Jarvis v Farmland Investments Pty Ltd as trustee for the Murray Jarvis Trust
[2021] WASC 296
•26 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JARVIS -v- FARMLAND INVESTMENTS PTY LTD AS TRUSTEE FOR THE MURRAY JARVIS TRUST [2021] WASC 296
CORAM: STRK J
HEARD: 17 AUGUST 2021
DELIVERED : 20 AUGUST 2021
PUBLISHED : 26 AUGUST 2021
FILE NO/S: CIV 1519 of 2021
BETWEEN: BRIAN EDWARD JARVIS
Plaintiff
AND
FARMLAND INVESTMENTS PTY LTD AS TRUSTEE FOR THE MURRAY JARVIS TRUST
First Defendant
MURRAY EDWARD JARVIS by guardian ad litem THE PUBLIC TRUSTEE
Second Defendant
Catchwords:
Practice and procedure - Application by a non-party for joinder to the proceeding pursuant to the Rules of the Supreme Court 1971 (WA) O 18 r 6(2)(b) - Potential for real conflict as between beneficiaries - Proceeding commenced by originating summons which concerns the proper administration of a trust - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | K Woods |
| First Defendant | : | P J Hannan |
| Second Defendant | : | M Woodford |
| Applicant (Non-party) | : | P J Hannan |
Solicitors:
| Plaintiff | : | Dentons Australia |
| First Defendant | : | G A Lacerenza & Associates |
| Second Defendant | : | Public Trustee |
| Applicant (Non-party) | : | G A Lacerenza & Associates |
Case(s) referred to in decision(s):
APT Finance Pty Ltd v Bajada [2008] WASCA 73
Clerk v Equity Trustee Executors and Agency Co Ltd (1912) 15 CLR 626
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Elovalis v Elovalis [2008] WASCA 141
Toll v Alphapharm Pty Ltd (2004) 219 CLR 165
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305
Young v Murphy [1996] 1 VR 279
STRK J:
(This decision was delivered extemporaneously on 20 August 2021 and has been edited from the transcript.)
This is an application by a non-party for joinder to the proceeding pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 18 r 6(2)(b). For the reasons set out below, I find that it is proper for Sally McKie to be joined to the proceeding as the third defendant.
Introduction
The proceeding was commenced by Brian Jarvis by an originating summons filed on 13 June 2021, amended by an order made on 5 August 2021. Brian Jarvis joined to the proceeding Farmland Investments Pty Ltd as trustee for the Murray Jarvis Trust (as first defendant); and his father Murray Jarvis (as second defendant). Murray Jarvis is presently the sole director and shareholder of Farmland Investments Pty Ltd.
On 5 August 2021, I ordered that the Public Trustee be appointed as the guardian ad litem for Murray Jarvis. This followed the making of orders by the State Administrative Tribunal on 3 August 2021 appointing the Public Trustee as plenary administrator of Murray Jarvis' estate, having declared Murray Jarvis to be unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any of his estate; and in need of an administrator of his estate.[1]
[1] Affidavit of Guiseppe Antonio Lacerenza sworn 10 August 2021 'GAL5'.
The originating summons is supported by the affidavit sworn by Brian Jarvis and filed on 14 June 2021. In his affidavit, among other things, Brian Jarvis deposes to his belief that his father is the Guardian of the Murray Jarvis Trust and that he and his father are the sole beneficiaries of the Murray Jarvis Trust.
Brian Jarvis also deposes to his belief that on or about 1 July 2002, Murray Jarvis set up the partnership known as 'M.E Jarvis & Son' ABN 82 133 032 109; and to Brian having continued to farm, maintain and improve farming land in Merredin as a partner of the partnership from 2002 to on or about November 2013.
By the proceeding, Brian Jarvis seeks the following relief:[2]
[2] Plaintiff's amended originating summons filed 10 August 2021.
1.[Farmland Investments Pty Ltd as trustee for the Murray Jarvis Trust] provide to [Brian Jarvis] copies of:
(a) the Murray Jarvis Trust (Trust) Deed; and
(b) the Financial Reports for the Trust for the:
(i)2014/2015 financial year;
(ii)2015/2016 financial year;
(iii)2016/2017 financial year;
(iv)2017/2018 financial year;
(v)2018/2019 financial year; and
(vi)2019/2020 financial year.
2.[Murray Jarvis] make available to [Brian Jarvis] for inspection and copying all of the books and records of the partnership known as: 'M.E. Jarvis & Son', ABN 82 133 032 109.
3.[Brian Jarvis] be appointed the Appointor and/or Guardian of the Trust, as appropriate, in place of Murray Edward Jarvis, the second defendant.
4.Further and in the alternative, [Farmland Investments Pty Ltd] be removed as Trustee of the Trust under section 77 of the Trustees Act 1962 (WA) and a new Trustee, or new trustees, be appointed to conduct and administer the affairs of the Trust.
5.Such other Order as this Honourable Court thinks fit.
Sally McKie applies to be joined to this proceeding as the third defendant pursuant to the RSC O 18 r 6(2)(b). Sally McKie contends that she is entitled to be joined to the proceeding as she is a beneficiary of the Murray Jarvis Trust. She seeks to be heard in relation to the relief sought at pars 3 and 4 of the originating summons (as now amended); she does not seek to be heard in relation to pars 1 and 2.[3] The application for joinder is opposed by Brian Jarvis.
[3] ts 19 - 20 (17 August 2021).
In these reasons, I refer to the plaintiff, the second defendant and the applicant by their first names. I do so for convenience. No disrespect is intended.
The applicant's submissions
Set out below is an overview of the submissions made in support of the joinder of Sally to the proceeding.
First, it was submitted on behalf of Sally that it is arguable on the proper construction of the deed of trust dated 3 April 1992 (Trust Deed), as varied by a deed of variation dated 14 July 2009 (Variation Deed), that she comes within the meaning of 'The General Beneficiaries', as that term is defined in cl 1(b) of the Trust Deed.
In this regard, counsel for Sally submitted that for the purposes of this application, she need only show cause why her status as a General Beneficiary was arguable, likening the threshold to that of a defendant opposing a summary judgment application.
Secondly, it was submitted that as a person who arguably falls within such class of beneficiary under the Trust Deed, Sally is entitled to be heard in relation to the relief sought by Brian at pars 3 and 4 of the originating summons (as now amended).
It was conceded that if Sally was not a General Beneficiary under the Trust Deed, she would have no standing to seek to be heard in this proceeding.
Affidavits read by the proposed third defendant
In support of the joinder application, two affidavits were filed. The affidavit of Sally sworn on 9 August 2021 and filed on 10 August 2021; and the affidavit of Giuseppe Antonio Lacerenza, solicitor for Sally, sworn and filed on 12 August 2021. Annexed to Mr Lacerenza's affidavit is a copy of the Trust Deed and the Variation Deed.
At the hearing of the application for joinder, counsel for Sally read pars 1, 2, 3, 4, 5 and 7 of Sally's affidavit; together with Mr Lacerenza's affidavit filed on 12 August 2021. Counsel also relied upon parts of the affidavit filed on 14 June 2021 by Brian in support of the originating summons.
The hearing of the joinder application proceeded on the basis that it was accepted that Brian was the only child of Murray and Robyn Sims, and that Brian came within the meaning of 'The Primary Beneficiaries', as that term is defined at cl 1(a) of the Trust Deed.
Sally deposes to being Murray's de facto spouse. She deposes to having formed a common law de facto relationship with Murray some 20 years ago.
The Trust Deed
The meaning of the language of the Trust Deed is in dispute and I set out below the interpretation of cl 1(b) advanced on behalf of each of Sally and Brian. First, it is convenient to set out certain clauses.
Clause 1(b) of the Trust Deed provides:
1.In this Deed where the context admits or requires the following terms shall have the following meanings:
…
(b)'The General Beneficiaries' shall mean the Primary Beneficiaries, the brothers, sisters, spouses and children of the Primary Beneficiaries, the Spouses children and grandchildren of such brothers sisters and children and such additional persons named as such in the Schedule hereto and any company in which any of the foregoing persons hold shares and any trust in which any of the said foregoing persons are beneficiaries whether contingent, prospective or otherwise and any charitable institution, body or organisation PROVIDED THAT the following persons namely:-
(i)the Settlor or any person claiming under or in right of the Settlor;
(ii)the Trustee;
(iii)any corporation so long as any of the persons referred to in paragraphs (i) and (ii) of this proviso are the Beneficial owners of any share therein;
(iv)the trustee of any trust or settlement in or under which any other of the persons referred to in paragraphs (i) and (ii) of this proviso have any beneficial interest of whatsoever nature so long as such interest continues shall notwithstanding that they may otherwise be or be qualified to be included in the class of General Beneficiaries shall be excluded from the call of General Beneficiaries.
PROVIDED ALWAYS THAT the Trustee at any time and from time to time may declare in writing that any person or class of persons named and defined in such declaration in writing shall be excluded from the class of general beneficiaries in respect to either income or capital or both notwithstanding that but for such exclusion he or they would otherwise have been of such class and the Trustee may at any time revoke in writing the whole or any part or parts of such declaration.
The following words are included in the schedule to the Trust Deed:
By cl 3.1 of the Trust Deed, the Trustee is given the power to distribute the net income of the Trust Fund to the 'general beneficiaries', subject to the terms of the Trust Deed. (I note that the capitalised term is not used.)
By the Variation Deed, a new cl 1(p) is inserted into the Trust Deed in the following terms:
1(p)'spouse' includes a de facto partner (as defined in the Interpretations Act 1984) and a former spouse or a former de facto partner;”
The interpretation advanced on behalf of the proposed third defendant
Sally contends that cl 1(b) is properly read as follows, with emphasis given to the words underlined:
(b)'The General Beneficiaries' shall mean the Primary Beneficiaries, the brothers, sisters, spouses and children of the Primary Beneficiaries, the Spouses children and grandchildren of such brothers sisters and children and such additional persons named as such in the Schedule hereto and any company in which any of the foregoing persons hold shares and any trust in which any of the said foregoing persons are beneficiaries whether contingent, prospective or otherwise and any charitable institution, body or organisation PROVIDED THAT the following persons namely:- (Emphasis through underlining added.)
Sally contends that Murray is for the purpose of cl 1(b) an additional person named as such in the schedule to the Trust Deed. Further, she contends that she is a 'Spouse' of an additional person named as such in the schedule to the Trust Deed by operation of the Variation Deed. She says that she therefore comes within the meaning of 'The General Beneficiaries', as that term is defined in cl 1(b) of the Trust Deed.
Counsel submitted that Sally's preferred construction of cl 1(b) is an arguable interpretation of the written instrument.
Counsel submitted that it was appropriate to proceed on the basis that the usual principles of contractual construction ought to be applied in the construction of the Trust Deed. Counsel submitted that it was proper to look at such matters as layout, formatting, spacing and capitalisation within the Trust Deed, which were erratic and haphazard.[4] Numerous issues with the Trust Deed were identified, including that while the Trust Deed defines the term 'The Appointor' at cl 1(h) to mean 'successively the person or persons named or described as such in the Schedule hereto', no reference is made to the Appointor in the schedule to the Trust Deed.
[4] ts 2 - 3 (17 August 2021). As to the role of punctuation, layout and spacing, I have had regard to Heydon on Contract (2019) [8.550] at 274.
Counsel submitted that the construction advanced by Sally is supported by reading cl 1(b) as a whole. Counsel says the language of cl 1(b) casts 'extremely widely' those persons or classes of persons that were included within its scope, with narrow exclusions.[5] Counsel also referred to and relied upon cl 5(b)(ii) of the Trust Deed in support of the proffered interpretation, which provides as follows:
…
(ii)any such variation shall be for the benefit of all or any one or more of the General Beneficiaries or of their relatives;
…
[5] ts 10 (17 August 2021).
Further, I understand the effect of counsel's submission to be that when read as a whole, if the language in the Trust Deed is ambiguous or susceptible to more than one meaning, then the admission of extrinsic evidence as to the objective framework of facts within which the Trust Deed and Variation Deed came into existence and to the parties' presumed intention in that setting would be admissible.
In this regard, counsel set out a factual chronology, which he submitted supported Sally's profferred interpretation of the Trust Deed.[6]
[6] ts 6 - 10 (17 August 2021).
Counsel submitted that as a person who arguably falls within such class of beneficiary under the Trust Deed, Sally is entitled to be heard in relation to the relief sought by Brian at pars 3 and 4 of the originating summons (as now amended). It was conceded that if there remained a dispute as to the proper construction of the Trust Deed, then it would be necessary for the proper construction of the Trust Deed to be determined before Sally was heard in relation to who might be appointed as Appointor, Guardian or Trustee under the Trust Deed. Counsel submitted that construction of the Trust Deed would properly be determined in this proceeding.
The plaintiff's position
In summary, Brian contends that it is not arguable that on the proper construction of the Trust Deed, as amended by the Variation Deed, that Sally is a 'General Beneficiary', and therefore there is no proper basis for her joinder as a defendant to the proceeding.
Further, it was submitted that Sally is not a person who ought be joined as a party to the proceeding or whose presence before this court is necessary or required to ensure that the court could effectively deal with the matters before it.[7]
The interpretation advanced on behalf of the plaintiff
[7] ts 22 (17 August 2021).
Counsel for Brian accepted that there appeared to be no difference as between the parties as to the principles to be applied in construing the Trust Deed.[8]
[8] ts 26, 36 - 37 (17 August 2021); counsel for the applicant referred to Seddon N, Seddon on Deeds (Federation Press, 2015), see 173 - 175; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 [40]; counsel for both parties cited Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, see 352; see also Clerk v Equity Trustee Executors and Agency Co Ltd (1912) 15 CLR 626, 628 and 630 - 631; Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 100 NSWLR 432 [69]-[70]; Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561 [72]-[75]; and Heydon on Contract (2019) [8.550] at 274.
Brian contends that cl 1(b) of the Trust Deed be read as follows.
'The General Beneficiaries' shall mean:
(a)the Primary Beneficiaries;
(b)the brothers, sisters, spouses and children of the Primary Beneficiaries;
(c)the Spouses children and grandchildren of such brothers sisters and children; and
(d)such additional persons named as such in the Schedule hereto; and
(e)any company in which any of the foregoing persons hold shares; and
(f)any trust in which any of the said foregoing persons are beneficiaries whether contingent, prospective or otherwise and any charitable institution, body or organisation PROVIDED THAT the following persons namely:-
(i)the Settlor or any person claiming under or in right of the Settler;
(ii)the Trustee;
(iii)any corporation so long as any of the persons referred to in paragraphs (i) and (ii) of this proviso are the Beneficial owners of any share therein;
(iv)the trustee of any trust or settlement in or under which any other of the persons referred to in paragraphs (i) and (ii) of this proviso have any beneficial interest of whatsoever nature so long as such interest continues shall notwithstanding that they may otherwise be, or be qualified to be included in the class of General Beneficiaries shall be excluded from the call of General Beneficiaries.
It was submitted that this reading of the Trust Deed reflected the natural and ordinary meaning of the clause; and when such interpretation is adopted, Sally does not comes within the meaning of 'The General Beneficiaries', as that term is defined in cl 1(b) of the Trust Deed.
Counsel further submitted that even if Sally is a General Beneficiary, she has no entitlement to distribution as discretion to distribute remains that of the Trustee under the terms of the Trust Deed.[9] It was submitted that Brian's interest as a Primary Beneficiary was different (and the suggestion made, superior) to that of Sally, who could be no more than a General Beneficiary.
[9] ts 26 (17 August 2021).
I understand counsel to have further submitted that given the nature of the relief sought in pars 3 and 4 of the originating summons (as amended), Sally was not necessarily entitled to be heard. It was suggested that if a new trustee were appointed upon the application of Brian, any replacement trustee would '… still bear the … onerous obligations of the trustee to act in the interests of the beneficiaries at all times.'[10] That is, that the requested orders and potential change to the Trustee would not cause prejudice to Sally, and as such she need not be heard in relation to the same.
[10] ts 28 (17 August 2021).
The position of the first and second defendants
At the time of hearing of the application, the solicitor on the record for Farmland Investments Pty Ltd as trustee for the Murray Jarvis Trust (who also acts for Sally) had a pending application to be removed and took no position on behalf of the first defendant in relation to the application. Orders were subsequently made which would facilitate the removal of the solicitor from the record. The sole director of the company lacks capacity, and I am not aware of any proposed course which would see the company taking an active role in this proceeding.
Murray by his guardian ad litem did not seek to be heard in relation to the application.
The applicable principles
The court is empowered to exercise its discretion to join a party to a proceeding pursuant to the RSC O 18 r 6(2) which relevantly provides:
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a) …
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party.
I note that this proceeding was commenced by originating summons, not by writ, and the RSC O 58 r 29 provides that, upon every application by originating summons -
(a)the Court may direct such persons to be served with the summons or with a notice in lieu of service of the summons as it may think fit;
(b)…
(c)all persons served shall be entitled to adduce evidence either for or against the application;
(d)directions may be given as the Court thinks just for the trial of any questions arising out of the evidence;
(e)it shall be lawful for the Court upon such summons to pronounce such judgment as the nature of the case may require;
(f)…
Further the RSC O 58 r 26 permits the court upon the hearing of an application in chambers to make any order and give any directions relative to or consequential on the matter of such application as may be just; and such application may, if the court thinks fit, be adjourned from chambers into court, or from court into chambers.
The court did not direct that Sally be served with the summons pursuant to the RSC O 58 r 29(a) and the application is made under the RSC O 18 r 6(2). It is well established that the RSC O 18 r 6(2) should be given a wide interpretation: it is designed to avoid unnecessary technicality so as to enable parties to litigate the real issues between them in an expeditious, effective and cost efficient way.[11]
[11] APT Finance Pty Ltd v Bajada [2008] WASCA 73 [34]; Elovalis v Elovalis [2008] WASCA 141 [6].
The application of the RSC O 18 r 6(2) was considered by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7].[12] In that decision, his Honour quoted Lord Diplock in Penang Mining Co Ltd v Chong San [1969] 2 MLJ 52, where Lord Diplock considered a predecessor to the RSC O 18 r 6(2). His Lordship said:
[A] better way of expressing the test is:
Will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action? (55)
[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305 [18].
Le Miere J went on to observe as follows:
This direct interest test was applied by the Full Federal Court in News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410.
…
The High Court authoritatively stated the law on joinder in John Alexander's Club Pty Ltd v White Tennis Club Ltd [2010] HCA 19] … The Court (French CJ, Gummow, Hayne, Heydon and Keifel JJ) said:
Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.
Joinder will be ordered if a non‑party's rights against or liabilities to any party to the proceedings will be directly affected by any order which is sought to be made in the proceedings.
In Wales v Vrsecky,[13] McMillan J considered joinder of beneficiaries to a proceeding made pursuant to a rule expressed in terms similar to the RSC O 18 r 6(2).[14] McMillan J accepted that in certain cases, the non‑alignment of interests as between beneficiaries will mean that joinder of beneficiaries to a proceeding is appropriate:
As articulated in Young v Murphy, if it is possible that the interests of one or more beneficiaries will not be properly represented by the trustee and/or there is a real conflict between the beneficiaries, beneficiaries are entitled to be joined to a proceedings.
[13] Wales v Vrsecky [2015] VSC 223 [52]; referring to Young v Murphy [1996] 1 VR 279, 283 [46].
[14] Supreme Court (General Civil Procedure) Rules 2005 r 9.06(b)(i).
In Wales v Vrsecky, McMillan J concluded that in the circumstances of that case, the general law rule, read in conjunction with the permissive joinder rule under r 9.06(b)(i), and the overarching purpose of the Civil Procedure Act 2010 to ensure just, efficient, timely and cost-effective resolution of disputes, confirmed that it was appropriate to allow the application by the applicant beneficiaries to be joined to that proceeding.[15]
[15] Wales v Vrsecky [52].
Disposition
Counsel for Sally and Brian agreed that the application for joinder was not the appropriate vehicle in which the proper construction of the Trust Deed ought be finally determined.[16] Having given careful consideration to the text of the Trust Deed, and having regard to the authorities cited and the submissions advanced by counsel at the hearing of the application, I find that it is arguable that Sally is a General Beneficiary under the Trust Deed, properly construed. As there may well be a trial of this issue, it is not appropriate that I express concluded views as to the proper construction of the Trust Deed.
[16] ts 20 - 21 and 24 (17 August 2021).
I then turn to consider whether it is appropriate for Sally to be joined as a party to this proceeding. On balance, I find that it is appropriate.
While the RSC O 18 r 6(2) is to be interpreted beneficially, the test is whether the presence of that party is necessary; a party cannot be joined merely because it is thought to be just or convenient. The court must consider whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action.
While seeking joinder under the RSC O 18 r 6(2), counsel for Sally did not address the effect of the orders sought in the action and whether joinder is necessary. I did not understand counsel to contend that Sally is a necessary defendant to the proceeding. Rather, it was asserted that it is arguable that Sally is a General Beneficiary under the Trust Deed, and as such, she is entitled to be heard in the proceeding.
Counsel for Sally referred to the Supreme Court Act 1935 (WA) s 24(7), and it was submitted that her joinder would ensure that all matters in controversy between the parties may be completely and finally determined, and multiplicity of legal proceedings avoided. I have weighed this submission in the balance.
I have also weighed in the balance that for the purposes of the distribution provision in cl 3.1 of the Trust Deed, there is no greater right afforded to Brian (who is a General Beneficiary by virtue of being a Primary Beneficiary) to income from the Trust Fund than Sally (who is arguably a General Beneficiary by virtue of being a Spouse of an additional person named as such in the Schedule to the Trust Deed). As to capital and income from the Vesting Day, it would appear that the effect of cl 4.1 is that the Trustee may appoint some or all of the General Beneficiaries to receive capital and income, and if no appointment is made will hold the same for the Primary Beneficiaries. That is, it would appear that both Sally (if she indeed is a General Beneficiary) and Brian, have the potential to receive capital upon the vesting of the Murray Jarvis Trust.
I have weighed in the balance that in this proceeding, the interests of beneficiaries under the Trust Deed cannot be properly represented by the current Trustee, Farmland Investments Pty Ltd, by reason of the incapacity of its sole director, Murray.
I have weighed in the balance that in this case, there is the potential for real conflict as between beneficiaries under the Trust Deed as to who should control the Murray Jarvis Trust, as Trustee, Guardian and/or Appointor.
This is a proceeding which largely concerns the administration of the Murray Jarvis Trust. On balance, I find that it is appropriate that Sally be joined as a party whose interests may be affected by a decision on the appointment of a replacement Trustee, Guarantor and/or Appointor under the Trust Deed. Such finding is consistent with that taken by McMillan J in Wales v Vrsecky, and the reasoning of Brooking J in Young v Murphy, when considering proceedings which relate to the administration of a trust.
No prejudice is caused by the joinder that cannot ultimately be addressed by orders for costs if the court should ultimately form the view that such joinder caused an existing party to incur unnecessary legal costs.[17] If Sally is not joined to this proceeding, it is possible that further disputes and litigation will arise, which ultimately, will be more costly for all parties concerned.[18]
[17] Wales v Vrsecky [24].
[18] Wales v Vrsecky [51].
In circumstances where it is arguable that on the proper construction of the Trust Deed, as varied, that Sally is a 'General Beneficiary' under the terms of the Trust Deed, it was open to make a direction that Sally be served with the summons, after which she would have been entitled to adduce evidence either for or against the application under the RSC O 58 r 29(a) and (c). The 'necessity test' is not expressly incorporated in O 58 r 29, and does not appear to necessarily inform the exercise of the court's powers and procedure for proceedings commenced by originating summons.
I consider that had Sally commenced a proceeding by originating summons, seeking orders to appoint a Trustee, Guardian or Appointor to the Murray Jarvis Trust, it would have been appropriate to allow Brian an opportunity to be heard in relation to the same. That being the case, it cannot be the case that the joinder of Sally to this proceeding ought properly be refused.
Orders
For the reasons set out above, I propose to grant the application. I will hear the parties as to the form of order; costs; and the directions to be given for the proper conduct of this matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Associate to Justice Strk
26 AUGUST 2021
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