Mak v Juventus Pty Ltd

Case [2024] WASC 409

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MAK -v- JUVENTUS PTY LTD [2024] WASC 409

CORAM:   LUNDBERG J

HEARD:   5 NOVEMBER 2024

DELIVERED          :   5 NOVEMBER 2024

FILE NO/S:   CIV 1630 of 2024

BETWEEN:   HAY-MAN MAK

Plaintiff

AND

JUVENTUS PTY LTD

Defendant


Catchwords:

Trusts - Discretionary trust - Declarations sought as to the proper construction of trust deed - Whether death of one of the jointly appointed Guardians had the effect that there ceased to be a Guardian - Whether powers annexed to the office, virtute officii, or to individuals themselves - Long standing trust in which reserved powers and restricted powers have been exercised by trustee in circumstances in which office of Guardian assumed to have continued - Turns on own facts

Equity - Principles applicable to the grant of declaratory relief - Whether proper contradictor present - Whether declaration has foreseeable consequences - Discretion exercised to grant relief

Legislation:

Rules of the Supreme Court 1971 (WA), O 58 r 2 and O 58 r 10

Result:

Declaratory relief granted

Category:    B

Representation:

Counsel:

Plaintiff : R J Nash
Defendant : No appearance

Solicitors:

Plaintiff : Jackson McDonald
Defendant : Kershaw Legal

Case(s) referred to in decision(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56

Bersel Manufacturing Co v Berry [1968] 2 All ER 552

Blenkinsop v Herbert [2017] WASCA 87

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30

CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53; (2005) 224 CLR 98

Crawford v Forshaw [1891] 2 Ch 261

Edwards v Santos Limited [2011] HCA 8; (2011) 242 CLR 421

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

IMF (Australia) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231

Kent v SS Maria Luisa (No 2) [2003] FCAFC 93; (2003) 130 FCR 12

Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495

Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45

Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd (1921) 2 AC 438

Schreuders v Grandiflora Nominees Pty Ltd [2016] VSCA 93

Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627

Vango Mining Limited v Zuleika Gold Limited [2024] WASCA 54

Table of Contents

A.       Introduction

The nature of the proceedings

Declarations sought

The position of the trustee

B.        Issues arising

C.       Evidence

Background

The Retirement Deed

The plaintiff's assumption

D.       Terms of the Trust Deed

E.        First issue - jurisdiction to grant declaratory relief

F.        Second issue - proper construction of the Trust Deed

Plaintiff's submissions

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Details
AGLC
Mak v Juventus Pty Ltd [2024] WASC 409
Case
[2024] WASC 409
Decision Date

CaseChat Overview and Summary

The case of Mak v Juventus Pty Ltd involved the interpretation of a discretionary trust deed in light of the death of one of the jointly appointed Guardians. The dispute centred on whether the death of one Guardian resulted in the cessation of the Guardian office, and whether the powers associated with the office were held by the individuals or by the office itself. The matter was brought before the court seeking declarations regarding the proper construction of the trust deed and the implications of the Guardian's death. The court was tasked with determining whether the office of Guardian remained intact after the death of one Guardian, and if the powers associated with the office were held by the office or by the individuals themselves. Additionally, the court needed to consider the equitable principles applicable to the grant of declaratory relief, including whether a proper contradictor was present and whether the declaration sought had foreseeable consequences.

In resolving these issues, the court considered the unique facts of the long-standing trust, where the trustee had exercised both reserved and restricted powers under the assumption that the office of Guardian continued. The court found that the matter turned on its own facts, and that the interpretation of the trust deed had to be considered in this context. The court also examined the equitable principles governing declaratory relief, and determined that a proper contradictor was present and that the declaration sought had foreseeable consequences. The court exercised its discretion to grant the relief sought by the applicant, finding that the death of one Guardian did not necessarily result in the cessation of the office, and that the powers associated with the office were held by the office itself. The court's decision clarified the proper construction of the trust deed and provided guidance on the exercise of powers by the trustee in the future.

Orders

Orders of the court

Declaratory relief granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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