Millar v Hornsby - [2000] VSC 270

SUPREME COURT OF VICTORIA
COMMERCIAL AND EQUITY DIVISION	Not Restricted

No. 4652 of 1999

ALEXANDER MILLAR	Plaintiffs
and
DEREK ERNEST BUTTERWORTH
v
RAYMOND JAMES HORNSBY & ORS (trustees of the Trust of George Adams deceased)		Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2000
DATE OF JUDGMENT:	28 June 2000
CASE MAY BE CITED AS:	Millar v Hornsby
MEDIUM NEUTRAL CITATION:	[2000] VSC 270

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Trusts – whether clause in will created discretionary trust in favour of employees for the time being – whether ex-employees have standing to seek orders against trustees for access to certain documents and information.

Issue Estoppel – effect of prior decisions concerning the same clause in the will.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. J. Merralls QC & Mr. C. Smale	Corrs Chambers Westgarth
For the Defendants	Dr. I. Hardingham QC & Mr. A. A. Nolan	Abbott Stillman & Wilson

HIS HONOUR:

By originating motion dated 10 March 1999 the plaintiffs sue the defendants as trustees of the estate and of the trusts of the will of George Adams deceased dated 16 March 1901 seeking orders that the defendants produce for the examination of the plaintiffs a number of classes of documents including certain books of account and records of the Tattersall Sweep Consultation business carried on by the trustees under the said trusts.

In particular, the plaintiffs seek to examine the books and records showing "how the one tenth of profits held on trust to be distributed between and amongst such of the employees for the time being engaged in the business … is made up or calculated" and relevant items, payments, deductions and disbursements in relation thereto for financial years from 1993 to 1998.

By order of Master Kings dated 7 December 1999, the following preliminary questions (the subject of the present hearing) were ordered to be tried before the trial of the proceeding:

“(a)Whether the plaintiffs have standing to seek the relief sought in the proceeding;
(b)Whether clause Y of the will of the late George Adams created as between the trustees of the estate of the late George Adams and ‘the Employees for the time being engaged in the said business’, being the Tattersalls Sweep Consultation Care of George Adams, such relationship as would entitle the employees to seek from the trustees the relief sought in the proceeding.
(c)Whether, [i]f the answer to 2 be yes, the plaintiffs, as persons who are not now employees engaged in the business but were such employees for the period in respect of which documents and information are sought in the proceeding, have standing to seek the relief sought in the proceeding.”

Pursuant to the Master's order the parties provided an agreed Statement of Facts which may be summarised as follows.

George Adams died in Tasmania on 23 September 1904 leaving a will dated 16 March 1901 and a codicil thereto dated 31 May 1902, both executed in Tasmania. At the time of his death, George Adams was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Millar v Hornsby

Details

AGLC: Millar v Hornsby [2000] VSC 270
Case: [2000] VSC 270
Decision Date: 28 June 2000

CaseChat Overview and Summary

In Millar v Hornsby, the dispute arose from the interpretation of a clause in a will that purportedly established a discretionary trust in favour of the employees of a company at any given time. The question before the court was whether the clause in the will created such a trust and, if so, whether ex-employees had standing to seek orders against the trustees for access to certain documents and information. The case was heard in the Supreme Court of New South Wales.

The legal issues the court needed to address were primarily focused on the interpretation of the will's language and the extent of the trust it created. The court also had to consider whether the ex-employees had a legitimate interest in the trust's administration, and thus standing to seek orders against the trustees. Additionally, the court examined the doctrine of issue estoppel in relation to prior decisions concerning the same clause in the will and their effect on the current proceedings.

The court concluded that the clause in the will did indeed create a discretionary trust in favour of the employees for the time being. However, it found that the ex-employees did not have standing to seek orders against the trustees for access to certain documents and information. The court reasoned that the trust was intended for the benefit of current employees only, and therefore, ex-employees did not have a legitimate interest in the trust's administration. Furthermore, the court held that the doctrine of issue estoppel did not preclude the ex-employees from bringing their claims, as the prior decisions did not directly address the issue of standing for ex-employees.

The final orders of the court were that the ex-employees did not have standing to seek orders against the trustees for access to certain documents and information. The trust remained in place for the benefit of current employees, and the trustees were not required to provide any information or documents to the ex-employees. The court's decision provided clarity on the interpretation of the will and the scope of the trust it created, as well as the standing of ex-employees in trust-related matters.

Orders