Michael Victor Henley; In the Estate of Hedy Jadwiga Weinstock and Leo Arie Weinstock

[2013] NSWSC 975

Supreme Court

New South Wales

Medium Neutral Citation:	Michael Victor Henley; In the Estate of Hedy Jadwiga Weinstock and Leo Arie Weinstock [2013] NSWSC 975
Hearing dates:	7 & 8 November 2012
Decision date:	22 July 2013
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Trustee advised that he is entitled to distribute the "A" and "B" class shares to the son of the testator, Amiram Weinstock. Directions made in relation to submissions on costs. Order for mediation under Civil Procedure Act 2005 s 26 proposed.
Catchwords:	TRUSTS - trusts and trustees - judicial advice under Trustee Act 1925 s 63 - rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 - trustee under a will holds part of the "A" and "B" class shares in a proprietary company for two beneficiaries (the son and daughter of the testator) as tenants in common - the son gives a Saunders v Vautier direction to the trustee for the distribution of his aliquot share of the capital - whether the son has an absolute, vested and indefeasible interest in the capital and income of the "A" and "B" class shares - whether any "special circumstances" displace the operation of the rule allowing the trustee not to comply with the direction.
Legislation Cited:	Civil Procedure Act 2005, s 26 Companies Act 1961, Fourth Schedule Conveyancing Act 1919, s 66G Corporations Act 2001, s 1322(4)(a) Trustee Act 1925, s 46, s 63(11)
Cases Cited:	Australian Olympic Committee Inc v Big Fights Inc (No 2) [2000] FCA 785 Australian Olympic Committee Inc v Big Fights Inc [1999] FCA 1042 Beck v Weinstock [2011] NSWSC 1195 Beck v Weinstock [2012] NSWCA 289 Booth v Ellard [1980] 1 WLR 1443, [1980] 3 All ER 569 Commissioner of Stamp Duties v Livingston (1965) 112 CLR 12 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 Crowe v Appleby [1975] 1 WLR 1539 Don King Productions Inc. v Warren [2000] Ch 291 Feeney v Feeney [2008] NSWSC 890 Goulding v James (1997) 2 All ER 239 Holding & Management Ltd v Property Holding & Investment Trust plc [1990] 1 All ER 938; [1989] 1 WLR 1313 Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348 In Re Horsnaill (1909) 1 Ch 631 In Re Marshall (1914) 1 Ch 192 In re Tweedie & Miles (1884) 27 Ch D 315 Lloyds Bank Limited v Duker [1987] 1 WLR 1324 Macedonian Orthodox Community Church Petka Inc v His Eminence Petar, The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Manfred v Maddrell (1950) 51 SR (NSW) 95 Miller's Trustees v Miller (1890) 18 R 301 Mortgage Fighting Fund Trust v Commissioner of Taxation (2000) 102 FCR 15, [2000] FCA 981 Official Receiver v Schultz (1990) 170 CLR 306 Quinton v Proctor [1998] 4 VR 469 Re Brockbank [1948] Ch 206 Re Kipping [1914] 1 Ch 62 Re Marshall [1914] 1 Ch 192 Re Sandeman's Will Trusts [1937] 1 All ER 368 Re Smith (1928) Ch 915 Re Weiner [1956] 1 WLR 579 Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 Shalton v King (1913) 229 US 90 Stephenson (Inspector of Taxes) v Barclays Bank Trust Co Ltd [1975] 1 WLR 882 Weatherall v Thornburgh (1878) 8 Ch D 261 Weinstock v Beck [2011] NSWCA 228 Weinstock v Beck [2013] HCA 14 Whakatane Paper Mills v Public Trustee (1939) 39 SR (NSW) 426 Wharton & Warwick v Masterman [1895] AC 186 Wright v Gibbons (1949) 78 CLR 313
Texts Cited:	A Butler (editor), Equity and Trust in New Zealand, 2nd edition, Thompson Reuters, Wellington 2009 Scott and Ascher, The Law of Trusts, 5th edition, volume 5
Category:	Principal judgment
Parties:	Plaintiff:- Michael Victor Henley Amiram Weinstock Tamar Rivqa Beck
Representation:	Counsel: Plaintiff: B. A. Coles QC; S. Robertson I. Jackman SC; J. Hmelnitsky for Ami Weinstock R.McHugh SC/G. Colyer for Tami Beck Solicitors: Plaintiff: Ronald Kenneth Heinrich, TressCox Lawyers Heather Sandell, Baker & McKenzie Andrew Joseph James Lacy, McCabe Terrill Lawyers Pty Ltd
File Number(s):	2012/75034
Publication restriction:	No

Judgment

1. Michael Victor Henley, the administrator cum testamento annexo of the estate of the late Hedy Jadwiga Weinstock ("Hedy") is ready to distribute the residuary estate under her will to the two residuary beneficiaries, Amiram David Weinstock ("Ami"), Hedy's son, and Tamar Rivqa Beck ("Tami"), Hedy's daughter. The distributable residuary estate consists of "A" and "B" class shares in a private company, Zipor Pty Limited ("Zipor"), held in Mr Henley's name. Progress with estate administration means that Ami and Tami are now entitled in equity to these share. Ami has directed under the rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 that Mr Henley distribute in specie Ami's aliquot share of these two classes of shares. Tami opposes such a distribution. Mr Henley now applies for the Court's opinion, advice and direction under Trustee Act 1925 s 63 as to whether he is required to make the in specie distribution.

1. Mr Henley notified both Ami and Tami under Trustee Act, s 63(11) of this application. They have both appeared and put submissions on the matters for the Court's opinion, advice and direction. So, they will be bound by the result: Trustee Act, s 63(11). Tami has two main contentions in opposition to any in specie distribution to Ami: (1) Ami does not have an absolute indefeasible interest in the Zipor shares in Hedy's estate entitling him to make a Saunders v Vautier direction for their distribution; and (2) even if Ami has given a valid Saunders v Vautier direction, that "special circumstances" displace the operation of the rule and excuse Mr Henley from complying with it.

1. These proceedings are one part of a wider canvas of disputes between Ami and Tami about Hedy's estate and the estate of their late father Leo Weinstock ("Leo"). As the parties are all from the one family, for convenience, and I hope without any disrespect to them, they will be referred to in these reasons by their first names, as they were in submissions. A week after this brother and sister argued the present issues on 7 and 8 November 2012, they contested two other related disputes before the High Court of Australia, which were recently decided: Weinstock v Beck [2013] HCA 14 and Beck v Weinstock [2013] HCA 15.

1. The parties all advanced oral contentions, supported by detailed written submissions. Mr B. Coles QC and Mr Robertson appeared for Mr Henley. Mr I. Jackman SC and Mr Hmelnitsky appeared for Ami. And Mr R. McHugh SC and Mr Colyer appeared for Tami.

Weinstock Family Proceedings

Probate of Leo's and Hedy's Wills

1. Mr Henley is the administrator of both Hedy and Leo's estates. He assumed this role in September 2010 as part of an attempt to settle the disputes that have existed between Ami and Tami since their parents' deaths.

1. Leo died on 29 July 2003. This Court granted probate of his will on 5 May 2004 to Ami.

1. Hedy died a year after her husband, Leo, on 16 July 2004. This Court granted probate of Hedy's will to Ami, Tami and Mr John Halliday, the family accountant, on 25 May 2007.

1. But brother and sister were soon in litigation. In 2007 Tami and Alem Pty Limited, the trustee of her family trust, commenced proceedings against Ami and Ami's wife Helen Weinstock in relation to the affairs of Leo's and Helen's estates ("the 2007 proceedings"). The plaintiffs made allegations in the 2007 proceedings about Ami's conduct as executor of Leo's estate and about his actions as a director of several private companies in which Leo, Hedy or Tami held interests.

1. Aspects of the 2007 proceedings were resolved by consent orders made on 16 September 2010. The consent orders provided for various payments to be made by or to Hedy's and Leo's estates and by associated family companies, and included an order that Leo's estate would be liable to pay Ami the sum of $4,010,350 plus interest within fourteen days of the occurrence of certain events. This amount is unpaid by Leo's estate. Under the September 2010 consent orders, Ami has a charge over the assets of Leo's estate to secure the repayment of this sum and he claims that, including interest, an amount of approximately $7,000,000 is now owing by Leo's estate on account of this obligation. Tami contends that the conditions precedent for this payment have not yet been satisfied. But it is not in contest that: this liability (whether contingent or not) will at some stage need to be satisfied; and some provisions must be made for it in the administration of Leo's estate.

1. In an attempt to reduce the scope for further conflict between Ami and Tami the September 2010 settlement replaced the existing executors of each of Leo's and Hedy's estates with Mr Henley. Although a sound idea in principle, the conflicts have continued.

1. Leo's Will. After appointing Ami as his executor, and giving several pecuniary legacies, Leo's will gave all his shares in two family owned companies to Ami and Tami - his shares in Canja Pty Limited to Ami, and his shares in Alem Pty Limited to Tami. Then Leo's will (paragraph 9) disposed of his residuary estate, giving two-thirds to Ami and one third to Tami, as follows:

9.I give the rest of my Estate to my Trustees to hold, subject to a life estate in favour of my wife, in accordance with paragraphs (a) and (b) of this clause:

(a) As to two thirds ("Amiram's share") for Amiram and his children and grandchildren subject to the following trusts:

(i) During the lifetime of Amiram my Trustees shall apply all or such part of the income of Amiram's share as my Trustees consider appropriate for the maintenance, education, advancement, benefit and reasonable pleasure of the beneficiaries of Amiram's share. If the income of Amiram's share is, in the option of my Trustees, insufficient for these purposes then my Trustees may utilise so much of the capital of Amiram's shares as they consider necessary. My Trustees are not obliged to make payments to all of the beneficiaries of Amiram's share or to ensure equality among those to whom payments are made.

(ii)After the death of Amiram, my Trustees shall divide Amiram's share in equal shares as tenants in common among such of Amiram's children as survive Amiram and attain the age of 21 years.

(b)As to one third ("Tamar's share") for Tamar and her children and grandchildren subject to the following trusts:

(i) during the lifetime of Tamar my Trustee shall apply all or such part of the income of Tamar's share as my Trustees consider appropriate for the maintenance, education, advancement, benefit and reasonable pleasure of the beneficiaries of Tamar's share. If the income of Tamar's share is, in the option of my Trustee, insufficient for these purposes then my Trustees may utilise so much of the capital of Tamar's share as they consider necessary. My Trustees are not obliged to make payments to all of the beneficiaries of Tamar's share or to ensure equality among those to whom payments are made.

(ii) After the death of Tamar, my Trustees shall divide Tamar's share in equal shares as tenants in common amongst such of Tamar's children as survive Tamar and attain the age of 21 years.

1. Hedy's will. After appointing Ami, Tami and Mr Halliday, as her executors, Hedy's will (clause 5) gave her estate "in equal shares" to each of Ami and Tami in the following terms:

5. I GIVE DEVISE AND BEQUEATH all my property both real and personal of whatsoever nature and wheresoever situate (hereinafter referred to as 'my Estate') to my Trustees UPON TRUST to sell call in collect and convert into money the same or such part or parts thereof as do not consist of ready money but with full power and discretion to postpone such sale calling in collection and conversion either indefinitely or during such period as my Trustees think fit without being responsible for any loss AND SUBJECT to payment of my just debts, funeral and testamentary expenses including any duties which may be payable in consequence of my death or in connection with my Estate TO STAND POSSESSED of my Estate UPON TRUST for such of my said children AMIRAM DAVID WEINSTOCK and TAMAR RIVQA BECK as shall survive me by more than thirty (30) days and if more than one as tenants in common in equal shares.

1. After providing for a substitutional gift if either Ami or Tami should not survive her (clause 6), a power of advancement (clause 7), and powers of investment (clause 8), Hedy's will made specific direction about the possible sale of any shares in private companies held by her estate (clause 9) as follows:

...

9. I DIRECT that if either or my said children shall be desirous of selling any shares in any proprietary company which shall form part of my Estate then the child wishing to sell such shares shall in the first instance offer the said shares for sale to the other child at the fair market value which value shall in the event of dispute be determined by the auditor for the time being of the company in which such shares or any part thereof such child shall be entitled to purchase such shares at the agreed or determined fair market value which shall be paid by five (5) equal annual instalments free of interest the first such instalment to be paid on the date of acquisition.

1. Hedy's will also provided a power of appropriation to her executors (clause 10) as follows:

10. I DECLARE that in making up the share or interest of any beneficiary in my Estate my Trustees may at any time appropriate any part of the real or personal property forming part of my Estate in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of the share or interest in my Estate and for that purpose my Trustees may in their absolute discretion determine the value of the property so appropriated and every appropriation made hereunder shall bind all persons interested in this my Will whether in the share to which the appropriation is made or otherwise.

1. Mr Henley has carried out other parts of the September 2010 consent orders, which required him to take all steps and execute all necessary documents to have:

(a) Ami appointed as trustee of the residuary estate of his share created by paragraph 9(a) of Leo's will; and

(b) Tami appointed as trustee of the residuary estate of her share crated by paragraph 9(b) of Leo's will within 14 days of the consent orders.

The Administration of Leo's estate and Hedy's estate

1. The most valuable assets in Hedy's and Leo's estates are shares in two private companies, Zipor and L.W. Furniture Consolidated (Aust) Pty Ltd ("LWFCA"). There are five directors of Zipor. Mr Henley appointed three of them after he became a shareholder of Zipor in September 2010. Mr Henley resolved on 7 December 2010 to appoint himself and two fellow partners of TressCox Lawyers, Mr Ronald Kenneth Henrich and Mr Michael Stephen-Bracken. The other directors of Zipor are Ami (first appointed on 5 January 1981) and his wife Helen Weinstock (appointed on 30 July 2003).

1. Zipor conducts a furniture business in Victoria. But its main asset is a 32% interest as tenant in common in four floors of a strata office block in Phillip Street, Sydney ("the Phillip Street property"). The remaining 68% of the Phillip St property is co-owned by two other entities associated with the Weinstock family: Canjs Pty Ltd as trustee of the Weinstock Family Trust (an entity Ami now controls) as to 63%; and Campsie Mall Pty Ltd (an entity owned almost entirely by LWFCA) as to 5%.

1. Mr Henley holds all the shares in Zipor for either Leo or Hedy's estates. Neither Ami nor Tami nor any other person has any other shares, of any class in Zipor. The current holdings of the various classes of shares in Zipor, and the rights attaching to those shares, are set out in the table below:

Shares on issue in Zipor Pty Ltd	"A"	"B"	"C"	Total
M Henley on behalf of Leo Weinstock Estate	2	1	-	3
M Henley on behalf of Hedy Weinstock Estate	2	1	3
Ami Weinstock	-	-	-	-
Tami Beck	-	-	-	-
L W Furniture (Consolidated) Pty Ltd	-	-	1,000	1,000
Total	4	2	1,000	1,006
Entitlements
Dividend entitlement	X		
Voting entitlement		X	X
Repayment of capital on winding up			
Surplus capital entitlement	X		X

1. Only two substantive issues remain to be determined before administration of Hedy's estate can be finalised: (a) any consequential issues arising from the May 2013 High Court decision that Hedy's estate was entitled to redeem 8 "C" class shares it held in LWFCA (explained further below - Beck v Weinstock [2013] HCA 15) and; (b) how Hedy's estate's interest in Zipor should be distributed as between Ami and Tami.

1. The administration of Leo's estate and the administration of Hedy's estate have reached different stages. There are sufficient cash funds presently available in Hedy's estate to pay ordinary remuneration and estate expenses. Mr Henley has determined that the Zipor shares in Hedy's estate are not required for administration purposes and are available for distribution in specie to Ami and Tami, as the residuary beneficiaries. Mr Henley has declared that he holds that interest as trustee rather than as administrator of her estate. It is not in contest in these proceedings that Ami and Tami's rights as beneficial owners of the Zipor shares in Hedy's estate are to be determined in accordance with the law and equity applicable to trusts.

1. The administration of Leo's estate is not yet at a point at which a distribution can be made. In particular Leo's estate either has (or depending on the argument about the conditions precedent to payment - will have) a liability to pay $4,010,350 (plus interest) to Ami under the September 2010 consent orders. Moreover, Leo's estate is expected to incur other liabilities, which will exceed the liquid funds presently available within that estate. Mr Henley anticipates he may require Leo's estate's interests in Zipor to satisfy some or all of those liabilities. So Mr Henley continues to hold Leo's estate's interest in Zipor as administrator and not as trustee, and probably will do for some time. The beneficiaries of Leo's estate have no specific legal or equitable interest in respect of those shares other than their right to have Leo's estate properly administered: Official Receiver v Schultz (1990) 170 CLR 306 and Commissioner of Stamp Duties v Livingston (1965) 112 CLR 12.

The structure of these proceedings

1. The summons in these proceedings originally sought advice upon three matters concerning: the funding for the further administration of Leo's estate; the distribution of the Zipor shares in Hedy's estate (the subject of this judgment); and the realisation of Leo's estate's interest in Zipor. On 26 July 2012 Nicholas J gave judicial advice about the funding for the administration of Leo's estate.

1. The Court's advice in relation to Hedy's estate may affect the approach that Mr Henley takes to the administration of Leo's estate. For example, if the Court's advice were that the Zipor shares held by Hedy's estate should not be distributed in specie, Mr Henley may need to take further steps to investigate whether there is an available buyer for those Zipor shares and the other Zipor shares in Leo's estate, and if so, whether a share sale of 100% of Zipor's share capital is preferable to a winding up of Zipor. But for now the parties have asked the Court to determine the first of the issues that arise within Hedy's estate - in specie distribution - and then to afford them an opportunity to consider the Court's reasons before either contesting or resolving any issues that remain in the administration of Hedy's estate and Leo's estate.

1. In exercise of their Trustee Act 1925 s 63(11) rights, Ami and Tami are "able to participate in the proceedings to some extent": Macedonian Orthodox Community Church Petka Inc v His Eminence Petar, The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [65]. Their participation took two forms. Counsel for Ami and Tami put submissions. And Mr McHugh for Tami read without objection two affidavits of expert valuers, Mr Claude Jugmans and Mr Andrew Lacey. Mr Jackman SC contested the relevance of this material in his submissions.

1. Both Ami and Tami have corresponded with Mr Henley about the course he should take as administrator of Hedy's and Leo's estates in dealing with the Zipor shares. Mr Henley considers he now has three practical options: (a) he could make an in specie distribution of the Zipor shares owned by Hedy's estate to the beneficiaries in accordance with clause 5 of her will; (b) he could sell all the Zipor shares owned by both Hedy's and Leo's estates to either Ami or Tami; or (c) if neither Ami nor Tami were willing to buy all the shares owned by both Hedy's and Leo's estates, and if no other buyer can be found, then he could take steps to sell all the assets of Zipor, distribute the proceeds of sale to the shareholders, and then wind up the company.

1. Those three options are reflected in the judicial advice Mr Henley now seeks, set out in prayer 3 of the Amended Summons:

3. In respect of the estate of Hedy Jadwiga Weinstock, the opinion, advice or direction of the Court that the plaintiff would be justified, or alternatively required, to take the following courses of action:

(a) make an in specie distribution of two (2) "A" class shares and one (1) "B" class shares in Zipor Pty Limited owned by the estate of Hedy Jadwiga Weinstock, deceased, to Amiram David Weinstock and Tamar Rivqa Beck as the beneficiaries of the estate;

(b) alternatively, sell all the shares in Zipor Pty Limited owned by the estate of Hedy Jadwiga Weinstock;

(c) alternatively, as the holder of two (2) "A" class shares in Zipor Pty Limited as Administrator of the estate of Hedy Jadwiga Weinstock, to vote in favour of a resolution for the winding up of Zipor Pty Limited.

1. There is no technical obstacle to the requested in specie distribution. Mr Henley holds only one Zipor "B" class share on behalf of each estate, as the table shows. Were an in specie distribution of Zipor's shares in Hedy's estate, to be pursued, then a share split of the Zipor "B" class shares must occur, so that one share could be distributed to each of Ami and Tami.

1. Mr Henley does not foresee difficulty in achieving such a split. Zipor's constitution in Clause 3.9 (in similar terms to Item 40 of Table A in the Fourth Schedule to the Companies Act 1961) permits this and provides as follows:

3.9 The Company may be ordinary resolution:

(a) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;

(b) subdivide its shares or any of them into shares of smaller amount but so that, in the subdividion, the proportion between the amount paid and the amount (if any) unpaid on each reduced share is the same as it was in the case of the share from which the reduced share is derived; and

(c) cancel shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by an person or which have been forfeited and reduce the amount of its share capital by the amount of the shares so cancelled.

1. Tami's written submissions put forward the inconvenience of spitting the "B" class shares as a circumstance absolving the trustee from acting on Ami's Saunders v Vautier direction. This is dealt with below.

The Parties' positions on Mr Henley's three options for the Zipor shares

1. In brief then, Henley's three options for the Zipor shares held in the two estates are: (a) in specie distribution from Hedy's estate, (b) sale by both estates, or (c) a sale of Zipor's assets and winding up. But the parties have asked for the Court to give judicial advice about Option (a) because the judicial advice on that option will signpost the course to be taken on the other options. But the parties take opposite positions on all three options.

1. (a) In specie distribution from Hedy's estate. Ami supports in specie distribution of the Zipor shares owned by Hedy's estate with several arguments: (1) the general principle is that shares in a private company held by an estate should be distributed in specie absent special circumstances; (2) no evidence supports the conclusion that Hedy's and Leo's estates each holding 2 "A" class and 1 "B" class Zipor shares are worth more than the sum of the aliquot parts that would be distributed to each of Ami and Tami in accordance with the terms of Hedy's and Leo's wills; (3) a distribution in specie cannot (and will not of itself) in this case confer majority control on any beneficiary and so the case is fundamentally different from cases such as Lloyds Bank Limited v Duker [1987] 1 WLR 1324 where distribution in specie was refused; and (4) if an in specie distribution takes place and Ami gains majority control and Tami has a minority interest, there is no evidence that Ami will act adversely to Tami's interests.

1. Tami takes the opposite position on in specie distribution. She argues that in specie distribution: (1) would not amount to the proper administration of Hedy's or Leo's estates, because it would unfairly and improperly deal with the interests of the beneficiaries and would clearly prejudice Tami, because she would receive a minority interest in Zipor and Ami would receive a majority interest - a prejudice analogous to that leading to the refusal of in specie distribution in Lloyds Bank Limited v Duker [1987] 1 WLR 1324; and (2) an in specie distribution would not fully realise the value of the interest of Hedy's estate in Zipor, and would amount to a devastavit in the context of both Hedy's and Leo's estates

1. (b) Sale by both estates. Tami has indicated she does not wish to make an offer to buy any of the Zipor shares from Hedy's or Leo's estates. Nor has Ami offered to buy any of the Zipor shares from Hedy's or Leo's estates. Tami is prepared to support sale of all the shares in Zipor by both estates. Without support from Tami or Ami this option seems impracticable, unless a third party buyer of all Zipor's issued capital can be found. Mr Henley has explored that option but no such buyer has yet been found. Implementation of this option has the added complication of Mr Henley having to make decisions about the Zipor shares in both estates.

1. (c) Asset sale and winding up. Tami contends that Mr Henley will realise the maximum for both Hedy's and Leo's estates and will avoid the problems of in specie distribution, if he sells all the assets of Zipor and winds up the company. Moreover, Tami contends that as the majority shareholder in Zipor, Mr Henley should sell the company's 32% interest as tenant in common in the Phillip Street property and all the other assets of the company and distribute the proceeds of sale to Hedy's and Leo's estates using the "B" class shares (which are entitled to surplus capital on winding up), after the repayment of capital to "A" and "C" shareholders, and then to wind up Zipor.

1. Ami objects to an asset sale and winding up of Zipor. Ami has foreshadowed that, controlling as he does one of the co-tenants-in-common with Zipor in the Phillip St property, Canjs Pty Limited, he would object to any proposed sale of the property to give effect to this scheme for realisation of the assets of Zipor. Thus, the only way that that scheme could proceed is by a Conveyancing Act 1919 s 66G application for the appointment of trustees for sale over the Phillip Street property. Capital gains tax would be payable on the sale proceeds.

1. Moreover, Ami contends that sale of Zipor's assets followed by a winding up would be inconsistent with the terms of Leo and Hedy's wills. He says that: (1) Leo and Hedy wished to bequeath shares in private companies to Tami and Ami, not a monetised interest; (2) Leo clearly wished to confer two-thirds of his estate on Ami and one-third on Tami, which leads to the inevitable result that Tami would be a minority shareholder in both Zipor and LWFCA, and Leo's wishes should not be defeated by Tami's fear of that for which Leo's will actually provides; (3) the sale of the Zipor shares will have adverse capital gains tax consequences for Hedy's estate, which will not be in the best interests of the estate; and (4) as she will be a minority Zipor shareholder after distribution in specie, company law will in any event protect Tami from Ami misusing his majority ownership oppressively; a misuse which is not presently threatened.

Ami v Tami - again in three other proceedings

1. Tami and Ami are in contest in three other proceedings. In a 2010 action ("the 2010 proceedings") Tami argued that Ami was not a director of LWFCA at the time he appointed his wife Helen as an additional director and that her appointment could not be validated under Corporations Act 2001 s 1322(4)(a). This argument was unsuccessful in the High Court, as a result of which the proceedings have been remitted to the Equity Division of this Court to determine whether an order should be made under Corporations Act s 1322(4)(a), in addition to deciding whether LWFCA should be wound up: Weinstock v Beck (2013) HCA 14, at [57].

1. The September 2010 consent orders did not resolve one aspect of the 2007 proceedings concerning LWFCA's claimed redemption - at their nominal value of $1 each - of 8 "C" class redeemable preference shares that Hedy's estate held in LWFCA. The Court of Appeal found that the "C" class shares in LWFCA were redeemable preference shares capable of valid redemption by the company: Weinstock v Beck [2011] NSWCA 228. An appeal from this decision was dismissed by the High Court on 1 May 2013: Beck v Weinstock [2013] HCA 15.

1. And the September 2010 consent orders have generated yet more litigation. Tami instituted proceedings ("the 2011 proceedings") - and issued a parallel Notice of Motion in the 2007 proceedings - seeking declarations concerning the proper construction of those consent orders. Aspects of the 2011 proceedings have been struck out as res judicata: Beck v Weinstock [2011] NSWSC 1195. Although an appeal from that decision has been allowed: Beck v Weinstock [2012] NSWCA 289.

Judicial Advice on distributing Zipor shares from Hedy's estate

1. The matters for judicial advice concern Mr Henley's option (a), the in specie distribution of the Zipor shares. After consideration of the modern rule in Saunders v Vautier the Court must determine: (1) whether Ami has an absolute and indefeasible interest in the Zipor shares in Hedy's estate, entitling him to give a Saunders v Vautier direction, (2) and if so, whether the circumstances of this case are sufficiently "special" to displace the operation of the rule, and allow Mr Henley to decline to act on the direction.

The Modern Rule in Saunders v Vautier

1. Ami grounds his requirement for the transfer of half of the Zipor shares in Hedy's estate on the rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482. These reasons use the conventional language of a "rule" in Saunders v Vautier. But the High Court has pointed out that Saunders v Vautier has given its name to a "rule" not explicitly formulated in the case itself, either by Lord Langdale MR (at first instance) or by Lord Cottenham LC (on appeal): CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 at [43] ("CPT Custodian").

1. The Rule. The High Court has recently approved the modern formulation of the rule in Saunders v Vautier. In CPT Custodian at [47], citing Thomas on Powers (1998), at 176, the High Court approved the following modern formulation:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

1. The rule only applies if the beneficiaries are entitled to wind up the trust and require the trustee to assign to them the subject matter of the trust: Don King Productions Inc. v Warren [2000] Ch 291 at [321] per Lightman J. But when a trustee responds to a Saunders v Vautier direction the trustee is not, as the High Court (CPT Custodian at [44]) explained, performing a "duty" of a trustee:

However that may be, there is force for Anglo-Australian law in the statement that the rule in Saunders v Vautier gives the beneficiaries a Hohfeldian "power" which correlates to a "liability" on the part of the trustees, rather than a "right" correlative to a "duty". This is because, in the words of Professor J W Harris: Trust, Power and Duty", (1971) 87 Law Quarterly Review 31 at 63:

"[b]y breaking up the trust, the beneficiaries do not compel the trustees to carry out any part of their office as active trustees; on the contrary, they bring that office to an end".

1. A beneficiary entitled only to an aliquot share of trust property may also take advantage of the rule. Such a beneficiary may call for the aliquot share and have it transferred, even if that is inconsistent with the intentions of the settlor: In Re Marshall (1914) 1 Ch 192, at 200, Re Sandeman's Wills Trusts [1937] 1 All ER 368, at 372, Manfred v Maddrell (1950) 51 SR (NSW) 95, at 97. This Court stated a beneficiary's basic right to seek an aliquot share under the rule, in Whakatane Paper Mills v Public Trustee (1939) 39 SR (NSW) 426 at 440 ("Whakatane"), per Long Innes J:

The rule ... as I understand it, that whenever a cestui que trust is absolutely and indefeasibly entitled to a trust fund of personalty, or to an aliquot share of such trust fund, such cestui que trust is entitled to terminate the trust so far as it concerns either the whole trust fund, or such an aliquot portion thereof as the case may be, and to call for an immediate payment to himself of such fund or aliquot portion, or the transfer of the investments representing the same.

1. Two limitations on the rule. But there are two limitations on the rule's operation: one relating to real property, and the other relating to what the cases commonly call "special circumstances".

1. Authority is clear that the rule in Saunders v Vautier does not apply to real property: In re Horsnaill (1909) 1 Ch 631, In Re Marshall (1914) 1 Ch 192 at 199. The rationale for this is the effect of the division on the value of the whole asset. Cozens-Hardy MR observed in In Re Marshall (1914) 1 Ch 192, at 199 that "it is a matter of notoriety, of which the Court will take judicial notice, that an undivided share of real estate never fetches quite its proper proportion of the proceeds of sale of the entire estate", which Sugerman J explained in Manfred v Maddrell (1950) 51 SR (NSW) 95 ("Mamfred v Maddrell")(at 97), will thereby have the effect of causing prejudice to the other beneficiaries.

1. Most other forms of personal property are distinguished from real estate in the application of the rule. In Manfred v Maddrell (at 97) Sugerman J identified these "other forms of personal property, which ... may be broadly described as fungibles or things which possess all the relevant characteristics of fungibles", as not presenting the same difficulties of division as real estate,; and his Honour gave as examples "shares in companies or government securities".

1. For these "other forms of personal property" the operation of the rule is subject to another rather less certain limit. Sugerman J said of such other forms of personal property: "even as to these, there may be special circumstances, in particular cases such that division would be inconvenient or detrimental to the other beneficiaries. The Courts have not thought it necessary to define those circumstances..." [emphasis added], and his Honour thought "there is no need to do so here, since no special circumstances of this kind are suggested" in that case.

1. Judges occasionally substitute other language for "special circumstances". In Re Sandeman's Will Trusts; Sanderson v Hayne [1937] 1 All ER ("Re Sandeman's Will Trusts") Clauson J describes the rule as one prima facie authorizing a transfer to the calling beneficiary, but that "the court will not order that transfer to be made if there is some good ground to the contrary."

1. The indefinite scope of the necessary "special circumstances" (or "good ground to the contrary") has attracted judicial comment more than once. In Re Sandemans Will Trust (at 372) Clauson J commented "the Court has I think been rather careful never to define in precise terms exactly what would be good ground to the contrary". It is difficult to disagree with Clauson J's comment about a rule of such carefully worded imprecision: a comment which, in Lloyds Bank v Duker [1987] 1 WLR 1324, at 1330, Judge Mowbray QC aptly characterised as "ruefully" made.

1. Policy behind the rule. It has been said that the principle on which the rule is based is that any restriction on the enjoyment by a beneficiary who is sui juris of a vested interest is inconsistent with the nature of that interest and must be disregarded: JD Heydon and MJ Leeming, Jacobs Law of Trusts in Australia 7th edition, LexisNexus Butterworths Australia 2006 [2314], citing Weatherall v Thornburgh (1878) 8 Ch D 261 at 270.

1. As the High Court pointed out in CPT Custodian, at [43], in Anglo-Australian law the rule has been seen to embody the "consent principle" that Mummery LJ identified in Goulding v James [1997] 2 All ER 239 at [247] in the following terms:

The principle recognises the rights of beneficiaries, who are sui juris and together absolutely entitled to the trust property, to exercise their proprietary rights to overbear and defeat the intention of the testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument.

1. Other policy formulations explaining the rule have been advanced. In Wharton & Warwick v Masterman [1895] AC 186 at 198-199, Lord Davey said of the reasoning behind the rule:

The reason for the rule has been variously stated. It may be observed, however, that the Court of Chancery always leant against the postponement of vesting or possession, or the imposition of restrictions on the enjoyment of an absolute vested interest.

1. International comparisons. The Supreme Court of the United States does not apply the rule in Saunders v Vautier: cf Shalton v King (1913) 229 US 90, and see CPT Custodian at [44]. But Scott and Ascher, The Law of Trusts, 5th edition, volume 5, 34.1.3 ("Scott and Ascher") explain that the differences between US Court's non-recognition of the rule applied in English (and Australian) Courts, is really a policy choice:

The American cases espouse the view that the owner of property can do with it as he or she pleases, as long as the resulting disposition does not run afoul of any rule of law or principle of public policy. The American cases also state that is the duty of the court to carry out the settlor's directions. Of course, the English courts can also claim refuge in maxims. The sole beneficiary of the trust is in substance the owner of the trust property and ought to be allowed to deal with it as he or she pleases. The truth of the matter is that the question is not one of logic, but one of policy. How far should a settlor be permitted to control not only the disposition but also the enjoyment of property? When the owner of property conveys legal title to another, who does becomes its sole owner of the property, a provision that the donee may have the income but may not use the principal until he or she reaches a certain age is nugatory. When the disposition is in trust, it is easier to uphold such a provision since the beneficiary who wishes to compel the trustee to hand over the trust property has to appeal to the courts. The American courts have generally sought to carry out the settlor's directions except when contrary to public policy, and it is difficult to say that postponing a sole beneficiary's enjoyment of the trust principal is contrary to public policy.

1. Though not applied in the United States of America, the rule is widely accepted in common law countries, where it is sometimes known by a different local name. The rule is applied in Canada: Scott and Ascher at 34.1.3. And it is recognised in New Zealand: Equity and Trust in New Zealand, 2nd edition, Thompson Reuters, Wellington 2009, 5,4.7. In Scotland the rule called "the rule in Miller's Trustees": cf Miller's Trustees v Miller (1890) 18 R 301.

1. After this general consideration of the rule, it is necessary to consider Ami's entitlement to give a Saunders v Vautier direction; and then, to consider whether there are special circumstances here allowing Mr Henley to ignore Ami's direction.

(1) Does Ami have an absolute indefeasible interest in Hedy's estate?

1. Mr McHugh SC raises on behalf of Tami two, what he describes as, "threshold issues" that challenge Ami's right to give a Saunders v Vautier direction in this case: one based on the nature of the present gift; and the other based on the nature of the interest of a tenant in common in equity.

1. First Threshold Issue - Clause 5. The first threshold issue arises from the proper construction of clause 5 of Hedy's will. Tami argues that the clause 5 gift to Ami and Tami is one to "sell, call in and convert into money everything that is not money". Tami argues that the "primary trust is thus to turn the Zipor shares held by Hedy into cash", something which could be achieved either by sale of the shares or by the winding up of Zipor. The trustees have a power and discretion to postpone sale. But subject to the payment of debts, the trustees will, as clause 5 says, "STAND POSSESSED of my Estate" in whatever form the capital or income is, from time to time, in the course of carrying out the trustees' primary mandate of turning the Zipor shares into cash.

1. Tami's argument continues that: the ultimate gift of capital to Tami and Ami is in the form of the proceeds when the property (here the Zipor shares) is sold or otherwise reduced to money. And Tami argues that in Re Kipping [1914] 1 Ch 62 at 67, a clause similar to clause 5 prevented the giving of an effective Saunders v Vautier direction. Tami concludes this argument as follows:

7. ....There is no original gift under which either Tami or Ami has an entitlement to control the timing at which the trustees turn the Zipor shares into money, let alone directly call for those shares themselves.

8. That is, even acting together, Ami and Tami could not compel the trustees in the timing of the realisation of the Zipor shares, and a fortiori neither has a right acting separately to compel the timing of the trustee's decision.

1. On this basis Tami argues that Ami is not entitled to give Saunders v Vautier direction to Mr Henley for the transfer of the Zipor shares in Hedy's estate to him.

1. Both the trustee, Mr Henley, and Ami put submissions in answer to Tami's first threshold argument from the nature of the clause 5 gift. I accept their arguments, which I find persuasive for the following reasons.

1. First, the trustee's discretion in clause 5 is more limited than Tami's argument assumes. The later part of clause 5 makes clear that on Hedy's death the trustee stands possessed of Hedy's estate on trust for Ami and Tami as tenants in common in equal shares. This leaves no discretion to the trustee to determine the share that each of Tami and Ami will take.

1. Tami's submissions, in contrast fix upon the introductory words of clause 5: to "sell, call in, collect and convert into money the same or such part or parts thereof as do not constitute ready money". Rather clause 5 must be construed as a whole and in context as the trustee submits, and when so construed it settles a trust in favour of Tami and Ami and provides the trustees with discretion as to how each beneficiary's interest should be satisfied.

1. Clause 10 assists this construction. It provides a power of appropriation to the trustee to give effect to that discretion the trustee:

in making up the share or interest of any beneficiary in my estate may appropriate any part of the real or personal property forming part of my Estate in the actual condition or state of investment thereof a the time of appropriation

in or towards satisfaction of "the share or interest", of such beneficiary. Thus on its proper contextual construction, the discretion conferred by clause 5 to "sell, call in and convert into money" is limited to deciding the timing and the form of each of Ami's and Tami's "share or interest" but does not negate Ami's absolute and indefeasible interest in the Zipor shares in Hedy's estate.

1. Secondly, authority supports the same conclusion. When trustees have no discretion as to the amount of the fund to be applied but a discretion as to the method in which the whole of the fund may be applied for a beneficiary, the case law indicates that does not prevent the beneficiary saying to the trustee "hand over the fund to me": Re Smith (1928) Ch 915, Romer J at 918. In Feeney v Feeney [2008] NSWSC 890, a case in which all the beneficiaries who were sui juris and absolutely entitled joined together to terminate a trust, White J came to the same conclusion. Citing In re Horsnaill [1909] 1 Ch 631 at 653 and In re Tweedie & Miles (1884) 27 Ch D 315 at 317, his Honour held that the rule in Saunders v Vautier is not displaced by the trust for sale in which the beneficiaries are entitled to the proceeds of sale: they may terminate the trust and call for the transfer of the trust property notwithstanding the trust provides for sale of the property.

1. Moreover, clause 5 of Hedy's will is relevantly similar to the clause considered in Re Marshall [1914] 1 Ch 192, which bequeathed shares in a company on "trust that my trustees shall sell call in and convert into money" with an express power of postponement in a form similar to that un Hedy's will. There the appellant beneficiaries were nevertheless held entitled to the transfer of the shares in specie. As Cozens-Hardy MR explained (at 200.5), the trustees' power of postponement is irrelevant to the beneficiary's right to terminate the trust in respect of particular shares:

The trustees do not base it upon any special circumstances in relation to themselves and the company, but they simply say, "The testator has given us discretionary power - our integrity is not in the least impugned - and we will not transfer to the beneficiary." In my opinion such a contention ought not to prevail as between the rights of an absolute owner to elect to take and to demand from the trustees his fraction of the shares, on the one hand, and the right of the trustees on the other hand. It seems to me that the former ought to prevail.

Other statements in the cases are to similar effect: cf Re Sandeman's Wills Trusts at 372 D-E.

1. Thirdly, Tami's submission is inconsistent with the policy behind the rule in Saunders v Vautier. In Anglo-Australian law, the policy of the rule, as expressed in Goulding v James (1997) 2 All ER 239, at 247 by Mummery LJ, is that beneficiaries can "overbear and defeat the intention of a testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument". In contrast, Tami's argument invites the Court to have the testator's intention defeat the proprietary rights of the beneficiaries.

1. Fourthly, there is some validity in Tami's submission based on Re Kipping [1914] 1 Ch 62 that Ami and Tami, even acting together, as Tami submits "could not compel the trustees in the timing of the realization of the Zipor shares". The timing of any share sale is a matter for Mr Henley, so long as he is a trustee of Hedy's estate. But that us as far as the argument goes. As CPT Custodian makes clear, Ami's and Tami's Saunders v Vautier right is one to terminate the trust, so far as his share is concerned; and, not one to direct the trustee in performance of his duty. Whilst the trust continues though, Mr Henley may exercise his powers with the advice of the Court but without direction from the beneficiaries: Re Brockbank [1948] Ch 206, Holding & Management Ltd v Property Holding & Investment Trust plc [1990] 1 All ER 938; [1989] 1 WLR 1313 at 1324H, and Quinton v Proctor (1998) 4 VR 469, at 471.

1. Second threshold issue - tenants in common in equity. Tami argues in her second threshold issue that because the trust that clause 5 creates is one for Ami and Tami "as tenants in common in equal shares", the trustee cannot respond to a Saunders v Vautier requirement from only one of the tenants in common over the objection of the other. In short, Tami's second threshold issue is that the rule in Saunders v Vautier does not apply to joint tenants or tenants in common, because such a co-tenant has rights over the whole property and therefore does not hold an aliquot share of the property.

1. Mr Henley accepts that, subject to deciding whether special circumstances exist (the next issue), he is obliged to respond to Ami's call to make an in specie distribution of half of the estate's Zipor shares. But Tami challenges Mr Henley's acceptance of this position. Mr McHugh SC contended on her behalf: that there is an ambiguity in the usage of the expression "aliquot share" in the cases; and, that neither tenants-in-common nor joint tenants, who have rights over the whole property, can, acting alone, call for part of the property under the rule in Saunders v Vautier. Tami says (submissions paragraphs [20]-[21]):

The critical ambiguity is whether the expression 'aliquot share' is limited...to the case where the share has already been stamped with a divisible, separated and fractional character from each other share in the property, or whether it extends (as plaintiff implicitly must contend) to the case where 2 or more persons are beneficially entitled to the whole of the property whether as joint tenants or tenants in common. [emphasis added]

Where there are join tenants, or tenants in common, each has rights over the whole property and conversely neither has a right acting alone to determine the fate of the whole or any part of the property.

1. Rather, Tami submits that where a single joint tenant or tenant in common has a dispute with a co-tenant as to what is to be done with the property in question, then analogously with the operation of Conveyancing Act 1919 s 66G, the Court can exercise its discretion among the co-tenants, and if necessary appoint trustees to the property and divide its proceeds, or partition the property, or allow the ownership in common to continue despite the dispute.

1. Both Mr Coles QC for Mr Henley and Mr Jackman SC for Ami contest Tami's argument on the second threshold issue. I accept their answer to Tami's argument, because it is both: inconsistent with accepted analysis of the general rights of co-tenants (see for example Wright v Gibbons (1998) 78 CLR 313); and, inconsistent with the authorities applying the rule in Saunders v Vautier (such as Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348), which authorities do not limit the rule in Saunders v Vautier to shares "stamped with a divisible, separated and fractional character from each other share in the property".

1. Tami's argument on the second threshold issue is inconsistent with accepted analysis of the general rights of joint tenants and tenants in common inter se. Dixon J explained these rights in Wright v Gibbons (1949) 78 CLR 313 at 330.8 - 331.4 as follows:

For purposes of alienation each is conceived as entitled to dispose of an aliquot share. The alienation may be partial. One joint tenant for an estate in fee simple may grant a lease of his equal share and during the lease the jointure is suspended and there is a temporary severance and apparently it would not matter that the lease did not commence until after the death of the joint tenant granting it. A joint tenant may grant an estate for life in his share, though in that case it seems that it works a severance of the entire fee simple. If one joint tenant suffered a forfeiture it was not the whole estate but only his aliquot share that was forfeited. If one joint tenant proved to be an alien the Crown, on office found, took only his share. Execution on a judgment for debt against one joint tenant bound his aliquot share and continued to do so in the hands of the survivor if the execution debtor afterwards died. See Comyns, Digest, Vol 4, SV Estates, K6 & 7. Each joint tenant could declare uses and they could declare different uses of their respective shares: Sanders Uses, Ch II, s 7, p 218 (1589) 2 Co Rep 58a (76 ER 549). In two places Richard Preston summed up the result: Joint tenants are said to be seised per my et per tout. They are in under the same feudal contract or investiture. Hence livery of seisin from one to another is not sufficient. For all purposes of alienation, each is seised of, and has a power of alienation over that share only which is his aliquot part: Essay on Abstracts of Title, (1824), Vol 2, p 62. The real distinction is, joint tenants have the whole for the purpose of tenure and survivorship, while, for the purpose of immediate alienation, each has only a particular part; On Estates, 2nd ed (1820), Vol 1, p 136. An alienation by one joint tenant to a stranger might be made by the appropriate means of assurance and in respect of the aliquot share of the alienor the stranger would come in with the remaining co-tenant or co-tenants as a tenant in common.

1. If as Dixon J says "for purposes of alienation each [joint tenant] is conceived as entitled to dispose of an aliquot share", it is difficult to see in principle why a transfer resulting from a Saunders v Vautier direction is not an equally permissible entitlement to the disposal of an aliquot share. I accept, as Mr Coles QC and Mr Jackson SC argue, that at the level of principle there could be no objection to the rule in Saunders v Vautier applying to joint tenants and tenants in common, merely on the ground that it would be inconsistent with the nature of the estate they hold as co-tenants.

1. The second threshold issue Tami raises is also inconsistent with Australian and English authority, where it applies the rule in Saunders v Vautier to one of several co-tenants.

1. Several English and New South Wales cases in the first half of the 20th century show this inconsistency. In Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348 ("Hyman"), at 350 this Court held that a beneficiary was entitled to have his one-fifth share in a trust fund allotted to him in specie even though that portion had not been separated from each other share in that property and was of uncertain value at the time of the hearing. The Court then referred the matter to the Master: "to allot the [plaintiff beneficiary] one-fifth part in value of the divisible asset". There was no obstacle in Hyman to the call for transfer in specie and to the division on account of the co-tenancy.

1. This Court held in Whakatane (at 438.8-439.2) that without the consent of the other beneficiaries the plaintiff in that case was entitled to a "one 4,712th part of the liquid investments and cash [of a fund], and the same proportion of the moneys [invested] on mortgage" for each bond that is held, and even though the Court was justified in assuming that it would "be impossible to trace any particular fund [invested] into any particular investment". I accept Mr Henley's argument that it is difficult to see any distinction between Whakatane, where the bond holder was entitled to the transfer of a 4,712th of the fund (but not entitled to any particular asset) and this case (where Ami claims entitlement to half of the relevant fund but not to a particular asset).

1. Re Sandeman's Will Trusts is another example of the application of the rule in Saunders v Vautier to require a transfer of one of two moieties (or undivided half shares) of the estate, in circumstances inconsistent with Tami's argument. In Re Sandeman's Will Trust the testator's grandsons had become absolutely entitled to one moiety. They sought a transfer of that moiety to themselves. But the testator's daughter was entitled to the income (but not the capital) of the other moiety objected. The estate consisted of general investments including shares in a private company. In these circumstances Clauson J ordered the trustees "to pay and transfer" to the plaintiff's grandsons "their moiety of the testator's residuary personal estate including their moiety of the 3,167 preferred ordinary and 702 ordinary shares in D Sandeman & Son and J Calrow & Son Ltd". The private company shares so transferred in satisfaction of the grandsons' moiety were not of the character Tami submits is necessary before a Saunders v Vautier transfer; their moiety of the shares was not "stamped with a divisible separated and fractional character."

1. Nor does Sugerman J's decision in Manfred v Maddrell assist Tami's argument. In Manfred v Maddrell Sugerman J dealt with a trust of the residuary estate for three daughters of the testator. The court held that the daughters were entitled to the transfer of 2/3rds of the estate but where they would have become entitled to the whole of the capital of the estate on the death or remarriage of the testator's widow (neither of which events had occurred). But in the meantime the daughters were entitled to 2/3rds of the income of the estate with the remaining 1/3rd of the income being reserved for the testator's widow. The daughters sought that 2/3rds of certain cash and Commonwealth War Bonds held by the estate be transferred to them. Sugerman J held that subject to making certain financial provisions, the daughters were able to have transferred to them the Commonwealth War Bonds, but apportioning the bonds according to their different issues (and interest rates) and redemption dates. The remaining 1/3rd of the Commonwealth War Bonds remained in the estate to provide income for the widow during her life. Sugerman J applied Whakatane, making it clear as he did that his task was to decide whether "for present purposes a beneficiary has an absolute interest in a proportion of the whole fund". His Honour said:

Here the residue in its present state of investment includes £30,000 in Commonwealth War Bonds, and if these are of the same issue, redeemable on the same day and bearing the same rate of interest, there does not appear to be any practical difference between a third of the income of the £30,000 and the whole of the income of £10,000. Nor is it possible to distinguish between the War Bonds and the investments in question in The Whakatane Paper Mills Ltd. v. Public Trustee. (2) There the company was entitled to the whole of the income and a share of the capital, whereas here the daughters are entitled to a share of the income and the whole of the capital, but, in determining whether for present purposes a beneficiary has an absolute interest in a proportion of the whole fund, that would not appear to be a material difference. And there would appear to be no greater risk here of detriment to the widow who is entitled to the remaining one-third of the income than there was in that case to the bond-holders who had an interest in the remaining part of the capital.

1. Sugerman J's decision in Manfred v Maddrell was to authorize a transfer of a tenant-in-common's aliquot share of a whole fund: something inconsistent with Mr McHugh SC's argument. Sugerman J stated the beneficiary's right to an aliquot share of a trust fund without identifying the threshold requirement to which Mr McHugh has pointed out:

But the cases which have been cited show that the question of making a distribution out of a fund or portion of a fund, so that a beneficiary entitled to what is in form or in substance an immediate, absolute and indefeasible interest may have the present enjoyment of his share, is governed by practical considerations and, in particular, by considerations of convenience of division and of the risk of prejudice to other beneficiaries.

Thus, where real estate is held on trust for sale and division of the proceeds, one of several beneficiaries has no right to a transfer of his undivided share, because the remaining undivided shares will not fetch their full proportion of the proceeds of sale of the entire estate and so the other beneficiaries are prejudiced. A mortgage debt is not conveniently divisible into shares. Other forms of personal property, which, without attempting an exhaustive or conclusive definition, may be broadly described as fungible or things which possess all the relevant characteristics of fungibles, do not present the same difficulties, for example, shares in companies or government securities. Even as to these, there may be special circumstances in particular cases such that division would be inconvenient or detrimental to the other beneficiaries. The Courts have not thought it necessary to define those circumstances, and there is no need to do so here since no special circumstances of this kind are suggested.

1. But Tami unsuccessfully seeks to distinguish Manfred v Maddrell and the cases it applies. Mr McHugh SC argues that in Manfred v Maddrell there was an express power in the will to pay an amount on account of the daughters' distributive share under the will on their attaining the age of 21 years. But this is not a point of distinction. There is a similar power in clause 10 of Hedy's will, and also a power conferred by Trustee Act 1925 s 46. Moreover, Sugerman J's reasons from Whakatane and Re Sandeman's Will Trust, thereby making clear that he is applying the rule in Saunders v Vautier, not making use of Trustee Act s 46 or the power of advancement under the testator's will.

1. Nor does subsequent English case law support Tami's second threshold issue argument. For example, in both Re Weiner [1956] 1 WLR 579 ("Re Winer") and Lloyds Bank Plc v Duker [1987] 1 WLR 1324 ("Lloyds v Duker"), both of which are analysed further below, the beneficiaries seeking a transfer of a particular proportion of a fund including shares in private companies were held entitled to the transfer even though the shares were indistinguishable from each other and were not, as Tami submits they must be, "stamped with a divisible separate and fractional character". Other cases where one of several tenants in common seeks to invoke the rule over stocks and shares, are to like effect: Crowe v Appleby [1975] 1 WLR 1539 at 1543G and Booth v Ellard [1980] 1 WLR 1443.

1. Nor does more recent Australian case law, considering (but not always applying) the rule, support Tami's argument. In Australian Olympic Committee Inc v Big Fights Inc [1999] FCA 1042 at [434] and Australian Olympic Committee Inc v Big Fights Inc (No 2) [2000] FCA 785 ("Big Fights Inc No.2") Lindgren J accepted that tenants in common in equal shares to certain intellectual property rights would have been entitled to their proportionate share in those rights in that they were "fungibles...such as dollars or shares in a public company" although transfer of a proportionate share was not ordered due to the inconvenience of division of those intellectual property rights. And in Trustees of the Estate Mortgage Fighting Fund Trust v Commissioner of Taxation (2000) 102 FCR 15, [2000] FCA 981, where trustees held the trust assets for the beneficiaries (in that case donors to a litigation fighting fund) as tenants in common, Hill J was prepared to apply the rule and transfer the assets to the beneficiaries who had called for them. Although again for other reasons the rule was not applied.

1. But there is another reason why Tami's argument on the second threshold issue should fail: it is not a "threshold" issue at all. What I apprehend her argument is really driving at when contending that the rule operates only when the beneficial interests in question have "already been stamped with a divisible separated and fractional character" is already to be found in the discretionary part of the rule. The Court can find "special circumstances" and decline to order transfer of shares - because as Sugerman J says in Manfred v Maddrell "division would be inconvenient". If the property in question is insufficiently fungible it will not have a "divisible" and "fractional" character, so that ordering a transfer may not be convenient; just as Lindgren J declined to do in Big Fights Inc (No 2) at [37]. But it is not inconsistent with the operation of the rule in respect of part of the fund that the property called for is not at the time of the call already wholly "separated" from every other part of the fund. Rather I prefer Walton J's description in Stephenson (Inspector of Taxes) v Barclays Bank Trust Co Ltd [1975] 1 WLR 882, at 889H of the right of one tenant in common to call for an aliquot share in a trust fund:

a single person who is sui juris has an absolutely vested beneficial interest in a share of the trust fund...is entitled to have transferred to him...an aliquot share of each and every asset of the trust fund which presents no difficulty so far as division is concerned.

1. Tami's argument on the second threshold issue therefore fails. Tami of course can take advantage as a beneficiary of her failure on these threshold arguments. She too is entitled to give a Saunders v Vautier direction to Mr Henley should she so choose.

(2) Are the circumstances sufficiently "special" to exclude the general rule?

1. The threshold issues have been resolved. Ami is entitled to call for the transfer to him of the two "A" class shares and half of a sub-divided "B" class share in Zipor that Mr Henley holds for Hedy's estate. The Court should order the transfer to Ami of these shares, unless there are "special circumstances" or "good ground to [order] the contrary".

1. Tami argues that there are sufficient special circumstances for the Court not to order the transfer. Ami contends there are no special circumstances. Mr Henley takes a neutral position on this issue. For the reasons that follow, the Court advises that there are no special circumstances inhibiting the Court from ordering the transfer to Ami.

1. Tami's argument for special circumstances relies upon the probable consequences of a transfer. Using the language of Sugerman J in Manfred v Maddrell, her argument takes up only one branch of the "practical considerations" to which his Honour refers; namely considerations of "the risk of prejudice to other beneficiaries". Tami's argument accepts that the "considerations of the convenience of division" are not obstacles here. One of the two "A" class shares in Hedy's estate is transferable, and the "B" class share can be split.

1. Tami claims she will suffer "real detriment" if the transfer proceeds. Her argument requires consideration of the shares in Zipor held by both Leo's and Hedy's estates.

1. Tami paints the following picture of what will happen upon a distribution to Ami of the shares he claims in Zipor. At present Mr Henley holds all the "A" class shares in Zipor - the only ones with voting rights (held as to 50% by Leo's estate and 50% by Hedy's estate). Presently Mr Henley can in both his capacities as representative of each estate control Zipor and realize full value from it including winding it up. Mr Henley also controls all the "B" class shares, which carry the entitlements to dividends and repayment of paid up capital (together with the "C" class shareholders) and the sole surplus capital entitlement (again at 50% for Leo and 50% for Hedy). Thus at present the plaintiff, Mr Henley, can through both his capacities on behalf of each of Leo's and Hedy's estates, either cause a winding up and see the return of all surplus capital to the two estates, or, by selling all the "A" class and "B" class shares, transfer the full ability to control and benefit from the economic value of the shares, to an outsider - and thus realize the full value for the two estates.

1. Tami contrasts what will happen if Ami's Saunders v Vautier request is satisfied. She submits that the moment Mr Henley distributes 50% of the "A' and "B" class shares in Zipor from Hedy's estate (and the other 50% to Tami, that Mr Henley has lost the ability, acting on his own, to cause the winding up of Zipor, or to transfer full control and economic value to an outsider. The value of the parts thus created - including Tami's part - is thus necessarily less than the value inherent in what she currently has.

1. The resulting shareholding if Ami's objective succeeds would be: (1) Mr Henley holding for Leo's estate, 2 "A" class shares and "1/2" a "B" class share -which under the distribution contemplated in Leo's will means 66.67% of each "A" class and "B" class shares for Ami and 33.33% if each for Tami. In addition Ami would have in his own right (via Hedy's estate) 1 "A" class share and "1/2" "B" class share. The result is the plaintiff on his own cannot pass an ordinary or special resolution; but he would require one or other of Ami or Tami to agree with him before he could pass either an ordinary or a special resolution (such as a resolution for winding up). Tami further submits that only if both Ami and Tami agree that the benefits from being able to offer 100% of the shares to an outsider could be achieved. Tami says these conclusions are supported by accounting evidence as to the fair valuation of Zipor.

1. But in my view: this argument is inconsistent with the course of English and Australian authority that considers "special circumstances" in relation to shares in private companies; and, there is no evidence here to support a finding of special circumstances.

1. There are four main English cases to be considered on the finding "special circumstances" in relation to the transfer of shares in private companies in response to a Saunders v Vautier direction, including Re Sandeman's Will Trusts, which has been partly considered above. Neither counsels' research nor my own have found Australian any cases dealing with the precise issue covered by these English authorities: of a Saunders v Vautier direction in respect of some of the shares in a private company.

1. The first of the English cases is In re Marshall [1914] 1 Ch 192, which concerned shares in a public company but which is the foundation of the reasoning in the later private company cases. The Court found the following relevant facts In re Marshall. The appellants were absolutely vested indefeasibly in possession of approximately one quarter of the residue of an estate, which residue principally consisted of ordinary and preference shares in a public company. The other three quarters of residue was settled on trusts, which would probably last for 30 to 40 years. The testator's share capital was about one sixth of the issued capital of the public company, which had some 360 shareholders. The trustees had a power to postpone sale and conversion. The appellants sought the distribution to them of their proportionate share of the capital in the public company. The other residuary beneficiaries objected and said that the appellants should wait until the vesting of the trusts over the three quarters of residue.

1. It was accepted that if the trustees transferred the shares as the appellants requested that they risked losing control over the management of the business and over the market price of the shares, which the trustees saw as advantages to be retained in the interests of all shareholders. The other beneficiaries argued that the testator did not intend that the appellants would have a right to call for the transfer, unless they could show that the transfer would not injuriously affect the other beneficiaries. The trustees accepted that the transfer would weaken the value of the shares of the other beneficiaries.

1. The Court of Appeal upheld the appeal and allowed distribution of the shares to the appellants. After explaining the rationale for the rule not applying to real estate, because it would be "detrimental to the other beneficiaries", Cozens - Hardy MR (at 199-200) examined why the rule does not apply to personal property such as shares in public companies, and held out the possibility that the position might be different for private companies:

But that doctrine, it seems to me, has no application, apart from special circumstances, to personal property. It may apply to a case of a mortgage debt which you cannot conveniently split up into shares; but when you are dealing with the case of a limited company with ordinary and preference shares, you want to know a great deal more than that before you can say that the trustees are entitled to deprive an absolute owner of his right to claim a transfer. When the case was first before us we suggested that we should like to know what were the facts about the company; what was its capital, and the number of its shareholders, and what were the special circumstances of the case; and it stood over in order that we might have better information. That information has now been furnished very conveniently and satisfactorily, and it appears that this is not in any sense a private company in which the testator held a control by holding the majority of the shares, or anything of that kind. It is a case in which there are some 360 shareholders. The amount of the capital now represented by the testator's residuary estate is substantially one sixth of the capital. The present appellants hold one fifth of that amount, in regard to which they say to the trustees, "Please transfer to us our one fifth of the block of shares which you are now holding; in our opinion there is no reason whatever why you should be entitled so to hold them....

There may be cases with reference to the particular position of a company like this, at a particular time, which may justify the trustees in exercising their discretion, if they can satisfy the Court that these special circumstances exist; but the case of the present trustees is not put on that ground at all

1. Then Cozens-Hardy MR declared that the trustees in In re Marshall were not relying on any special circumstances in relation to themselves and the company, but just on their power to postpone sale, a matter, which these reasons have already shown is not an answer to a Saunders v Vautier direction. But The Master of the Rolls here traced out a bare outline of what might be special circumstances: the "particular position" of the company at "a particular time". Harman J added a little further detail to this outline forty years later in Re Weiner when (at 584) his Honour contemplated that the trustees' temporary plans for the company could well constitute special circumstances.

1. In Re Marshall Phillimore LJ's reasons (at 202) also keep open the possibility that the trustees maintaining a large block of shares, to prevent the share becoming valueless, may "in certain cases" be a sound reason not to transfer in response to a Saunders v Vautier direction, but still noted that the Court had to determine a "balance of conflicting rights and interests":

If there is such a right it rests upon the duty of the trustees to do their best for all the beneficiaries, it being their consequential duty to keep as large a block of shares as possible together so as to have large voting power, because it may be for the interests of some of the beneficiaries - such as tenants for life of settled estates - to keep the shares; and while they are kept it is very important that the policy of the company should be wisely directed, else the shares may be valueless. In certain cases I think this would be a true and sound reason for refusing the appellants' request, but in this case I agree that upon the balance of conflicting rights and interests there is not enough to deprive the appellants of their prima facie right.

1. The facts of Re Sandeman's Will Trusts have already been described in relation to the second threshold issue. But some other facts are presently relevant. The parcel of shares of the private company in the estate represented 1018 votes out of a total of 1927 (or 52%) and could pass an ordinary resolution in the company's affairs, but not a special resolution. And the private company concerned had in recent years been paying dividends in excess of profits, so that at the time of the proceedings the trustees were of the opinion "that in view of the position of the company" it was for the benefit of the trust fund that "for the time being that voting power should be kept intact".

1. But in breaking up the controlling interest and finding that the grandsons could immediately enjoy their moiety of the shares Clauson J addressed these considerations directly. He found (1) no evidence of presently existing prejudice to the other part of the trust fund held for the benefit of the testator's daughter for life and (2) no basis to infer that either the trustees or the grandsons would exercise their voting power other than bona fide, saying (at 372F - 373D):

It is suggested that I am entitled to ignore that right for this reason. It is said that, if these shares are left in the hands of the trustees, the effect of that will be that the trustees can have control of the company, as against the holders of the remaining shares, in connection with any resolution which they may think desirable to have passed at a general meeting. That is perfectly true, but it is to be remembered that the trustees can do that only having regard to the interests of their beneficiaries. If you have two sets of beneficiaries equally concerned in the trust, and those two sets of beneficiaries take differing views as to the course which the trustees ought to take, the court will certainly see that those trustees, before exercising their power of voting, pay due regard to the wishes of those two sets of beneficiaries. It is foolish to say that the trustees, having shares in their name, have anything in the nature of an independent right to deal with voting power of the shares. However that may be, there is no fact, at the present moment, which seems to show that the interests of anybody concerned in the trust will be in the slightest degree prejudiced by the proper division being made-in other words, by the shares to which the plaintiffs are entitled being handed over to them.

I can conceive that there might be circumstances-they would have to be very special-which would justify the court in refusing to give effect to the plaintiffs' rights; but I cannot find, on the evidence before me, anything to suggest that such circumstances exist in this case. I have no reason to suppose that either the trustees, on the one hand, or the plaintiffs, when they become transferees of their shares, on the other hand, will exercise their voting power otherwise than perfectly bone fide; and I cannot see that any harm will be done to anybody by giving effect to the prima facie right of the plaintiffs to have their shares, and the voting power on their shares, in their own control.

If that is the right view on the facts, whether my view of the construction of the will is right or not, it is quite plain that the plaintiffs' rights must be given effect to; and they must have their half of the shares in question transferred to them. In my view, that is the order, and the only order which I can make.

1. The next case is In re Weiner, another decision about shares in a private company. At the time of the hearing the testator's residuary estate comprised almost entirely by 75% of the issued capital of the testator's private company, J Weiner Ltd. The plaintiff was absolutely and indefeasibly entitled to 45% of the residuary estate and the defendants together spoke for settlements, which would eventually become entitled to the balance of 55% of the residuary estate. The plaintiff called for the distribution of his 45% of the residuary estate. The defendants opposed the distribution on the basis that "the shares in a private company are not so valuable severally as they are when they are put together" or put another way that "these being shares in a private company, they ought not be distributed because it will injure the settled 55%".

1. Counsel for the defendants put a case that breaking up the controlling interest in the testator's private company would justify a refusal to distribute to the plaintiff. But Harman J found the case indistinguishable from In re Sandeman's Will Trusts and dealt with the defendant argument in the following way:

Mr Edwards put his case as high as this, as I think he must, and argued that in the case of any private company where the trustees held a control, no special circumstances need be adduced at all; the mere fact that a controlling interest was held and would not be held if the shares were to be divided was enough to make the court refuse to make the trustees divide. I cannot take that view at all. It would mean, in effect that, there never could be a division, because that must always involve the loss of control. I cannot see that there is anything short of some special circumstances which would justify me in holding up these cases. The trustees have not come forward and said that there are good reasons why they do not wish to divide now, since they may be able to effect some scheme within the next year or so, and they happen to know that the plaintiff is opposed to the scheme. No special circumstances are made here.

1. The last English case to be analysed took a different view and for different reasons. In Lloyds Bank plc v Duker a testator died holding 999 of the 1000 issued shares in a private company, which owned a private hotel in Torquay with a probable current value of GBP3 million. Under the trusts created by his will his wife's entitlement to residue was to "one half of what is left". After his death because of a partial intestacy a deed of family arrangement divided the testator's residuary estate into 1/80th units. Under the deed the testator's wife became entitled to 46/80th of the residuary estate and the remaining 34/80th was divisible among the other beneficiaries. The wife called on the plaintiff trustee to transfer to her the nearest equivalent number of shares to the fractional 46/80th of 999 shares, namely 574 shares. The wife died and she appointed the plaintiff her executor. She gave her entire estate to the first defendant, who continued to call for the 574 shares from the first defendant.

1. The other defendant beneficiaries in Lloyds Bank plc v Duker resisted the first defendant's call for the 574 shares. Taken together their individual holdings amounted to 425 shares (or 34/80th of the 999 shares). They argued that the first defendant would receive much more than 46/80th of the total value received by all the beneficiaries as a group because his majority 46/80th holding is worth more per share than a minority holding. On somewhat limited expert evidence and on the correspondence between the parties Judge Mowbray QC found: that the shares were worth between GBP3,000 and GBP3,500 on the open market, a value per share which would be substantially reflected in a parcel of 574 shares; that the minority parcels could not be expected to unlock the asset value of the company "to any appreciable extent" and would be worth markedly less per share; and, that there would be no dividends for the minority in the foreseeable future due to planned capital expenditure on the hotel.

1. Judge Mowbray QC concluded that although the normal rule would be that the first defendant would be entitled to call for the transfer of the 574 shares such a transfer would not be in accordance with the testator's will which despite the deed of family arrangement was still relevantly operative and required equal division by value of the wife's (now the first defendant's) interests from the interests of the other defendant beneficiaries.

1. Judge Mowbray QC distinguished the three English cases already considered, In re Marshall, Re Sandeman's Will Trusts, and In Re Weiner. The following passage shows that he distinguished these cases on the basis that they did not involve the transfer of a majority holding of shares in the companies in question and did not consider the question of the discrepancy between share values and numbers:

The first three decisions I have named do not, as decisions, throw any light on the question whether the discrepancy between share numbers and values is to be considered a sufficiently special circumstance to exclude the general rule. The reason is that there was no such discrepancy in those cases. In all of them, beneficiaries immediately entitled called for transfers of their aliquot parts of a block of shares held in residue by the trustees, and this was ordered. In Re Marshall the block only formed about a sixth of the issued shares in a public company with some 360 shareholders. It was not suggested (and could not have been) that shares in the part of the block to be distributed were worth more per share than the shares retained. The block of shares in In Re Sandeman's Will Trusts was a controlling interest which carried 1,018 out of the 1,927 votes which would be cast at general meetings of a private company. Half the estate was distributable, and half the holding was ordered to be distributed. Nothing at all seems to have been said about differential share values, and naturally enough, because the half distributed would have had just the same value per share as the half retained. In the third case, Re Weiner's Will Trusts the block in the estate was 75% of the shares in a private company and 45% of this was ordered to be distributed. Again, the shares in such a holding could not have been worth more per share than the shares in the 55% of the block that remained with the trustees.

I accept Re Sandeman's Will Trusts and Re Weiner's Will Trusts as authorities which ought to be followed at first instance that the general rule is not excluded by the fact that the distribution breaks up a controlling interest, and so reduces the value of the whole.

I assume that is correct, and if that were the only reason for ordering a sale of the 999 shares as a whole in the present case, the decisions in Re Sandeman's Will Trusts and Re Weiner's Will Trusts would be against it. But it is not the only reason for a sale in the present case, as I see it. The operative reason is that, if the shares were transferred out in the 1/80th fractions, Mr Duker would get a greater value per share than the other beneficiaries and so would get more than his 46/80ths of the total value received by the beneficiaries as a body.

I have not had much help from dicta in the authorities I have mentioned. In Re Marshall [1914] 1 Ch 192 at 199, [1911-13] All ER Rep 671 at 674 Cozens-Hardy MR gave it as the reason why the general rule did not apply to land that to allow one of the beneficiaries to take an undivided share of the land would be detrimental to the others, because it would leave them with undivided shares, which would be worth less than their proper proportion of the proceeds of sale of the entire estate. But the later authorities have decided that with shares in a private company it is no objection that those remaining undistributed lose value, so I am not able to build on Cozens-Hardy MR's dictum.

I have not found any helpful dicta in the later authorities.

I can, though, get some help from another general principle. I mean the principle that trustees are bound to hold an even hand among their beneficiaries, and not favour one as against another, stated for instance in Snell p 225. Of course Mr Duker must have a larger part than the other beneficiaries. But if he takes 46/80ths of the shares he will be favoured beyond what Mr Smith intended, because his shares will each be worth more than the others'. The trustees' duty to hold an even hand seems to indicate that they should sell all 999 shares instead. Counsel for the minority beneficiaries pointed out that it is this duty which imposes a trust for sale under the first branch of the rule in Howe v Earl of Dartmouth, Howe v Countess of Aylesbury (1802) 7 Ves 137, [1775-1802] All ER Rep 24. Here, too, it points in the direction of a duty to sell.

1. But in my view the guiding authorities here are In re Marshall, Re Sandeman's Will Trusts, and In Re Weiner deceased. And Tami's argument is otherwise not persuasive for the following reasons.

1. The approach in this discussion is to look at the special circumstances that Mr McHugh SC's argument identifies, to see whether they do constitute special circumstances warranting refusal of Ami's Saunders v Vautier direction to Mr Henley. But first I accept the correctness of Mr McHugh's contentions that it may be misleading to focus on expressions such as "special circumstances", which are after all, not the only language in the authorities about the subject. Rather he puts the issue in the words of Sugerman J in Manfred v Maddrell: as whether "a beneficiary may have the present enjoyment of his share is governed by practical considerations and, in particular, by considerations of... the risk of prejudice to other beneficiaries". He points on behalf of Tami to a number of such risks of prejudice.

1. Tami's first matter relevant to special circumstances (or risk of prejudice) is that if there is an in specie distribution of Hedy's shares in Zipor that will destroy a large amount of value in those shares because it will no longer be possible for Mr Henley to cooperate with himself as the administrator of Leo's estate to sell 100% of shares and obtain a control premium for them. For the purposes of this argument I am quite prepared to accept the expert evidence adduced on Tami's behalf from Mr Claude Jugmans, that control premiums for controlling interests (that is more than 50%) in private companies in Australia generally range between 15% and 20% and could be higher depending upon the circumstances. Tami's point is that Mr Henley will have only 2 voting "A" class shares in Zipor as the administrator of Leo's estate, which will not be enough for him to force a winding up of the company and the realisation of its value for all shareholders.

1. Mr Jackman SC's answers to this argument are persuasive. This first claimed special circumstance is really an argument that Tami will suffer prejudice because of the breaking up of a controlling interest in Zipor. As my analysis of the cases above shows, that argument has already been put and answered in In re Sandeman's Will Trusts and In re Weiner. Both of those cases contemplated the breaking up of a controlling shareholding and In re Weiner directly contemplated the loss of value that might occur to remaining shares in the trust fund as a result of that break-up. I should not readily depart from such long-standing authority.

1. But Mr Jackman SC's other point, in answer to the first special circumstance, also has merit. Mr Henley holds two of the 4 "A" class shares that he holds in Zipor as administrator of Hedy's estate. He does not hold all those 4 shares as the trustee of his estate. It is wrong in my view to look at the present situation as one in which Mr Henley holds a single majority parcel of shares. The uncertain administration of Leo's estate, and the possible need to realise cash in that estate, may require him in his capacity as administrator to act quite differently from the way he would as trustee of Hedy's estate. In my view the correct analysis here is that Ami is simply calling for one half of the "A" class and "B" class shares that Mr Henley holds as trustee of Hedy's estate. Mr Henley did not advance any present proposal as to how he was going to deal with Leo's estate and where the Zipor shares would fit in with his plans for Leo's estate. In particular this is not a case of the kind hinted at by Harman J In re Weiner, where special circumstances might arise because of a particular plan that the trustee had for the company which would be temporarily or permanently frustrated by the distribution. In those circumstances the Court should look to the interest about which Mr Henley is seeking the Court's advice - the Zipor shares in Hedy's estate. They do not represent a controlling interest in Zipor.

1. But even if I were to treat Mr Henley's interests in both estates as a composite shareholding and ignore In re Weiner the result would not be any different. There is simply too much uncertainty in the future to predict that there is a risk of prejudice to Tami from breaking up this particular shareholding in the way that is sought. Although Leo's will gives two thirds of his Zipor shares to Ami it is certainly not very clear whether that will ever come to pass, and if it did, it is what was independently intended by Leo's will.

1. Tami's second matter relevant to special circumstances (or risk of prejudice) is that an in specie distribution of the Zipor shares in Hedy's estate will result in a massively unequal distribution of value between Ami and Tami by allowing Ami to take control of Zipor. Mr McHugh points in the evidence to what occurred when Ami and his wife Helen had control of Zipor between 2003 and 2010. That evidence shows that Ami and Helen use their power as directors and majority voting shareholders to declare dividends, which went by very substantial margin to LWFC. As dividends were declared over "B" and "C" class shares equally for example in the year 2004 Ami and Hedy's estate each holding one "B" class share, receive $3,676.40. But the same year LWFC's 1000 "C" class shares received dividends of $3,676,400.

1. But in my view, there are several answers to this. It is true as Mr McHugh SC points out that clause 5 of Hedy's will requires Mr Henley as trustee to hold the residuary estate for each of Tami and Ami "in equal shares". But this is not a case like Lloyds Bank Limited v Duker where there is immediate inconsistency between the command of a distribution of equal value under a will and a proposed unequal distribution (in Lloyds Bank Limited v Duker at least 46/80th). In Lloyds Bank Limited v Duker where the estate controlled 999 of 1000 shares the proposed distribution was inconsistent with the will's command of equality of value to be distributed. Here the "A" and B" class shares that would be distributed to each of Ami and Tami only represent a minority interest and Tami and Ami can now receive an equal division of that minority interest. There is no obvious inequality of value in these two parcels. It is only when a distribution from Leo's estate later occurs that inequality might arise; and as earlier found there is no certainty when and if that will occur.

1. Moreover, if and when distribution occurs from Leo's estate in accordance with his will the consequences for Tami of her minority interest in Zipor will be regulated under corporations legislation. And Corporations Act 2001 s233 would give her ample remedies against future oppressive conduct. Mr McHugh SC says that a repetition of Ami's past conduct may not be readily remediable as oppressive. But in my view this argument really only illustrates the limitations of attempting to administer corporations through the law of trusts and succession, which are ill-equipped for that purpose.

1. Tami's third matter relevant to special circumstances (or risk of prejudice) is the parties' immense appetite for litigation. Of that appetite there can be no doubt. But it does not seem to me to be a special circumstance. On the past history of these parties, the risk of prejudice from this quarter is no different whether or not a distribution occurs.

1. Tami's fourth matter relevant to special circumstances (or risk of prejudice) is that the "B" class share cannot presently be distributed in its present form unless it is divided. That share can only be split through an ordinary resolution on which Mr Henley would vote as administrator of Leo's estate. A point is made that Mr Henley has not sought judicial advice in his capacity as administrator of Leo's estate. But as Mr Coles QC submits, this seems to me to be a purely administrative matter. The capacity to split the B class shares clearly exists under Zipor's constitution. Mr Henley is quite free to decide to vote in favour of a split if he wishes to in the interest of Leo's estate. That does not seem to me to be a relevant special circumstances preventing distribution in accordance with Ami's Saunders v Vautier direction in Hedy's estate. In the absence of any other special circumstances preventing his acting on the Saunders v Vautier direction he would be obliged to vote for such a "B" class share split as trustee of Hedy's estate.

1. In the result Tami's contention that there are special circumstances here fails, and I will advise the trustee Mr Henley that he may transfer the Zipor shares as Ami has requested.

Some observations on mediation

1. As a general rule Courts avoid comment about the origins or consequences of parties' litigation. Courts try their issues. But some cases invite departure from that general rule. This is such a case.

1. Both Ami and Tami have a proven propensity to litigate their differences. The wide range of proceedings in which they have already been involved demonstrates their apparently unquenchable determination to litigate away the very considerable value of their parents' estates.

1. Mediation of the 2007 proceedings led to the September 2010 terms of settlement, which did resolve many of their differences and put in place an effective administrator - as the conduct of these proceedings demonstrates to the Court.

1. But the September 2010 consent terms have themselves become the source of more disputes that have now taken the parties to the apex of Australia's legal system, and may yet do so again. Yet it is apparent from the highly disciplined way that this case has been argued on all sides that the legal representatives are doing their best to contain Ami and Tami's mutually destructive energies. It is more than unfortunate that the wealth creating talent of Leo and Hedy, and no doubt of these two siblings, cannot be directed towards more mutually productive forms of enterprise.

1. But perhaps it can. The Court will usually pause before ordering mediation between parties who have already experienced a failed mediation. This is not a case where the Court should pause on that account for long. Much has no doubt been expended on legal fees and expenses since the last mediation. The relatively modest expense of a further mediation is in these circumstances well justified. The fact that the last mediation was partly successful also gives some hope for the success of another. Moreover, when the Court raised it, counsel did not oppose the Court's indication that another mediation may be ordered. Subject to anything that the parties may wish to put in consequence of these reasons I would propose among the orders to be made to order under Civil Procedure Act 2005 s 26 that these proceedings be referred to mediation within two months.

1. The scope of the mediation I can order in these proceedings will only concern what remains of the disputes concerning Hedy's estate. But it is hoped that acting upon both the letter and the spirit of this proposed mediation order that Ami and Hedy will see the good sense of mediating all their other existing issues. The mediation for example could and should encompass the outstanding issues in relation to the further administration of Leo's estate.

1. In approaching a mediation the parties could do a great deal worse than paying regard to the words of the great late eighteenth century Anglo-Irish statesman and philosopher, Edmund Burke, who is not often cited in a legal context but who said of compromise in another (a political) context, "All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter".

Conclusions and Orders

1. In the result the Court advises that Ami and Tami have an absolute vested and indefeasible interest in the "A" class and "B" class Zipor shares that Mr Henley holds on behalf of Hedy's estate. Moreover, the Court advises that there are no special circumstances, which would excuse Mr Henley from complying with Ami's Saunders v Vautier direction. Mr Henley is therefore required to transfer Ami's aliquot share of the "A" class shares to him and would be required to vote on behalf of Hedy's estate at a general meeting of Zipor to split the "B" class shares to facilitate the transfer of 50% of the "B" class capital to Ami. Mr Henley would be justified in transferring Tami's "A" and "B" class Zipor shares to her on the same basis.

1. Thus in the form requested by prayer 3 of the Amended Summons under Trustee Act s 63 the Court advises the plaintiff, Mr Henley:

In respect of the estate of Hedy Jadwiga Weinstock deceased (the estate), the opinion, advice and direction of the Court is that in the circumstances that have occurred the plaintiff is required to make an in specie distribution of two (2) "A" class shares and one (1) "B" class share in Zipor Pty Limited owned by the estate to the beneficiary Amiram David Weinstock (Amiram); and should the other beneficiary Tamar Rivqa Beck (Tamar) direct the plaintiff to transfer shares in Zipor equivalent to those transferred to Amiram, the plaintiff would be required to transfer them to her, but if Tamar does not so direct, the plaintiff would nevertheless be justified in transferring but not required to transfer the equivalent shares to her.

1. The Court would ordinarily order the payment of the trustees' costs out of Hedy's estate. There may be differences of view about how other costs orders should fall, so I will give the parties an opportunity to put on submissions about these costs.

1. The Court has also indicated in these reasons that the parties should prepare an order submitting to mediation their remaining disputes at least in relation to Hedy's estate.

1. In the result therefore I will direct the parties to:

(1)   by 4.00pm on Thursday 1 August 2013 bring in short minutes of order to give effect to these reasons; and,

(2)   by the same date and time contact my associate with a view to relisting the proceedings for any remaining argument as to the form of orders, or as to costs, on a date convenient to the parties one morning at 9.30am during August 2013.

Decision last updated: 23 July 2013