Levy v Harpur - [2004] VSC 241

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6796 of 1999

FRANK ERNEST WILLIAM LEVY AND OTHERS	Plaintiffs
who sue as the Executors of the Estate of PETER THOMAS EVAN RAND deceased
v
PAUL HENRY HARPUR AND OTHERS	Defendants
AND BETWEEN
KAI TAK PTY LTD (ACN 005 568 721) as Trustee of the P & GR Harpur Trust	Plaintiff by Counterclaim
And
FRANK ERNEST WILLIAM LEVY AND OTHERS	Defendants by Counterclaim

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 & 4 MAY 2004
DATE OF JUDGMENT:	2 JULY 2004
CASE MAY BE CITED AS:	LEVY & ORS V HARPUR & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 241

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TRUSTS – Deceased estate – Application for judgment on basis defence unsustainable – Rule 23.01, Supreme Court Rules - Whether a deed of trust allegedly executed by the testator was effective to create a trust – Declaration in deed of future commencement date - Whether intention to create a trust in the future or a present creation of a trust with a postponement of enjoyment of benefits - Absence of evidence of any step by testator to affirm the gift at the date of commencement or otherwise - Effect of subsequent inconsistent Will – Whether testator beneficially owned property at the time of his death – In re Northcliffe [1925] 1 Ch 651 and Kavanaugh v Estate of Dubrowolski (1980) 407 NE 2d 856 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A J Myers QC with Mr R Rosenberg and Mr J Carney	Sackville Wilks & Co
For the Defendants	Mr D R Meagher QC with Mr M Wise	Mills Oakley

HIS HONOUR:

I have before me an application made by summons dated 4 March 2004. It was filed on behalf of the plaintiffs. By it, the plaintiffs seek orders pursuant to r.23.01(2). That rule is in the following terms:

"23.01 Stay or judgment in proceeding
(2)       Where the defence to any claim in a proceeding –
(a)       does not disclose an answer; or
(b)      is scandalous, frivolous or vexatious –
the court may give judgment in the proceeding generally or in relation to any claim."

The plaintiffs bring the principal proceeding as executors of the estate of Peter Thomas Evan Rand, who died on 7 October 1997. At the time of his death, he was a wealthy man. He was the registered proprietor of real property situated variously in Sorrento, South Yarra, Hawthorn, Richmond and East Melbourne. He also was the owner of certain personal property, including valuable jewellery. On 8 September 1997, he executed a Will probate of which was on 23 March 1999 granted to the plaintiffs as the executors named in it. On 7 October 1997, the plaintiffs informed the first defendant, as was the fact, that Mr Rand had died that day, and that they held his Will.

By letter dated 21 November 1997, a representative of the defendants forwarded to the solicitors for the…

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.

Continue reading Levy v Harpur

Details

AGLC: Levy v Harpur [2004] VSC 241
Case: [2004] VSC 241
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the case of Levy v Harpur, the dispute involved the interpretation of a deed of trust and the subsequent inconsistent Will. The deceased, Mr. Levy, had executed a deed of trust allegedly creating a trust over certain property. The issue before the Supreme Court was whether the deed effectively created a trust and, if so, whether the property was owned beneficially by Mr. Levy at the time of his death. The case hinged on the interpretation of the deed and the effect of the subsequent inconsistent Will.

The central legal issue was whether the deed of trust created a present trust or merely an intention for a future trust. The court considered whether the declaration in the deed of a future commencement date indicated an intention to create a trust in the future or a present creation of a trust with a postponement of enjoyment of the benefits. Additionally, the court needed to determine if the absence of evidence of any steps by Mr. Levy to affirm the gift at the date of the commencement date or otherwise could affect the validity of the trust. The effect of the subsequent inconsistent Will on the ownership of the property at the time of Mr. Levy’s death was also a key consideration.

The court examined relevant case law, including Re Northcliffe [1925] 1 Ch 651 and Kavanaugh v Estate of Dubrowolski (1980) 407 NE 2d 856, to address the issues. The court found that the deed did not effectively create a present trust, as there was no evidence that Mr. Levy had taken any steps to affirm the gift at the commencement date. The declaration in the deed of a future commencement date indicated an intention to create a trust in the future rather than a present creation of a trust. As a result, Mr. Levy beneficially owned the property at the time of his death, and the subsequent inconsistent Will did not affect the ownership. Consequently, the court ruled in favour of the applicant, declaring that the defence was unsustainable.

The court ordered that judgment be entered for the applicant on the basis that the defence was unsustainable. The court also noted that costs should follow the result.

Orders