Kneipp v Annunaka Pty Ltd - [2015] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

Kneipp v Annunaka Pty Ltd [2015] QSC 359

PARTIES:

WENDY GUINEVERE HEIDI KNEIPP

(Applicant)

v

ANNUNAKA PTY LTD ACN 051 633 062

(Respondent )

FILE NO:

S21/15

DIVISION:

Trial Division

PROCEEDING:

Application

INITIATING DOCUMENT:

Originating application filed 7 May 2015.

ORIGINATING COURT:

Townsville

HEARING DATE:

7 December 2015

DELIVERED ON:

11 December 2015

DELIVERED AT:

Townsville

JUDGE:

North J

ORDERS:

1. Application dismissed

CATCHWORDS:

TRUSTS – TRUSTEES – POWERS OF APPOINTMENT AND REMOVAL – INTERPRETATION OF DEEDS AND INSTRUMENTS – DECLARATIONS – DISCRETION WHETHER TO EXERCISE POWER TO MAKE DECLARATION

LEGISLATION:

Acts Interpretation Act 1954

Family Law Act 1975 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Succession Act 1981

Trusts Act 1973

CASES:

Eberstaller v Poulos (2014) 87 NSWLR 394
Fell v Fell (1922) 31 CLR 268

Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 41

French & Anor v NPM Group Pty Ltd [2008] QCA 217

Kennon v Spry (2008) 238 CLR 366

Khytense v Hope (2007) 1 NZLR 245
Montevento Holdings Pty v Scaffide (2012) 246 CLR 325
P T Bayan Resources TBK v BCB Singapore Pte Ltd [2015] HCA 36
Re: Bostocks’ Settlement [1921] 2 Ch 469
Re: Mayne (1928) 28 SR (NSW) 157;
Re: McPhillamys Trusts (1989) 10 SR (NSW) 42;
Re: Norris (1884) 27 Ch D 333
Re: Whitehouse [1992] Qd R 196
Thorne Developments Pty Ltd v Thorne [2015] QSC 156

COUNSEL:

Mr Moon for the applicant

Mr Land for the respondent

SOLICITORS:

Guides & Elliott for the applicant

Lee & Co for the respondent

By originating application the applicant seeks a declaration that she has been on and from 28 November 2014 the duly appointed trustee of the H.H. & H. Kneipp Family Trust. The respondent has been, since the trust’s creation, the trustee of the trust and opposes the application.
The applicant and Henry Harvey Kneipp married on 21 November 1976. There were two children of the marriage, Henry (Junior) and Patrick. By a deed dated 12 April 1991 the trust was created and the respondent was appointed trustee.[1] At the time of creation of the trust the applicant and Henry Kneipp were the sole directors and shareholders of the respondent. In 1995 the applicant and Henry Kneipp divorced and they entered into an agreement by way of a consent order with respect to the disposition of the matrimonial property.[2] To the extent relevant concerning the respondent and the trust the consent order contained the following:
[1] See exhibit WGHK2 to the affidavit of the applicant filed 7 January 2015.
[2] Exhibit WGHK1 to the affidavit of the applicant filed 7 January 2015.
“11.That upon receipt of the cash payments referred to in paragraph 8, and of the Title Deeds to the Rollingstone property, (where not captured) together with such releases and/or discharges as may be required to release all encumbrances and all Guarantees given by the wife on behalf of ANNUNAKA PTY. LTD. which shall have been duly released including the guarantee…

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: [2015] QSC 359
Decision Date: 11 December 2015

CaseChat Overview and Summary

The case of Kneipp v Annunaka Pty Ltd involved a dispute between the plaintiff, Kneipp, and the defendant, Annunaka Pty Ltd. The plaintiff sought to challenge the defendant's exercise of a power of appointment and removal as trustee, under the terms of a trust deed. Specifically, the plaintiff argued that the defendant had acted improperly in exercising its discretion to make a declaration under the trust deed. The case was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to resolve was whether the defendant had acted within its powers as trustee in exercising its discretion to make a declaration under the trust deed. The court was required to interpret the relevant provisions of the trust deed and consider whether the defendant's actions were consistent with the powers granted to it. The court also had to consider whether the defendant had acted reasonably and in accordance with the terms of the trust deed.

In its decision, the court held that the defendant had not acted improperly in exercising its discretion to make a declaration under the trust deed. The court found that the defendant's actions were consistent with the powers granted to it under the trust deed and that it had not acted unreasonably. The court also held that the defendant's interpretation of the relevant provisions of the trust deed was a reasonable one and that the defendant had not acted beyond its powers. As a result, the plaintiff's application was dismissed.

Orders

Orders of the court

1. Application dismissed

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.

CITATION:	Kneipp v Annunaka Pty Ltd [2015] QSC 359
PARTIES:	WENDY GUINEVERE HEIDI KNEIPP (Applicant) v ANNUNAKA PTY LTD ACN 051 633 062 (Respondent )
FILE NO:	S21/15
DIVISION:	Trial Division
PROCEEDING:	Application
INITIATING DOCUMENT:	Originating application filed 7 May 2015.
ORIGINATING COURT:	Townsville
HEARING DATE:	7 December 2015
DELIVERED ON:	11 December 2015
DELIVERED AT:	Townsville
JUDGE:	North J
ORDERS:	1. Application dismissed
CATCHWORDS:	TRUSTS – TRUSTEES – POWERS OF APPOINTMENT AND REMOVAL – INTERPRETATION OF DEEDS AND INSTRUMENTS – DECLARATIONS – DISCRETION WHETHER TO EXERCISE POWER TO MAKE DECLARATION
LEGISLATION:	Acts Interpretation Act 1954 Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Succession Act 1981 Trusts Act 1973