D.R. McKendry Nominees Pty Ltd - [2015] VSC 560

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

Not Restricted

COMMERCIAL COURT

S CI 2015 4743

IN THE MATTER of an application by D.R. McKendry Nominees Pty Ltd for judicial advice and directions under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005

D.R. McKENDRY NOMINEES PTY LTD (ACN 005 650 779) (as trustee of the McKendry Family Trust)

Plaintiff

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2015
DATE OF JUDGMENT:	22 September 2015
CASE MAY BE CITED AS:	D.R. McKendry Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 560

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EVIDENCE - Determination of question arising out of the administration of an estate and execution of a Trust – Trust Deed settled and executed in May 1980 – Trust Deed destroyed or misplaced – Declarations sought to affirm the execution and contents of missing Trust Deed – Application under Administration of Estates and Execution of Trusts – Order 54.02 Supreme Court (General Civil Procedure) Rules 2005 – adequacy of proof of missing Trust Deed and its contents.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Mitchell	Goldman Legal

HIS HONOUR:

This is the trial of a motion dated 8 September 2015, advancing applications pursuant to Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules) for orders including a declaration that a deed of settlement in the form of Exhibit “PJC-6” to the affidavit of Peter Julian Connor sworn 14 August 2015 in this proceeding, was duly executed on 10 May 1980 and stamped for stamp duty and for other related declarations.

On the plaintiff’s case Donald Robert McKendry in May 1980 caused a trust to be created by a deed settled by one Zelma Beryl Baldwin pursuant to which D.R. McKendry Nominees Pty Ltd was appointed trustee.

The plaintiff’s application is supported by various affidavits, namely: two affidavits of Ian Fraser McKendry sworn 7 September 2015 and 18 September 2015; an affidavit of Peter Julian Connor sworn 14 August 2015 and two affidavits of Bruce Akiva Goldman sworn 10 September 2015 and 21 September 2015 and their exhibits.[1]
[1]The plaintiff filed a further affidavit of Bruce Akiva Goldman sworn 24 September 2015 pursuant to orders of 22 September 2015.

Having made all reasonable efforts in that regard, the plaintiff, D.R. McKendry Nominees Pty Ltd, the Trustee of the McKendry Family Trust (the Trust), is unable to locate a copy of the Trust Deed establishing the Trust of which the sole director of D.R. McKendry Nominees Pty Ltd believes it is the Trustee.

The application relies on evidence from the author of the missing Trust Deed in 1980, one Peter Julian Connor, Solicitor, who acted for Donald Robert McKendry, including in 1980 and thereafter for some time, and also relies on evidence from Bruce Akiva Goldman, Australian Legal Practitioner, who acts for the Trustee.

In respect of the relief sought, the Rules relevantly provide:

54.01 Definitions
In this Order—
administration proceeding means a proceeding for the administration…

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: [2015] VSC 560
Decision Date: 22 September 2015

CaseChat Overview and Summary

The case of D.R. McKendry Nominees Pty Ltd involved a dispute regarding the administration of an estate and the execution of a trust. The Trust Deed, settled and executed in May 1980, was either destroyed or misplaced, prompting the need for declarations to affirm both the execution and contents of the missing document. The application was made under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2005, seeking to determine the adequacy of proof concerning the missing Trust Deed and its contents.

The primary legal issue the court had to decide was whether the evidence presented was sufficient to establish the existence and contents of the missing Trust Deed. The court was tasked with evaluating the credibility and sufficiency of the declarations and other evidence provided by the parties to affirm the execution and contents of the Trust Deed. This required a careful assessment of the standard of proof necessary in such circumstances and whether the evidence met the required threshold.

The court concluded that the evidence presented was adequate to affirm the execution and contents of the missing Trust Deed. The court found the declarations to be credible and the other evidence provided to be sufficient in establishing the necessary details. As a result, the court granted the application, affirming the execution and contents of the missing Trust Deed based on the evidence presented. This decision facilitated the continuation of the estate administration process, ensuring that the Trust Deed's contents could be relied upon for further proceedings.

Orders