Jenkins & Anor v. Ellett

[2007] QSC 175

[2007] QSC 175

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

No 9925 of 2006

GEORGINA VENESSA JENKINS

and

PETER GEORGE JENKINS

Applicants

and

JOYCE ELIZABETH ELLETT

Respondent

BRISBANE

..DATE 29/06/2007

JUDGMENT

HIS HONOUR:  In this matter the conduct of the deceased, Ivor George Ventris Jenkins in agreeing to remove Luciano Menniti as a trustee and appoint the respondent, Joyce Ellett, as his co-trustee, and then, the agreement of George Jenkins senior, and Joyce Ellett as trustees to remove George Jenkins as a principal, and to appoint Joyce Ellett to be the principal lay at the root of the issue to be determined.

Although Joyce Ellett was a party to that agreement, which I have found to be ineffective as not done in accordance with the power to vary given by clause 11 of the trust deed, it did seem to me to raise an issue which needed to be determined and was not one which was improper for Joyce Ellett as trustee to ask the Court to determine.

In those circumstances, she seems to me to be acting as much as a trustee as a beneficiary, as were the applicants, and in circumstances where it appears that George Jenkins senior's conduct lead to this situation, it is my view that the appropriate order for costs of the application relating to paragraphs 1 to 8 of the relief sought is that all the parties' costs ought to be paid out of the estate on an indemnity basis.

Accordingly, I shall amend the draft order handed up to me in paragraph 6 so that it reads as follows.

...

HIS HONOUR:  Order that the parties' costs to be assessed of and incidental to paragraphs 1 to 8 of the originating application be paid out of the trust fund on an indemnity basis.

Otherwise, I make the orders in paragraphs 1 to 5 of the draft, which were consented to.

...

HIS HONOUR:  And I reinforce the fact that I have made the orders numbered 1 to 6 set out in the front of the judgment delivered on the 26th of June.

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