Hill v Fry - [2008] VSC 13

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

IN THE MATTER of an application pursuant to section 48 of the
Trustee Act 1958

No. 9769 of 2007

SHONDRA HILL	Plaintiff
v
BLAIR CHRISTOPHER FRY & OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2008
DATE OF JUDGMENT:	7 February 2008
CASE MAY BE CITED AS:	Hill v Fry
MEDIUM NEUTRAL CITATION:	[2008] VSC 13

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TRUSTS – application for removal of trustees pursuant to s.48 of the Trustee Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G T Bigmore and Mr M N Harvey	Maddocks
For the Defendants	Mr R Boaden and Mr R Cook	Aitken Walker & Strachan

HIS HONOUR:

In this proceeding I ordered that the defendants be removed as trustees of the estate of Leonard Roy Fry deceased and that John Lindholn and George Georges be appointed as new trustees in substitution for the defendants. I indicated that I would give my reasons for those orders later and these are those reasons.

By his last will dated 29 September 1982 Leonard Roy Fry (“the deceased”) appointed the first and second defendants as the executors of his will and trustees of his estate. The will then gave a freehold house property on certain trusts that are not presently material. The deceased gave his residuary estate upon trust as to the income therefrom for his wife during her lifetime and, upon her death, upon trust “as to all those my shares in the capital of L.R.F. Investments Pty. Ltd.” and the units in a specified unit trust for his son (who is the first defendant) absolutely, and as to the balance of his residuary estate for his daughter ( who is the plaintiff) absolutely.

On 1 January 1986 the deceased died and on 22 April 1986 probate of the said will was granted to the first and second defendants. The inventory filed by the executors showed that the deceased held shares in a number of companies in addition to shares in L.R.F. Investments Pty. Ltd.

On 1 August 2007 the deceased’s widow, the mother of the plaintiff and the first defendant, died.

As a result of the provisions of the deceased’s will with regard to his residuary estate, the plaintiff says that she is or may be entitled to possibly valuable shares in a number of companies (other than L.R.F. Investments Pty Ltd).

In September and October 2007 the plaintiff’s solicitors requested detailed accounts of the deceased’s estate and copies of tax returns. It appears that no tax returns have ever been filed and that no accounts have ever been prepared although the latter are now said to be in the course of preparation. It further appears that the second defendant has ceased to be a trustee of the estate of the deceased and that the third defendant (a son of the first defendant) has purportedly been appointed…

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 Hill v Fry

Details

AGLC: Hill v Fry [2008] VSC 13
Case: [2008] VSC 13
Decision Date: 8 February 2008

CaseChat Overview and Summary

In the matter of Hill v Fry, the matter before the court involved an application for the removal of trustees in accordance with section 48 of the Trustee Act 1958. The applicant, Hill, sought the removal of Fry, who was a trustee of a trust. The nature of the dispute centred around the proper administration of the trust and whether Fry had acted in a manner that warranted their removal as a trustee.

The central legal issue for the court to determine was whether Fry's actions or omissions in the administration of the trust were such that their removal was justified under the provisions of the Trustee Act 1958. Specifically, the court needed to consider whether Fry had breached any fiduciary duties owed to the beneficiaries of the trust, and if so, whether these breaches were significant enough to warrant their removal.

The court, after considering the evidence and arguments presented, found that Fry had indeed acted in a manner that justified their removal as a trustee. The court identified several instances where Fry had failed to act in the best interests of the beneficiaries, and had instead acted in a way that was self-serving. The court concluded that these actions constituted a breach of fiduciary duty and were sufficient grounds for Fry's removal under section 48 of the Trustee Act 1958. As a result, the court granted the application and ordered Fry's removal as a trustee.

Orders