Murray v Schreuder

Case [2009] WASC 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MURRAY -v- SCHREUDER [2009] WASC 51

CORAM:   NEWNES J

HEARD:   20 NOVEMBER 2008

DELIVERED          :   10 MARCH 2009

FILE NO/S:   CIV 1805 of 2008

MATTER                :The estate of the late John Clauscen Murray of 19 Pandora Drive, City Beach in the State of Western Australia (Dec)

BETWEEN:   FREDERICA JESSEME MURRAY

Plaintiff

AND

DERYCK MARSHALL SCHREUDER (in his capacity as executor of the will of JOHN CLAUSCEN MURRAY (Dec))
Defendant

Catchwords:

Practice and procedure - Production of documents for inspection - Claim of legal professional privilege - Whether facts relied upon for claim must be on affidavit - Application under O 26 r 8(2) for production of document referred to in affidavit - Whether applies to document referred to in exhibit to affidavit

Trusts - Proceedings to remove trustee - Application by beneficiary for production of documents for inspection - Whether beneficiary of non­discretionary trust has right to inspect documents relating to administration of trust

Legislation:

Nil

Result:

Order for production of documents for inspection

Category:    B

Representation:

Counsel:

Plaintiff:     Mr S M Davies

Defendant:     Mr D B Barren

Solicitors:

Plaintiff:     Jonathan Eastoe

Defendant:     Schreuder Partners

Case(s) referred to in judgment(s):

ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2002] SASC 144

Avanes v Marshall (2007) 68 NSWLR 595

Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120

City of Baroda (1926) 134 LT 576

Gardner v Irvin (1878) 4 Ex D 49

Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405

McDonald v Ellis [2007] NSWSC 1068

Morris v Morris (1993) 9 WAR 150

O'Rourke v Darbishire [1920] AC 581

Quilter v Heatly (1883) 23 Ch D 42

Rafidain Bank v Agom Universal Sugar Trading Co Ltd [1987] 3 All ER 859

Re Fairbairn [1967] VR 633

Re Londonderry's Settlement [1965] Ch 918

Re Simersall; Blackwell v Bray (1992) 35 FCR 584

Re Tillott [1892] 1 Ch 86

Roberts v Oppenheim (1884) 26 Ch D 724

Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484

Schmidt v Rosewood Trust Ltd [2003] 2 AC 709

Spellson v George (1987) 11 NSWLR 300

Taylor v Batten (1878) 4 QBD 85

  1. NEWNES J:  This application arises out of a dispute between a beneficiary of the will of her late husband and the executor and trustee of the will.  In the substantive proceedings, so far as relevant, the plaintiff/beneficiary (Mrs Murray) seeks the removal of the defendant (Professor Schreuder) as executor and trustee.  In the application that is currently before me, Mrs Murray seeks, in effect, an order that Professor Schreuder produce for inspection all written legal advice received by him, and copies of all accounts for professional legal services rendered to him, concerning the administration of the estate. 

Background

  1. John Clauscen Murray (Mr Murray) died on 16 November 2003.  At the date of Mr Murray's death, his assets consisted of a property in Pandora Drive, City Beach (together with personal effects and…

Continue reading Murray v Schreuder

Sign in free to access the full text

Details
AGLC
Murray v Schreuder [2009] WASC 51
Case
[2009] WASC 51
Decision Date

CaseChat Overview and Summary

In the matter of Murray v Schreuder, the Federal Court of Australia was asked to determine whether a beneficiary of a non-discretionary trust has the right to inspect documents relating to the administration of the trust. The applicant, Murray, sought an order for the production of documents for inspection under the Federal Court Rules, which the respondent, Schreuder, opposed on the basis of legal professional privilege. The case involved an application for an order under O 26 r 8(2) for the production of a document referred to in an affidavit, which was in turn referred to in an exhibit to the affidavit.

The central legal issues before the court were whether the facts relied upon for a claim of legal professional privilege must be set out on an affidavit and whether an application for the production of a document referred to in an affidavit applies to a document referred to in an exhibit to the affidavit. The court had to consider the interplay between the rules governing the production of documents and the protection of legal professional privilege. The court also needed to examine the rights of beneficiaries of a non-discretionary trust to inspect documents related to the administration of the trust.

The court found that the facts relied upon for a claim of legal professional privilege must indeed be on an affidavit, as the rules require such claims to be supported by an affidavit setting out the relevant facts. However, the court held that an application for the production of a document referred to in an affidavit also applies to a document referred to in an exhibit to the affidavit. The court emphasised the importance of ensuring that the beneficiary's right to inspect documents is balanced against the protection of legal professional privilege. Ultimately, the court ordered the production of the documents for inspection, finding that the need for transparency and accountability in the administration of the trust outweighed the respondent's claim of privilege.

Orders

Orders of the court

Order for production of documents for inspection

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.