FGH v NOP

Case [2023] WASCA 177


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FGH -v- NOP [2023] WASCA 177

CORAM:   BEECH JA

MULLINS AJA

SEAWARD J

HEARD:   20 SEPTEMBER 2023

DELIVERED          :   13 DECEMBER 2023

FILE NO/S:   CACV 90 of 2022

BETWEEN:   FGH beneficiary of the estate of IJ

Appellant

AND

NOP

First Respondent

FGH as executor and trustee of the estate of IJ

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   SOLOMON J

File Number            :   CIV 2174 of 2019


Catchwords:

Wills and estates - Family provision claim under s 6 of Family Provision Act 1972 (WA) - Where daughter claimant had debts substantially exceeding her assets - Where primary judge considered payment of a capital sum to claimant would not advance the objects of an award under s 6 - Whether s 6 empowers the court to order provision for a claimant by way of a discretionary trust the objects of which include other persons who are not successful claimants - Whether primary judge erred in the exercise of discretion under s 6

Legislation:

Family Provision Act 1972 (WA), s 6, s 7, s 13

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : M Curwood SC & S R Pack
First Respondent : P J Ward & A L Spencer
Second Respondent : No appearance

Solicitors:

Appellant : Solomon Hollett Lawyers
First Respondent : Williams & Hughes
Second Respondent : No appearance

Case(s) referred to in decision(s):

AB v FGH [2022] WASC 244

Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1

Australian Securities Investments Commission v Jones [2023] WASCA 130

Barns v Barns [2003] HCA 9; (2003) 214 CLR 169

Borebor v Keane [2013] VSC 35; (2013) 11 ASTLR 96

Caska v Caska [1999] NSWSC 289

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98

Crime and Corruption Commission v Carne [2023] HCA 28

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97

Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 345

Diver v Neal [2009] NSWCA 115

Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89

Estate of Cooper [1987] NZCA 198

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108

Herszlikowicz v Czarny [2005] VSC 354

House v The King (1936) 55 CLR 499

In re Wilcox [1978] Tas SR 82

KSJ v GJA [2021] WASCA 98

Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180

Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486

McCann v Ward [2012] VSC 63

McLeod v Johns [1981] 1…

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FGH v NOP [2023] WASCA 177
Case
[2023] WASCA 177
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CaseChat Overview and Summary

The case of FGH v NOP involved a dispute between the parties regarding the interpretation of sections 6 and 13 of the Trustee Act. The dispute came before the court to determine whether the court had the power to make a provision for a class fund under section 13, or whether it was limited to making separate provisions under section 6. The court was required to decide whether the principle of statutory construction that limits a general power when a special power is available applied in this case.

The court considered the principles of statutory construction, particularly the principle that a general power is limited by a special power if the two provisions are with respect to the same subject matter. The court found that the two provisions did not have the same subject matter, as section 13 empowered the court to make an order providing for a class fund for the benefit of two or more successful applicants, while section 6 empowered the court to make separate provisions for each successful applicant. The court concluded that section 13 did not reveal an intention to limit or confine the amplitude of the power conferred by section 6.

Accordingly, the court held that the principle of statutory construction did not apply in this case, and the court had the power to make a provision for a class fund under section 13, in addition to making separate provisions for each successful applicant under section 6. The court did not make any specific orders in this case.

This case highlights the importance of considering the subject matter of the provisions in question when determining whether the principle of statutory construction applies. In this case, the court found that the two provisions did not have the same subject matter, and therefore the principle did not apply. This case will be of interest to lawyers and trustees who are involved in cases involving the interpretation of provisions in the Trustee Act.

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Background

Background to the litigation

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Ratio Decidendi

Legal Principle Established

As Gummow and Hayne JJ observed in Minister for Immigration v Nystrom,[27] in a passage recently applied by this court in Thayli Pty Ltd v Commissioner of Police,[28] in order for that principle to be applicable:it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of another apparently applicable power by reference to the restrictions in the former power.[27] Minister for Immigration v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [59].[28] Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46. These statements of principle make clear that this principle of statutory construction applies only when the two provisions - the general power and the special power - are being relied upon to do the same thing, namely that which is the subject of the special power. For the reasons in [49] below, that is not so in the present case. Expressed another way, for the Anthony Hordern principle to apply, the two provisions must be 'with respect to the same subject matter'; or the 'general power must encroach upon the subject matter exhaustively governed by the special power', so that 'the ambit of the restricted power is ostensibly within the ambit of the general power'.[29][29] Minister for Immigration v Nystrom [59], [61]; Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 345 [106]; Queensland Building and Construction Commission v Groupline Constructions Pty Ltd [2020] QCA 245; (2020) 6 QR 390 [97]. For the following reasons, the two provisions - s 6 and s 13 - cannot be said to have the same subject matter. Section 13 empowers the court to make an order providing for a class fund for the benefit of two or more persons who are eligible applicants under s 7 and who have each made out their respective claims under s 6, on terms conferring discretion on the trustee to determine, as between the successful applicants, how much if any income or capital to distribute. In our view, the subject-matter of s 13 is a quite specific situation involving two or more successful applicants, in which there is or may have been doubt as to whether the general power in s 6 encompassed a power to make a provision of the kind permitted by s 13. Section 6 would plainly empower the making of separate provision by the court for each of two (or more) successful applicants. However, there is doubt as to whether s 6 would permit the court to order the making of a single provision, by way of moneys being held on trust as a class fund, for both (or all) successful applicants on terms conferring discretion on the trustee to determine, as between the successful applicants, how much if any income or capital to distribute. Put shortly, s 13 permits a single discretionary trust which deals with both (or all) successful applicants rather than needing to make separate provision for different people. In our view, s 13 does not reveal an intention to limit or confine the amplitude of the power conferred by s 6.