L N v Public Trustee for the Act

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

L N v Public Trustee for the ACT

Citation:

[2014] ACTSC 190

Hearing Date(s):

4 August 2014

DecisionDate:

8 August 2014

Before:

Mossop M

Decision:

See [70]

Category:

Principal Judgment

Catchwords:

TRUSTS – where a person under a disability at the time of a settlement of proceedings, who has had the proceeds of judgment paid to a trustee, has sought termination of the trust on the basis that the person was no longer under a disability – jurisdiction to be exercised – rule in Saunders v Vautier – parens patriae jurisdiction – Trustee Act 1925 (ACT) s 71 – whether plaintiff is in a position to give a good discharge to the trustee and is capable of managing the funds currently held in trust in a manner which makes it appropriate that she have that property and those funds invested in her

Legislation Cited:

Public Trustee Act 1985 (ACT)

Trustee Act 1925 (ACT)

Cases Cited:

Cadwallender v Public Trustee [2003] WASC 72

Erdogan v Ekici (2012) 36 VR 579
Gibbons v Wright (1954) 91 CLR 423
Guthrie v Spence (2009) 78 NSWLR 225
Naso v Cottrell [2001] WADC 7
Newton v The Public Trustee [1999] WASC 179
Newton v The Public Trustee [2000] WASC 118
Perpetual Trustees (WA) Limited v Naso (1999) 21 WAR 191
Public Trustee v Thompson (2000) 155 FLR 18
PY v RJS [1982] 2 NSWLR 700
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Singh v Calvary Hospital [No  2] (2009) 3 ACTLR 247

Texts Cited:

Roger Bird, Osborn’s Concise Law Dictionary (Sweet & Maxwell, 7^th ed, 1983)

Parties:

L N (Plaintiff)

Public Trustee for the Australian Capital Territory (Defendant)

Representation:

Counsel:

Mr R Thomas (Plaintiff)

Mr W Andrews (Defendant)

Solicitors:

Capon & Hubert Lawyers & Mediators (Plaintiff)

Sneddon Hall & Gallop (Defendant)

File Number(s):

SC 328 of 2014

The Originating Application

1. By amended originating application, the plaintiff who I will refer to as “L N” by her litigation guardian, who I will refer to as “H N” seeks orders that:

1.Pursuant to s 70 of the Trustee Act 1925 the trust created by order of the ACT Supreme Court, proceedings 670 of 1998 be terminated and the following consequential orders made.

2.The corpus and capital of the trust referred to in order 1 vest in the Applicant [L N].

3.1 It is hereby declared that the respondent holds the legal title to the property at 27 Deloraine Street Lyons otherwise described in the Land Titles Office as Block 20 Section 4 Lyons, Certificate of Title Volume 865 Folio 95 on behalf of the Applicant [L N].

3.2. The Respondent transfer the home of [L N] namely the property at 27 Deloraine Street, Lyons in the Australian Capital Territory into the applicants name as the party holding the beneficial interest in the property.

1. The Public Trustee, the current trustee of the amount paid pursuant to the judgment, took, in effect, a neutral stance…