SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Duffell v Duffell (No 2) |
Citation: | [2015] ACTSC 301 |
Hearing Date(s): | 27 March 2015 |
DecisionDates: | 1 October 2015 |
Before: | Refshauge ACJ |
Decision: | The plaintiff be heard as to the orders to be made. |
Catchwords: | PRACTICE AND PROCEDURE – Application for approval of settlement – persons with legal disability – involvement by the litigation guardian – arrangements for funds management – appointment of trustee – appointment of a trustee company – administration of a trust – need for detail as to how trust established – purposes of the trust |
Legislation Cited: | NSW Trustee and Guardian Act 2009 (NSW), s 59(g) Protected Estates Act 1983 (NSW), s 28(1AA) Court Procedures Rules 2006 (ACT), rr 1616, 1618 |
Cases Cited: | Duffell v Duffell [2015] ACTSC 123 Jones v Moylan (1997) 18 WAR 492 |
Texts Cited: | Charles Rowland and Phillip Bailey, Discretionary Testamentary Trusts, Precedents and Commentary (LexisNexis Butterworths: Sydney, 2013) |
Parties: | Jon Duffell by his litigation guardian Jane Derrin (Plaintiff) James John Duffell (Defendant) |
Representation: | Counsel Mr A J Bartley SC and Mr S J Longhurst (Plaintiff) Mr D Wilson (Defendant) |
| Solicitors Porters Lawyers (Plaintiff) Curwoods Lawyers (Defendant) | |
File Number(s): | SC 112 of 2007 |
Refshauge J:
On 26 May 2015, I approved a compromise made between the parties to resolve the claim made by the plaintiff, Jon Duffell, who sued, by his litigation guardian, Jane Derrin, for damages to compensate him for very severe and disabling injuries he had suffered in a motor vehicle accident. See Duffell v Duffell [2015] ACTSC 123.
In addition to approving the compromise, I was asked to make orders waiving the usual statutory arrangement for the judgment sum, payable under the compromise, and that it not be administered by the Public Trustee but, instead, by National Australia Trustees Ltd.
I was generally satisfied that the fund could be administered by National Australia Trustees Ltd but required to be satisfied of two matters of concern. I set them out in Duffell v Duffell at [70]-[72] as follows:
70.There are, however, two other considerations that need to be addressed. The first is that I have not seen the arrangements under which the funds are to be managed, whether under a special trust or otherwise. As is clear from Singh (No 2) at 257-8; [41]-[48], issues such as the nature and tenure of the trust arrangement, the relationship between the trustee, Mr Duffell and any guardian or carers for him, the proposed investment strategies and the safeguards to protect the corpus of the fund need to be addressed.
71.The second is that the proposed trustee is, as I have noted, a wholly-owned subsidiary of a large bank which is involved in the financial services sector. That involves the bank in providing investment opportunities which may or may not be appropriate for the investment of part or…
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- AGLC
- Duffell v Duffell (No 2) [2015] ACTSC 301
- Case
- [2015] ACTSC 301
- Decision Date
CaseChat Overview and Summary
The court considered the legal issues by examining the role of the litigation guardian in the settlement process and the need for their involvement. The court also evaluated the proposed arrangements for the management of funds and the suitability of appointing a trustee company. In addition, the court examined the purposes of the trust and the need for detail in establishing the trust. The court found that the proposed arrangements for the management of funds were appropriate, but there was a need for more detail regarding the establishment of the trust and the purposes it was intended to serve.
The court's reasoning and outcome were that the plaintiff should be heard regarding the orders to be made. The court found that the proposed arrangements for the management of funds were suitable, but there was a need for more detail regarding the establishment of the trust and the purposes it was intended to serve. The court considered that the involvement of the litigation guardian was necessary, and the appointment of a trustee company was appropriate. The court's decision was to allow the plaintiff to be heard as to the orders to be made, with the understanding that the details of the trust needed to be clarified.
Orders
Orders of the court
The plaintiff be heard as to the orders to be made.
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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