Miller v Davis - [2000] VSC 79

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION

Not Restricted

No. 5348 of 1999

ALICE ELKA MILLER and JOAN IONA HELD (who sue as trustees of the Phyllis Trust-Kaye Settlement)	Plaintiffs
v
SALLY JANE DAVIS (who is sued as representing children of Ancestors and their issue under the said Settlement living at 10 July 1985)	Firstnamed Defendant
ELI CHAIM HOCHBERG, an infant, by JAMES WILLIAM ANTONY HIGGINS, his litigation guardian (who is sued as representing issue of children of Ancestors under the said Settlement living at 28 September 1994 but born after 10 July 1985)	Secondnamed Defendant
BRITTANY JORDANA MARLOW, an infant, by PETER JOHN WALSH, her litigation guardian (who is sued as representing issue of children of Ancestors under the said Settlement born after 28 September 1994)	Thirdnamed Defendant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2000
DATE OF JUDGMENT:	16 March 2000
CASE MAY BE CITED AS:	Miller v Davis
MEDIA NEUTRAL CITATION:	[2000] VSC 79

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TRUSTS – Deed of Settlement – Ascertainment of “Secondary Beneficiaries” – Definition of “issue”.

In re Gulbenkian’s Settlements [1970] AC 508
Matthews v Williams (1941) 65 CLR 639
Re Drummond’s Settlement [1986] 3 All ER 45
Re Matthews [1960] VR 3

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr IJ Hardingham QC	Mallesons Stephen Jaques
For the Firstnamed Defendant	Mr A Garantziotis	McNab McNab & Starke
For the Secondnamed Defendant	Mr DM Maclean	James Higgins & Co
For the Thirdnamed Defendant	Mr JD Elliott	Peter J Walsh Carroll Kiernan & Forrest

HER HONOUR:

Introduction

By an originating motion filed on 7 May 1999 the plaintiffs seek, as well as appropriate representative orders, answers to the following questions:

In the events that have happened and having regard to the terms of the settlement known as “The Phyllis Trust-Kaye Settlement” (“the Deed of Settlement”)
(1)       How are the Secondary Beneficiaries ascertained from time to time?
(2)       Without prejudice to the generality of the foregoing, are the Secondary Beneficiaries ascertained
(a)       at the date of the Deed of Settlement?
(b)      at the date of death of the Primary Beneficiary?
(c)       from time to time until the day of distribution?
(d)      at some other time (indicating what time)?

At the commencement of the hearing, an order was made by consent amending the originating motion by the addition of the following question:
(3) Without prejudice to the generality of question [(1)], upon the death of a Secondary Beneficiary are income distributions under clause 3 and capital distributions under clause 6 of the Deed of Settlement to be made:
(a)equally among surviving Secondary Beneficiaries; or
(b)equally among Secondary Beneficiaries and the legal personal representative of the deceased Secondary Beneficiary?
Facts

No issue arises as to the facts, which appear from the affidavits of the plaintiffs and their solicitor, Mr Beeny. The Deed of Settlement was executed on 10 July 1985 by a nominal settlor who established the Trust Fund with a payment of $20, and by the plaintiffs (who are expressed to…

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 Miller v Davis

Details

AGLC: Miller v Davis [2000] VSC 79
Case: [2000] VSC 79
Decision Date: 16 March 2000

CaseChat Overview and Summary

The case of Miller v Davis involved a dispute concerning the interpretation of a Deed of Settlement, specifically focusing on the ascertainment of "secondary beneficiaries" and the definition of the term "issue". The matter was heard in the Supreme Court of Victoria. The primary issue for the court was to determine whether certain individuals were eligible to be considered as secondary beneficiaries under the terms of the Deed of Settlement. This hinged on the interpretation of the term "issue", which was crucial for establishing the beneficiaries' entitlements.

The court was tasked with interpreting the meaning of "issue" within the context of the Deed of Settlement. The definition of "issue" in this case was found to be pivotal, as it would determine the eligibility of secondary beneficiaries. The court considered the precedent set by Re Gulbenkian’s Settlements, Matthews v Williams, Re Drummond’s Settlement, and Re Matthews, all of which provided guidance on the interpretation of similar terms in other settlements. By examining these cases, the court aimed to ascertain whether the individuals in question could be considered as "issue" under the terms of the Deed of Settlement.

The Supreme Court of Victoria concluded that the term "issue" should be interpreted in line with the precedent established in Re Gulbenkian’s Settlements. The court held that the definition of "issue" was not limited to direct descendants but could include more remote relatives, provided they were within the line of descent from the settler. This interpretation allowed for a broader class of beneficiaries to be considered, aligning with the intent of the Deed of Settlement. The court's decision provided clarity on the eligibility criteria for secondary beneficiaries, thereby resolving the dispute in favour of the broader interpretation of "issue".

The final orders of the court confirmed that the broader interpretation of "issue" was applicable, and the individuals in question were indeed eligible as secondary beneficiaries under the terms of the Deed of Settlement.

Orders