Maybury as Trustee of the Marie Venables Trust v Heikura

[2006] QDC 311

[2006] QDC 311

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD2137 of 2006

SCOTT CHARLES MAYBURY AS TRUSTEE OF THE MARIE VENABLES TRUST

Plaintiff

and

TUIJA HEIKURA

and

KARI KAARLO HEIKURA

First Defendant

Second Defendant

BRISBANE

..DATE 07/08/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 260, r 261 - claim against former trustee for infant beneficiaries for defalcation - Mareva order to preserve as an asset against which execution might occur to satisfy a future judgment - asset (held by defendant and her former spouse as joint tenants) had been purchased before the alleged defalcation, so that it was unlikely trust assets could be traced into its injunction limited to defendant's interest - his spouse (a respondent in the application) indicated he might move in the Family Court to establish sole ownership in himself - ordered to inform plaintiff of any application in that regard.

HIS HONOUR:  This is a most unusual application on the return date set by his Honour Judge Wylie QC on the 24th of July 2006 of an application for an injunction.  He granted ex parte an order restraining both respondents from dealing in any way with identified land.  There is now before the Court updated material confirming that the Valuer General's valuation falls within the relevant limit for purposes of this Court having jurisdiction. 

The market value of the property doubtless exceeds the sum, since there is a residence erected there but that is immaterial.  It was the residence of the respondents who acquired it around 1989.  The second respondent, Mr Heikura still resides there.  He and the first respondent (the defendant in the claim), who are married, separated around 2001 and she went away.  Prior to that she had agreed to become trustee of a fund of some $100,000 set up by a lady called Marie Venables for the benefit of grandchildren who were and still are, as I understand it, minors.
There are serious allegations against her in the underlying proceeding to the effect that she helped herself to almost all of the trust fund which with accretions should exceed $100,000 by an considerable amount.  The apparent defalcation occurred from about 2003 on but seems not to have been detected for quite a while.  Mr Maybury, who is the father of the beneficiaries, has been appointed trustee under a provision
included in the trust instrument giving the settlor or nominator the requisite power.  He is the plaintiff.

Mr Dawson, representing Mr Heikura, says there is perhaps some room for entertaining the possibility that the trust fund which now appears to have gone was applied to the interest of the beneficiaries.  It has not been necessary to peruse the material in detail for chapter and verse; I accept what Mr Dawson has said as to what it may be.  There is information from Mr Clutterbuck representing the plaintiff to the effect that an amount of $1,200 was supplied earlier in the picture by the defendant for school fees through the unusual medium of her personal cheque.  That may or may not be the full picture. 

For present purposes, particularly having regard to the tenderness which the Court has always shown towards the interests of infants, I am prepared to accept there is a fit case to pursue that the defendant helped herself to the trust fund improperly.  It does not seem to be a case, given the date of acquisition of the subject property, in which the trust assets can be traced into the property.  A search shows that the Commonwealth Bank holds a mortgage, but information from Mr Dawson's side, which there is no reason to doubt, is that there is nothing actually owing under that mortgage.

Mr Dawson's client is in the odd and unwelcome position of being served with an order made in his absence which restrains him, along with his wife, from dealing in any way with the property.  There is no reason to think he proposes to engage in any dealing but he is perfectly entitled to resent that kind of interference with exercise of whatever rights he might have. 

What the plaintiff is concerned to do is ensure that, if he obtains a judgment against the defendant, any assets which are hers which may taken in execution will be available.  She has been served with notice of today's hearing but not appeared when called.  It remains to be seen whether Mr Clutterbuck's expectation that there be quickly obtained a default judgment against her is fulfilled.

It seems to me that the matter can be dealt with today by consideration of rule 260 of the UCPR without the Court feeling too constrained by the wealth of historical case law that surrounds Mareva injunctions. Mr Dawson has referred to Firgo v Culhaci, BC9803225, which was referred to with approval by the High Court in the leading case of Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294.

As to Cardile, particular reference was made to paragraph 57 in relation to the circumstances in which Mareva type relief affecting third parties may be granted. Rule 260(2) and (4)(d) acknowledge that this drastic species of relief may be ordered with direct effect against third parties who may be innocent. It is somewhat difficult to characterise Mr and Mrs Cardile in that way although they were able to mount a technical argument which did not, in the end, avail them, based on their not being parties.

I do not pretend to have read all the material but there seems to be - apart from points already noted as mentioned by Mr Dawson and his point based on Firgo at 16 in the BC report, lack of evidence of threat to dispose of assets. 

There seems to me no serious deficiency pointed to in the plaintiff/applicant's material.  Now that is not to say that it will ultimately prove correct.  The rule mentioned seems to me to apply in that an order is sought to restrain dealing with assets for the purposes of subrule (1).  Subrule(2) might well have been referred to in respect of the second respondent's not playing any part in the substantive proceeding.  Subrule (3)(b) applies and corresponding parts of subrule (4) such as paragraph (b)(ii).

In my opinion relief ought to be granted but Judge Wylie's order scaled back to acknowledge that it is only the defendant's interest which ought to be the subject of any restraint.  The respondents are presently registered as joint tenants of the property. 

The second respondent has contended that that is a situation of historical interest only, he and the first defendant having agreed some years ago that, on the basis of her taking certain joint assets, a bank account in particular, the matrimonial residence ought to be regarded as his. 

Nothing has occurred of a formal nature in the Land Titles Office or any court to perfect arrangements of that kind. Just as it remains to be seen how much of the plaintiff's present allegations will be made good, that observation can be made of what the second respondent is putting before the Court; I am not saying that because I entertain any doubts about it.

Understandably, he has been moved by his sudden involvement in this proceeding to advise that he is contemplating getting things sorted out, for example, by application to the Family Court of Australia.  Depending on the outcome there, the plaintiff may find that the asset against which he hopes to execute, if he gets the judgment, was always beyond reach.
There may be circumstances in which the plaintiff could intervene in any such application.

In my opinion, the justice of the case, bearing in mind the circumspection that ought always to attend the making of Mareva orders, requires the preservation of the defendant's interest in the property from any interference hereafter.  That, in my opinion, would include the severing of the joint tenancy; of course, that is a change that might in fact advantage the plaintiff.
The second respondent ought to have unfettered ability to come back to the Court should matters so develop that it becomes convenient to him to obtain express authorisation of the Court for any transaction he may want to undertake:  I recognise that the order I propose to make freezing his wife's interest may lead to embarrassment in respect of dealings with his own interest which the plaintiff has no basis for resisting.

Upon the plaintiff Scott Charles Maybury as trustee of Marie Venables Trust by his counsel giving to the Court the usual undertaking as to damages, it is ordered:

(1)  That Tuija Heikura and Kari Kaarlo Heikura -

(a) under rule 260 of the rules, be restrained until further order from disposing of, encumbering or otherwise dealing in any way with or changing any legal or equitable interest of the defendant, Tuija Heikura, in land described as lot 235, registered plan 130262 County of Stanley, Parish of Capalaba.

(b) under rule 261(1) of the rules, the respondents, and each of them, immediately advise the plaintiff's solicitors in writing of any proceeding in the Family Court of Australia or the Federal Magistrate's Court which may affect the said land.

(2)That there be liberty to apply generally

and in particular liberty to the second respondent,
Kari Kaarlo Heikura, to apply to the Court seeking any authorisation that may be thought necessary or desirable to permit any dealing with his interests in the land.

(3) I suggest costs reserved. 

Apropos the order 1(b), that seemed to me a preferable way
of approaching the matter to that of taking up an
undertaking of the second respondent's solicitors which
was proffered.  It has the effect of catching the defendant as well and may spare the solicitor, who has no
specific instructions today, from possible difficulty in
the future, depending on what happens.

Is there anything further?

MR DAWSON:  Your Honour, during the course of your
reasons and in the orders, my client is referred to as
the defendant.  It's only a small matter but he's not
actually a defendant, he's a respondent.

HIS HONOUR:  Well, it's respondent, is it?

MR DAWSON:  I may be better if the record shows that.

HIS HONOUR:  I'm looking at Judge Wylie's order and he's called the defendant in that but we know who we're talking about.  That's what I've named him in a couple of places.

MR DAWSON:  Yes, yes.

HIS HONOUR:  Yes, I appreciate - so, there's only one defendant which is Tuija.

MR DAWSON:  There's only one defendant and it was Tuija, yes.  And there's two respondents in the application.

HIS HONOUR:  I might call him - all right, when I revise it, I will call him a respondent.

MR DAWSON:  That was the purpose of bringing it to your Honour's attention.  Your Honour, I presume both myself and Mr Clutterbuck will have access to the order so we can write it down from your Associate.

HIS HONOUR:  See if my Associate can make head or tail of that, yes.  It's very very messy at the moment and there might be slight changes in what I said.

MR DAWSON:  We can advise our respective clients with some details.

HIS HONOUR:  I'm sure the reporters can get it typed out with high priority so you get it quickly.

MR DAWSON:  Thank you, your Honour.

...

HIS HONOUR:  The costs of Mr Heikura of today ought to be paid by the plaintiff but those costs and the plaintiff's own costs are reserved as between him and Mrs Heikura.

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