Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: James v Douglas [2016] NSWCA 178 Hearing dates: 22 February 2016 Decision date: 28 July 2016 Before: Meagher JA at [1];
Leeming JA at [77];
Simpson JA at [78]Decision: 1. Grant leave to the first appellant to appeal from the orders made by McDougall J on 25 March 2015.
2. Dismiss the first appellant’s appeal, by the Amended Notice of Appeal, from the orders made on 25 March 2015.
3. Grant leave to the first and second appellants to appeal from the costs orders made against them by McDougall J on 22 July 2015.
4. Dismiss the first and second appellants’ appeal, by the Amended Notice of Appeal, from the costs orders made against them on 22 July 2015.
5. Order the first appellant pay the first and second respondents’ costs of the appeal in order 2.
6. Order the first and second appellants pay the first and second respondents’ costs of the appeal in order 4.Catchwords: WILLS & ESTATES - construction of will creating testamentary trusts - existence and scope of power to appoint and remove trustees - whether a power to appoint a replacement trustee includes a power of removal of original trustees
COSTS - where proceedings concern construction of powers conferred in relation to testamentary trust - whether departure from general rule that costs follow the event justified by “probate exception” - whether conduct of proceedings by first and second appellants involved “delinquency” justifying order for costs on indemnity basisLegislation Cited: Administration of Justice Act 1982 (UK), s 21
Conveyancing Act 1881 (UK), s 31
Succession Act 2006 (NSW), ss 27, 32
Supreme Court Act 1970 (NSW), s 101(2)(r)
Trustee Act 1925 (NSW), ss 63, 70(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.25
Wills Act 1968 (ACT), s 12BCases Cited: Arena Management Pty Ltd (Receiver and Manager Appointed) v Campbell Street Theatre [2011] NSWCA 128; 80 NSWLR 652
BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414; 82 NSWLR 336
Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131
Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186
Colgate Palmolive Co v Cussons Pty Ltd [1993] 46 FCR 225
Fell v Fell [1922] HCA 55; 31 CLR 268
King v Perpetual Trustee Co (Ltd) [1955] HCA 70; 94 CLR 70
Harrison v Schipp [2001] NSWCA 13
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
McDonald v Horn [1995] 1 All E R 961
Morgan v Moore [2000] VSC 94
Noble v Meymott (1851) 14 Beav 471; 51 ER 367
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Re Doland’s Will Trusts Westminster Bank Ltd v Phillips [1970] 1 Ch 267
Re Earl of Stamford. Payne v Stamford [1896] 1 Ch 288
Re Hadley; Ex parte Hadley…
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- AGLC
- James v Douglas [2016] NSWCA 178
- Case
- [2016] NSWCA 178
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two principal legal issues. Firstly, it had to ascertain whether the language used in the will to confer a power of appointment of a replacement trustee extended to, or encompassed, a power to remove existing trustees. Secondly, the Court considered whether the general rule that costs follow the event should be departed from in this instance, applying the "probate exception," and whether the conduct of the first and second appellants warranted an order for costs on an indemnity basis.
In addressing the construction of the will, the Court reasoned that the power to appoint a replacement trustee did not, by implication, include a power to remove the original trustees. The Court emphasised that such a significant power as removal would need to be expressly conferred or be demonstrably necessary for the effective operation of the trust. Regarding costs, the Court found that the circumstances did not justify departing from the usual rule, and the conduct of the appellants did not amount to the "delinquency" required to order costs on an indemnity basis.
The Court of Appeal granted leave to appeal for the first appellant concerning the substantive orders, but dismissed that appeal. Leave to appeal was also granted to the first and second appellants regarding the costs orders, but this appeal was also dismissed. Consequently, the first appellant was ordered to pay the first and second respondents’ costs of the appeal relating to the substantive orders, and the first and second appellants were ordered to pay the first and second respondents’ costs of the appeal relating to the costs orders.
Orders
Orders of the court
1. Grant leave to the first appellant to appeal from the orders made by McDougall J on 25 March 2015.
2. Dismiss the first appellant’s appeal, by the Amended Notice of Appeal, from the orders made on 25 March 2015.
3. Grant leave to the first and second appellants to appeal from the costs orders made against them by McDougall J on 22 July 2015.
4. Dismiss the first and second appellants’ appeal, by the Amended Notice of Appeal, from the costs orders made against them on 22 July 2015.
5. Order the first appellant pay the first and second respondents’ costs of the appeal in order 2.
6. Order the first and second appellants pay the first and second respondents’ costs of the appeal in order 4.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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