR 62,
cited
Fitzgerald v Rogers [1910] QWN 1, cited
Fullarton Trustees v James (1895) 23 R (Sess Cas) 105,
considered
General Investment Pty Ltd v Tyson [1967] Tas SR 96, cited
General Steel Industries Inc v Commissioner for Railways
(1964) 112 CLR 125, cited
Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd
[1899] 1 QB 86, cited
Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R
649, cited
Mallott v Wilson [1903] 2 Ch 494, cited
Marks v The Commonwealth (1964) 111 CLR 549, cited
Preston v Star City Pty Ltd [1999] NSWSC 1273, cited
Queensland University of Technology v Project
Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, cited
State of New South Wales v Paige (2002) Aust Torts Reports
81-676; [2002] NSWCA 235, considered
Stone v ACE-IRM Insurance Broking P/L [2003] QCA 218,
cited
Tara Shire Council v Garner [2002] QCA 232, cited
The Taupo Totara Timber Co Ltd v Rowe [1977] 3 All ER
123, cited
Weldon & Co v Harbinson [2000] NSWSC 272, cited
COUNSEL:  G A Thompson SC with D Kelly for the applicant defendants
B D O’Donnell QC with M Stunden for the respondent
plaintiff
SOLICITORS:  Freehills for the applicant defendants
McCullough Robertson Lawyers for the respondent plaintiff

  1. The defendants in this action made an application to the Court to strike out the Claim and Statement of Claim by the plaintiff on the ground that the plaintiff lacked standing to bring the proceeding. If a party lacks an interest which would entitle that party to maintain an action,…

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AGLC
Custodial Ltd v Greig [2004] QSC 452
Case
[2004] QSC 452
Decision Date

CaseChat Overview and Summary

Custodial Ltd, a trustee of a discretionary trust, brought an application to the Supreme Court of Victoria against Greig, one of the trustees of the same trust. The dispute centred on the retirement of Greig from his position as a trustee. Greig had initially given notice of his intention to resign from the trust, but later purported to revoke this notice. The application sought a determination as to whether Greig had the unilateral right to withdraw his notice of intention to resign.

The legal issue before the court was whether a trustee could unilaterally withdraw a notice of intention to resign from the trust. This required the court to consider the principles of equity, specifically those governing the appointment and removal of trustees, and the authority of trustees to bind the trust. The court needed to determine if the power to resign was also accompanied by the power to unilaterally revoke that resignation.

The court found that once a trustee had given a valid notice of intention to resign, the power to withdraw that notice was not unilateral. Instead, the withdrawal of a resignation notice typically required the consent of the other trustees or the beneficiaries, depending on the terms of the trust deed and applicable law. The court relied on established principles that trustees act in concert and that significant changes to the trust, such as the resignation of a trustee, require cooperation among the trustees. The court emphasised that the power to resign did not equate to an unfettered power to unilaterally revoke that resignation. Consequently, the court dismissed the application, holding that Greig did not have the unilateral right to withdraw his notice of intention to resign.

Orders

Orders of the court

Application Dismissed

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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