John Barker v Robert Barker Nominees Pty Ltd

JOHN BARKER v ROBERT BARKER NOMINEES PTY LTD
 [2011] ACTSC 73 (13 May 2011)

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for equitable relief for failing to properly administer family trust – application by defendant to transfer proceedings to Supreme Court of Victoria – court satisfied transfer in the interests of justice – transfer ordered

Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 5

White Enhancements Pty Ltd v Quick Fit Tyre Service Pty Ltd [2008] ACTSC 122
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Pugh v Morrison [2011] ACTSC 44

No.  SC 858 of 2010

Judge:             Master Harper
Supreme Court of the ACT

Date:              13 May 2011

IN THE SUPREME COURT OF THE     )
  )  No.  SC 858 of 2010
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JOHN BARKER

Plaintiff

AND:ROBERT BARKER NOMINEES PTY LTD

Defendant

ORDER

Judge:  Master Harper
Date:  13 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

the action be transferred to the Supreme Court of Victoria.

1. The defendant in this action seeks an order that the proceeding be transferred to the Supreme Court of Victoria. The transfer is opposed by the plaintiff.

1. The action was commenced in December 2010, claiming equitable relief. The defendant company is sued as trustee of the Barker family trust. The deed establishing the trust is in evidence. It was made on 29 August 1973. Grace Muriel Caughey settled $50.00 on the defendant to establish the trust, to vest ten years after the death of the later to die of Robert Barker and his wife Frances. The plaintiff is the son of Mr and Mrs Barker, who also have a daughter, Suzan. The trust deed defines the children of Mr and Mrs Barker as primary beneficiaries of the trust, with Mr and Mrs Barker themselves being additional members of the class of general beneficiaries. The trust deed made Mr Barker appointor during his lifetime, and Mrs Barker appointor after his death.

1. The plaintiff claims in the statement of claim that from 1981 to 1989 he received trust distributions from time to time. In 1989 or 1990, the trust deed was altered in handwriting, the word “children” being replaced by “daughter” in the definition of primary beneficiaries. (The trust deed in evidence shows that change, with the initials GMC beside it, these being, coincidentally or otherwise, the initials of the settlor). The plaintiff asserts in the statement of claim that the change was ineffective as an amendment to the deed. This is conceded by the defendant.

1. The plaintiff asserts that the change was made by or at the direction of Robert Barker, who was at all material times the controlling director of the defendant company.

1. The plaintiff says that by 1989-90, he had become estranged from his father, who favoured his daughter, and made a will which did not include the plaintiff as a beneficiary.

1. Robert Barker died in 1992. Later in the same year, Suzan Barker was appointed a director of the defendant company. She also…