Hancock v Rinehart (Trust Documents)

Case [2018] NSWSC 1684


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Hancock v Rinehart (Trust documents) [2018] NSWSC 1684
Hearing dates: 29 September 2015, 12 May, 3 June, 18 August, 31 September 2016, 4 May, 28 June 2017. Written submissions closed 3 August 2017.
Date of orders: 05 November 2018
Decision date: 05 November 2018
Jurisdiction:Equity
Before: Brereton J
Decision:

Orders made that the first defendant verify compliance with the delivery up order, as clarified in this judgment: see para [145].

Catchwords:

EQUITY – Trusts and trustees – Where Court made orders appointing new trustee in circumstances where former trustee wished to be discharged from the role – Former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – New trustee contended that order had not been complied with – What constitutes “documents of the trust” liable to be delivered up to incoming trustee – Whether includes documents constituting deliberations of trustee as distinct from decisions – Whether includes private communications with beneficiaries – Whether includes privileged documents – Where outgoing trustee has proceeded on misconceived basis – Orders made for outgoing trustee to verify compliance

EVIDENCE – privilege – waiver – joint privilege – Evidence Act 1995, s 124
Legislation Cited: (NSW) Civil Procedure Act 2005, s 135
(NSW) Evidence Act 1995 , s 124
Cases Cited: AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Limited [2015] NSWSC 216
Akcan v Cross [2013] NSWSC 403
Alperton Rubber Co v Manning (1917) 86 LJ Ch 377
Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; [2007] NSWCA 57
Bird Charitable Trust, In the matter of the (2012) (1) JLR 62
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477
Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601
Global Custodians Ltd v Mesh [2002] NSWSC 47
Gourand v Edison Gower Bell Telephone Company of Europe (1888) 57 LJ Ch 498
Gray v BNY Trust Company of Australia Ltd [2009] NSWSC 789; (2009) 76 NSWLR 586
Great Southern Managers Australia Ltd v Clarke (2012) 36 VR 308; [2012] VSCA 207
Hancock v Rinehart (Costs) [2016] NSWSC 11
Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530
Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hancock v Rinehart [2015] NSWSC 2140
Hancock v Rinehart [2015] NSWSC 646; 106 ACSR 207
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16
Londonderry’s Settlement, Re [1965] Ch 918
McDonald v Ellis [2007] NSWSC 1068
McLeary v Swift [2014] NSWSC 1414
O’Rourke v Darbishire [1920] AC 581
Ormonoid Roofing & Asphalts Ltd v Bitumenoids Ltd (1931) 31 SR(NSW) 347
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977; 12 BPR 22,347
Rinehart v Rinehart [2016] NSWCA 58
Robertson…

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Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Case
[2018] NSWSC 1684
Decision Date

CaseChat Overview and Summary

Hancock v Rinehart (Trust Documents) involved a dispute over the transfer of trust documents between a former trustee and a new trustee. The former trustee had sought to be discharged from the role, and the court had ordered the delivery of all trust documents to the new trustee. The new trustee later contended that the former trustee had not fully complied with this order. The legal issues the court needed to address included the scope of the term "documents of the trust" and whether this encompassed documents that constituted the deliberations of the trustee, private communications with beneficiaries, and privileged documents. The court also needed to determine the appropriate course of action when the former trustee had acted on a misconceived basis.

The court's reasoning focused on the interpretation of the term "documents of the trust." It concluded that the term should be understood broadly to include any document that pertains to the trust, regardless of whether it reflects deliberations, decisions, or communications with beneficiaries. The court further held that the obligation to deliver such documents was not mitigated by considerations of privilege, unless there was a specific waiver. The court found that the former trustee had not fully complied with the order, and thus ordered the former trustee to verify compliance with the original directive to deliver all trust documents to the new trustee.

The court's decision was pivotal in clarifying the obligations of trustees in the context of trust document transfers. It reinforced the broad interpretation of "documents of the trust" and underscored the importance of compliance with court orders. The final orders required the former trustee to verify compliance with the original directive to deliver all documents related to the trust to the new trustee. This included ensuring that any privileged documents were appropriately identified and handled according to the court's guidance.

Orders

Orders of the court

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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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