MATTHEW ROBERT GIBBS (an infant) by his Guardian ad litem LISA GAYE PRATICO -v- KAYE LYNETTE GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS
[2006] WASCA 224
•31 OCTOBER 2006
MATTHEW ROBERT GIBBS (an infant) by his Guardian ad litem LISA GAYE PRATICO -v- KAYE LYNETTE GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS [2006] WASCA 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 224 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:91/2004 | 7 JUNE 2006 | |
| Coram: | MARTIN CJ McLURE JA PULLIN JA | 31/10/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW ROBERT GIBBS (an infant) by his Guardian ad litem LISA GAYE PRATICO KAYE LYNETTE GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS |
Catchwords: | Practice and procedure Appeal against decision of a Master Where refusal to remove trustee of estate Turns on own facts |
Legislation: | Administration Act 1903 (WA), s 29, s 45 Trustees Act 1962 (WA), s 77 |
Case References: | Bates v Messner (1967) 67 SR NSW 187 House v The King (1936) 55 CLR 499 Miller v Cameron (1936) 54 CLR 572 Porteous v Rinehart (1998) 19 WAR 495 Angelina Vagliviello (by Her Next Friend The Public Trustee In And For The State of Western Australia) v Vagliviello & Anor [2003] WASC 61 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Grainger v The Public Trustee & Ors, unreported; SCt of WA (Steytler J); Library No 950670; 6 December 1995 Hobkirk v Ritchie (1934) 29 Tas LR 14 Hunter v Hunter [1938] NZLR 520 Letterstedt v Broers (1884) 9 AC 371 Monty Financial Services Ltd v Delmo [1996] 1 VR 65 Passingham v Sherborn (1846) 50 ER 407 Phelan & Phelan v Booth (1941) 43 WALR 60 Pope v DRP Nominees Pty Ltd (1999) 74 SASR 78 Public Trustee v Campbell, unreported; SCt of WA (Walsh J); Library No 7513; 16 February 1989 Re Matheson; Ex parte Worrell v Matheson (1994) 121 ALR 605 Re Ponder (1921) 2 Ch 59 Re Roberts (1983) 20 NTR 13 Re Windle [1960] QWN 19 Re Wrightson (1908) 1 Ch 789 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MATTHEW ROBERT GIBBS (an infant) by his Guardian ad litem LISA GAYE PRATICO -v- KAYE LYNETTE GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS [2006] WASCA 224 CORAM : MARTIN CJ
- McLURE JA
PULLIN JA
- Appellant
AND
KAYE LYNETTE GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS
Respondent
(Page 2)
ON APPEAL FROM:
For File No : FUL 91 of 2004
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : GIBBS as Administrator of the Estate of CRAIG EDWARD GIBBS (DEC) -v- GIBBS (an infant) by his Guardian ad litem LISA GAYE PRATICO (nee DOUST) [2004] WASC 132
File No : CIV 1629 of 2002
Catchwords:
Practice and procedure - Appeal against decision of a Master - Where refusal to remove trustee of estate - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 29, s 45
Trustees Act 1962 (WA), s 77
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M L Segler
Respondent : Mr R J L McCormack
Solicitors:
Appellant : Brennan & Co
Respondent : Richard McCormack
Case(s) referred to in judgment(s):
Bates v Messner (1967) 67 SR NSW 187
House v The King (1936) 55 CLR 499
Miller v Cameron (1936) 54 CLR 572
Porteous v Rinehart (1998) 19 WAR 495
Case(s) also cited:
Angelina Vagliviello (by Her Next Friend The Public Trustee In And For The State of Western Australia) v Vagliviello & Anor [2003] WASC 61
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Grainger v The Public Trustee & Ors, unreported; SCt of WA (Steytler J); Library No 950670; 6 December 1995
Hobkirk v Ritchie (1934) 29 Tas LR 14
Hunter v Hunter [1938] NZLR 520
Letterstedt v Broers (1884) 9 AC 371
Monty Financial Services Ltd v Delmo [1996] 1 VR 65
Passingham v Sherborn (1846) 50 ER 407
Phelan & Phelan v Booth (1941) 43 WALR 60
Pope v DRP Nominees Pty Ltd (1999) 74 SASR 78
Public Trustee v Campbell, unreported; SCt of WA (Walsh J); Library No 7513; 16 February 1989
Re Matheson; Ex parte Worrell v Matheson (1994) 121 ALR 605
Re Ponder (1921) 2 Ch 59
Re Roberts (1983) 20 NTR 13
Re Windle [1960] QWN 19
Re Wrightson (1908) 1 Ch 789
(Page 4)
1 MARTIN CJ: This is an appeal from a decision of a Master refusing an application brought by an infant, Matthew Robert Gibbs ("Matthew"), represented in these proceedings by his mother, Lisa Gaye Pratico, for the removal of the infant's grandmother, Kaye Lynette Gibbs, as administrator of the estate of the infant's late father, Craig Edward Gibbs.
2 The precise statutory basis for the application remains uncertain, but for reasons I will develop, in my opinion, nothing turns on this.
3 Matthew, who is the appellant, was born on 12 March 1997. His parents were then living in a de facto relationship, and had been living in that relationship at the time of his conception. However, that relationship ended in apparently acrimonious circumstances and the appellant's mother, Ms Pratico, who is his guardian in these proceedings, developed a relationship with another man whom she has now married.
4 The appellant's father, Mr Gibbs, died in a motor vehicle accident on 17 February 2000. On 25 January 2001, letters of administration were granted to the mother of the deceased, Mrs Gibbs, who is the respondent to the appeal.
5 As the Master found, the deceased estate comprised a trail bike, a motor vehicle and household furniture of modest value, a bank account with a balance of $8767.50, and a parcel of shares with a total value, at the time of preparation of the statement of assets and liabilities, of $17,000.
6 The estate also included two properties; one in Greenbushes and one in Boyup Brook.
7 Further, as a result of the death of the deceased, an entitlement arose to a payment of $455,000 under a superannuation fund. Although it is not entirely clear, it seems likely that this entitlement did not comprise part of the deceased estate, but rather fell to be distributed in accordance with the terms of the superannuation fund. After some controversy concerning the persons who should receive the benefit of that payment, the Superannuation Complaints Tribunal determined on 22 April 2003 that the entire amount of that fund should be paid to Ms Pratico to be held on trust for Matthew. For that purpose, a Child Maintenance Trust has been established, the terms of which were in evidence before the Master. Those funds will be available for Matthew's maintenance, advancement and welfare during his minority. As counsel for the appellant properly conceded, there therefore appears a fair inference that it is unlikely that
(Page 5)
- Matthew will have any need to call upon Mrs Gibbs as administrator of the deceased estate for an advance during his minority.
8 In addition, Matthew has an interest under the estate of his late grandfather, who bequeathed a life estate in a number of farming properties situated in Dinninup to the appellant's grandmother (Mrs Gibbs, the respondent), with the remainder passing to her children upon her death. As Mrs Gibbs had three children, in the event that he survives his grandmother, Matthew will receive the one-third interest in those properties which his father would have received, which interest is estimated to have a value of approximately $400,000.
9 Further, Matthew has a similar interest in a property situated in Busselton. A life estate in that property was bequeathed to Mrs Gibbs by her uncle, again with the remainder to her children. So should he survive his grandmother, the appellant will receive a one-third interest in that property, being the interest his father would have received. The value of that interest is estimated at approximately $80,000.
10 By a summons dated 13 October 2003 Matthew, by his guardian, Ms Pratico, sought orders in the following terms:
"1. an order pursuant to section 29 of the Administration Act 1903 that the grant of Administration of the estate of Craig Edward Gibbs late of 66 Woodward Street, Greenbushes, Western Australia to the plaintiff be revoked;
2. an order pursuant to section 45 of the Administration Act 1903 that the Administration of the said Craig Edward Gibbs be granted to the guardian ad litem of the Defendant, namely Lisa Gaye Pratico;
3. such further orders as the Court shall deem fit pursuant to sections 42 and 45 of the Administration Act 1903."
11 The application was supported by an affidavit sworn by Ms Pratico in which she asserted that the application had been made:
"… on the grounds that the Plaintiff [Mrs Gibbs] has no interest, beneficial or otherwise in the said estate and that I am the only appropriate recipient of a grant of Administration of the said estate of which my son, the infant Defendant, is the sole beneficiary."
(Page 6)
12 Ms Pratico also deposed to her concerns that:
"(a) there is in all probability a conflict between the interest of the Plaintiff and the duty related to the grant of Administration in respect of the said estate;
(b) the Plaintiff has failed or refused to recognise that conflict between interest and the duty and to take steps to ensure that her interest should not prevail as against her duty;
(c) the Plaintiff has further disregarded the interests of the infant Defendant;
(d) a state of hostility exists between the Plaintiff and myself such that the Plaintiff is in all probability not prepared to discharge any or all of the appropriate duties related to the administration of the said estate and in particular attend to matters related to the education, advancement and welfare of the infant Defendant."
13 However, apart from the assertion that there is a state of hostility between Mrs Gibbs and herself, nowhere in the affidavit, or in any evidence presented to the Master, was any factual basis provided for these concerns.
14 The affidavit concludes with an assertion by Ms Pratico of her belief that:
"… the Plaintiff [Mrs Gibbs] has no intention of attending to the proper administration of the balance of the said estate and as such the Letters of Administration granted to her to that end ought be revoked and assigned to me."
15 However, no factual basis for that belief was deposed to in the affidavit, nor was any factual foundation for that belief provided in any other evidence provided to the Master, other than, presumably, such inferences as might be drawn from the existence of a state of hostility between Ms Pratico and Mrs Gibbs.
16 Mrs Gibbs swore an affidavit in opposition to the application in which she denied the assertions made by Ms Pratico, other than acknowledging the existence of a state of hostility between them. However, perhaps predictably, she holds a different view as to the reasons
(Page 7)
- for that state of hostility. Essentially, each of the women blame each other for the deterioration of their relationship.
17 Significantly, Mrs Gibbs has also deposed to the due administration of the deceased estate. She has sold the property in Greenbushes, which was, according to her affidavit, in a dilapidated state and deteriorating, and apparently holds the proceeds of sale on behalf of the estate. She has leased out the property in Boyup Brook and maintains that property and collects rents and pays outgoings. She has amalgamated and maintains the financial records of the deceased with the bank, and arranged to have a private tax ruling made in respect of the affairs of the infant as beneficiary of the estate. Counsel for Matthew properly conceded before us that there was no evidence to the effect that Mrs Gibbs had done anything other than duly and properly administer the deceased estate.
18 As I have mentioned, in the originating process the application was said to have been made pursuant to s 29 and s 45 of the Administration Act 1903 (WA). Those sections are in the following terms:
"29. … Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.
…
45. …
(1) The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2) Such order shall bind all persons whether sui juris or not.
(3) No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct."
(Page 8)
19 However, before us, counsel for Matthew asserted that in fact when the matter came on for hearing before the Master, the application had been treated as an application brought pursuant to s 77 of the Trustees Act 1962 (WA) which is in the following terms:
"(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees, either in substitution for, or in addition to, any existing trustee or trustees, or although there is no existing trustee.
(2) In particular, and without limiting the generality of the provisions of subsection (1), the Court may make an order appointing a new trustee in substitution for a trustee who -
(a) desires to be discharged;
(b) has been held by the Court to have misconducted himself in the administration of the trust;
(c) is convicted of an indictable offence;
(d) is a person of unsound mind;
(e) is bankrupt; or
(f) is a corporation that has ceased to carry on business, or is in liquidation, or has been dissolved.
(3) …
(4) Nothing in this section confers power to appoint an executor or administrator.
(5) …"
20 Counsel for Mrs Gibbs denied the assertion that the application had been dealt with by the Master as if made pursuant to s 77 of the Trustees Act. He argued that the test for removal of an administrator under s 29 of the Administration Act was more stringent than that applicable to the removal of a trustee under s 77 of the Trustees Act. It was submitted that
(Page 9)
- before removal would be justified under s 29 of the Administration Act, the Court would have to be satisfied, by way of a firm conclusion, that the property comprising the estate was not, or would not, be safe, or that the Trust would not be properly executed in the interest of the beneficiary. The decision of Asprey JA in Bates v Messner (1967) 67 SR NSW 187, 191 - 192 was relied upon in support of that submission. It was further submitted that s 29 was the relevant and applicable statutory provision, rather than s 77 of the Trustees Act, because the administration of the estate was continuing, with the result that the respondent had not yet become a trustee, but remained an administrator. Further, by way of submission in the alternative, it was argued that if Mrs Gibbs had become a trustee, there was a distinction between the test to be applied to her removal, depending upon whether the trust was categorised as a bare trust, an active trust or a passive trust. I must confess to considerable difficulty in understanding the latter submission. However, for reasons which will appear, in my opinion, it is unnecessary for this Court to determine any of those interesting and complex questions in order to dispose of this appeal.
The Decision of the Master
21 The Master recounted the history of the matter and made the non-controversial findings of fact to which I have referred. He then posed the question of whether the respondent was properly to be regarded as an administrator of the estate or as a trustee. He regarded that to be an important question of fact because of his view that the principles which apply to the removal of an executor or an administrator are different to those which apply to the removal of a trustee.
22 For the purposes of this appeal I express no view on the question of whether that assertion is correct or not.
23 Having posed that question, the Master concluded that all that was necessary to be done to administer the estate had been done, with the result that Mrs Gibbs had ceased her role as administrator and had assumed the role of trustee. Again, I express no view as to the correctness of that conclusion. It is sufficient to observe that it was a conclusion which favoured Matthew, because of the Master's apparent view that a less stringent test applied to the removal of a trustee than applied to the removal of administrator.
24 The Master then referred to cases dealing with the criteria to be applied when considering the removal of a trustee, including Porteous v Rinehart (1998) 19 WAR 495 and Miller v Cameron (1936) 54 CLR 572.
(Page 10)
25 The reasoning then applied by the Master to the determination of the case is set out in the following three paragraphs of his judgment:
"10. There is no evidence in this case that the plaintiff as trustee of the deceased's estate has acted improperly or in breach of trust. No suggestion to that effect was made by the defendant. It was submitted that the plaintiff may have a conflict of interest such as would justify her removal. With respect, I can see no evidence that such a conflict exists. It is true that there is an unhappy relationship between the plaintiff and the defendant. Most of the affidavit evidence relied upon by the parties deals with that issue. But the fact that the plaintiff and the defendant are at odds does not, in and of itself, give rise to a conflict of interest. There is no evidence to suggest that circumstances have arisen which might give rise to a legitimate fear that the plaintiff would prefer her interests over those of the defendant.
11. When the defendant's case is analysed, it really comes down to this. The defendant holds property as trustee for her son. She is in a position to assess his needs and to make appropriate provision for him. She will be in a position where she is trustee until the trust vests and Matthew takes control of the property. On the other hand, the plaintiff, although a trustee, is not in day-to-day contact with Matthew. She does not know what his needs might be and she is not in a position to administer the trust to his advantage. Further, so it is said, nothing is to be gained by having two separate trusts. It would be in the best interests of Matthew if all of the property of the deceased were handed over to the defendant to allow her to properly administer the fund.
12. In essence, the argument put by the defendant is based upon convenience - it is simply more convenient to have all of the trust property administered by one person and the proper person is the defendant. While I appreciate the strength of that argument, it is not in my view sufficient to warrant removal of the plaintiff as trustee of the deceased's estate. To adapt the words of Dixon J in Miller v Cameron, in my view there are no circumstances which exist which afford grounds upon which the
- jurisdiction may be exercised. Put another way, there is nothing to suggest that the welfare of Matthew, as a beneficiary of the estate, is opposed to the plaintiff's continued occupation of the office of trustee."
Grounds of Appeal
26 Before turning to the specific grounds of appeal, it is perhaps appropriate to observe that as the appeal is brought from the exercise of a discretionary power, the well-known principles enunciated in House v The King (1936) 55 CLR 499 apply:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (per Dixon, Evatt and McTiernan JJ at 505)
Ground 1
27 In this ground it is asserted that the discretion of the Master miscarried because he failed to revoke the grant of administration to Mrs Gibbs in circumstances in which:
(a) the respondent had no interest, beneficial or otherwise in the deceased estate;
(b) the only appropriate recipient of a grant of administration of the estate was Ms Pratico (ie Matthew's mother).
(Page 12)
28 Inherent in the first limb of the ground is the implicit assumption that an administrator should have some interest in the estate under administration. No basis for that proposition was advanced in the course of argument, and it seems to me to be entirely without substance. Estates are commonly administered by persons who have no beneficial interest in them - indeed, there are corporations which exist solely for that purpose. If, however, the word "interest" is, in this ground, intended to be used more broadly, so as to suggest that Mrs Gibbs lacks any incentive for the due and proper administration of the deceased estate, that proposition is fully answered by the facts that:
(a) on the evidence Mrs Gibbs has duly and properly administered the deceased estate; and
(b) Mrs Gibbs has the incentive of administering the estate in the protection of the interests of Matthew, who is, of course, her grandson.
29 Turning then to the second limb of this ground, the proposition that Ms Pratico is the only appropriate administrator of the deceased estate seems to depend upon the proposition that she is Matthew's mother, and is therefore aware of his needs and requirements, and that because of the state of hostility which exists between her and Mrs Gibbs, Mrs Gibbs is unlikely to know of those needs and requirements.
30 However, there is no evidence that Matthew is likely to need to call for an advance from the deceased estate during his minority. On the contrary, as I have observed, counsel for Matthew conceded that by reason of the appellant's entitlement to the funds received from the superannuation fund, it was most unlikely that he would need to call for an advance from the deceased estate during his minority.
31 Further, there is not a scrap of evidence to suggest that, in the unlikely event a request was made for an advance from the deceased estate during Matthew's minority, Mrs Gibbs would not properly consider and appropriately respond to that request. There is no evidence to the effect that any request whatsoever has been made of Mrs Gibbs in her capacity as administrator of the deceased estate. No inference that she would not respond appropriately in the event that such a request was made can be drawn from the mere existence of a state of hostility between the two women.
32 The only evidence before the Court is to the effect that Mrs Gibbs has duly and properly administered the deceased estate to date. If any
(Page 13)
- inference arises from that evidence, it is to the effect that she will continue to do so.
33 In my opinion, this ground is without substance.
Ground 2
34 This ground asserts that the Master erred by holding that Mrs Gibbs could only be removed as trustee if there was evidence that she had acted improperly or in breach of trust. Presumably, this ground draws upon the first sentence of [10] of the Master's reasons for decision. However, viewed in the context of his reasons as a whole, it is, I think, clear that in this sentence the Master was merely excluding one of the possible grounds upon which removal of a trustee could be justified. I do not think his reasons can be construed as holding that the only basis upon which a trustee could be removed is if it was established that he or she had acted improperly or in breach of trust. Rather, when regard is had to the reasons as a whole, it seems to me to be clear that the Master applied the test which he derived from the decision in Miller v Cameron, to the effect that there must be circumstances which exist which afford grounds for the exercise of the jurisdiction, in the form of justifying a conclusion that the interests of the beneficiary of the estate were opposed to Mrs Gibbs' continued occupation of the office of trustee.
35 Accordingly, because in my view the Master did not in fact apply the test asserted in this ground, it also fails.
Ground 3
36 This ground asserts that the Master erred by failing to hold that the Court was required to regard the welfare of the beneficiary of the estate as the dominant consideration in the exercise of the discretion.
37 I am not at all sure that the authorities establish a hierarchy or weighting of considerations to be brought to bear when exercising the discretion to remove a trustee. In Miller v Cameron (supra), Dixon J observed:
"The jurisdiction to remove the trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee." (at 580)
(Page 14)
38 But in any event, there does not seem to me to be any basis for an assertion that the Master failed to give appropriate weight to the interests of Matthew. On the contrary, it seems to me that, when his reasons are read as a whole, he posed to himself the question of whether the evidence established that any adverse consequence would flow to Matthew from Mrs Gibbs' continued administration of the deceased estate and concluded that it did not. This ground also fails.
Ground 4
39 This ground asserts that the Master erred by finding that Mrs Gibbs did not have a conflict of interest which would justify her removal as trustee.
40 When pressed in the course of argument, counsel for Matthew was entirely unable to identify anything in the evidence that would sustain the proposition that Mrs Gibbs had a conflict of interest in the administration of the deceased estate. Of course, a conflict of interest would arise if there was some conflict between Mrs Gibbs' duties as administrator to call in and collect the estate, duly and properly maintain that estate, and in due course, distribute it to Matthew when he attains his majority, and some other interest which Mrs Gibbs has which is contrary to those duties. No such interest was identified in the course of argument or is to be found anywhere in the evidence. Plainly the fact that a state of hostility exists between the two women does not give rise to a conflict of interest. This ground is entirely without substance and must fail.
Ground 5
41 This ground asserts that the Master should have exercised his discretion to remove Mrs Gibbs as trustee, having found that:
(a) Mrs Gibbs was not in day to day contact with Matthew;
(b) Mrs Gibbs does not know what the needs of Matthew might be;
(c) Mrs Gibbs is not in a position to administer the trust to Matthew's advantage; and
(d) when he should have found that Mrs Gibbs and Matthew were totally estranged.
42 It seems clear that this ground assumes that [11] of the Master's reasons for decision, which I have set out above, represents findings made by him. However, I think it is clear that in this paragraph the Master was doing nothing more than reciting the argument that had been put on behalf
(Page 15)
- of Matthew. Accordingly, I do not think it can be said that the Master found that Mrs Gibbs was not in a position to administer the trust to Matthew's advantage. Such a finding would have been completely contrary to his conclusion that there was nothing to suggest that Matthew's welfare was opposed to Mrs Gibbs' continued occupation of the office of trustee.
43 It may, however, be accepted that the Master found that there was hostility between the two women and that, in consequence of that hostility, Mrs Gibbs was unlikely to be aware of Matthew's day to day needs. However, those findings are nothing more than the factual basis for the assertion made in Ground 1 to the effect that such a state of affairs justifies the removal of Mrs Gibbs as trustee. For the reasons I have given above, in my view, that assertion cannot be sustained. Accordingly, this ground also fails.
Ground 6
44 This ground asserts that the Master should have found that:
"… the Respondent … was not a suitable continuing trustee of the deceased Estate having regard to the sole beneficial interest of the Appellant in same, the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise [of] the powers conferred upon such a trustee."
45 This ground is more of a rhetorical flourish than a ground of appeal. It does not appear to contain any proposition which is different in any way to the propositions more specifically advanced in the preceding five grounds. It must also be dismissed.
46 It can thus be seen that in my view the various grounds of appeal can be quite simply resolved without determining the complex issues raised by the respondent's notice of contention, and which were advanced by counsel for Mrs Gibbs in the course of argument. In essence, the Master has determined the case by applying a test which is the most favourable to Matthew of all the tests propounded in argument before us. In other words, the Master has concluded that Mrs Gibbs' role as administrator has ceased, and that she is therefore to be regarded as a trustee, and therefore applied the test of expedience which is to be derived from s 77 of the Trustees Act. Counsel for Mrs Gibbs sought to persuade us that the approach taken by the Master was erroneous. However, because, in my view, the appeal fails even if the test most favourable to Matthew is
(Page 16)
- applied to the issue of the removal of Mrs Gibbs as administrator, it is unnecessary to determine the interesting and complex issues raised by counsel for Mrs Gibbs. Those issues should await determination in a context in which their resolution is necessary for the proper disposition of the case. This is not such a case.
47 For these reasons, in my opinion, the appeal should be dismissed.
Costs
48 Although we will, of course, invite further submissions from the parties on the question of the costs of the appeal before the Court makes any final determination on the subject, it might assist the parties if I were to indicate that my tentative view is that costs should follow the event, rather than be paid out of the deceased estate, although, of course, in the fullness of time it is unlikely that anything of substance will turn on this distinction. However, in the interim, because of my view that this appeal lacked any real foundation, it is not appropriate that the costs of the appeal should be borne by the estate. Rather, it is my tentative view that the costs of the estate should be borne by the appellant.
49 The orders I propose to make are that the appeal be dismissed.
50 McLURE JA: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
51 PULLIN JA: I have read the draft reasons prepared by Martin CJ. I agree with those reasons and have nothing to add.
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