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Jenkins v Ellett

Jenkins v Ellett

Case [2007] QSC 154 26 June 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

Jenkins v Ellett [2007] QSC 154

PARTIES:

GEORGINA VENESSA and PETER GEORGE JENKINS
(applicants)
v
JOYCE ELIZABETH ELLETT
(respondent)

FILE NO:

BS9925 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

26 June 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

20 December 2006

JUDGE:

Douglas J

ORDER:

1. Declare that on the true construction of clause 11 of the trust deed of the "George Ventris Jenkins Family Trust" dated 19 January 1996, no power is conferred on the trustee to alter, vary, amend or otherwise affect the operation of the terms of clause 12.1 of the said trust deed by removing and replacing the Principal named in Part 9 of the Schedule to the said trust deed and appointing another person as the Principal;

2. Further declare that the Deed Poll dated 2 February 1999 Exhibit PGJ‑8 to the affidavit of Peter George Jenkins filed herein purporting, in reliance on clause 11, to vary the terms of the George Jenkins Family Trust created by the Deed of Trust 19 January 1996 is invalid;

3. Order that all copies of the said Deed Poll exhibit PGJ-8 be delivered up to the applicants to be cancelled;

4. Further declare that on and from the death of the late Ivor George Ventris Jenkins on 29 January 2002 Georgina Venesa Jenkins as his executor is and has been the Principal of the George Jenkins Family Trust;

5. Further declare that Georgina Venesa Jenkins and Peter George Jenkins are Trustees of the George Jenkins Family Trust together with Joyce Elizabeth Ellett;

6. Direct the respondent as trustee to make available forthwith to the applicants, as trustees, all records of the George Jenkins Family Trust including current particulars of all assets and liabilities of the trust, all past and present accounts and all tax returns of the Trust;

7. Further directions invited regarding the future conduct of the affairs of the trust.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – Powers, Duties, Rights and Liabilities of Trustees – Miscellaneous Other Powers, Duties and Liabilities – Power to vary trusts – by varying any of the “trusts declared” – whether the power extended to substitution of the principal named in the schedule to the trust deed – whether the principal’s powers had been disclaimed.

Property Law Act 1974 s 204, s 205(1), s 205(2)

Kearns v Hill (1990) 21 NSWLR 107, cited

COUNSEL:

BJ Clarke SC for the applicants
TJ Bradley for the respondent

SOLICITORS:

Terry Anderssen for the applicants
Hogan Besley Boyd for the respondent

Douglas J: The identity of the trustees of the George Jenkins Family Trust, which was created by a trust deed dated 19 January 1996, is in issue. The resolution of the question depends on whether a power in the deed, available to the trustees, to vary the trusts declared pursuant to it includes a power to remove or change the identity of the Principal. The Principal was the person given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jenkins v Ellett

Details

AGLC: Jenkins v Ellett [2007] QSC 154
Case: [2007] QSC 154
Decision Date: 26 June 2007

CaseChat Overview and Summary

The case of Jenkins v Ellett involved the interpretation and application of a trust deed. The applicants, Georgina Venesa Jenkins and Peter George Jenkins, sought a declaration that the power of the trustee, Joyce Elizabeth Ellett, did not extend to the removal and replacement of the principal named in the trust deed, specifically clause 12.1. They also sought an order invalidating a deed poll dated 2 February 1999, which purported to exercise this power. The respondents, including Ellett, argued that the power conferred by the trust deed allowed such substitutions. The dispute was adjudicated by the Supreme Court of Victoria.

The primary legal issue was whether clause 11 of the trust deed granted the trustee the authority to alter the principal named in clause 12.1 by substituting another person. This required a detailed analysis of the language and context of the trust deed, particularly clauses 11 and 12.1. The court had to determine the scope of the power conferred by clause 11 and whether it included the ability to remove and replace the principal.

The Supreme Court found that clause 11 did not confer a power to substitute the principal named in clause 12.1. The court concluded that the power was limited to variations that did not fundamentally alter the nature of the trust. The deed poll dated 2 February 1999 was deemed invalid as it attempted to exercise a power that was not conferred by the trust deed. Additionally, the court declared Georgina Venesa Jenkins as the principal following the death of Ivor George Ventris Jenkins. It also recognised her and Peter George Jenkins, along with Joyce Elizabeth Ellett, as trustees of the trust. The court ordered Ellett to provide the applicants with all trust records, accounts, and tax returns.

The court further directed Ellett to make available all records of the trust, including current particulars of all assets and liabilities, past and present accounts, and tax returns, to the applicants. It also invited further directions regarding the future conduct of the trust's affairs. This comprehensive ruling ensured that the trust's administration aligned with the original terms and that the applicants could assume their roles as trustees effectively.

Orders

Orders of the court

1. Declare that on the true construction of clause 11 of the trust deed of the "George Ventris Jenkins Family Trust" dated 19 January 1996, no power is conferred on the trustee to alter, vary, amend or otherwise affect the operation of the terms of clause 12.1 of the said trust deed by removing and replacing the Principal named in Part 9 of the Schedule to the said trust deed and appointing another person as the Principal;

2. Further declare that the Deed Poll dated 2 February 1999 Exhibit PGJ‑8 to the affidavit of Peter George Jenkins filed herein purporting, in reliance on clause 11, to vary the terms of the George Jenkins Family Trust created by the Deed of Trust 19 January 1996 is invalid;

3. Order that all copies of the said Deed Poll exhibit PGJ-8 be delivered up to the applicants to be cancelled;

4. Further declare that on and from the death of the late Ivor George Ventris Jenkins on 29 January 2002 Georgina Venesa Jenkins as his executor is and has been the Principal of the George Jenkins Family Trust;

5. Further declare that Georgina Venesa Jenkins and Peter George Jenkins are Trustees of the George Jenkins Family Trust together with Joyce Elizabeth Ellett;

6. Direct the respondent as trustee to make available forthwith to the applicants, as trustees, all records of the George Jenkins Family Trust including current particulars of all assets and liabilities of the trust, all past and present accounts and all tax returns of the Trust;

7. Further directions invited regarding the future conduct of the affairs of the trust.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Jenkins v Ellett [2007] QSC 154

Most Recent Citation

Lamers v Lamers (No 3) [2019] VSC 63

Cases citing this decision · 13 of 13 shown

Staley v Hill Family Holdings Pty Ltd
[2025] QCA 95 Para 26

…and of Mullins J (as her Honour then was) in Palmer v Palmer .[32] [27]Reasons, [15]–[19]. [28] Ibid , [20]–[27]. [29]Reason, [28]–[36]. [30][2007] QSC 154. [31](2016) 50 WAR 495. [32][2018] QSC 217.…
Staley v Hill Family Holdings Pty Ltd
[2024] QSC 176 Para 9

…support of their submission as to a narrow construction, counsel for Mrs Staley placed much reliance on the decision of Douglas J in Jenkins v Ellett [2007] QSC 154. In that case, the family patriarch (George Snr) established a discretionary family trust (in 1996) of which he and another man (LM) were trustees. G…
Cihan v Cihan
[2022] NSWSC 538 Para 91

…Counsel relied in support of their submission on the decision of Douglas J in the Supreme Court of Queensland in Jenkins v Ellett [2007] QSC 154. That case also concerned a discretionary trust. The trust deed provided for a “Principal” who had powers comparable to those of the Nominator in the present case. The P…
Re McGowan & Valentini Trusts
[2021] VSC 154 Para 1

…an that the original power of amendment is retained. [70] University of Adelaide v Attorney-General (SA) [2018] SASC 82, [17]; Jenkins v Ellett [2007] QSC 154, [15]. [71]See above para [119].…
Re Owies Family Trust
[2020] VSC 716 Para 1

…glas J in Jenkins v Ellett .[42] [40]Clause 2 is set out in full in [32] above. [41] Mercanti v Mercanti (n 37) 525 [128], 527 [143]. [42][2007] QSC 154, [16]–[17].…
Lamers v Lamers (No 3)
[2019] VSC 63 Para 1

…t the power conferred by clause 19 on the appointor to change trustee, if the trustee had the power under clause 18 to change appointor. [2][2007] QSC 154.…
Palmer v Palmer
[2018] QSC 217 Para 18

…under the will, subject to a restriction that is not relevant to the role of the appointor. Mr Ryan Palmer relies on the decision in Jenkins v Ellett [2007] QSC 154 to submit that the power to add, delete, amend or vary any of the powers given to the trustee under the testamentary trust does not extend to a power…
University of Adelaide v Attorney-General (SA)
[2018] SASC 82 Para 17

…d Fulham [2002] NSWSC 629 at [53]. [13] Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121 at [714] (Blue J). [14] Jenkins v Ellett [2007] QSC 154 at [15].…
Cardaci v Filippo Primo Cardaci as Executor and Trustee of Marco Antonio Cardaci
[2018] WASC 100 Para 3

…rustees, would destroy the substratum of the trust deed. In advancing that argument Michael relied upon the decision of Douglas J in Jenkins v Ellett [2007] QSC 154 ( Jenkins ). I found that the power of the trustees to replace the appointor and guardian of the MMF Trust did not destroy the substratum of the trus…
Mercanti v Mercanti
[2016] WASCA 206 Para 12

…In Jenkins v Ellett [2007] QSC 154, the question in issue was the identity of the trustees of a discretionary family trust. The resolution of that question depended on whether a power in cl 11 of the trust deed, available to the trustees, to vary the trusts declared pursuant to the deed, included a power to remov…
In the matter of the Public Trustee of Queensland as trustee of Queensland Community Foundation
[2016] QSC 276 Para 5

…The underlying purpose for the furtherance of which the power was initially created or conferred will obviously be paramount.’” [12] [2007] QSC 154. [13] 1 st Edition 1998 at pp 585-586.…
Franke and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 733 Para 5

…In support of this contention, the respondent referred to a decision of the Supreme Court of Queensland in Jenkins v Ellett [2007] QSC 154, which considered whether a trustee could be allowed to defeat the ability of the principal to remove the trustee, should the need arise, by amending the deed so as to remove…
Mercanti v Mercanti
[2015] WASC 297 Para 5

…In Jenkins v Ellett [2007] QSC 154 Douglas J held that a power to vary 'all or any of the trusts' of a trust deed did not include a power to discharge the principal of the trust deed, who had power to remove and appoint trustees. Douglas J reached that view after considering the text of the provision conferring t…

View all 13 citing cases →

Cases cited in this decision · 0 of 0 shown

No cases cited.

Legislation cited in this decision · 2

Property Law Act 1974 (Qld)
204 2 mentions (from Para 1)
Trusts Act 1973 (Qld)
1 mention (from Para 1)

CITATION:	Jenkins v Ellett [2007] QSC 154
PARTIES:	GEORGINA VENESSA and PETER GEORGE JENKINS (applicants) v JOYCE ELIZABETH ELLETT (respondent)
FILE NO:	BS9925 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	26 June 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	20 December 2006
JUDGE:	Douglas J
ORDER:	1. Declare that on the true construction of clause 11 of the trust deed of the "George Ventris Jenkins Family Trust" dated 19 January 1996, no power is conferred on the trustee to alter, vary, amend or otherwise affect the operation of the terms of clause 12.1 of the said trust deed by removing and replacing the Principal named in Part 9 of the Schedule to the said trust deed and appointing another person as the Principal; 2. Further declare that the Deed Poll dated 2 February 1999 Exhibit PGJ‑8 to the affidavit of Peter George Jenkins filed herein purporting, in reliance on clause 11, to vary the terms of the George Jenkins Family Trust created by the Deed of Trust 19 January 1996 is invalid; 3. Order that all copies of the said Deed Poll exhibit PGJ-8 be delivered up to the applicants to be cancelled; 4. Further declare that on and from the death of the late Ivor George Ventris Jenkins on 29 January 2002 Georgina Venesa Jenkins as his executor is and has been the Principal of the George Jenkins Family Trust; 5. Further declare that Georgina Venesa Jenkins and Peter George Jenkins are Trustees of the George Jenkins Family Trust together with Joyce Elizabeth Ellett; 6. Direct the respondent as trustee to make available forthwith to the applicants, as trustees, all records of the George Jenkins Family Trust including current particulars of all assets and liabilities of the trust, all past and present accounts and all tax returns of the Trust; 7. Further directions invited regarding the future conduct of the affairs of the trust.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – Powers, Duties, Rights and Liabilities of Trustees – Miscellaneous Other Powers, Duties and Liabilities – Power to vary trusts – by varying any of the “trusts declared” – whether the power extended to substitution of the principal named in the schedule to the trust deed – whether the principal’s powers had been disclaimed. Property Law Act 1974 s 204, s 205(1), s 205(2) Kearns v Hill (1990) 21 NSWLR 107, cited
COUNSEL:	BJ Clarke SC for the applicants TJ Bradley for the respondent
SOLICITORS:	Terry Anderssen for the applicants Hogan Besley Boyd for the respondent