Dalziel as Trustee of the Finding Property Trust v Finding

[2025] QSC 158

SUPREME COURT OF QUEENSLAND

CITATION:

Dalziel as Trustee of the Finding Property Trust v Finding & Ors [2025] QSC 158

PARTIES:

KENT WILLIAM DALZIEL AS TRUSTEE OF THE FINDING PROPERTY TRUST
(Applicant)

v
JEAN FINIDNG, KATHRYN HENNESSY, ROSSLYN FINDING, MATTHEW WELLS, SARAH SMITH

(Respondents)

FILE NO/S:

1322/2025

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 96 of the Trusts Act 1973 (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 April 2025, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2025

JUDGE:

Smith J

ORDER:

1. Pursuant to section 96 of the Trusts Act 1973 (Qld) in the opinion of the Court the Applicant is justified in exercising his rights as trustee of the Finding Property Trust to:

(a)     First, reimburse Kathryn Hennessy the sum of $14,758.40 from the Trust;

(b)     Second, after payment of the Trust’s debts, vest and distribute the funds held in the Trust as follows:

(i)        One third of the Trust to Jean Edna Finding;

(ii)       One third of the Trust to Kathryn Hennessy;

(iii)      One third of the Trust to Rosslyn Finding.

2.    The Applicant’s costs of this application be paid from the Trust on the indemnity basis.  

CATCHWORDS:

EQUITY – TRUSTS – RIGHTS OF TRUSTEES – right to seek advice and directions from the Court – where the trust’s principal asset had been sold – where the majority of beneficiaries agree as to how the monies should be distributed

Limitation of Actions Act 1974 (Qld)
Trusts Act 1973 (Qld) s 96

COUNSEL:

R W Haddrick for the applicant
No appearance for the respondents

SOLICITORS:

The Estate Lawyers

1. This is an application brought pursuant to section 96 of the Trusts Act 1973 (Qld).

2. Section 96 provides:

   “96         Right oftrustee to apply to court for directions

   (1) Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

   (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.”

3. The particular trust in question was established by David Finding (who is now deceased) and his wife, Jean Finding, on the 20^th of April 1994.  The principal asset of the trust was a house on Moreton Island, which has been sold. There is $163,518 available for distribution.  There are the details of the trust set out in the submissions by counsel for the applicant. 

4. The questions for advice are:

1.   Should the applicant reimburse Kathryn Hennessy the funds she says are payable by the trust to her? 

2.   Has the applicant properly considered Jean Finding’s views with respect to the administration of the trust, insofar as the applicant is able to properly be satisfied that Jean Finding is competently able to express her wishes? 

3.   How should the applicant, distribute the funds he presently holds in the trust account?

1. As regards to the first issue, I have read the submissions of the applicant and I agree that only those expenses associated with the maintenance of the property incurred by Ms Hennessy during a six year period should be reimbursed.[1] I agree with the submission made that $14,758.40 should be paid to Kathryn Hennessy. 

   [1]Limitation of Actions Act 1974 (Qld).

2. With respect to issue two, there are no doubt concerns about Jean Finding’s capacity.  She is in a nursing home in Caloundra.  A medical opinion was sought from Dr Dominic Barnes of the Pelican Waters Family Doctors, which is exhibited. Importantly he confirms she has the capacity to make financial decisions. Dr Barnes is her General Practitioner.  He has seen her multiple times since December 2022, including the week prior to 23 February 2025. He states that she has the capacity to make this type of financial decision.

3. I accept the trustee is justified in concluding on that evidence, that Jean Finding has the capacity to express her wishes insofar as the administration of the trust is concerned.  I note that that letter has been provided to Roslyn Finding. 

4. As to issue number three, the trustee’s view is that it is best for the funds to be distributed to the beneficiaries and the view is that one-third should go to each of Jean, Kathryn and Roslyn. 

5. The trustee conveyed this preliminary view to each of the beneficiaries.  Jean, Kathryn, Matthew Wells and Sarah Smith are agreeable to this proposed distribution, but Roslyn is not.  There has been correspondence between Roslyn and the trustee concerning this.  Roslyn’s name has been called today.  She is aware of the proceedings today.  She has not appeared.  I have had regard to that correspondence.  I have regard to the fact that the applicant has consulted all of the living primary beneficiaries, and four of the five agree with it. 

6. The matters drawn to the applicant’s attention by Roslyn, in my view, do not persuade me that another proposal is appropriate. I conclude the proposed distribution is the appropriate one.

7. In those circumstances, I am satisfied, based on the material before me I make the following orders:

   1.Pursuant to section 96 of the Trusts Act 1973 (Qld) in the opinion of the Court the Applicant is justified in exercising his rights as trustee of the Finding Property Trust to:

   (a)First, reimburse Kathryn Hennessy the sum of $14,758.40 from the Trust;

   (b)Second, after payment of the Trust’s debts, vest and distribute the funds held in the Trust as follows:

   (i)One third of the Trust to Jean Edna Finding;

   (ii)One third of the Trust to Kathryn Hennessy;

   (iii)One third of the Trust to Rosslyn Finding.

   2.The Applicant’s costs of this application be paid from the Trust on the indemnity basis.