Mandie v Memart Nominees Pty Ltd - [2017] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0073

EDWARD NICHOLAS MANDIE & ORS (according to the attached schedule)	Applicants
V
MEMART NOMINEES PTY LTD (as trustee for the DAVID MANDIE FAMILY TRUST)	Respondent

---

JUDGES:	WHELAN and McLEISH JJA, and CAMERON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2017
DATE OF JUDGMENT:	4 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 177
JUDGMENT APPEALED FROM:	[2016] VSC 267 (McMillan J)

---

COURTS AND JUDGES — Apprehended bias — Interlocutory finding that claim had no real prospect of success — Finding overturned on appeal — Whether judge ought to have recused herself from finally determining claim — Whether claim now advanced on basis not previously argued — Judge’s criticism of party’s conduct — Whether unreasonable — No reasonable apprehension of bias in circumstances — Judge’s discretion to recuse in any event — Whether refusal to do so reviewable — Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R H Gillies QC with Mr B Jellis	Cornwall Stodart
For the Respondent	Mr A C Archibald QC with Mr P D Herzfeld	Allens

WHELAN JA
McLEISH JA
CAMERON AJA:

Introduction

David Mandie and Minnie Mandie, both now deceased, by a trust deed dated 24 April 1978 (‘the trust deed’), established the David Mandie Family Trust (‘the trust’). The respondent, Memart Nominees Pty Ltd, is the trustee of the trust.

The trust is what is often called a family discretionary trust. Under the trust deed, there are two classes of beneficiaries – specified and general beneficiaries. The specified beneficiaries are the children of David and Minnie Mandie: Ian, Stephen and Evelyn. For ease of reference we will refer to them by their given names. The class of general beneficiaries includes the spouses and children of the specified beneficiaries.

In the mid-1990s, a dispute occurred between Ian and Stephen on one hand, and David and Minnie Mandie on the other. The dispute was settled and a settlement agreement was entered into on 19 December 1995 (‘the settlement agreement’). By the settlement agreement, Ian and Stephen disclaimed their interests in the trust.

On 15 December 2014 Ian and Stephen’s spouses and children issued this proceeding alleging breaches of duty by the respondent and seeking its replacement as trustee.

In May 2015 the plaintiffs applied to amend their statement of claim.

The primary judge heard the application to amend on 12 June 2015. She published her reasons and made orders on 28 August 2015.[1] She gave leave to make certain amendments and she refused leave to make others. In particular, she refused leave to make amendments referred to as the ‘specified beneficiary allegations’. On 13 November 2015 the primary judge made indemnity costs orders against the plaintiffs on the amendment application and published reasons.[2]
[1][2015] VSC 446 (‘the amendment reasons’).
[2][2015] VSC 622 (‘the costs reasons’).

The plaintiffs[3] successfully then appealed the refusal to allow the introduction of the specified beneficiary allegations. This Court heard the appeal on 2…

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.

Keep reading for free

Create a free CaseChat account to read Mandie v Memart Nominees Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 177
Decision Date: 4 July 2017

CaseChat Overview and Summary

Mandie sought to appeal a decision made by Justice Rothman in the Federal Circuit Court. The appeal pertained to an interlocutory finding that Mandie's claim against Memart had no real prospect of success. Mandie argued that the judge should have recused herself from making the finding due to an apprehended bias, and that the claim was now being advanced on a basis not previously argued. Additionally, Mandie contended that the judge's criticism of their conduct was unreasonable.

The court considered whether there was a reasonable apprehension of bias in the circumstances and whether the judge's discretion to recuse herself was reviewable. The court found that there was no reasonable apprehension of bias and that the judge's discretion to recuse herself was not reviewable. The appeal was dismissed.

In reaching its decision, the court examined the circumstances surrounding the judge's decision to make the interlocutory finding and whether there were any grounds for a reasonable apprehension of bias. The court noted that the judge had acted within her discretion and that there were no circumstances that would give rise to such an apprehension. Furthermore, the court held that the judge's discretion to recuse herself was not reviewable and that any refusal to do so would not be subject to appeal.

Orders