JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ELOVALIS -v- ELOVALIS [2008] WASCA 141
CORAM: MARTIN CJ
BUSS JA
NEWNES AJA
HEARD: 6 MARCH 2008
DELIVERED : 4 JULY 2008
FILE NO/S: CACV 38 of 2007
BETWEEN: HELEN ELOVALIS
VICKI MICHELE TOT
AppellantsAND
ANASTASIOS VASILIOS ELOVALIS as Trustee of Mike's Gardening Trust
First RespondentCHRISTOS VASILIOS ELOVALIS
Second Respondent
ON APPEAL FROM:
For File No : CACV 38 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :ELOVALIS & ANOR -v- ANASTASIOS VASILIOS ELOVALIS AS TRUSTEE OF MIKE'S GARDENING TRUST & ANOR [2006] WASC 291
File No :CIV 2056 of 2004
Catchwords:
Trusts - Discretionary trust - Whether primary judicial officer applied the correct test when summarily dismissing application to appoint new trustee - Obligations of a trustee when conferred with wide discretionary powers
Legislation:
Trustees Act 1962 (WA), s 77
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellants: Mr S Penglis
First Respondent : Mr T Lampropoulos SC
Second Respondent : Mr T Lampropoulos SC
Solicitors:
Appellants: Freehills
First Respondent : Ilberys Lawyers
Second Respondent : Ilberys Lawyers
Case(s) referred to in judgment(s):
Armitage v Nurse [1998] Ch 241
Birtchnell v Equity Trustees Executors & Agency Co Ltd (1929) 42 CLR 384
Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226
Commissioner of State Revenue v Serana Pty Ltd [2008] WASCA 82
CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53; (2005) 224 CLR 98
Edell v Sitzer (2001) 55 OR (3d) 198
Edge v Pensions Ombudsman [1998] 3 WLR 466
Edge v Pensions Ombudsman [2000] Ch 602
Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547
Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)
Gartside v Inland Revenue Commissioners [1968] AC 553
Gisborne v Gisborne (1877) 2 App Cas 300
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10
Kent v SS 'Maria Luisa' (No 2) [2003] FCFCA 93; (2003) 130 FCR 12
McLaughlin v Prince [2002] WASC 274
Miller v Cameron (1936) 54 CLR 572
Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1
Passingham v Sherborn (1846) 9 Bav 424; 50 ER 4076
Porteous v Rinehart (1998) 19 WAR 495
Re Beatty [1990] 1 WLR 1503
Re Estate of Roberts (1983) 20 NTR 13
Re Goldcorp Exchange Ltd (In Receivership) [1995] 1 AC 74
Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518
Securities and Exchange Commission v Chenery Corporation (1943) 318 US 80
Tempest v Lord Camoys (1882) 21 Ch D 571
Vegners v Federal Commissioner of Taxation (1991) 21 ATR 1347
MARTIN CJ:
Summary
Helen Elovalis and Vicki Michele Tot (the daughters) appeal from the decision of the master granting summary judgment and dismissing proceedings which they…
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- AGLC
- Elovalis v Elovalis [2008] WASCA 141
- Case
- [2008] WASCA 141
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the primary judicial officer correctly applied the relevant legal test when dismissing the application to appoint a new trustee and the obligations of a trustee when conferred with wide discretionary powers. The court examined whether the primary judicial officer correctly exercised his discretion in dismissing the application and whether the obligations of the trustee, as outlined in the trust instrument, were properly considered.
The Court of Appeal found that the primary judicial officer did not apply the correct test when dismissing the application. The court emphasized the importance of examining the terms of the trust instrument to determine the nature and scope of the trustee's obligations. It was noted that the fiduciary duties of a trustee, including duties to avoid conflicts of interest and to act with reasonable prudence, may be limited by the terms of the trust instrument. The court concluded that the primary judicial officer should have considered the specific powers and duties of the trustee as outlined in the trust instrument. As a result, the orders made by the Master were set aside, and the appeal was allowed.
The court's final orders included allowing the appeal and setting aside the orders made by the Master in relation to the first respondent. Additionally, the court ordered that the respondents repay any amounts paid by the appellants to the respondents pursuant to orders made by the Master, including costs, together with interest at 6% per annum. The court also ordered that the costs of the application for summary judgment made by each of the respondents be costs in the cause of the action.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Securities and Exchange Commission v Chenery Corporation (1943) 318 US 80, Frankfurter J said:To say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty? (85 ‑ 86).In other words, to describe someone as a fiduciary, without more, is meaningless. See Re Goldcorp Exchange Ltd (In Receivership) [1995] 1 AC 74, 98. Where a fiduciary relationship is constituted by, or arises out of, a trust instrument which specifies the fiduciary's powers and duties, the terms of the instrument must be examined for the purpose of determining the nature and scope of the fiduciary's undertaking. See Birtchnell v Equity Trustees Executors & Agency Co Ltd (1929) 42 CLR 384, 408 (Dixon J); Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1, 15 ‑ 17 (Bryson J); Meagher Gummow & Lehane's 'Equity Doctrines & Remedies', 4th ed [5-075]. The nature and scope of the fiduciary duties of a trustee; for example, the duties to avoid conflicts of interest, to act with reasonable prudence and to observe impartiality, may be limited by the terms of the trust instrument. See Re Beatty [1990] 1 WLR 1503, 1506 (Hoffmann J); Armitage v Nurse [1998] Ch 241, 251 ‑ 256 (Millett LJ, Hirst and Hutchison LJJ agreeing); Edge v Pensions Ombudsman [2000] Ch 602, 621, 627 ‑ 630 (Peter Gibson, Ward and Chadwick LJJ); Edell v Sitzer (2001) 55 OR (3d) 198 [158] ‑ [159] (Cullity J). In Re Beatty, Hoffmann J said:The rule that a trustee cannot profit from his trust would ordinarily exclude the trustees themselves from the ambit of the powers, but clause 12(c) of the will allows the trustees to exercise any power conferred by the will, notwithstanding that they may have a direct personal interest in the mode of its exercise. This arguably allows the trustees, subject to having proper regard to their overall fiduciary duties, to make gifts or payments to themselves. They have in fact paid themselves £10,000 each in accordance with the express wish of Mrs Beatty that they should do so (1506). In Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cl 11(iv) of a testator's will permitted any trustee on his own or two trustees jointly to purchase the trust property. The English Court of Appeal (Nourse and Bingham LJJ and Sir George Waller) held that the effect of the provision was to exclude a purchase by the trustees from the operation of the rule which disabled a trustee from purchasing the trust property. Their Lordships also held:It cannot be doubted that the trustees have ever since been in a position where their interests as tenants may conflict with their duties as trustees to the estate of Charles. But the conclusive objection to the application of the absolute rule on which Mr Romer relies is that it is not they who have put themselves in that position. They have been put there mainly by the testator's grant of the tenancies and by the provisions of his will and partly by contractual arrangements to which Charles himself was a party and of which his representatives cannot complain. The administrators cannot therefore complain of the trustees' continued assertion of their rights as tenants (523).