Duffell v Duffell (No 2)

[2015] ACTSC 301

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)
Trustee Companies Act 1964 (NSW), s17

Court Procedures Rules 2006 (ACT), rr 1616, 1618

Cases Cited:

Duffell v Duffell [2015] ACTSC 123

Jones v Moylan (1997) 18 WAR 492
Singh v Calvary Hospital ACT Inc (No 2) (2009) 3 ACTLR 247
The Application of VS [2011] NSWSC 47

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:

1. 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.

1. 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.

1. 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…