Jenkins & Anor v. Ellett

The case of Jenkins & Anor v. Ellett was heard in the Supreme Court of Queensland. Georgina Venessa Jenkins and Peter George Jenkins, the applicants, sought relief regarding the conduct of Ivor George Ventris Jenkins, who had agreed to remove Luciano Menniti as a trustee and appoint Joyce Elizabeth Ellett as a co-trustee. The applicants also sought to challenge the agreement between George Jenkins senior and Joyce Ellett to remove George Jenkins as a principal and to appoint Joyce Ellett as the principal. The court was required to determine the validity of these agreements and their implications under the trust deed.

The legal issues before the court included whether the agreement to remove Luciano Menniti and appoint Joyce Ellett as a co-trustee was validly executed in accordance with the power to vary given by clause 11 of the trust deed. Additionally, the court had to decide whether the subsequent agreement to remove George Jenkins as a principal and appoint Joyce Ellett as the principal was also valid. The court needed to consider the roles of the parties as both trustees and beneficiaries and determine the appropriate course of action regarding the costs of the application.

In delivering the judgment, the court found that the agreement to appoint Joyce Ellett as a co-trustee was ineffective as it was not done in accordance with the power to vary provided by clause 11 of the trust deed. However, the court acknowledged that Joyce Ellett, despite being a party to the ineffective agreement, was acting in her capacity as a trustee by seeking the court's determination on the issue. The court considered that all parties' conduct had contributed to the situation and deemed it appropriate to order that the costs of the application be paid out of the estate on an indemnity basis.

The court ordered that the 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. The court reinforced that the orders numbered 1 to 6, set out in the judgment delivered on June 26, were to be implemented.