GRAEME DAVID LINKE, AGNES MARIE BAENSCH, PETER MICHAEL LINKE and ANDREW CORNISH	Plaintiffs
v
VICTOR HAROLD LINKE, JUDITH ANN LINKE, COLIN MICHAEL LINKE, MARIA GRACE LINKE, GLENIS WALTER LINKE and IAN DAVID LINKE	Defendants

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17, 18, 19, 20 October 2017
DATE OF JUDGMENT:	4 September 2018
CASE MAY BE CITED AS:	Linke & Ors v Linke & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 505

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EQUITY – Constructive or resulting trust – Estate assets transferred by trustees to a beneficiary – Remaining beneficiaries claim the assets are held on trust for them – Whether power in the will to sell trust assets – Whether trust arises from involuntary transfer of assets – Black v S Freedman & Co (1910) 12 CLR 105 – Heperu Pty Ltd v Belle (2009) 76 NSWLR 230 – Sze Tu v Lowe (2014) 89 NSWLR 317 – Whether beneficiary took transfer of estate assets in breach of fiduciary duty owed as de facto trustee – Nolan v Nolan [2004] VSCA 109 (10 June 2004) – Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 – Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWCA 422 (11 December 2013) – Whether consideration for transfer of estate assets false – Whether assets received by beneficiaries for less than full value – Allegations of unconscionability and fraudulent concealment – Whether estate property later transferred to volunteers held on trust by them – Evidence Act 2008 (Vic) s 140 – Briginshaw v Briginshaw (1938) 60 CLR 336 – NOM v DPP & Ors (2012) 38 VR 618 – Where release entered by parties – Whether release effective to defeat the plaintiffs’ claim – Where relevant document destroyed or discovered after release – The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Limited and Ors (No 2) [2012] NSWSC 322 (5 April 2012) – MCT Dairies Inc v Probiotec Ltd [2009] FCA 1385 – Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181.

LIMITATION OF ACTIONS – Trustee liabilities – Allegations of fraud and unconscionable conduct – Laches and acquiescence – Delay – Knowledge of wronging – Limitation of Actions Act 1958 (Vic) ss 21, 27 – Reader & Ors v Fried & Ors [2001] VSC 495 (19 December 2001) – Orr v Ford (1989) 167 CLR 316.

ADMINISTRATION & PROBATE – Where no evidence of distribution of estate – Plaintiff beneficiaries seek order appointing trustee to investigate and administer estate – Where only estate asset sold in 1979 – Delay by plaintiffs – Lack of utility of orders sought.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	T Mitchell	Stephen Peter Byrne
For the First and Second Defendants	P N Crofts	Taits Legal
For the Third and Fourth Defendants	J Rizzi	Dwyer Robinson Pty…

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 Linke v Linke

Details

AGLC: Linke v Linke [2018] VSC 505
Case: [2018] VSC 505
Decision Date: 4 September 2018

CaseChat Overview and Summary

In the matter of Linke v Linke, the plaintiffs, who were beneficiaries of an estate, brought proceedings against the defendants, who were other beneficiaries of the estate, as well as the executors of the estate. The plaintiffs claimed that the defendants were holding certain assets on trust for all beneficiaries, alleging that the defendants had breached their fiduciary duties as trustees by transferring estate assets to themselves. The dispute came before the Supreme Court of Victoria. The central legal issues revolved around whether the defendants held the transferred assets on trust for the plaintiffs, and if the plaintiffs' claims were time-barred due to laches and acquiescence.

The court examined whether the defendants had the power under the will to sell the trust assets and whether a trust arose from the involuntary transfer of those assets. It considered precedents such as Black v S Freedman & Co, Heperu Pty Ltd v Belle, and Sze Tu v Lowe. Additionally, the court assessed whether the defendants breached their fiduciary duties by taking the transfer, referencing cases like Nolan v Nolan, Paragon Finance plc v DB Thakerar & Co, and Parkview Qld Pty Ltd v Commonwealth Bank of Australia. The court also evaluated the validity of the consideration for the transfer and whether the assets were received for less than full value, along with allegations of unconscionability and fraudulent concealment.

The Supreme Court held that the defendants did not hold the assets on trust for the plaintiffs and that the plaintiffs' claims were time-barred. The court found that the defendants did not breach their fiduciary duties, and the transfer was not invalid due to lack of consideration or unconscionability. The court concluded that the plaintiffs' delay and lack of action constituted laches and acquiescence, barring their claims. The court further held that the release entered by the parties effectively defeated the plaintiffs' claim, even though relevant documents were discovered after the release.

Orders