Kellett v Schriever - [2017] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Permission to Appeal)
KELLETT v SCHRIEVER & ANOR
[2017] SASC 52
Judgment of The Honourable Justice Bampton
7 April 2017
EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - INDEMNITY, LIEN AND REIMBURSEMENT - LEGAL COSTS AND COMMISSION ENTITLEMENT
PROCEDURE - COSTS - APPEALS AS TO COSTS - DISCRETION
The applicant commenced proceedings pursuant to s 84C of the Trustee Act 1936 (SA) seeking the appointment of an inspector to investigate the administration of a discretionary family trust – the appointment was made by a Master – following provision of the inspector’s reports the applicant sought his costs in making the application and the fees charged by the inspector – the Master ordered that the applicant pay the costs of the inspector and that those costs be a disbursement in the action to be recovered by the applicant if he succeeded in respect of his foreshadowed proceedings – the applicant seeks permission to appeal against the Master’s costs order – whether permission to appeal should be granted – whether the Master erred in the exercise of his discretion under s 84C(3).
HELD: Permission to appeal refused.
Trustee Act 1936 (SA) s 84B, s 84C; Supreme Court Civil Rules 2006 (SA) r 288(1)(b), referred to.
Pope v DRP Nominees Pty Ltd & Anor (No 2) [2000] SASC 65; House v The King (19366) 55 CLR 499; Oswal v Burrup Fertilisers Pty Ltd (2011) 85 ACSR 531, applied.
Colton & Anor v Hunter & Anor [2009] SASC 299; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor (1981) 148 CLR 170; In re the Will of FB Gilbert (dec.) (1946) 46 SR (NSW) 318; Hogan v Australian Crime Commission (2010) 240 CLR 651, considered.

KELLETT v SCHRIEVER & ANOR
[2017] SASC 52
Appeal from a Master

BAMPTON J: The appellant, Michael Kellett (“Mr Kellett”), seeks permission to appeal pursuant to r 288(1)(b) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) against a costs order made by a Master pursuant to s 84C(3) of the Trustee Act 1936 (SA) (“the Act”).
Mr Kellett issued a summons seeking the appointment of an inspector pursuant to s 84C of the Act (“the application”) to investigate the administration of the Schriever Family Trust (“the Trust”). The appointment was made by the Master on 29 October 2015 and two reports prepared by the Inspector were provided to the Court.
Background
The first respondent, Alan Schriever (“Mr Schriever”) married Mr Kellett’s mother Louise Mae Schreiver (nee Kellett) in 1972. Both Mr Schriever and Louise Schriever had children from previous marriages. At the time of the marriage, Mr Schriever owned two farming properties, livestock, plant and equipment. Mr Schriever deposes in his affidavit sworn 28 April 2016 to having attended an estate planning seminar in about 1996 and to discussing estate planning issues with his solicitors, WS DeGaris & Co. He says he received advice that he should establish two separate trusts.
Mr Schriever and Louise Schriever established the Trust and the Spot On Family Trust, with the intention of gifting through the trusts one each of the two farming properties owned by Mr Schriever to each of their lineages. The Trust was intended to pass property to the Kellett side of the family and the Spot On Family Trust was intended to pass property to the Schriever family.
The Trust is a discretionary family trust established in 1997. The trustee for the Trust was a company named Brimmage Pty Ltd (“Brimmage”), which was deregistered on 7 August 2013. I note that the Inspector says in his first report dated 26 February 2016 that an application was made to ASIC on or about 31 May 2013 for the voluntary deregistration of Brimmage. The Inspector suggests the logic for this is that the Trust had no assets because of a vesting process which appears to have occurred on 19 December 2012. It would therefore appear that the Trust has no current trustee.
Mr Kellett is not a designated person beneficiary named in the Trust but a person within other categories of beneficiaries, being a child of one of a designated person beneficiaries. Having regard to the Inspector’s reports, it would appear that Mr Schriever was removed as a designated person beneficiary in 1998. The second respondent, Dean Schriever, who is Mr Schriever’s son and Mr Kellett’s half‑brother, is not a beneficiary of the Trust.
A property known as Heathcote was the farming property transferred into the Trust in 1997. It appears Mr Schriever gave instructions in December 2012 to vest Heathcote in him as the purported principal beneficiary of the Trust. The transfer to Mr Schriever purportedly took place on 21 March 2013. Heathcote was then transferred to Dean Schriever on the same day.
Mr Kellett became concerned about the affairs of the Trust in about 2013/2014. Unfortunately, he did not receive a prompt and efficient response to enquiries he made about the Trust from either the solicitors or the accountants who acted for Mr Schriever. Mr Kellett eventually received a response from Mr Schriever’s solicitors on 27 May 2015 confirming that Heathcote had vested in Mr Schriever as the purported principal beneficiary. Further correspondence was received from those solicitors on 9 July 2015 responding to a number of Mr Kellett’s enquiries.
The responses did not quell Mr Kellett’s concerns and he subsequently instituted these proceedings seeking the appointment of an inspector.
In the usual course, a request would have been made to the trustee of the Trust to produce the documents pursuant to s 84B of the Act. However, as there was no trustee to produce the documents, an application was made pursuant to s 84C of the Act for the appointment of an Inspector.
Mr Schriever and Dean Schriever (“the Schrievers”) did not oppose the appointment of an inspector.
The Inspector’s first report revealed that documents significant to the transactions in the Trust were provided by Mr Schriever to the Inspector which had not been provided to Mr Kellett. Mr Kellett asserts the documents provided to the Inspector reveal several irregularities in the Trust’s dealings.
The Inspector refers to a letter dated 12 November 1997 from Mr Schriever’s solicitors to Mr and Mrs Schriever recommending that Mr Schriever “delete himself as a capital beneficiary of the Trust”.
It is Mr Kellett’s case that a Deed of Variation removed Mr Schriever as a beneficiary of the Trust. Mr Schriever deposes in his affidavit that despite having signed earlier drafts of proposed Deeds of Variation he did not execute a final Deed of Variation as his solicitors had advised him by letter dated 2 June 1998 that the Deed was not necessary. It was submitted by Mr Schriever’s counsel that the Deed of Variation was contemplated in the early stages of the Trust for the purposes of avoiding stamp duty. It was determined that it was not necessary to make that variation in order to avoid stamp duty and, for that reason, it was not proceeded with.
The Inspector concludes at page 10 of his First Report that the Deed of Variation was executed stating; “I have formed the view that this variation was finalised because by letter dated 8 January 1998 DeGaris advised Mr and Mrs Schriever that “we have forwarded the re-engrossed Transfers and Deeds of Variation to our Melbourne agent, Mr Peter Arnold…”. The Inspector states that Exhibit 6 to his report are copies of what he considers to be the Deeds of Variation referred to in the letter dated 8 January 1998. The Inspector says correspondence, from Mr Schriever’s solicitors and their Melbourne agents regarding the transfer of land (Exhibit 7 to his report) further indicates “that the amendments to the Deed were made and put into effect”. He also notes that Mr and Mrs Schriever prepared a Family Farm Exemption Application and that “This also supports my view that the variations to the Deed were in fact finalised”.
The Inspector’s first report also reveals that, notwithstanding that Dean Schriever was expressly excluded by the Trust Deed as a beneficiary of the Trust, the Heathcote property was then vested out of the Trust to Mr Schriever and, on the same day, transferred to Dean Schriever.
The Inspector, at page 13 of his first report, identifies three issues he has with the Deed of Vesting. He says he is not able to comment further regarding these issues as they are not within his knowledge or experience. The issues are:
1. Mr Alan Jeffrey Schriever was removed as capital beneficiary of the Trust, so is a vesting of assets to him effective?
2. I have confirmed with [Stephen] Evans that no money or funds changed hands as part of the vesting process.
The Balance Sheet of the Trust prepared as at 30 June 2012, that is before 19 December 2012, shows a liability due to AG and ML Schriever for an amount of $439,224.82. See Exhibit #17.
Can the vesting of the Trust’s assets only to Mr Schriever validly extinguish a debt that was owing to AJ and LM Schriever, because Mrs Schriever does not appear to have benefited from her asset, being an interest in the loan of $439,224.82 to the Schriever Family Trust?
3.Mr Schriever was appointed as a Financial Attorney for Mrs Schriever.
Can Mr Schriever enter into an “arrangement” for his sole benefit concerning the Schriever Family Trust to the exclusion of Mrs Schriever?
The Inspector also reports on the voluntary deregistration of the Brimmage, noting that he is unable to say how the deregistration process was effected.
In his second report, the Inspector refers to having made further inquiries following provision of a draft affidavit of Mr Schriever and additional documents provided by Mr Schriever. The Inspector states that, having interviewed the solicitor, Mr W DeGaris, he notes:
·the establishment of two trusts was done for a reason – to have different beneficiaries.
·there were issues with the Victorian Duties Office.
·the amendment of the original deed was intended to remove Mr Alan Schriever as a beneficiary.
·Mr DeGaris had no reason to think the amending deed was not properly executed.
·Mr DeGaris has no knowledge of any deed seeking to re-include Mr Schriever as a beneficiary.
The costs application before the Master
Following provision of the Inspector’s reports, Mr Kellett applied to the Master for an order that his costs in making the application and the fees charged by the Inspector be paid by the Schrievers on an indemnity basis or alternatively on a solicitor and client basis.
Mr Kellett also requested that the Schrievers be prohibited from indemnifying themselves for their own costs, and those of other parties which Mr Schriever may be obliged to meet, from the Trust; and that he be at liberty to enforce the order for costs immediately.
In reasons for his decision on the application for costs dated 25 August 2016,[1] the Master noted that Mr Kellett’s counsel had intimated that a statement of claim “is being prepared and an action will be prosecuted against the first and second defendants in respect of the transfer of property”. The Master said that he accepted that if Mr Kellett was ultimately successful his costs of the action and the Inspector’s fees would be a proper disbursement. The Master determined that, in circumstances where there was to be ongoing litigation, it was in the interests of justice to order that:
1Mr Kellett pay the fees of the Inspector, as adjudicated or agreed.
2The fees of the Inspector be a disbursement in the action, to be recovered by Mr Kellett if he succeeds in respect of the foreshadowed proceeding.
3The legal costs of the plaintiff to be the plaintiff’s costs in the cause.
4There be no order as to the defendants’ costs incurred in these proceedings.
[1] FDN 12.
The appeal
In his notice of appeal, Mr Kellett seeks that orders 1, 2 and 3 of the Master’s orders be set aside, that the Schrievers pay the fees of the Inspector as adjudicated or agreed, and that his costs be paid by the Schrievers certified fit for counsel on an indemnity basis.
Mr Kellett states nine grounds of appeal as follows:
1.The Judgment of the learned Master was unreliable, there being statements of fact in the Reasons for Decision of 25 August 2016 which are incorrect.
2.The learned Master erred in that he misconstrued the correct principles to apply on consideration of the costs award, that is to say, whether the order for the appointment of an Inspector was in the circumstances necessary and that the Inspector’s report was productive.
3.The learned Master erred by failing to take into account that the defendants either extraordinarily overlooked key trust documents or dishonestly failed to disclose the trust documents.
4.The learned Master erred in finding that the defendants were merely inadvertent in their failure and omissions to produce the trust documents to the plaintiff on the plaintiff’s request.
5.The learned Master erred by failing to have sufficient regard that the Inspector uncovered a significant number of trust documents.
6.The learned Master erred by failing to have sufficient regard that the new trust documents were of significant import, for example, the contents of the black bag including a Deed of Variation of the Trust, a Deed of Amendment of the trust and stamp duty family farm exemption application forms, the records of assets of the trust and distributions out of the trust, and the incongruity of the trust records.
7.The learned Master erred by additionally failing to find, it being the case, that the defendants failed to properly or competently respond to the plaintiff’s request for trust documents.
8.The learned Master erred by failing to have sufficient regard that the new trust documents were a real cause for suspicion about the conduct of the trustee and its directors.
9.The learned Master erred by failing to award the plaintiff his costs of the application and in failing to order that the defendants pay the costs of the litigation.
Mr Kellett’s submissions
Mr Kellett contends that the Schrievers should pay his costs because of their avoidance and obfuscation of his requests for Trust documents and subsequent failure to produce key Trust documents for inspection that were later provided to the Inspector. Mr Kellett also contends that the Master misconstrued the correct principles in considering whether the appointment of an inspector was necessary in the circumstances of the Schrievers’ failure to produce key documents. The Master determined that although the Schrievers “could have been more forthcoming with documents” their conduct could not “properly be categorised as gross neglect”. Mr Kellett states that the Master did not need to be satisfied that the Schrievers’ conduct amounted to gross neglect in order to find costs in his favour. He argues that the Schrievers’ failure to produce the documents was clearly more than mere inadvertence or tardiness and could be considered gross neglect.
Mr Kellett points to various correspondence as evidence that the Schrievers actively avoided, and refused, to provide the relevant Trust documents. In an email dated 15 April 2014, the Schrievers’ solicitors responded to Mr Kellett’s request for an appointment to discuss the family’s affairs with the following:
My instructions are not to engage nor respond to any further correspondence in relation to Mr Schriever’s affairs, which are entirely his to manage as he sees fit.
An email from the Schrievers’ accountant, Mr Stephen Evans, dated 19 August 2014, is also said to have deflected Mr Kellett’s enquiries about the Trust by referring him to the solicitors. Mr Kellett contends that he corresponded with Mr Evans, rather than the solicitors, because he believed that the accountants would be more likely to have the documents sought and because the solicitors had said they would not engage with him. However, it is to be noted that in the original request to the solicitors Mr Kellett did not specifically state that he wished to discuss matters relating to the Trust. He referred to wanting to discuss the family’s affairs. In his reasons, the Master states that:
Part of the problem seems to be that neither the solicitors nor accountants for the first defendant were fully appraised of all details or able to provide a complete response to the plaintiff.
Mr Kellett contends that it was up to Mr Schriever to fully appraise those acting for him of the details of the matter.
On 25 November 2014, Mr Kellett wrote to Dean Schriever requesting, information about the identity of the trustees of the Spot On Trust and the Trust, the deregistration of Brimmage, and the transfer of the Heathcote property.
In a letter dated 11 May 2015, solicitors for Mr Kellett wrote to Mr Schriever asserting that Mr Kellett, as a beneficiary of the Trust, was entitled to inspect certain Trust records. The solicitors requested that Mr Schriever, as director of Brimmage, produce certain documents for inspection and reserved the right to apply to the Supreme Court for the appointment of an inspector to investigate the administration of the Trust. After a follow up letter was sent by Mr Kellett’s solicitors, Mr Schriever’s solicitors replied stating that the land had been vested out of the Trust in favour of Mr Schriever and then transferred to Dean Schriever, without providing any further information or documents. These communications, in Mr Kellett’s view, demonstrate the Schrievers have obfuscated in providing the documents to him.
Mr Kellett contends that the Master erred in finding that documents “probably should have been made available earlier”, and says that they definitely should have been made available earlier.
Mr Kellett submits that the Master erred by failing to have sufficient regard to the fact the Inspector located a significant number of important documents that provided genuine cause for suspicion about the conduct of the trustee and its directors. The Inspector’s first report relevantly provides a description of the Deed of Variation and Deed of Vesting of all of the residual assets of the Trust including land in favour of Mr Schriever on 9 December 2012.
Mr Kellett’s counsel contends that there is no record of a directors’ meeting of the trustee passing a resolution to vest the land to Mr Schriever. In this regard, I note the Inspector says in his first report that:
There was a meeting of the Directors of Brimmage acting in its capacity as Trustee of the Schriever Family Trust to deal with the vesting notice. This meeting was held at 1pm on 19 December 2012. The meeting was held at 116 Greenhill Road, Unley, but Evans advises that it was more likely to have not been held at Unley.
Mr Kellett says the three issues identified by the Inspector referred to above and the deregistration of Brimmage are matters the Master ought to have had regard as indicating that the conduct of the trustee and its directors was at the very least suspicious.
It is alleged that suspicion about the conduct of the trustee is also derived from the dishonesty of Mr Schriever. In this respect, Mr Kellett points to a letter dated 27 October 2015 in which the Mr Schriever’s solicitors state “there have been no amendments to the Schriever Family Trust” when in fact the Trust records show a Deed of Variation was executed removing Mr Schriever as a beneficiary. The Schrievers’ failure to inform Mr Kellett of entries in the Trust records categorising the land as a Trust asset is also said demonstrate their dishonesty, while the claim that “Written instructions are privileged”, in the letter of 27 October 2015, is said to be a “gross misdescription” of what happens in a trust, where no privilege exists against the beneficiary of the trust.

Additionally, it is submitted that the Master was in error in finding that the Inspector did not identify any misconduct in relation to the operation of the Trust,[2] because the role of the Inspector is only to report on the documents received and identify inconsistencies and matters that require an explanation. Mr Kellett contends that the Master did not need to find criticism in the Inspector’s report in order to make a costs order in his favour.
[2] FDN 12 at [16].
Mr Kellett should be awarded costs on an indemnity basis
Mr Kellett argues that the application to appoint the Inspector would not have been necessary, but for the refusal of the Schrievers to produce the relevant documents or describe the effect of the documents in order to inform him about the administration of the Trust. Mr Kellett says the conduct of the Schrievers warrants a costs order in his favour on an indemnity basis. He says that he should be entitled to enforce an order for costs immediately, as the application represents a discrete process that has finalised rather than being part of ongoing litigation from which he may later recover costs.
The Schrievers’ submissions
The Schrievers contend that the Master exercised his discretion as to costs under s 84C(3) of the Act correctly and in accordance with settled principles. They note that, as enunciated by Layton J in Colton v Hunter,[3] litigation regarding the appointment of an inspector and investigations under s 84C “is not simply within the ordinary parameters of adversarial inter partes actions”. In such circumstances, the Court has a supervisory role and a discretion to order costs of an investigation as it sees fit; which the learned Master did.
[3] [2009] SASC 299 at [11].
Analysis
At a directions hearing on 12 May 2016, the Master recorded that Mr Kellett “may institute proceedings as a result of the findings of the Inspector, but no final decision has been made as yet”. The question of costs and the Inspector’s fees was argued on 10 June 2016. During the argument, Mr Kellett’s counsel gave a clear intimation that substantive proceedings were still in contemplation. To date no statement of claim has been filed.
Section 84C(3) of the Act provides:
The Supreme Court may make orders for the payment of the whole or part of the costs of an investigation under this Part—
(a) by the applicant for the investigation; or
(b) by a trustee or beneficiary of the trust; or
(c) out of the trust estate.
As the Master noted, it was not possible to make the usual order that the fees of the Inspector be paid out of the assets of the Trust as the Trust has no money or other assets.
As the Trust does not appear to have a trustee, no order can be made against a Trustee. The Trust records suggest Mr Schriever has been removed as a beneficiary. As such, no order can be made against Mr Schriever pursuant to s 84C(3)(b). Further, no order pursuant to s 84C(3)(b) can be made against Dean Schriever as he is not a beneficiary.
The Master determined in the exercise of the s 84C(3) discretion, having regard to the facts of the matter, that the costs of the Inspector should be paid by Mr Kellett and that those costs be a disbursement in the action to be recovered by Mr Kellett in the event he succeeded in the proceedings he had indicated he was prosecuting.
As submitted by the Schrievers, the Master’s costs order is consistent with the approach taken by Olsson J in Pope v DRP Nominees Pty Ltd & Anor (No 2).[4] In Pope, a plaintiff who had concerns about the administration of a trust sought the appointment of an inspector pursuant to s 84C of the Act. In his reasons, Olsson J said the defendants had placed every possible impediment:[5]
…in the path of the plaintiff in the attempted enforcement by him of his undoubted rights. No stone has been left unturned in attempting to circumvent his efforts. It is fair to say that all of those strategies have failed. There can be no doubt that the plaintiff’s concerns have been justified at all stages; and that the obvious inference is that the defendants have deliberately placed a continuing series of impediments in his path, in order to avoid detailed scrutiny of what has occurred in their hands. In the result, enormous legal costs have been generated.
Against this background of delay and obfuscation, Olsson J found that it was appropriate to order that the plaintiff pay the whole of the costs of the investigation, “to the exoneration of the trust assets” on the grounds:[6]
…that such costs shall be allowed to the plaintiff on taxation of his legal costs, as a proper disbursement by him in the conduct of the action. The practical effect of such an order will be that the ultimate liability for the fees and expenses of the inspector is to be borne by the second defendant.
[4] [2000] SASC 65.
[5] [2000] SASC 65 at [50].
[6] [2000] SASC 65 at [130].
The Master noted in his reasons that Mr Kellett had advised the Court that a statement of claim was being prepared and that an action would be prosecuted against the Schrievers. The Master further noted that in order to avoid multiplicity of proceedings the foreshadowed statement of claim should be filed in this action.
The Master’s order clearly contemplates that any final costs order will depend upon the resolution of this action including resolution of any issue as to the significance, if any, of any Trust document:[7]
I accept that if the plaintiff is ultimately successful, his costs of action should include the costs of this application and that the Inspector’s fee would be a proper disbursement. I also accept that there is no basis to award any costs to the defendants.
[7] FDN 12 at [21].
The Master was not told that the matter was at an end upon provision of the Inspector’s reports. Having regard to the exchange between the Master and Mr Kellett’s counsel in the transcript of the argument on 10 June 2016,[8] the very clear inference to be drawn is that the Inspector’s report was a prelude to substantive proceedings. As such, the orders made by the Master were appropriate, preserving Mr Kellett’s entitlement to seek reimbursement of the costs in the event he is successful.
[8] T39.
On my assessment, many of the matters complained of by Mr Kellett on this appeal go to the merits of the foreshadowed proceedings and other matters to be agitated in the exchange of pleadings and at trial. The Master was not in a position to make conclusive findings of fact regarding the conduct of either party without hearing evidence. The administration of the Trust and conduct of the parties with respect to the application are matters to be dealt with at trial.
The Master’s order was a discretionary decision made on a matter of practice and procedure. An appeal from such a decision should not be allowed unless the Court is persuaded that the Master has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, has been mistaken as to the facts or failed to take into account some material consideration bringing about injustice.[9]
[9] House v The King (1936) 55 CLR 499 at 505.
In Oswal v Burrup Fertilisers Pty Ltd,[10] Mansfield and Foster JJ said that there are good reasons for this cautious approach when considering discretionary decisions as:[11]
It avoids the risk of the pre-trial processes becoming fragmented, and so causing lengthier and more expensive litigation than is necessary. It avoids the risk of deferring or delaying the postponement of the final decision of the dispute between the parties. It avoids inappropriate intrusion into appropriate case management of cases by the primary judge, with a view to bringing the matter to a speedy, efficient, effective and just resolution.
[10] (2011) 85 ACSR 531.
[11] (2011) 85 ACSR 531 at [8].
Their Honours also said that where a discretionary interlocutory ruling on a matter of practice and procedure rather than a matter concerning a substantive right is concerned, leave to appeal is less often given[12] and that this approach reflects the approach of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor[13] where the plurality in their joint judgment cited with approval[14] the following passage of Jordan CJ in In re the Will of FB Gilbert (dec):[15]
… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
The Court and the parties’ time and resources should not be lightly taken up with appeals about decisions which do not finally determine the rights of the parties.[16]
[12] Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651.
[13] (1981) 148 CLR 170.
[14] (1981) 148 CLR 170 at 177.
[15] (1946) 46 SR (NSW) 318 at 323.
[16] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42] (French J).
Having regard to the Master’s reasons and the arguments on appeal, it is my opinion that the Master exercised his discretion pursuant to s 84C(3) of the Act by applying settled principles to the facts before him, having been informed there was to be ongoing litigation. No error has been demonstrated. The order sought by Mr Kellett pursuant to s 84C(3)(b) of the Act could not be made in circumstances where there appears to be no trustee and where it appears Mr Schriever was removed as a beneficiary and Dean Schriever is not a beneficiary.
I refuse Mr Kellett permission to appeal the discretionary costs order of the Master.