Hancock v Rinehart (Trust Documents)

Case •

[2018] NSWSC 1684

•

05 November 2018

No judgment structure available for this case.

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 v Robertson [2009] VSC 118
Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; [1999] SASC 181
Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208
Schmidt v Rosewood Trust Pty Ltd [2003] 2 AC 709; [2003] 3 All ER 76; [2003] UKPC 26
Schreuder v Murray (No 2) (2009) 41 WAR 169; [2009] WASCA145
Talbot v Marshfield [1865] 62 ER 728
Tiger v Barclays Bank Ltd [1951] 2 KB 556; on appeal [1952] 1 All ER 85
Yunghanns v Elfic Pty Ltd (No 2) (2000) 1 VR 92; [2000] VSC 113
Texts Cited: Heydon JD, Cross on Evidence (2018, LexisNexis)
Neville AG & Ashe AW, Equity Proceedings With Precedents (New South Wales) (1981, Butterworths)
Category:Consequential orders (other than Costs)
Parties: John Langley Hancock (first plaintiff)
Bianca Hope Rinehart (second plaintiff)
Gina Hope Rinehart (first defendant)
Ginia Hope Frances Rinehart (second defendant)
Hope Rinehart Welker (third defendant)
Hancock Prospecting Pty Ltd (fourth defendant)
Hope Downs Iron Ore Pty Ltd (fifth defendant)
Representation:

Counsel:
C H Withers w P A Meagher & A M Hochroth (plaintiffs)
B McClintock SC w R Mansted (first defendant)

  Solicitors:
Yeldham Price O’Brien Lusk (plaintiffs)
Speed & Stracey (first defendant)
File Number(s): 2011/285907

Judgment

  1. On 28 May 2015, in connection with the appointment of the second plaintiff Bianca as new trustee of the Hope Margaret Hancock Trust (“the Trust”) in place of the first defendant Mrs Rinehart, an order was made for the delivery up by Mrs Rinehart to Bianca (as replacement trustee of the Trust) within 28 days of all “documents of the Trust” in her possession custody or power (“the delivery up order”). [1] Bianca contends that Mrs Rinehart has not fully complied with that order, and by notice of motion filed on 3 September 2015 (“the 3 September 2015 motion”) the plaintiffs John and Bianca sought further orders in aid of implementation and enforcement of the 28 May 2015 orders, and to enable them properly to consider and interrogate the account furnished by her pursuant to the May orders (“the Account”), including by requiring Mrs Rinehart to produce specific categories of trust documents which she had allegedly failed or refused to produce; and requiring her to provide an affidavit verifying her compliance with the delivery up order and also explaining inter alia the manner in which trust records were kept, the steps taken by her to locate and produce all trust records, and the basis upon which she was withholding any trust records. By a motion filed on 23 September 2015, the first defendant applies pursuant to liberty to apply reserved in the May 2015 orders to be relieved of her obligation to deliver up certain classes of documents, namely those which contain “private information”, or are confidential or privileged

    1. Hancock v Rinehart [2015] NSWSC 646 at [383]; 106 ACSR 207.

  2. The plaintiffs contend that the first defendant has not made a genuine attempt to comply with the delivery up order, and indeed has deliberately not done so, and that only by a prescriptive regime can compliance be verified. The first defendant’s position is that she has indeed made a genuine attempt at compliance, in difficult circumstances, and that any deficiency is attributable to a good faith interpretation on her part of the order (in particular, as to what is a “document of the Trust”), or inadvertence.

  3. There was no suggestion that the Court could not make the orders sought, or orders to like effect. Insofar as it is necessary, the requisite jurisdiction and power may be found in (NSW) Civil Procedure Act 2005, s 135(1), which empowers the court to give directions with respect to the enforcement of its orders; [2] and in the inherent jurisdiction of the Court to ensure that its orders are complied with. [3]

    2. Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; [2007] NSWCA 57 at [138] (Beazley JA).

    3. McLeary v Swift [2014] NSWSC 1414 at [56]-[58] (Hallen J); Riltang Pty Ltd v L Pty Ltd (2004) 12 BPR 22,347; [2004] NSWSC 977 at [52] (White J).

Procedural history

  1. It is necessary to say something of the labyrinthine procedural history of the 3 September 2015 motion.

  2. In anticipation of the motion, a subpoena for production had been issued at Bianca’s request to Sceales & Company Lawyers (“Sceales”) on 26 August 2015. On 16 September 2015, Sceales produced, to the Court, documents in answer to the subpoena (“the Sceales documents”). Mrs Rinehart made a claim of legal professional privilege in respect of some of the Sceales documents.

  3. The hearing of the 3 September 2015 motion, including Mrs Rinehart’s privilege claim, commenced on 29 September 2015. As the Sceales documents were sought in connection with the 3 September 2015 motion, its hearing could not be concluded until the privilege dispute was resolved. In a judgment delivered on 15 October 2015, [4] I granted access to certain of the Sceales documents to Bianca, made directions for evidence and submissions in relation to Mrs Rinehart’s privilege claim in respect of the remainder, and appointed 3 November 2015 for the hearing of Bianca’s application for access to those documents. Concurrently, I extended to 19 October 2015 time for lodgement and service of the plaintiffs' submissions and evidence in respect of their application for a gross sum costs order in respect of the principal proceedings.

    4. Hancock v Rinehart [2015] NSWSC 2140.

  4. The first defendant’s written submissions in respect of the application for access to the Sceales documents were lodged on 28 October 2015, and the plaintiffs’ on 2 November 2015. That application was heard on 3 November 2015, when judgment on it was reserved. Meanwhile, on 29 October 2015, I heard the gross sum costs application. Judgment on the gross sum costs order application was delivered on 5 November 2015. [5] On 12 November 2015, orders were made consequent on that judgment, and the question of costs of that application was heard and determined.

    5. Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640.

  5. On 2 February 2016, judgment was delivered on the application for access to the Sceales documents, holding that Mrs Rinehart had not sustained a claim of privilege in her own right (as distinct from in right of trustee) to the disputed documents. [6] Judgment was also delivered on the question of costs of that part of the substantive proceedings which had not been encompassed by the gross sum costs order. [7] Access to the Sceales documents was granted to Bianca, and directions made for service by her of any further evidence (arising out of the Sceales documents) in support of the 3 September 2015 motion, and any further written submissions, by 16 February 2016; and for any evidence in response and further submissions by the first defendant by 2 March 2016. The proceedings were to be listed for the remainder of the hearing of the 3 September 2015 motion on a date to be fixed.

    6. Hancock v Rinehart (Privilege) [2016] NSWSC 12.

    7. Hancock v Rinehart (Costs) [2016] NSWSC 11.

  6. However, the orders in respect of the Sceales documents were, on the first defendant’s application, stayed, initially until 5 February 2016, to enable Mrs Rinehart to consider an appeal. On 5 February 2016, the stay was continued until and including 8 February 2016. On 8 February 2016, the proceedings were adjourned to 16 February 2016 for hearing on a contested basis of the first defendant's application for a further stay of the orders made on 2 February 2016, and the stay was extended until and including 16 February 2016. On 16 February 2016, the first defendant’s application for a further extension of the stay was dismissed; but an interim stay was granted until and including 7 March 2016, or such further time as the Court of Appeal might on application order; and the timetable for further evidence and submissions on the 3 September 2015 motion was suspended until further order. The proceedings were adjourned for further directions.

  7. On 24 March 2016, the Court of Appeal dismissed Mrs Rinehart’s application for leave to appeal from the judgment on Bianca’s application for access to the Sceales documents. [8] Subsequently, orders were made in respect of the 3 September 2015 motion that by close of business on 29 March 2016, the defendants inform the plaintiffs whether a claim for privilege in respect of documents produced by PricewaterhouseCoopers (“the PwC documents”) would be made, and the proceedings were otherwise adjourned to 30 March 2016.

    8. Rinehart v Rinehart [2016] NSWCA 58.

  8. On 30 March 2016, the hearing of the remainder of the 3 September 2015 motion was fixed for 11 May 2016. The plaintiffs lodged additional written submissions on 18 April 2016, and the first defendant on 4 May 2016. At the request of the parties, the hearing date was changed to 12 May 2016. At the hearing on 12 May 2016, the plaintiffs amended their motion, in particular to seek production of further categories of documents identified in Annexure B to the amended motion, which arose out of the production of the Sceales documents and the PwC documents.

  9. The hearing of the remainder of the 3 September 2015 motion resumed on 3 June 2016, when judgment was reserved. However, on 22 July 2016, Sceales & Company (belatedly) produced further documents pursuant to the 26 August 2015 subpoena. On 2 August 2016, directions were made in respect of access and privilege claims, and on 11 August further directions were made for evidence in respect of the claims for privilege advanced by the defendants, the hearing of which was appointed for 18 August 2016. At the hearing on 18 August 2016, I gave an ex tempore judgment rejecting the claim for privilege and granting access to the documents in respect of which privilege had been claimed, following which Mr Withers, for the plaintiffs, sought and was granted leave to tender them on the 3 September 2015 motion, and to make submissions in respect of them, which were completed later that day.

  10. However, a new issue immediately arose. On 9 August 2016, Bianca had requested the law firm Herbert Smith Freehills (“Freehills”) – which had, under an earlier guise, acted for Mrs Rinehart, at least including in her capacity as trustee of the HMH Trust although possibly also in other capacities and for other Rinehart entities – to deliver up to Bianca a copy of all documents held by Freehills that were created or received in connection with advice provided by it to the HMH Trust. After some further exchanges of correspondence, Freehills on 7 October 2016, without Mrs Rinehart’s knowledge or consent (but in circumstances in which Freehills understandably but mistakenly believed that she had been afforded an opportunity to object) delivered up to Bianca 43 documents, on the footing that they were trust documents to which Bianca as the new trustee was entitled (“the Freehills documents”). By motion filed in court on 31 October 2016, Mrs Rinehart applied for orders restraining the plaintiffs from using 27 of the Freehills documents, and requiring their return to Freehills or to her. That application was heard on 31 October 2016, when I held that the 27 contentious documents should be returned to Freehills or the defendants. Leave was granted to Bianca to reopen the evidence and submissions on the 3 September 2015 motion, in order to adduce in evidence those of the Freehills documents that were not to be returned, and to make submissions about them. That leave was exercised subsequently on the same day, when judgment on the 3 September 2015 motion was again reserved.

  11. Following correspondence between the solicitors for the parties, and in circumstances where, the parties being in dispute, Freehills (reasonably) declined to release any further documents to her, on 2 December 2016 Bianca caused to be issued a subpoena to Freehills for production of 25 of the 27 returned documents. By notice of motion filed on 31 January 2017, Mrs Rinehart applied to have that subpoena set aside, or alternatively access refused to the documents produced in response to it. Mrs Rinehart contended that the subject documents were not documents of the Trust; were the subject of her personal legal professional privilege, or that of HPPL; and were not required for any legitimate forensic purpose. That motion was heard on 30 March 2017, when judgment was reserved.

  12. Judgment was delivered on 4 May 2017, holding that Mrs Rinehart, and HPPL, were unable to sustain a claim of privilege, as against Bianca, in respect of any of the documents in issue, because the evidence did not establish that any of those documents was prepared exclusively for an entity other than the HMH Trust, as distinct from pursuant to a joint retainer, the consequence of which was that privilege was not maintainable against the HMH Trust as one of the clients. [9] The court ordered that the first defendant’s motion filed 31 January 2017 be dismissed with costs; and that there be general access to the Freehills documents. The plaintiffs then sought an opportunity to reopen their case on the 3 September 2015 motion, tender the Freehills documents to which they now had access, and to make submissions on those matters. The Court further ordered that the plaintiffs have leave to reopen the evidence on the 3 September 2015 motion and for that purpose lodge by 11 May 2017 a folder containing an index, copies of the documents so tendered, and any submissions they wish to make in respect of the tender, and the documents if admitted; that the defendants lodge by 18 May 2017 a folder containing an index, any evidence in reply to the additional evidence, any objections and submissions they wish to make in respect of the tender, and the documents if admitted, and a statement whether they oppose the question of the admission of any documents so tendered, and any submissions made in respect of them if admitted, being dealt with on the papers without any further oral hearing; and that the plaintiffs lodge with my associate by 25 May 2017 any evidence and submissions in reply. The operation of the order for access to the Freehills documents was stayed until 11 May 2017 or further order, with liberty to apply in the meantime for an extension of time, which liberty was not exercised.

    9. Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530.

  13. On 15 May 2017, on the request of the parties, the Court ordered that time for the plaintiffs’ folder be extended to 22 May 2017, time for the defendants’ folder to 29 May 2017, and time for the plaintiffs’ reply to 5 June 2017. On 23 May 2017, again on the request of the parties, the Court extended time for the plaintiffs’ folder to 24 May 2017, the defendants’ folder to 2 June 2017, and the plaintiffs’ reply to 9 June 2017.

  14. The plaintiffs lodged their folder and further submissions on 24 May. However, on 19 June 2017 the defendants filed a further motion, seeking an indefinite stay of the proceedings, apparently pending determination of proceedings in the Federal Court. This application was heard and determined on 28 June 2017, when the Court ordered that the motion filed on 19 June 2017 be dismissed with costs, but further extended time for the defendants’ folder and submissions to 12 July 2017. The defendants duly lodged their further submissions on 12 July, and the plaintiffs’ reply was lodged on 3 August 2017.

Admissibility of the Freehills documents

  1. On the reopening, the plaintiffs tendered with their submission of 24 May 2017 various of the documents which had been produced by Freehills. The first defendant objected to their receipt into evidence, both in respect of those which were conceded to be trust documents, and those which were not. The basis of the objection was that the documents were said to be subject to joint privilege, which privilege could not be waived, and the documents could not be put into evidence, without the consent of the others entitled to the joint privilege, which (presumably) included the first defendant. [10]

    10. Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 at 608 (Sheller JA); Heydon JD, Cross on Evidence (2018, LexisNexis), at [25265]; Robertson v Robertson [2009] VSC 118 (in which a son who had obtained legal advice jointly with his father was held not entitled to tender that advice against his father in court).

  2. For the proposition that the documents were subject to joint privilege, the first defendant adduced no evidence, but relied on the Freehills Subpoena judgment. [11] However, in the Freehills Subpoena judgment, I did not affirmatively determine that there was a joint retainer, or joint privilege. I said that while there was clear evidence of a retainer by the Trust, the position in respect of other Hancock entities was less clear, though it seemed that Freehills were acting concurrently for other Hancock entities; and concluded that Freehills were during the relevant period acting, if not for the Trust alone pursuant to the only retainer that had been identified, then for multiple Hancock entities, including the Trust (emphasis added):

    11. Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530.

36 The position is complicated by the circumstance that, while Freehills undoubtedly were retained by Mrs Rinehart qua trustee of the HMH Trust, they appear also to have been retained by her in other capacities (and by other Hancock entities). At the foundation of Mrs Rinehart’s claim of privilege is the proposition that, in creating or receiving the documents in issue, Freehills were acting for her other than qua trustee of the HMHT. While there is clear evidence of a retainer by the HMH Trust, the position in respect of other Hancock entities is less clear. The terms of the retainer were “not as clear as they might be”, and it seems that Freehills were acting concurrently for other Hancock entities. However:

(a) all the work was done on a single file;

(b) as appears from the summary of documents 37, 38, 39, 40 and 41, referred to below, Freehills apparently billed all the work together in one account (although for period from 25 August it was subsequently dissected into three accounts); and

(c) instructions were received and advice was rendered through a common conduit, typically Mr Lee, an in-house solicitor at HPPL, and was often given in respect of multiple entities in one communication. On Mrs Rinehart’s own case, some of the documents contain “a mixture of information that related to the HMH Trust and other matters”.

37 In my view, while there are some documents which refer to a particular client entity, Freehills were during the relevant period acting, if not for the HMH Trust alone pursuant to the only retainer that has been identified, then for multiple Hancock entities, including the HMH Trust, jointly.

  1. As privilege could be maintained against Bianca as trustee of the Trust only if it was established that Freehills were acting for another Hancock entity, to the exclusion of the Trust, in circumstances where the other entity was entitled to maintain a claim of privilege against the Trust, [12] it was my conclusion that Mrs Rinehart and HPPL were unable to sustain a claim of privilege, as against Bianca, in respect of any of the documents in issue, because the evidence did not establish that any of those documents was prepared exclusively for an entity other than the HMH Trust, as distinct from pursuant to a joint retainer, the consequence of which was that privilege was not maintainable against the Trust as one of the clients. [13]

    12. Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530 at [38].

    13. Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530 at [62].

  2. The evidentiary position has not changed. The first defendant has not affirmatively established that she is entitled, in her personal as distinct from trustee capacity, to privilege in any of the Freehills documents. Moreover, the common law position in respect of the ability of one holder of a joint privilege to tender documents is affected by (NSW) Evidence Act 1995, s 124, which permits one of several holders of a joint privilege to adduce evidence of a communication by any of them (or a confidential document prepared at the direction or request of any one of them), in a civil proceeding in connection with which two or more parties have, before the proceedings commenced, jointly retained a lawyer “in relation to the same matter”. The defendants invoke the judgment of Rein J in Akcan v Cross [14] for the proposition that the reference to “the same matter” in s 124 is to the same subject matter as is involved in the relevant civil proceeding. His Honour said (at [13]):

… Whilst not felicitously expressed, I think it is tolerably clear that the intent of the section is to refer to the retention of a lawyer in connection with the same subject matter as is involved in the proceedings. To require that there has been retention of a lawyer prior to proceedings but after a dispute has arisen for the section to apply does not make sense. In context it is obvious that "matter" does not mean matter in the sense of "proceedings" because the joint retention of the lawyer must have been before the commencement of the proceedings.

14. [2013] NSWSC 403.

  1. His Honour was rejecting a submission that “the same matter” referred back to “a civil proceeding”, and that was all that was required for the disposition of the case. With great respect, I take a wider view of the construction of s 124. In my view, the reference to “the same matter” is not to the subject matter of the proceeding, but to the subject matter of the joint retainer. [15] This construction is supported by the absence of any prior reference to any “matter” in s 124(1), and in my view it is a far more natural reading of s 124(1) to treat “in relation to the same matter” as part of the description of a joint retainer – that is, a retainer of a lawyer by two or more parties in relation to the same matter – rather than as referring back to the subject matter of the relevant “civil proceeding”. From a purposive perspective, there appears to be no good reason why the exception provided by s 124 should operate only where the civil proceeding in question has the same subject matter as the joint retainer, and very difficult questions of degree would then arise as to what degree of “sameness” was required to engage the section.

    15. See also Cross on Evidence at [25300].

  2. Further, insofar as the Freehills documents have previously been tendered and admitted into evidence in open court, in the absence of any suppression order, privilege in them is no longer sustainable. Some of the documents presently in issue were previously tendered by affidavit (via exhibits PSS-6, PSS-7 and TRP9), and were not then the subject of any suppression order. The fact that they may have been tendered for a limited purpose does not of itself deprive their tender of the character of a waiver. [16]

    16. Hancock v Rinehart (Freehills subpoena) [2017] NSWSC 530 at [29].

  3. Accordingly, I have treated the Freehills documents tendered on the re-opening, to which objection was taken, as in evidence.

  4. The first defendant also sought a suppression order in respect of those documents, restricting publication to the second plaintiff, “to protect joint legal professional privilege in the documents”. For reasons already advanced, such privilege has not been established; and any privilege would be destroyed upon their tender, a consequence of which is that otherwise confidential communications and documents may be “thrown open” to third parties. [17] Moreover, as Bianca is entitled to the documents in her trustee capacity (an issue which is elaborated below), there is no basis for preventing her from permitting John, who is a beneficiary, to inspect them.

    17. Great Southern Managers Australia Ltd v Clarke (2012) 36 VR 308; [2012] VSCA 207 at [31] (Buchanan and Osborn JJA and Beach AJA)].

The May 2015 orders

  1. The orders of 28 May 2015 were relevantly as follows:

(1) Pursuant to (WA) Trustees Act 1962, s 77(2)(a), the second plaintiff Bianca Hope Rinehart be appointed trustee of the Hope Margaret Hancock Trust (“the Trust”) in place of the first defendant Georgina Hope Rinehart who wishes to be discharged, upon her undertaking to the Court that she will:

(a) provide regular statements of Trust assets and accounts to the beneficiaries;

(b) retain suitably qualified lawyers, accountants and or financial advisors to advise and assist her in managing the affairs of the Trust where necessary;

(c) not sell, or give a transfer notice in respect of, any of the Trust’s shares in the fourth defendant Hancock Prospecting Pty Limited, without either the consent of all the beneficiaries of the Trust, or the advice of the court;

(d) not commence or continue proceedings on behalf of the Trust in a court, tribunal or arbitration without the advice of the court, provided that this does not preclude the commencement of proceedings for urgent interim relief;

(e) unless she is of the opinion that in any particular case it would be contrary to the interests of the trust to do so, consult the beneficiaries before seeking the advice of the court and disclose to the court the views of the beneficiaries when seeking such advice.

(2) Pursuant to (WA) Trustees Act, s 78, the assets and property of the Trust vest in the said Bianca Hope Rinehart as such trustee.

(3) The first defendant deliver up to the second plaintiff within 28 days all documents of the Trust in her possession custody or power, including all those referred to in paragraph 3 of the claims for relief in the third further amended statement of claim.

(4) The first defendant have liberty to apply to be relieved from order 3 in respect of any particular document or class of documents.

(5) An account be taken of the property of the Trust for the period 1 September 2006 to date, including of all transactions entered into by the first defendant in her capacity as trustee of the Trust.

(6) For the purposes of such account:

(a) Within 42 days (or such further period as the court may on application allow), the first defendant file and serve her detailed account, verified by affidavit, of all moneys and property received and disbursed by her (and any other person on her behalf) in respect of the property of the Trust, and of her dealings and transactions therewith, specifying in respect of each payment and receipt the date and amount thereof, to whom it was made or from whom it was received, and the purpose or account for or to which it was paid or received as the case may be;

(b) The items of such account be numbered consecutively;

(c) The plaintiffs have liberty to apply, within 21 days of the service of such accounts, to examine the first defendant viva voce or upon interrogatories in respect of the accounts;

(d) Within 28 days after service of the accounts or within 28 days after the conclusion of any examination referred to in paragraph (c), the plaintiffs file and serve their surcharges falsifications and objections (if any) thereto;

(e) The proceedings be adjourned to a date to be fixed for further directions in respect of the inquiry into the account.

  1. The documents referred to in paragraph 3 of the claims for relief were:

(a) The accounts of the trust for the years 1988 to date;

(b) The accounts of [HPPL] for the years 1988 to date;

(c) The tax returns of the Trust for the financial years 1988 to date;

(d) All resolutions executed by the trustee pursuant to cl 5 of the Trust Deed and cll 5 or 5A of the 1995 Consolidation from 27 December 1988 to date;

(e) All resolutions authorizing the transfer of property the subject of the trust to the First Defendant or any other person or entity from 27 December 1988 to date;

(f) All documents otherwise referred to in paragraph 58 of this Amended Statement of Claim.

  1. Paragraph 58 of the Third Further Amended Statement of Claim, which was incorporated by reference in the order through the reference to claim 3, listed 16 specified documents or classes of documents.

  2. Time for compliance with order 3 was on 25 June 2015 extended to 23 July 2015, and on 4 August 2015 to 6 August 2015. No further extension has been sought or granted.

Documents of the Trust

  1. At the core of the dispute as to the adequacy of Mrs Rinehart’s compliance is contention about what falls within the scope of the delivery up order, and in particular what is “a document of the Trust”. The 28 May 2015 orders required delivery up of “all documents of the Trust in her possession custody or power, including all those referred to in paragraph 3 of the claims for relief in the third further amended statement of claim”. No dispute has arisen about the classes of documents specifically referred to in the statement of claim; the dispute relates to the more nebulous and wider description of “documents of the Trust”. That the content of this class is capable of dispute is unsurprising for, as was said by Salmon LJ in Re Londonderry’s Settlement, [18] it has not been comprehensively defined.

    18. [1965] Ch 918 at 938.

  2. The plaintiffs submit that the order catches “all documents in her possession custody or power relating to the administration of the Trust”. The first defendant has taken the position that the following are not “documents of the Trust”, and are therefore not within the delivery up order:

  1. Documents disclosing deliberations on the part of the first defendant in her Trustee capacity, but which do not reflect or refer to a decision taken by her in that capacity;

  2. Documents recording communications of the trustee with some or all of the beneficiaries (save where such a document records a decision made by the trustee);

  3. Documents that were merely subject of the trustee’s consideration in making a decision or administering the trust;

  4. Documents relating to advice obtained by the first defendant in response to allegations or threats made against her by one or more of the beneficiaries or threatened or actual court proceedings against her by them, being documents the subject of legal professional privilege that belongs to her personally and is not held on behalf of the beneficiaries;

  5. Documents that are confidential in nature, in respect of which in her trustee capacity she does not hold the obligation of confidence on behalf of the beneficiaries as a whole (such as private information about a particular beneficiary); and

  6. Documents concerning only the affairs of companies and entitles in the HPPL Group other than HMHT Investments Pty Ltd or the Trust.

  1. The principal judgment provides some background to the delivery up order: [19]

    19. Hancock v Rinehart [2015] NSWSC 646 at [358]-[366]; 106 ACSR 207.

358   A trustee is obliged to allow the beneficiaries to inspect the trust accounts and documents [Re Simersall (1992) 35 FCR 584, 589 (Gummow J); Spellson v George (1987) 11 NSWLR 300, 315-6 (Powell J)]. Upon retirement, a trustee must deliver the accounts and documents of the trust to the new or continuing trustee [Tiger v Barclays Bank [1951] 2 KB 556].

359   The category of “trust documents” in respect of which this obligation applies has not been comprehensively defined [Re Londonderry’s Settlement [1965] Ch 918, 938 (Salmon LJ)]. But they include at least documents containing or evidencing the terms of the trust, documents relating to the trust property, and the accounts of the trust.

360   There are some exceptions. Documents relating to the trustees’ defence of proceedings brought against them by the beneficiaries will, at least ordinarily, be documents of the trustees personally, not trust documents. And at least in the absence of an action impugning their good faith, trustees may be permitted to withhold documents which evidence their confidential communications and considerations, as they are not obliged to disclose their reasons [Re Londonderry’s Settlement [1965] Ch 918, 933 (Harman LJ)]. But it seems to me that these beneficiaries being of full age and capacity and the trust having vested, they – and the new trustee – are entitled to inspect all trust documents, including those that record the decisions of the trustee.

361   Mrs Rinehart has provided some trust documents to the plaintiffs, but only annual financial statements (not the underlying primary records), and only in respect of the period following August 2006, on the footing that any claim to inspect documents before that date has been released by the Hope Downs Deed.

362   As already explained, the accounts that a trustee must keep – and which the beneficiaries are entitled to inspect – are not limited to annual financial statements, but include the vouchers and receipts for each payment and receipt. The beneficiaries are undoubtedly entitled to inspect all accounting documents of the Trust, including the primary vouchers and receipts.

363   In Welker v Rinehart (No 10) [2012] NSWSC 1330, I held (at [16]-[18]) that a claim for production of trust documents had not been made at the time of, and was thus not released by, the Hope Downs Deed:

16 In his Notice of Intention to be joined as a party and to make cross-application filed in those Proceedings on 11 July 2005, [John] sought removal of the trustee on the ground, inter alia, that she had not provided him with trust documents. However, he did not make a claim in those Proceedings for production of such documents. There is no evidence of any such claim having been made, and accordingly such a claim has not been released under cl 6(a) of the Hope Downs Deed.

17 In the present proceedings, the plaintiffs claim an order for production of the trust documents and accounts. This claim is made independently of the claim for removal, and does not involve any allegation of breach of trust, or of an anterior failure to produce them. It does not depend on or refer to or repeat or raise in any way the allegation, such as it was, made in the earlier proceedings, of failure to produce documents. It does not relate to, but stands independently and separate from, any matter arising in respect of the “Claims” (within cl 6(b) of the Hope Downs Deed), nor is it an allegation in respect of or arising (in whole or part) directly or indirectly out of the Proceedings (within cl 6(c)). As Bathurst CJ has pointed out [Rinehart v Welker [2012] NSWCA 95, [126]], “In the present case the respondents by their respective statements of claim seek orders that GHR provide information concerning the Trust, relying on their entitlements as beneficiaries”.

18 The relevant claim in the earlier proceedings, which was released by the Hope Downs Deed, was not one for production of documents. The relevant claim in these proceedings, for production of documents, does not allege an anterior failure to produce them and does not depend on establishing any breach of trust, let alone one prior to the Hope Downs Deed. That claim is not caught by the releases.

364   That judgment was upheld in the Court of Appeal [Rinehart v Welker [2012] NSWCA 95]. However, neither my judgment, nor that of the Court of Appeal, adverted to the reference in John’s draft affidavit to a claim for “further orders for the full disclosure and delivery up of the accounts and documents of the Trust”. As it now appears, at the time of entering into the Hope Downs Deed, John had not only complained about the lack of provision of trust documents as one of the reasons that Mrs Rinehart should have been removed from her position as trustee of the Trust, but he had, in his draft affidavit, stated a claim for orders for production of those documents. Given the reference in the definition of “claim” to that draft affidavit, it seems to me indisputable that a claim for delivery up of the trust documents had been made, and that such claim was released by the Hope Downs Deed.

365   But while to that extent the statement in the No 10 judgment requires modification, the Hope Downs Deed released only claims that had been made (or discontinued) – and not claims that had not yet been made. The trustee’s ongoing obligation to allow inspection of trust documents in the future was not released. It is inherent in the concept of trust documents that they are trust property [O’Rourke v Darbishire [1920] AC 581; Re Londonderry’s Settlement [1965] Ch 918; Schmidt v Rosewood Trust Pty Ltd [2003] UKPC 26; 2 AC 709, 734-5; 3 All ER 76; McDonald v Ellis [2007] NSWSC 1068, [46] (Bryson J)]. The fact that a previous dispute about production has been settled on terms that no further documents need be produced does not preclude a later request to inspect all trust documents, and what date they happen to bear is beside the point; if they are trust documents, and in the trustee’s control, the beneficiary is entitled to inspect them. Even though a claim for production of documents was made in the WA Proceeding, which has been released, the present claim for production is not the same claim, but a new claim founded on the ongoing obligation of the trustee to allow inspection of trust documents, which has not been released. While the Hope Downs Deed released Mrs Rinehart from the then existing claim for production of trust documents (and any related allegation of breach of duty), it did not release her from the ongoing obligation, so long as she remained trustee, to permit the beneficiaries to inspect all trust documents, and (should she cease to be trustee) to deliver all trust documents to her successor – regardless of their date.

366   Accordingly, the plaintiffs are entitled to inspect, and the new trustee is entitled to delivery up of, all trust documents, of whatsoever date. I will make an order in the terms sought by the plaintiffs, but reserve liberty to Mrs Rinehart to apply to be relieved from producing any particular document on the ground that it is one to which the plaintiffs and the new trustee ought not be entitled.

  1. However, it is important to appreciate that the context to which that passage was addressed was whether the obligation to permit inspection and to deliver up the trust documents had been released by the Hope Downs Deed, and I concluded that it had not, and in particular that the new trustee was entitled to delivery up of all trust documents, of whatsoever date.

  2. Thus, according to the principal judgment, “trust documents” relevantly included:

  1. at least, documents containing or evidencing the terms of the trust, documents relating to the trust property, and the accounts of the trust, including the primary vouchers and receipts;

  2. in the context of this case, the beneficiaries being of full age and capacity and the trust having vested, documents which evidence their confidential communications and considerations and record their decisions. In her submissions of 26 September 2015, the first defendant seized on the statement (in [360]) that “at least in the absence of an action impugning their good faith, trustees may be permitted to withhold documents which evidence their confidential communications and considerations, as they are not obliged to disclose their reasons”, and – submitting that there was here no action impugning Mrs Rinehart’s good faith – took this as acceptance that such documents need not be delivered up. However, that rather overlooks the following sentence: “But it seems to me that these beneficiaries being of full age and capacity and the trust having vested, they – and the new trustee – are entitled to inspect all trust documents, including those that record the decisions of the trustee”. In this respect, I intended to indicate that the exception for “confidential communication and considerations” referred to by Harman LJ in Re Londonderry’s Settlement, [20] was not apt in these circumstances where the beneficiaries were of full capacity and the trust had vested – though perhaps that was obscured by economy of language;

  3. but not documents relating to the trustee’s defence of proceedings brought against her by the beneficiaries, which are at least ordinarily, documents of the trustee personally and not trust documents.

    20. [1965] Ch 918, 933.

  1. The narrower view of what is a “document of the Trust”, embraced by the first defendant, is founded on cases which consider the right of a beneficiary to inspect trust documents, on which I also drew for examples in the above cited passage. Statements in Re Londonderry’s Settlement to the effect that trustees may be permitted to withhold documents which evidence their confidential communications (including with individual beneficiaries) and considerations, [21] or which relate to their deliberations as to the manner in which they should exercise their discretionary powers, [22] have been generally accepted in Australia. [23] Thus in Hartigan Nominees Pty Ltd v Rydge, [24] Sheller JA said that documents “which may evidence the reasons why the trustees have made their decisions” were private to the trustees. [25] Mahoney JA also observed that trustees were permitted to act without detailing their reasons, and that the beneficiary’s right does not extend to notes made for or by a trustee of discussions with other beneficiaries. [26]

    21. Re Londonderry’s Settlement [1965] Ch 918 at 934 (Harman LJ). See also at 935 (Danckwerts LJ, who said that such documents “were not really trust documents at all”).

    22. Re Londonderry’s Settlement [1965] Ch 918 at 936-7 (Salmon LJ).

    23. See Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; [1999] SASC 181 at [94] (Doyle CJ).

    24. (1992) 29 NSWLR 405 (CA).

    25. Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 445 (Sheller JA).

    26. Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 433, 438 (Mahoney JA).

  2. However, Mahoney JA recognised a distinction between a beneficiary’s right of inspection, and the duty of an outgoing trustee to deliver up trust documents to an incoming trustee: [27]

… the beneficiary’s right does not, in my opinion, extend to notes made for or by a trustee of discussions with other beneficiaries even though they be made in order to assist the trustee in deciding how to exercise a discretionary power under which the plaintiff beneficiary may have a possible benefit. …

Documents and information of this kind are not property of the trust but are prepared by the trustee for his own purposes. Such documents would not, as such, require to be handed over to beneficiaries on the winding up of the trust. I am conscious that, if a new trustee be appointed, an existing trustee holding such documents might feel obliged to convey to the new trustee information of that kind in so far as it was needed for the administration of the trust by the new trustee. The outgoing trustee might find it expedient or more to convey information or answer inquiries by the new trustee. It is not necessary to consider how far his obligations, being of a fiduciary nature, would oblige him so to do. But there is, I think, no congruence between the obligations which in this regard an outgoing trustee may have to an incoming trustee and the right of a beneficiary or possible beneficiary to see documents or receive information in respect of the trust. The fact that such a beneficiary may require details of accounting and accordingly information does not mean that all information in the possession of a trustee must be disclosed to him.

27. Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 433 (Mahoney JA).

  1. Other authority supports the existence of such a distinction, and the proposition that although there are analogies between the rights of a beneficiary to inspect trust documents, and the obligation of a trustee to deliver up trust documents to a successor, they are not identical, and the obligations that an outgoing trustee may owe to an incoming trustee are more extensive than those owed to a beneficiary seeking inspection. In Tiger v Barclays Bank Ltd, [28] the outgoing trustee, a trust corporation, had acted in the dual roles of trustee, and banker for the trust estate. [29] It was ordered to deliver up to the new trustee “all documents in the possession, custody or control of the defendants relating to the administration of the estate”. [30] On appeal, the former trustee sought to have the order varied so as to exclude “any books or documents kept or brought into being by the defendants as banker of the said estate”. [31] Jenkins LJ, delivering the judgment of the Court of Appeal, said:

… where a trust corporation fills the double capacity of trustee and banker its successors in the trust should, at all events, be in no worse position as regards the obtaining of information with respect to the trust bank account than they would have been in if a third party had been the banker.

28. [1951] 2 KB 556; on appeal [1952] 1 All ER 85.

29. Tiger v Barclays Bank Ltd [1952] 1 All ER 85 at 88E.

30. Tiger v Barclays Bank Ltd [1952] 1 All ER 85 at 85.

31. Tiger v Barclays Bank Ltd [1952] 1 All ER 85 at 88E.

  1. And further:

… while an investigation into the book-keeping used by the bank in cases in which it acts both as banker and trustee might justify the drawing of a line at some point between mere banking books or documents, on the one hand, and trust books or documents, on the other, the complete absence of evidence on the subject would make it impossible for us to vary the order by inserting a general exception of the kind suggested, even if it was otherwise open to the bank … to claim such a variation, as in our view, it is not.

  1. And in a highly persuasive judgment in In the matter of the Bird Charitable Trust, [32] which is important not least for its articulation of the duty of an outgoing trustee to co-operate fully and actively in the transfer of the trusteeship by making all relevant documents and correspondence available to the incoming trustee, and also by providing any explanation to questions reasonably raised by the incoming trustee, the Royal Court of Jersey (M.C. St. J. Birt, Esq., Bailiff, and Jurats Le Breton and Marett-Crosby) wrote the following, which I respectfully adopt:

    32. (2012) (1) JLR 62.

23. One starts from the position that a successor trustee is stepping into the shoes of a retiring trustee. He is assuming the same duties as the retiring trustee towards the beneficiaries. He is therefore on the face of it entitled to be placed in the same position as the retiring trustee so far as possible. Thus, if the retiring trustee has information or documents about the administration of a trust, he must normally make these available to the incoming trustee.

24. In Ogier Trustee (Jersey) Limited-v-CI Law Trustees Limited [2006] JRC 158, noted at [2006] JLR N 35, I summarised the position as follows at paragraph 7:-

“On the transfer of a trusteeship the outgoing trustee is under a duty to co-operate fully and actively in the transfer by making all relevant documents and correspondence available promptly to the incoming trustee and by providing any explanation to questions reasonably raised by the incoming trustee.”

This was an ex-tempore judgment and no authorities were cited to the Court on that occasion. Nevertheless, having had the benefit of argument in this case, the Court sees no reason to depart from what was said there.

25. Although one starts from a presumption that an incoming trustee should be placed in just as good a position in all respects as the outgoing trustee, nevertheless the Court has, in our judgment, a discretion as to whether specific documents or information are to be supplied in a particular case. We say that for the following reasons:-

(i) The only case to which we were referred (apart from Ogier Trustee) which deals specifically with this issue, namely Tiger-v-Barclays Bank Limited [1952] 1 All ER 85 suggests that there is such a discretion, albeit that that observation is obiter because of the way in which the case proceeded before the Court of Appeal.

(ii) Given that the obligation of an outgoing trustee extends to providing explanations to questions asked by an incoming trustee, it seems to us important that there be some element of control as to the reasonableness of such requests for information. One can envisage a situation where an outgoing trustee is plagued with unreasonable requests. There must be a mechanism for resolving a dispute of this nature and the Court must therefore be able to adjudicate on whether a particular matter needs to be explained or not.

(iii) The existence of a discretion is consistent with the approach of the Privy Council in Schmidt -v- Rosewood Trust Limited [2003] 2 AC 709. That case was of course concerned with questions of disclosure to a beneficiary rather than to an incoming trustee, but the Privy Council made it clear that questions of disclosure were best approached as one aspect of the Court’s inherent jurisdiction to supervise, and where appropriate, intervene in the administration of trusts. We see no reason why that approach is not equally applicable to issues as between retiring and incoming trustees.

26. In our judgment, the position is accurately stated in Lewin on Trusts (18th Edition) at paragraphs 23–97, 23–98 and 23-99 as follows:-

“23-97 A new trustee is entitled to require the former trustee to deliver up to him all records, books and other papers belonging to the trust. He is also entitled to inspect and copy other papers (not belonging to the trust) in the hands of the former trustees so far as they contain information relating to the trust. The papers to which he is so entitled include the minutes of meetings of the trustees and the internal memoranda of a corporate trustee and correspondence files.

23-98 We consider that the court may, in exercise of the trust supervisory jurisdiction, qualify the above rights of [a] new trustee to delivery up and disclosure in special circumstances. But we do not consider that the same restrictions apply as in the case of disclosure to and inspection by beneficiaries. A beneficiary, for example, is not normally entitled to a sight of documents concerning the trustees’ exercise of discretions under discretionary trusts or fiduciary powers, but they contain precisely the kind of information which a new trustee may need to have from the former trustee to enable him to exercise the discretions in the light of what has been done before. The same applies to a settlor’s letter of wishes.

23-99 The new trustee may need to approach a former trustee for information and explanations not apparent from the trust papers. The former trustee is, to the extent that the request for information or explanation is reasonable in the circumstances, under an obligation to supply the information requested, and he must take reasonable care that any information which he does supply is accurate.”

27. Contrary to Advocate Thompson’s submission, we do not consider that cases concerning disclosure to beneficiaries are likely to be of great assistance in relation to issues of disclosure by an outgoing trustee to an incoming trustee. The Court will quite often conclude that the interests of the beneficiaries as a whole point against disclosure of particular information or documents to a beneficiary. Examples of some of the considerations which may be relevant can be found in Schmidt at paragraph 67 and in the observations of Commissioner Clyde-Smith at paragraphs 11 and 15 of A Settlement [2011] JRC 109. However, most of such considerations are unlikely to apply as between incoming and outgoing trustee. For example, as mentioned by Lewin, the reasons for discretionary decisions are not usually disclosable to a beneficiary but will normally need to be disclosed to a new trustee. As already stated, the new trustee is, prima facie, entitled to be placed in just a good as position as the outgoing trustee in relation to all aspects of the administration of the trust.

28. In relation to legal advice obtained at the cost of the trust, this will often be disclosable to a beneficiary in any event (see paras 22-45 and 22-46 of Lewin). However, it is likely to be even more relevant for an incoming trustee to see legal advice obtained by a previous trustee as it may well be relevant for the future administration of the trust.

29. In summary, an outgoing trustee will normally be under a duty to hand over to an incoming trustee all documents and information which relate to the administration of the trust so as to enable the incoming trustee to fulfil his duties. However, the Court has a discretion to direct that documents or information not be supplied where satisfied, in its supervisory role, that this is the appropriate course. The onus lies on the outgoing trustee to show why the normal rule should not be followed.

  1. The distinction between what a beneficiary may be entitled to inspect, and what a trustee is bound to deliver up to its successor, has been recognised in this Court, holding that although a document was one that the trustee would be expected to pass on to any successor, it had a discretion to refuse to permit a beneficiary to inspect it. [33]

    33. AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Limited [2015] NSWSC 216 at [67], [87], [96] (Bergin CJ in Eq).

  2. Contrary to the first defendant’s submissions, the Australian authorities to which they refer do not support a different, narrower, view: those authorities are concerned with a beneficiary’s right of inspection, and not with an outgoing trustee’s obligation to its successor. In the light of the authorities referred to above, that obligation may be summarised as being – subject to the court’s discretion to mitigate it – to hand over to an incoming trustee all documents and information which relate to the administration of the trust [34] so as to enable the incoming trustee to fulfil his duties. The rationale for it is that the new trustee is, prima facie, entitled to be placed in just a good as position as the outgoing trustee in relation to all aspects of the administration of the trust. Cases which relieve trustees of the obligation to permit inspection by beneficiaries of documents which evidence their reasons for exercising their discretionary powers are founded on the principle that such decisions are not examinable (at least absent want of good faith, or express obligation), [35] and that rationale does not apply against a replacement trustee. While the Court has a discretion to direct that documents or information not be supplied where satisfied that that is the appropriate course, the onus lies on the outgoing trustee to show why that discretion should be exercised.

    34. This formula is to be found in Tiger v Barclays Bank [1952] 1 All ER 85 at 88; Bird Charitable Trust (2012) (1) JLR 62 at [29]; see also Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; [1999] SASC 181 at [86] (Doyle CJ).

    35. Re Londonderry’s Settlement [1965] Ch 918 at 936-7 (Salmon LJ); Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; [1999] SASC 181 at [94]; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 433, 438 (Mahoney JA), 445 (Sheller JA).

  3. Thus insofar as the first defendant has proceeded on the basis that (a) documents disclosing deliberations on the part of the first defendant in her Trustee capacity, but which do not reflect or refer to a decision taken by her in that capacity, and (b) documents recording communications of the trustee with some or all of the beneficiaries (save where such a document records a decision made by the trustee), are not “documents of the Trust” which she must deliver up, she has proceeded on a misconceived basis. In particular, the view that documents recording trustee deliberations as opposed to decisions are not trust documents is misconceived: although trustees are not bound to permit beneficiaries access to documents recording their deliberations as distinct from their decisions, that does not mean that such documents are personal documents of the trustee rather than trust documents to be handed over to a replacement trustee.

  4. The plaintiffs submit that the first defendant’s obligation extends to deliver up “all documents maintained, or relied upon, or otherwise used by her in connection with the administration of the Trust”. I do not accept that merely because a document was considered or adverted to in the course of making a decision, it thereby becomes a “document of the Trust”. The first defendant correctly submits that the notion embraced by “documents of the trust” is one of ownership, as distinct from relevance or having had regard to a document. As I indicated in the principal judgment (at [365]), it is inherent in the concept of trust documents that they are trust property. [36] It is true that Young CJ in Eq said, in Global Custodians Ltd v Mesh,[37] that it is misconceived to think of the right of the beneficiary to inspect documents in terms of a proprietary right of the beneficiary, and that all the beneficiary really has is rights against the trustee. However, that was a characterisation of the right of a beneficiary, and not of the nature of the documents. A trustee can only be required to deliver up what is in its possession, custody or power. The circumstance that a trustee sees, or even needs to see, a document for the purpose of making a decision, does not of itself make it a trust document which the trustee can be ordered to deliver up.

    36. O’Rourke v Darbishire [1920] AC 581; Re Londonderry’s Settlement [1965] Ch 918; Schmidt v Rosewood Trust Pty Ltd [2003] 2 AC 709, 734-5; [2003] 3 All ER 76; [2003] UKPC 26; McDonald v Ellis [2007] NSWSC 1068, [46] (Bryson J).

    37. [2002] NSWSC 47 at [83].

  1. By 5 December 2018, the first defendant procure that any third party who possesses or is likely to possess documents of the Trust, including those identified in the Schedule, deliver up such documents to the second plaintiff, including by providing a written direction and consent to them to do so, and provide to the second plaintiff a copy of such direction and any response thereto.

  2. By 5 December 2018, the first defendant do all things, execute all documents, provide all information and give all directions and consents necessary or convenient to enable the second plaintiff to have access to any electronic database or other electronic information retention system that was maintained by or for the Trust.

  3. All parties have liberty to apply, by arrangement with my associate, in the event of any difficulty arising in the interpretation, application or implementation of orders (1), (2) and (3).

  4. The plaintiffs have liberty to apply to examine the first defendant viva voce on her affidavit verifying compliance referred to in order (1).

  5. Time for the plaintiffs to apply to examine the first defendant viva voce or upon interrogatories in relation to the account furnished by her pursuant to order 6 made on 28 May 2015 be extended to a date 28 days after service of the affidavit referred to in order (1).

  6. The first defendant pay the plaintiffs’ costs of the 3 September 2015 motion.

  7. The first defendant’s motion filed on 23 September 2015 be dismissed with costs.

Schedule

  1. PricewaterhouseCoopers

  2. Maxims Litigation Consultants

  3. Sceales and Company

  4. Allan Myers QC

  5. A J Muscat

  6. Withers LLP

  7. Solomon Brothers

  8. John Gilmour QC

  9. Kanaga Dharmananda

  10. Blakiston & Crabb

  11. Freehill Hollingdale & Page

  12. Anchor Legal

  13. Robert O’Connor

  14. Paul Mendalow

  15. Shetra Pty Ltd

  16. Ernst & Young

**********

Endnotes

Amendments

07 November 2018 - Typographical errors at [76] and [105]


Rectify footnote numbering error

Decision last updated: 07 November 2018

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Cases Citing This Decision

17

Rinehart v Rinehart [2022] NSWCA 66
Rinehart v Rinehart [2021] NSWCA 233
Rinehart v Rinehart [2020] NSWCA 221
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