JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2005
DATE OF JUDGMENT:	28 April 2005
CASE MAY BE CITED AS:	Hornsby v Playoust (No.2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 125

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TRUSTS – restructure proposal in relation to trusts of estate involving the transfer in specie to beneficiaries of shares in company in satisfaction of their beneficial interests – whether orders pursuant to s.63 of Trustee Act 1958 (Vic) are expedient in the interests of all beneficiaries – whether court should approve or authorise entry into and implementation of Restructure Implementation Agreement by trustees

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N J O’Bryan SC with Mr A J Kelly	Herbert Geer & Rundle
For the First Defendant	Mr J D Merralls QC With Mr M R Pearce	Norton Gledhill
For the Second Defendant	Dr I J Hardingham QC with Mr K J Lyons	Hunt & Hunt
For the Third Defendant	Mr F G A Beaumont QC with Mr A A Nolan	McKean & Park
For the Fifth Defendant	Mr D M B Derham QC with Mr S McLeish	Aitken Walker & Strachan

HIS HONOUR:

By originating motion dated 20 August 2004 as amended, the plaintiffs, who are the trustees of the estate of the late George Adams (“the Trustees”), sought a determination of certain questions arising under the will and estate of the deceased and applied for certain other orders, including the grant of additional powers, if necessary, under s.63 of the Trustee Act 1958 (Vic) (“the Trustee Act”).

The background to the proceeding is set out in my reasons for judgment in Hornsby v Playoust [2004] VSC 472 handed down on 23 November 2004 and in the reasons for judgment of the Court of Appeal in Playoust v Hornsby [2005] VSCA 73 handed down on 7 April 2005 and Playoust v Hornsby [2005] VSCA 84 handed down on 14 April 2005. The present reasons should be read together with my reasons for judgment in Hornsby v Playoust [2005] VSC 107 handed down on 22 April 2005.

On 18 April 2005 the Court decided, as part of the orders made on that day, that orders might be made pursuant to s.63 of the Trustee Act 1958 (Vic) to confer on the Trustees such powers together with all powers which are ancillary and incidental thereto, to enable them to distribute the shares in Tattersall’s Ltd to the beneficiaries (see the document which was “Exhibit A – Confidential” in that hearing). The Court now has before it “Exhibit SGD-1 – Confidential”, referred to in the affidavit of Simon Geoffrey Doyle sworn 27 April 2005 which is the current version of the Restructure Implementation Agreement between the Trustees and Tattersall’s Ltd (“the Restructure Implementation…

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 Hornsby v Playoust (No 2)

Details

AGLC: Hornsby v Playoust (No 2) [2005] VSC 125
Case: [2005] VSC 125
Decision Date: 28 April 2005

CaseChat Overview and Summary

In the matter of Hornsby v Playoust (No 2), the High Court was presented with a case concerning the restructuring of trusts related to the estate of a deceased individual. The trustees of the estate proposed to transfer shares in a company to the beneficiaries in satisfaction of their beneficial interests. The dispute centred on whether the court should approve the proposed Restructure Implementation Agreement and whether orders under section 63 of the Trustee Act 1958 (Vic) would be expedient in the interests of all beneficiaries.

The central legal issues before the court involved determining the appropriateness of the proposed restructuring and the requisite court orders to facilitate the implementation of the Restructure Implementation Agreement. The court had to consider whether the restructuring would benefit the beneficiaries and if the proposed agreements and orders were consistent with the trustees' duties and the statutory framework governing trusts.

The court assessed the trustees' proposal and the Restructure Implementation Agreement, concluding that the restructuring was in the best interests of the beneficiaries. The court found that the proposed orders would facilitate a fair and efficient distribution of the estate and were consistent with the statutory provisions and the trustees' duties. The court approved the Restructure Implementation Agreement and authorised the trustees to implement the restructuring as proposed.

Orders