George v Kollias - [2007] VSC 46

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6364 of 2005

IN THE MATTER of the S M CARNEGIE TRUST

IN THE MATTER of an application under the Trustee Act 1958, s 63A

BETWEEN

JENNIFER ANNE GEORGE	Plaintiff
and
BRIAN CHARLES KOLLIAS & ORS	Defendants

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 February 2007
DATE OF JUDGMENT:	5 March 2007
CASE MAY BE CITED AS:	George v Kollias & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 46

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TRUSTS – Trustee Act 1958, s 63A – Discretionary trust - Application for approval of arrangement – Consented to by all beneficiaries of full age and capacity - Whether for benefit of minors and persons unborn – Whether to be approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D G Collins SC and Mr P G Willis	Allens Arthur Robinson
For the Second and Third Defendants	Mr R R Boaden	Maddocks
For the Fourth Defendant	Mr R B Phillips	Donaldson Trumble

HIS HONOUR:

This is an application for an order under s 63A of the Trustee Act 1958 (Vic) (“the Act”) approving an arrangement varying the S M Carnegie Trust (“the Trust”) established under the will of Sunday Millicent Carnegie who died on 25 May 1995. I will refer to Mrs Carnegie as the testatrix.

On 28 September 1995 probate of the will (dated 21 April 1994) was granted to the executors appointed therein namely, her brother Jack Morton Tallis, her accountant Roger James Gilchrist and her solicitor Brian Charles Kollias. The testatrix also appointed the executors as trustees of the estate. Thus on the establishment of the Trust the executors became the trustees thereof. Subsequently changes have occurred in the identity of the trustees. On 11 December 1996 Perpetual Trustees Victoria Ltd was appointed an additional trustee of the Trust. On 19 December 1996 Mr Tallis died. On 26 January 2007 Mr Kollias died. No person has yet been appointed to replace him as a trustee.

The proceeding was commenced in June 2005 by a beneficiary of the trust. The defendants were the trustees and another beneficiary as a representative party. By amendment pursuant to orders made on 13 December 2006 that representative party was replaced as such by an independent solicitor, Jan Moffat.

The testatrix was one of four children of Sir George Tallis who died in 1948. Her siblings were:

(a)George Cassius Tallis who died in 1990 survived by two children, June Patricia Tallis and George Michael Tallis;
(b)Jeffery Andrew Tallis who died in 1998 survived by two children, Suzanne Joyce Knight and Jeffrey Peter Tallis; and
(c)Jack Morton Tallis who died in 1996. He had no issue.

The testatrix died without issue. She was survived by her four nephews and nieces referred to above.

By her will, after providing for some legacies and a devise of her house property at Mornington, the testatrix left the residue of her estate to her trustees on…

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 George v Kollias

Details

AGLC: George v Kollias [2007] VSC 46
Case: [2007] VSC 46
Decision Date: 5 March 2007

CaseChat Overview and Summary

The case of George v Kollias involved the trustees of a discretionary trust seeking the court's approval for an arrangement to distribute the trust property. The beneficiaries, including minors and persons unborn, were all of full age and capacity and had consented to the arrangement. The legal question before the court was whether the arrangement, which was for the benefit of minors and persons unborn, should be approved under the Trustee Act 1958, section 63A.

The court examined the statutory provisions and case law to determine the appropriate test for the approval of the arrangement. The court noted that the arrangement was proposed for the benefit of beneficiaries who could not consent, and therefore required the court's approval. The court considered whether the arrangement was in the best interests of the beneficiaries and whether it complied with the statutory requirements. The court also considered the evidence of the beneficiaries' interests and the potential benefits of the arrangement.

The court held that the arrangement was in the best interests of the beneficiaries and complied with the statutory requirements. The court found that the trustees had exercised their discretion appropriately and that the arrangement would benefit the beneficiaries. The court approved the arrangement, noting that it was in the best interests of the beneficiaries and that it complied with the statutory requirements. The court ordered that the arrangement be carried out in accordance with the terms of the application.

The court's decision provides guidance for trustees seeking approval for arrangements under the Trustee Act 1958. The court's approval of the arrangement in this case demonstrates the importance of considering the best interests of beneficiaries and complying with the statutory requirements when seeking approval for an arrangement. The decision also highlights the need for trustees to exercise their discretion appropriately and to consider the potential benefits of the arrangement for the beneficiaries.

Orders