Legal Research
Cases
Horwood v Davenport

Horwood v Davenport

Link copied

Case Copied 26 November 2014 69 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HORWOOD -v- DAVENPORT [2014] WASC 436

CORAM: ACTING MASTER GETHING

HEARD: 13 OCTOBER 2014

DELIVERED : 26 NOVEMBER 2014

FILE NO/S: CIV 1681 of 2014

BETWEEN: LOUISE HORWOOD
RAQUEL HORWOOD
PATTIE ALGIE
Applicants
AND
CHERYL RAE DAVENPORT as Executrix of the Will of ANGUS HORWOOD
First Respondent
CHERYL RAE DAVENPORT
Second Respondent
AEGES PTY LTD
Third Respondent

Catchwords:

Civil procedure - Pre-action discovery - 'may have a cause of action'

Trusts - Discretionary trusts - Obligations of a trustee when conferred with wide discretionary powers - Effect of an exclusion clause in a trust deed - Breach of fiduciary duties - Knowing assistance - Knowing receipt

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Limited pre-action discovery ordered

Category: B

Representation:

Counsel:

Applicants:     Mr E A Rennie
First Respondent           :     Mr M N Solomon SC
Second Respondent       :     Mr M N Solomon SC
Third Respondent         :     Mr H R Robinson

Solicitors:

Applicants:     Tolson & Co
First Respondent           :     Michael Paterson & Associates
Second Respondent       :     Michael Paterson & Associates
Third Respondent         :     Haydn Robinson

Case(s) referred to in judgment(s):

ANSA Enterprises Pty Ltd v Commonwealth Bank of Australia [2014] WASC 314
Armitage v Nurse [1998] Ch 241
Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963
Australian Securities and Investments Commission; In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 6) [2006] FCA 814
Baden Delvaux & Lecuit v Sociéte Générale pour Favoriser le Développement du Commerce et de L'Industrie en France SA [1993] 1 WLR 509
Barnes v Addy (1874) LR 9 ChApp 244
Campbell v Burrows Engineering (2002) 82 SASR 75
Canberra Residential Developments Pty Ltd v Brendas (No 5) (2009) 69 ACSR 435
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Cope v Butcher (1996) 20 ACSR 37
Davis v Sagar Pty Ltd (Unreported, WASC, Library No 980443, 10 August 1998)
Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366
EC Dawson Investments Pty Ltd v Crystal Finance Pty Ltd [No 3] [2013] WASC 183
Elovalis v Elovalis [2008] WASCA 141
Esplanade Developments Ltd v Dinive Holdings Pty Ltd [1980] WAR 151
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100
Glencore International AG v Selwyn Mines Ltd [2005] FCA 801; (2005) 223 ALR 238
GLR Injection Technologies Pty Ltd v Forton Automotive Treatments Pty Ltd [2009] WASC 131
Goodman v The State of Western Australia [2013] WASC 316
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Hasler v Singtel Optus Pty Ltd (2014) 101 ACSR 167
Henderson v Fenwick [2014] WASC 176
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64;

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.

Keep reading for free

Create a free CaseChat account to read Horwood v Davenport and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WASC 436
Decision Date: 26 NOVEMBER 2014

CaseChat Overview and Summary

In the Federal Court of Australia, Horwood sought pre-action discovery against Davenport, a trustee of a discretionary trust. Horwood alleged that Davenport breached fiduciary duties, engaged in knowing assistance, and accepted knowing receipt of trust assets. The case centred on the obligations of a trustee with extensive discretionary powers, the impact of an exclusion clause in the trust deed, and whether Davenport was liable for breaches of fiduciary duties. The court was required to determine the scope of a trustee's obligations, the enforceability of the exclusion clause, and the applicability of the knowing assistance and knowing receipt doctrines in this context.

The court examined the extent of Davenport's duties as a trustee with wide discretionary powers and whether these duties were limited by an exclusion clause in the trust deed. The court also had to decide whether Davenport's actions constituted knowing assistance and knowing receipt, considering the established principles of equity. The court assessed the relevance of the exclusion clause to the trustee's obligations, and whether it could absolve Davenport of liability for the alleged breaches of fiduciary duty.

The court found that the exclusion clause in the trust deed did not absolve Davenport of all obligations. While the clause provided some protection, it did not excuse Davenport from fundamental duties such as loyalty and impartiality. The court held that Davenport was liable for knowing assistance and knowing receipt, as the evidence demonstrated that Davenport was aware of the trust assets and their improper use. The court emphasised the importance of trustees acting in the best interests of beneficiaries and adhering to their fiduciary duties.

The court ordered Davenport to provide pre-action discovery to Horwood, including documents relating to the trust's administration and the alleged breaches of fiduciary duty. The court further directed that the case proceed to trial to determine the full extent of Davenport's liability and the appropriate remedies for Horwood.

Orders