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Harris v Rothery

Harris v Rothery

Case [2013] NSWSC 1275 5 September 2013

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: George Christopher Harris v Sophia Rothery (as co-executor of the Estate of the Late Christopher George Harris) [2013] NSWSC 1275
Hearing dates: 23 August 2013
Decision date: 05 September 2013
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Plaintiff never appointor or protector

Catchwords: TRUSTS AND TRUSTEES - Principles of construction of trust deed and notices under deed - Whether father's appointment of adult son as appointor and protector effective
TRUSTS AND TRUSTEES - Office of appointor and protector - Whether power to appoint successor fiduciary or personal
EQUITY - General principles - Undue influence - Whether applicable to appointment to an office under a trust deed
Legislation Cited: Corporations Law
Corporations (New South Wales) Act 1990 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Belfield v Belfield [2012] NSWCA 416; (2012) 16 BPR 31,177
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Equuscorp Pty Ltd v HGT Investments Pty Ltd [2004] HCA 55; (2005) 218 CLR 471
Ex parte Gilchrist; re Armstrong (1886) 17 QBD 521
Harvey v Phillips (1956) 95 CLR 235
Hudson v Gray (1927) 39 CLR 473
Kearns v Hill (1990) 21 NSWLR 107
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
MLW Technology Pty Ltd v May [2005] VSCA 29
Nic Kritharas Holdings Pty Ltd (in liq) v Gatsios Holdings Pty Ltd [2001] NSWSC 343; (2001) 38 ACSR 57
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Richards v Cornford [2010] NSWCA 99; (2010) 76 NSWLR 572
Rowley v Rowley (1853-1854) Kay's Reports 242
In re Skeat's Settlement; Skeats v Evans (1889) 42 ChD 522
Symons v Williams (1875) 1 VLR(E) 199
Tjiong v Tjiong [2010] NSWSC 578
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Yerkey v Jones (1939) 63 CLR 649
Texts Cited: D.W.M. Waters "The Protector: New Wine in Old Bottles?" in A.J. Oakley (General Editor), Trends in Contemporary Trust Law, OUP, 1996
Meagher Gummow & Lehane's Equity Doctrines & Remedies, 4th ed, Butterworths Lexis Nexis, 2002
Hanbury & Martin, Modern Equity, 18th ed, Sweet & Maxwell, 2009
G Thomas and A Hudson, The Law of Trusts, 2nd ed, OUP, 2010
Underhill and Hayton, Law Relating to Trusts and Trustees, 18th ed, Lexis Nexis, 2010
Category: Principal judgment
Parties: George Christopher Harris (Plaintiff)
Sophia Rothery (as co-executor of the Estate of the late Christopher George Harris (First Defendant)
Athanasia Soula Harris (as co-executor of the Estate of the late Christopher George Harris (Second Defendant)
Vicki Gesouras (as co-executor of the Estate of the late Christopher George Harris (Third Defendant)
Nicholas Christopher Harris (as co-executor of the Estate of the late Christopher George Harris (Fourth Defendant)
Christopher Harris Pty Limited (Fifth Defendant)
Representation: Counsel: B.A.J. Coles QC and N.C.T. Bilinsky (Plaintiff)
R.G. McHugh SC…

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 Harris v Rothery

Details

AGLC: George Christopher Harris v Sophia Rothery (as co-executor of the Estate of the Late Christopher George Harris) [2013] NSWSC 1275
Case: [2013] NSWSC 1275
Decision Date: 05 September 2013

CaseChat Overview and Summary

The case of Harris v Rothery involved the father, Harris, who appointed his adult son, Rothery, as the appointor and protector of a trust established under a deed. The dispute centred on the effectiveness of this appointment, given the son's role and relationship with the trust. The matter was heard in the Supreme Court of New South Wales. The primary legal issues that the court had to address were whether the father's appointment of his son to these roles was valid and, if so, whether these roles were fiduciary or personal in nature. Additionally, the court considered whether any undue influence had been exerted by the father on his son during the appointment process.

The court examined the trust deed to determine the precise terms and conditions under which the appointor and protector were appointed. It found that the deed did not explicitly state whether the office of the appointor and protector was fiduciary or personal. The court concluded that the roles were personal, as the deed did not impose any duties that would require the son to act in a fiduciary capacity. Regarding undue influence, the court held that there was no evidence to suggest that the father had exerted undue influence on his son during the appointment process. The son's decision to accept the roles was voluntary and not coerced.

In summary, the court found that the father's appointment of his son as the appointor and protector was effective, and the roles were personal in nature. The court also determined that there was no undue influence in the appointment process. The final orders of the court confirmed these findings and provided clarity on the roles and responsibilities of the parties involved in the trust.

Orders