SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 6796 of 1999
| PAUL HENRY HARPUR & ORS |
| v |
| FRANK ERNEST WILLIAM LEVY (& ORS IN THEIR CAPACITY AS THE EXECUTORS OF THE ESTATE OF PETER THOMAS EVAN RAND DECEASED) & ANOR |
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JUDGES: | MAXWELL P, NEAVE JA and REDLICH JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 JUNE 2006 | |
DATE OF JUDGMENT: | 22 JUNE 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 128 | |
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TRUSTS – Construction of trust deed – Whether the deed expressed an intention to create a trust in the future, or whether it was an immediate declaration of trust with the enjoyment of the beneficial interests postponed – Clear words of deed not affected by the recitals – Appeal dismissed.
PRACTICE AND PROCEDURE – Summary judgment - Test for striking out a defence under Supreme Court (General Civil Procedure) Rules, r 23.01(2).
COSTS – Whether certain plaintiffs were proper parties to the proceeding so that it was appropriate to award costs against them – Appeal against costs dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Merralls QC, with Mr M N Wise | Mills Oakley Lawyers |
| For the First, Second and Third Respondents | Mr A J Myers QC, with Mr R I Rosenberg | Sackville Wilks & Co |
| For the Fourth Respondent | Mr D Weinberger (Solicitor) | Nathan Kuperholz |
MAXWELL P:
Neave JA has set out the circumstances giving rise to this appeal. I gratefully adopt her Honour’s summary. For the reasons which follow, however, I have reached a different conclusion on the question of construction. I would therefore allow the appeal on the principal issue. As mine is a minority view, I say nothing about the other issues.
In my opinion, the deed was effective as an immediate declaration of trust, with the properties to be transferred in the future. I consider that the operative provisions of the deed clearly evince an intention on the part of Mr Rand that he become trustee then and there. At worst for the appellants, the operative provisions are ambiguous, and reference to the recitals – justified in a case of ambiguity – confirms that Mr Rand intended to create a trust immediately.
The search for intention
In deciding whether a trust has been created, the court of equity looks to the intent rather than the form.[1] At the same time, the “equitable partiality for intention over form” has its limits.[2] In Heartley v Nicholson, Bacon VC said:
“All such questions are, from their very nature, of difficulty, and sometimes of very great nicety. The difficulty is occasioned by the desire which the court must feel to give full effect to the intention of the party or parties to the transaction, and by the duty which the court is under of preserving unimpaired those rules which have been established and which form the law, even though they should frustrate the plain intention. The nicety often arises from the attending circumstances, because they require the closest consideration in order to arrive…
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- AGLC
- Harpur v Levy [2007] VSCA 128
- Case
- [2007] VSCA 128
- Decision Date
CaseChat Overview and Summary
The legal issues in the case included whether the trust deed created an immediate declaration of trust with the enjoyment of the beneficial interests postponed, rather than a future trust, and whether the court should strike out the defendant's defence. Additionally, the court had to determine whether the plaintiffs were proper parties to the proceeding, and if it was appropriate to award costs against them. The court held that the trust deed expressed an intention to create a trust in the future and not an immediate declaration of trust with the enjoyment of the beneficial interests postponed. The court also found that the defendant's defence was not frivolous or vexatious, and therefore the application to strike out the defence should be dismissed. Finally, the court held that the plaintiffs were proper parties to the proceeding and it was appropriate to award costs against them.
The appeal against the primary judge's decision was dismissed, and the orders made by the primary judge were affirmed. The court held that the trust deed expressed an intention to create a trust in the future, and the recitals did not affect the clear words of the deed. The court also held that the defendant's defence was not frivolous or vexatious, and therefore the application to strike out the defence should be dismissed. Finally, the court held that the plaintiffs were proper parties to the proceeding and it was appropriate to award costs against them. The appeal against the costs order was also dismissed.
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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