Dixon v Dixon - [2022] NSWSC 721

Supreme Court

New South Wales

Medium Neutral Citation: Dixon v Dixon [2022] NSWSC 721
Hearing dates: On the papers; final submissions received 14 April 2022
Date of orders: 1 June 2022
Decision date: 01 June 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [35]

Catchwords:
EQUITY – trusts and trustees – court’s power to appoint new trustee – testamentary trust – plaintiff with disability – plaintiff has life beneficial interest in fund – plaintiff’s sister appointed by will as trustee – falling-out between plaintiff and sister – whether to appoint plaintiff’s brother or public trustee – general desirability of independent trustee – modest trust estate – public trustee to charge fees – no position taken by residuary charitable beneficiary – plaintiff’s brother appointed as trustee

Cases Cited:
Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839
Saul v Lin (No 2) (2004) 60 NSWLR 275

Category: Principal judgment
Parties: Lois Ruth Dixon (Plaintiff)
James Robert Dixon (First Defendant)
Eunice Helen Morgan (Second Defendant)
Representation:
Counsel:
AM Combe (Plaintiff)
M Meek SC (Second Defendant)
Solicitors:
QV Law (Plaintiff)
O’Neill Solicitors (Second Defendant)

File Number(s): 2020/359326
Publication restriction: Nil

Judgment

These proceedings concern a testamentary trust. There is an application before the Court to appoint a new trustee for the trust. Removal of the existing trustee is not opposed; the issue is who should be appointed as the replacement trustee.
The trust was established under the will of the late Edward James Dixon. Without intending any disrespect, I will refer to the members of the deceased’s family who come into this judgment by their given names.
The deceased died in March 2020 at the age of 91. His wife, Helen Lavinia Dixon (“Helen”) had predeceased him, dying in 2015. The deceased was survived by their four children: Stephen Dixon (“Stephen”, also known as Steve); Lois Ruth Dixon (“Lois”; she herself now uses her middle name, Ruth); Eunice Helen Morgan, née Dixon (“Eunice”); and James Robert Dixon (“James”).
The deceased’s will was made in November 2015. James was the executor and probate was granted to him in August 2020. The value of the estate is $1.12 million and consists primarily of the proceeds of sale of the former family home at Menai.
The will gave each of Stephen, Eunice and James a one-quarter share of the estate (value $280,000). The remaining quarter was given to Eunice as trustee for Lois during her lifetime and after her death for the benefit of the Uniting Church. Clause 3(d) provided:

one quarter of the sale proceeds to my daughter EUNICE HELEN MORGAN UPON TRUST for my daughter LOIS RUTH DIXON for her life to apply the whole or any part of the capital or income therefrom for the maintenance, comforts and necessities in life and such other benefits as the trustee of this trust in her absolute discretion shall deem advisable for the welfare and happiness of my daughter LOIS RUTH DIXON and from and after the death of my daughter LOIS RUTH DIXON

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.

Continue reading Dixon v Dixon

Details

AGLC: Dixon v Dixon [2022] NSWSC 721
Case: [2022] NSWSC 721
Decision Date: 01 June 2022

CaseChat Overview and Summary

In the matter of Dixon v Dixon, the court was called upon to decide on the appointment of a new trustee for a testamentary trust established by a will. The trust was created for the benefit of the plaintiff, who has a disability, and provides for a life interest in the fund. The will appointed the plaintiff's sister as the initial trustee, but due to a falling-out between the plaintiff and the sister, the court was required to consider appointing a new trustee. The court was tasked with weighing the general desirability of appointing an independent trustee against the specific circumstances of the trust, including its modest estate and the potential fees that would be charged by the public trustee.

The court examined the various factors pertinent to the appointment of a new trustee, including the nature of the trust, the relationship between the plaintiff and the proposed trustees, and the implications for the trust's administration. The court found that the plaintiff's brother, who was proposed as an alternative to the public trustee, would be a suitable candidate. This was due to his existing relationship with the plaintiff, his understanding of the trust's requirements, and the absence of any disqualifying factors. The court also noted that the public trustee would charge fees, and there was no position taken by the residuary charitable beneficiary. Consequently, the court determined that the plaintiff's brother should be appointed as the new trustee.

Following the court's reasoning, the plaintiff's brother was appointed as the trustee of the testamentary trust. The court's decision was based on the specific circumstances of the trust and the need for an independent trustee who could effectively manage the trust's modest estate. The court's decision was in the best interests of the plaintiff, ensuring that the trust was administered in accordance with the wishes of the testator and the needs of the beneficiary.

Orders