Kelly v The Public Trustee - [2007] NSWSC 1485

CITATION: Kelly v The Public Trustee [2007] NSWSC 1485

HEARING DATE(S): 04/12/07

JUDGMENT DATE :
4 December 2007

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 4 December 2007

DECISION: See para 24 of judgment.

CATCHWORDS: PROCEDURE – Liberty to apply – Scope of orders which may be sought under liberty to apply – Application seeking working out of earlier (principal) orders may not deprive party of rights afforded to that party under principal orders – Supplemental orders made for purpose of making more efficacious the principal orders. - EQUITY – Trusts and trustee — Application by trustee for opinion, advice or direction of court – (NSW) Trustee Act 1925 s 63.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Trustee Act 1925 (NSW)

CASES CITED: Phillips v Walsh (1990) 20 NSWLR 206
Australian Hardboards Limited v Hudson Investment Group Limited [2007] NSWCA 104
Vasiljev v Public Trustee [1974] 2 NSWLR 497

PARTIES: Kelly
v
The Public Trustee

FILE NUMBER(S): SC 3871/05

COUNSEL: Plaintiff: P Livers (solr)
Defendant: D M Flaherty

SOLICITORS: Plaintiff: Hancock Alldis & Roskov Solicitors
Defendant: Solicitor for the Public Trustee

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 4 December 2007

3871/05 Kelly v The Public Trustee

JUDGMENT

1 HIS HONOUR: By notice of motion filed 7 November 2007 the plaintiff moved the court for orders:

“ Pursuant to order 23 of Court order made on 16 March, 2006 the matter be relisted for further directions regarding implementation of these orders in the event of disputes as to administration thereof. ”

2 The reference to orders of 16 March 2006 should have been to orders of 16 May 2006. Those orders were made on an application brought by the plaintiff under the Family Provision Act 1982 (NSW) in respect of the estate of her mother. The plaintiff was the daughter of the deceased. She has two children; a daughter now aged eleven and a son who will shortly be sixteen. I shall refer to them in these reasons as A and B respectively.

3 The effect of the deceased’s will was that the deceased’s property, which consisted primarily of land and a house in Mavis Avenue, Peakhurst, was left to her grandson B. On 5 May 2006, Nicholas J gave judgment on the application under the Family Provision Act. His Honour found that the plaintiff was entitled to provision under that Act, which should provide her with suitable accommodation for life, subject to an entitlement of each grandchild to reside in the Peakhurst property or any substitute property for as long as they wish to do so. (See judgment at [31] and [32]).

4 His Honour directed that short minutes of order be brought in in accordance with his Honour’s reasons. The orders of 16 May 2006 relevantly provide as follows:

“ 1. In addition to the provisions made for her benefit by the will dated 25 September 2003 (‘the will’) of ... (‘the deceased’), the plaintiff shall have…

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.

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Details

Case: [2007] NSWSC 1485
Decision Date: 4 December 2007

CaseChat Overview and Summary

In the case of Kelly v The Public Trustee, the matter came before the court as an application by the Public Trustee under the liberty to apply provisions of the Trustee Act 1925. The central dispute involved the interpretation and application of the principal orders made in an earlier proceeding, specifically seeking clarification on how these orders should be executed. The Public Trustee, as the party responsible for administering the trust, sought the court's guidance to ensure the trust was managed in accordance with the law and the trust deed.

The primary legal issue the court had to address was whether the application for working out the earlier orders could be used to deprive the party of any rights granted under those principal orders. The court had to determine the scope of the liberty to apply provisions, ensuring that any supplemental orders made would not undermine the principal orders. Additionally, the court needed to consider the purpose of the supplemental orders, which should be to make the principal orders more effective and not to alter the rights already established.

The court held that an application under the liberty to apply provisions must not result in depriving a party of any rights they already possess under the principal orders. Instead, supplemental orders should be made to ensure the principal orders are more efficacious. The court emphasised that the primary function of these provisions is to provide clarity and direction in executing the trust, not to revise the substantive rights of the parties. By interpreting the legislation in this manner, the court aimed to preserve the integrity of the principal orders while offering the necessary guidance to the Public Trustee.

The court's decision clarified the permissible scope of supplemental orders under the liberty to apply provisions. The court granted the Public Trustee's application but made it clear that the supplemental orders were intended solely to make the principal orders more effective and not to alter any pre-existing rights. The court's ruling ensured that the Public Trustee could seek the court's opinion and direction when necessary, without undermining the established rights under the principal orders.

Orders