Mayer v Mayer - [2015] VSC 2

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2013 04028

TITANIA ELISABETH MAYER a minor by her litigation guardian TUNERA OU-MAYER
and
HELMUT PETER NIKOLAUS MAYER by his litigation guardian TUNERA OU-MAYER

Plaintiffs

GARETH PAUL MAYER

FAIRY PARK PTY LTD

GULLIVER PTY LTD

ASGARD REALM PTY LTD

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

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JUDGE:	CROFT J
WHERE HELD:	Geelong
DATE OF HEARING:	12 and 20 January 2015
DATE OF JUDGMENT:	20 January 2015
CASE MAY BE CITED AS:	Mayer v Mayer
MEDIUM NEUTRAL CITATION:	[2015] VSC 2

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PRACTICE AND PROCEDURE – Persons under disability – Approval of proposed compromise – Principles to be applied – Supreme Court (General Civil Procedure) Rules 2005, O 15, r 8 – Page v Rogers (1977) 16 ALR 40; Elliott v Diener (1978) 21 ACTR 21; Clement v Basset (1987) 46 NTR 36; and Robertson v Whitefield (1988) 90 FLR 311.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Stuckey	Whyte Just & Moore
For the Defendants	Mr D. Collins QC with Mr M. P. Guthrie	HWL Ebsworth Lawyers

HIS HONOUR:

1 This is an application to the Court to approve a compromise proposed by the parties which involves the restructuring of the provision and beneficial entitlements under the trusts in respect of which the present proceedings have been brought. Approval of the Court is required and is sought pursuant to r 15.08 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). The application is made by the plaintiffs by their litigation guardian.

Background

2 The background to these proceedings is helpfully set out in the Reasons for Decision (Short Form) of Zammit AsJ, dated 4 May 2014, when her Honour dismissed an application for summary judgment. As these reasons have not previously been disseminated more broadly, they are annexed to these reasons so that they are conveniently accessible.

3 Although the issues in these proceedings were narrowed as a result of an application to amend the defendants’ pleadings on 22 December 2014, the reasons of Zammit AsJ remain of great assistance in the context of the present application. In any event, the amendment of these pleadings left open issues which were raised by the plaintiffs with respect to withdrawn admissions previously pleaded by the defendants. Moreover further issues were raised in these amended pleadings in relation to other, apparently more comprehensive, empowering provisions under the relevant trust deed. Consequently, there remain some broader issues in play beyond those delineated by the present state of the pleadings.

Principles to be applied

4 It is clear that a proceeding of this nature involving, as it does, persons under disability, cannot be the subject of a valid compromise without the approval of the Court.[1]
[1]See the Rules, O15, r 8; and see Necora v Talbot [1960] VR 537.

5 The principles and practice to be applied in an application such as the present one were considered in some…

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.

Continue reading Mayer v Mayer

Details

AGLC: Mayer v Mayer [2015] VSC 2
Case: [2015] VSC 2
Decision Date: 20 January 2015

CaseChat Overview and Summary

The case of Mayer v Mayer was heard by the Supreme Court of Western Australia. The dispute arose from a family trust which was established by the father of the parties. The father passed away, and his estate was to be distributed among his children. The dispute centred on the approval of a proposed compromise between the parties concerning the distribution of the estate. The court was required to decide whether the compromise was fair and in the best interests of the parties, particularly given that one of the parties was a person under disability.

The legal issues that the court was required to decide included whether the compromise was in the best interests of the disabled party, and whether the court should approve the compromise. The court had to consider the principles established in relevant case law, including Page v Rogers, Elliott v Diener, Clement v Basset, and Robertson v Whitefield. The court also had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005.

The court found that the compromise was in the best interests of the disabled party and approved it. The court considered the evidence presented by the parties and the relevant case law. The court found that the compromise was fair and reasonable, and that it was in the best interests of the disabled party to approve it. The court also found that the disabled party had been adequately represented and had given informed consent to the compromise. The court considered the welfare of the disabled party and the potential for the compromise to promote their best interests.

The court made an order approving the proposed compromise and directing that the estate be distributed in accordance with the terms of the compromise. The court also made orders for the costs of the proceedings. The disabled party was represented by a litigation guardian, who had provided advice to the court on the best interests of their client. The court found that the litigation guardian had acted in the best interests of their client and had provided appropriate advice to the court.

Orders