Lewis v Bundrock

[2008] QSC 189

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis (by his litigation guardian P Osborne) v Bundrock & Anor [2008] QSC 189

PARTIES:

DAVID WILLIAM LEWIS (BY HIS LITIGATION GUARDIAN PATRICIA OSBORNE)
(applicant)
v
HAZEL LORRAINE BUNDROCK
(first respondent)
SUNCORP METWAY INSURANCE LTD
(ACN 83 075 695 966)
(second respondent)

FILE NO/S:

2096 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2008

JUDGE:

Martin J

ORDER:

The administration expenses payable by the first and second respondents be fixed at $184,174

CATCHWORDS:

DAMAGES – measure of trustee’s management fee, where order is sought fixing that fee, whether the management fee should be added to the capital sum for the purpose of calculating the fee payable.

DAMAGES – measure of  trustee’s management fee, where order is sought fixing that fee, whether the tax deductibility of component of the management fees should be brought into account in calculation of fees.

Buckman v M & K Napier Constructions Pty Ltd [2005] NSWSC 546
Curry v Aughey Unreported, Holmes J, BS7631 of 2001, 23 February 2005
Haywood v Collaroy Services Beach Club Ltd [2006] NSWSC 566
Robinson v Beatty[2006] QSC 11
Todorovic v Waller (1981) 150 CLR 402

COUNSEL:

DA Reid on behalf of the applicant
SC Williams for the first and second respondents

SOLICITORS:

Murphy Schmidt solicitors on behalf of the applicant
Eardly Motterani for the first and second respondents

1. In April 2003 the applicant was severely injured in a motor vehicle accident. Four years later, in March 2007, his claim was settled and on 21 March 2007 White J made a number of orders as part of the process of sanctioning that settlement. They included:

“1.         …

2.Pursuant to s.12 and s.245 of the Guardianship and Administration Act the National Australia Trustees be appointed as Administrator to administer the moneys to be paid to it on behalf of the Plaintiff after payment of the sums referred to in paragraph 5.

3.…

4.The appointed Administrator:

(a)take possession of and control and manage the Trust Fund, including the administration fees to be determined as provided for in paragraph 5 hereof, in such a manner as the Administrator thinks fit for the benefit of the Plaintiff generally with the powers and duties defined and conferred in the Trusts Act1973 until the Plaintiff shall cease to be under a disability;

(b) be entitled to charge remuneration for its services of such administration. 

5.          That:

(a)The settlement sum of $1,400,000.00 be paid by the Defendants within 21 days of receipt of the letter of clearance checks from Centrelink and the Health Insurance Commission as follows:-

…

(b)The administration fees properly charged by a reasonable trustee to be agreed (subject to sanction) or failing agreement and sanction to be determined by the Court be paid within 21 days of the sanction or determination thereof by the Court by the Defendants to the Plaintiff's administrator, whose receipt thereof shall be sufficient discharge.

…”

1. After…