IN THE ESTATE OF GEORGE FIFE ANGAS (DECEASED) - [2022] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF GEORGE FIFE ANGAS (DECEASED)
[2022] SASC 13
Judgment of Judge Dart a Master of the Supreme Court
16 February 2022
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY
Testamentary trust created by a will in 1871 - trust established for the purpose of administering land for the interment of members of the Angas family - trust administered by Public Trustee since 1908 - new trust established in 1982 - Public Trustee is the trustee of that trust - Public Trustee seeks advice and direction pursuant to s 69 of the Administration and Probate Act 1919 - Public Trustee wishes to relinquish the role - Angas family propose to establish new trust - Public Trustee seeks advice as to whether it is appropriate to transfer the subject land to the new trust.
Held:
1. Pursuant to s 69 of the Administration and Probate Act 1919 and s 91 of the Trustee Act 1936, the Court advises and directs:
(a) On the creation by deed of the Trust set out in draft in exhibit CJA1 to the affidavit filed in this action of Colin John Angas made on 3 December 2021, the applicant as trustee of the estate of George Fife Angas deceased may transfer to the Trust so-created, an estate in fee simple in the real property being the Angas family vault and surrounds at lot 853, Eden Valley Road, Angaston, being Certificate of Title Register Book Volume 5548 Folio 53;
(b) On the transfer of the real property as set out in subparagraph (a) above, the applicant as trustee of the Angas Family Vault Trust created 30 March 1982, may transfer to the Trust so created all funds standing to the account of the Angas Family Vault Trust.
2. It is ordered that the applicant whether as trustee of the estate of George Fife Angas deceased or as trustee of the Angas Family Vault Trust, Mr Colin John Angas, the Trust envisaged in subparagraph 1(a), and any other person with an appropriate interest, have liberty to apply.
3. No order as to costs.
Trustee Act 1936 (SA) s 91; Administration and Probate Act 1919 (SA) s 69, referred to.
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Re Magarey Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337, considered.

IN THE ESTATE OF GEORGE FIFE ANGAS (DECEASED)
[2022] SASC 13

This matter relates to the deceased estate of George Fife Angas (“the deceased”). The Public Trustee seeks advice and direction with respect to some aspects of the administration of the deceased estate.
Background
The deceased was instrumental in the establishment of the province of South Australia. He was a founding director of the South Australian Company and emigrated to South Australia in 1851. The deceased died on 15 May 1879, leaving a will dated 11 December 1871 and a codicil dated 20 September 1876.
The original grant of probate in respect of the will and codicil was made in this Court on 18 June 1879.
The original will contained a trust. The purpose of the trust was to establish an Angas family cemetery on land in the Barossa Valley. A vault was built on the land. The will provided as follows:[1]
And further as to the following viz – All that piece of land portion of the said section of land no 344 Hundred of Moorooroo containing four acres or thereabouts as the same is now fenced in and used as a burial ground and contains my family vault and the bodies of my deceased wife and son in law the late Henry Evans of Evandale UPON TRUST to permit and suffer myself and my children and their kindred relatives and connections and the descendants of such children kindred and connections to use the same as a place of interment for the dead of the family of ANGAS forever.
[1] Affidavit of Keith Sinkinson, sworn 18 February 2021, FDN2, Exhibit 1.
On 16 October 1908 the Public Trustee was appointed trustee of the trust created in the will of the deceased by order of Homburg J.
The original trustees of the trust created by the will had been the children of the deceased who were, by the time of the orders made by Homburg J, themselves deceased. It was for that reason that the Public Trustee was appointed by Homburg J.
The law in respect of trusts developed after the death of the testator. The rule against perpetuities applies to the trust. That proposition was not affected by the passing of legislation abolishing that rule. The trust, strictly speaking, failed.
The next relevant development was that a new trust, the Angas Family Vault Trust, was established by deed dated 30 March 1982. The Public Trustee was appointed trustee, to manage a fund for preservation and maintenance of the family vault and surrounding land.
The 1982 trust has very limited funds presently. The Public Trustee has been in communication with a number of members of the Angas family about the future of the trust. The Public Trustee is the registered proprietor of the land on which the family vault is located. It is apparent that the family would like to continue the family tradition of burying family members in the vault.
Advice and direction
Members of the Angas family have agreed that they will establish a new trust for the purposes of maintaining the family Vault and holding the real property. A draft of the proposed deed of trust has been provided to the Court. They seek to have the Public Trustee transfer the assets and the monies held by the Public Trustee to the new trust, should the Court grant approval for that to occur.
The application of the Public Trustee is made pursuant to s 91 of the Trustee Act 1936 which provides as follows:
91—Advice and directions of court and commission
Sections 69 and 70 of the Administration and Probate Act 1919 apply to trustees as defined by this Act, and section 90 of this Act shall extend to applications under either of the same sections, but without limiting the powers of the Supreme Court, apart from the said section 90, with regard to such applications.
The provisions of the Administration and Probate Act 1919 are relevant to the procedure for advice and directions in respect of the Trust. Relevant for present purposes is:
69—Public Trustee and other persons may obtain judicial advice or direction
(1)The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document.[2]
[2] Section 69(1) Administration and Probate Act 1919.
In the Macedonian Orthodox Community Church St Petka Inc v His Eminence PetarThe Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand[3] the High Court considered the New South Wales equivalent of s 69. In the majority judgment, the High Court said about the operation of the section:
[61] Summary character of s 63 procedure. A fourth noteworthy aspect of s 63 procedure is what Lord St Leonards described as its “summary” character. Before Lord St Leonards’ Act, as Palmer J said in judgment No 2:
[20] … [I]f a trustee wished to obtain the direction or opinion of the court on a matter of administration or management or as to a question of construction of the trust instrument, the trustee had to commence an administration suit. The trustee would raise on the pleadings in the suit the particular point upon which the court’s advice was sought. Having obtained the court’s direction or advice on that point, the trustee would then obtain a stay of all further proceedings in the administration suit. To commence a general administration suit was, however, often a cumbersome and expensive exercise as all persons interested in the estate had to be brought before the court, accounts had to be taken and enquiries had to be ordered, none of which was necessary if all that was in question was a point of construction of the trust instrument or what should be done in the management or administration of the trust assets in a particular situation.
[62] On 11 June 1857, in delivering his first reading speech on the Trustees Relief Bill, the bill which when enacted became Lord St Leonards’ Act, Lord St Leonards said that he proposed:
… to give trustees a summary right by petition, without rendering it necessary to file bills, to obtain the opinion of the Court of Chancery upon any point which might arise in the administration of the trust estate. This would be a great benefit to trustees, and, by substituting a cheap and simple process of determining questions, prevent the necessity of expensive suits.
[Citations omitted.]
[3] (2008) 237 CLR 66.
In Re Magarey Farlam Lawyers Trust Accounts (No 3) Debelle J considered the antecedence and operation of the subject provisions: [4]
[4] (2007) 96 SASR 337.
[40] In Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382, I examined the history and the limitations of the procedure by which a person administering the affairs of others may apply for directions. It is convenient to repeat it.
[41] The ability to apply for directions is a well-established procedure available to those administering the affairs of others. Two well-known instances of the procedure are the ability of the liquidator of a company to apply for directions pursuant to s 479 of the Corporations Act 2001 (Cth) and the ability of a trustee, executor or administrator of the estate of a deceased person to apply for advice and directions: s 69 of the Administration and Probate Act 1919 (SA) and s 91 of the Trustee Act 1936.
[42] The application for directions has a relatively long pedigree. In Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 McLelland J examined the historical development of the various statutory provisions for directions in England and in New South Wales. I gratefully adopt his analysis and add a note on the development of the procedure in South Australia.
[43] A statutory procedure for application for directions by a trustee, executor or administrator was introduced in England by s 30 of the Law Property Amendment Act 1859 (UK) (22 and 23 Vict. c 35). Those provisions had developed from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the Court. The two main classes of such persons were, firstly, trustees of trust property, or executors or administrators of a deceased estate, under administration by the Court pursuant to a decree for general administration and, secondly, receivers (and managers) appointed by the Court in respect of property the subject of litigation. McLelland J said (at 677):
These various statutory provisions for directions were a development from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the court. Two main classes of such persons were (1) trustees of trust property, or executors or administrators of a deceased estate, under administration by the court pursuant to a decree for general administration, and (2) receivers (and managers) appointed by the court in respect of property the subject of litigation. In such cases the exercise by those persons (to whom I will collectively refer as official administrators) of administrative or managerial functions was subject to close control by the court and in many instances they could safely exercise their powers only with the approval, and in accordance with the directions, of the court see, eg, as to trustees, Re Furness [1943] Ch 415, and as to receivers and managers, Gardner v London Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201 at 211 and Rosanove v O’Rourke [1988] 1 Qd R 171 at 173.
Generally speaking, if the court gave a direction to an official administrator who had made a full and fair disclosure to the court of the material facts, the official administrator might act in accordance with the direction without thereby incurring personal liability to any of the persons in whose interests the administration was being conducted, for example, creditors or beneficiaries of a deceased estate: see Waller v Barrett (1857) 24 Beav 413 ; 53 ER 417; Dean v Allen (1855) 20 Beav 1 ; 52 ER 502; Williams v Headland (1864) 4 Giff 505 at 66 ER 806, Pinnock v Hull (1876) 2 VLR (Eq) 18 at 24–25 and Chisholm v Gilchrist (1902) 2 SR (NSW) (Eq) 84 at 86 ; (1902) 19 WN (NSW) 140.
Section 30 of the 1859 Act in the United Kingdom was soon adopted and enacted in South Australia by s 25 of the Act No 6 of 1860 entitled An Act to amend the Law of Property and for other purposes, a provision in almost identical terms of s 30 of the 1859 Act. It provided:
25. Any trustee, executor, or administrator shall be at liberty, without the institution of a suit, to apply by petition to the Court for the opinion, advice, or direction of the Court, on any question respecting the management or administration of the trust, property, or the assets of any testator or intestate, such application to be served upon, or the hearing thereof to be attended by all persons interested in such application, or such of them as the Court shall think expedient, and the trustee, executor, or administrator, acting upon the opinion, advice, or direction given by the Court, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator, in the subject matter of the said application: Provided, nevertheless, that such application shall not extend to indemnify any trustee, executor, or administrator in respect of any act done in accordance with such opinion, advice, or direction as aforesaid, if such trustee, executor, or administrator shall have been guilty of any fraud, or wilful concealment, or misrepresentation, in obtaining such opinion, advice, or direction; and the costs of such application shall be in the discretion of the Court.
Section 25 (and s 30 of the 1859 Act) made the protection of the official administrator explicit in terms which broadly reflected the position under the general law following a decree for general administration. The proviso to s 25 was particularly relevant. The official administrator was protected only if full disclosure had been made.
[44] In South Australia in 1880 the ability to obtain the advice and direction of this Court was extended to Public Trustee by s 28 of the Public Trustee Act 1880. The terms of s 28 were, however, similar to what is now s 69 of the Administration and Probate Act 1919. The predecessor of s 69 was s 99 of the Administration and Probate Act 1891. It was in identical terms to what is now s 69 save that s 69 is now set out in six subsections which contain the provisions of the four subsections in s 99 of the 1891 Act.
…
[48] While the procedure provides protection for those who apply for directions, it does not as a general rule enable the determination of rights as between parties. So, where a trustee of the estate of a deceased person applies pursuant to s 69 of the Administration of Probate Act 1919 for the advice or the directions of the Court, those directions protect and indemnify the trustee against any claim for breach of trust, provided always that the facts have been fully and fairly disclosed, but it leaves the question open as between beneficiaries who have not been cited in the proceedings: Re Mallen; Executor, Trustee & Agency Co ofSouth Australia Ltd v Wooldridge [1929] SASR 154 at 157; In the Estate of Hunter, deceased [1957] SASR 194 at 196. Where it is desirable or necessary to obtain a final determination of the rights of parties, it is necessary to proceed inter partes: In the Estate of Hunter (ibid).
The purpose of s 69 is two-fold. It allows the Court to provide advice, something that it does not otherwise do, to a trustee who is uncertain how to proceed in a matter arising in the Trust. Secondly, it then provides protection to a trustee who acts in accordance with the advice.
Consideration
I accept the submission of the Public Trustee that the terms of the will creating the subject trust were too broad to be valid and breach the rule against perpetuities. No issue is taken with respect to the validity of the 1982 trust.
The Public Trustee wishes to pass the title in fee simple of the land to the proposed new trust. That will permit the continued maintenance and use of the Angas Family Vault. That is consistent with the wishes of the testator. The Public Trustee submitted that her communication with the members of the Angas family have satisfied her that they will continue to maintain the family vault and allow it to be used for the interment of family members.
The Public Trustee also seeks a direction that the modest amount of funds it holds on behalf of the 1982 trust be transferred to the new trust, once established. That is appropriate. The funds will be used for the purpose for which they were intended to be used. The Public Trustee will have no further use for the monies.
In the end, it is for the Court to determine whether the course proposed by the Public Trustee, and supported by the Angas family, is prudent and appropriate. I am satisfied that it is.
The orders will be as follows:
1.Pursuant to s 69 of the Administration and Probate Act 1919 and s 91 of the Trustee Act 1936, the Court advises and directs:
(a)On the creation by deed of the Trust set out in draft in exhibit CJA1 to the affidavit filed in this action of Colin John Angas made on 3 December 2021, the applicant as trustee of the estate of George Fife Angas deceased may transfer to the Trust so-created, an estate in fee simple in the real property being the Angas family vault and surrounds at lot 853, Eden Valley Road, Angaston, being Certificate of Title Register Book Volume 5548 Folio 53;
(b)On the transfer of the real property as set out in subparagraph (a) above, the applicant as trustee of the Angas Family Vault Trust created 30 March 1982, may transfer to the Trust so created all funds standing to the account of the Angas Family Vault Trust.
2.It is ordered that the applicant whether as trustee of the estate of George Fife Angas deceased or as trustee of the Angas Family Vault Trust, Mr Colin John Angas, the Trust envisaged in subparagraph 1(a), and any other person with an appropriate interest, have liberty to apply.
3.No order as to costs.