Loughnan v McConnell

[2006] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

Loughnan v McConnell [2006] QSC 359

PARTIES:

WILLIAM RAINSFORD LOUGHNAN
(applicant)
AND
NADIA EVELYN McCONNEL
(first respondent)
AND
ALWYN LINDSAY PEFFER
(second respondent)

FILE NO/S:

BS 7840 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

29 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2006

JUDGE:

Atkinson J

ORDER:

The court directs that the applicant, on behalf of the estate, can and ought to commence proceedings in this court against Nadia McConnel in her personal capacity, and against Duckett Pty Ltd and NEM Investments Pty Ltd for relief in respect of steps taken by those persons on or about 30 June 2006 and in or about August 2006, concerning the McConnel Family Trust

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – where the applicant is an executor who seeks directions under s 96 Trusts Act 1973 – whether the applicant executor should commence proceedings against the first respondent

EQUITY – FIDUCIARY OBLIGATIONS – CONFLICT OF INTEREST AND DUTY – where the first respondent as co-executor of the estate took steps to remove the assets of the estate from the control of the executors jointly and place the assets under her effective control – where the first respondent claims that these steps were taken to secure independent control of the family assets for the family – where there is a clear conflict of interest – whether there has been a breach of fiduciary duties

Succession Act 1981 ss 6, 49
Trusts Act 1973 ss 76, 96

Luke v South Kensington Hotel Co (1879) Ch D 122, cited
Re Atkinson deceased [1971] VR 612, discussed
Re Billington [1949] St R Qd 102, cited
Re JS Mitchell Deceased (1973) 30 WN (NSW) 137, cited
Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492, cited
Watson v Yore [2004] QSC 339, discussed
Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, discussed
Youyang P/L v Minter Ellison (2003) 212 CLR 484, discussed

COUNSEL:

K A Barlow for the applicant
H B Fraser QC with G Diehm for the first respondent
S Farrell for the second respondent

SOLICITORS:

Thynne & Macartney for the application
De Groots for the first respondent
Brian Bartley and Associates for the second respondent

1. This application was made under s 96 of the Trusts Act 1973 which provides that any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of the property, or respecting the exercise of any power or discretion vested in the trustee.  The directions sought by the applicant were whether the applicant, on behalf of the estate, could and ought to commence proceedings in this court against any or all of Nadia McConnel, in her personal capacity, Duckett Pty Ltd (“Duckett”) and NEM Investments…