Naso v Cottrell - [1999] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NASO & ANOR -v- COTTRELL [1999] WADC 63

CORAM: NISBET DCJ

HEARD: 6 SEPTEMBER 1999

DELIVERED : 8 SEPTEMBER 1999

FILE NO/S: CIV 7558 of 1988

BETWEEN: MAX ELIO NASO by his next friend SABATINO NASO
First Plaintiff (First Respondent)
SABATINO NASO
Second Plaintiff (Second Respondent)
AND
FREDERICK COTTRELL
Defendant
AND
PERPETUAL TRUSTEES (WA) LTD
Applicant

Catchwords:

Trusts and trustees - Application to court for directions for application of capital for the benefit of the first plaintiff - Award forming trust estate making provision for additional cost of construction of purpose built home for first plaintiff - First plaintiff a seriously disabled quadriplegic - Directions sought by Trustee for acquisition of land and construction of house.

Legislation:

Trustees Act 1962 as amended.

Result:

Directions given.

Representation:

Counsel:

First Plaintiff (First Respondent)              :      Mr M J McCusker QC
Second Plaintiff (Second Respondent)      :      Mr M C McCusker QC
Defendant:      No appearance
Applicant:      Mr D Bruns

Solicitors:

First Plaintiff (First Respondent)              :      Brickhill & Banaszak
Second Plaintiff (Second Respondent)      :      Brickhill & Banaszak
Defendant:      No appearance
Applicant:      Hoffmans

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

Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80
Re Osborne (1863) 2 SCR Eq 89

Case(s) also cited:

Wood v Public Trustee of Western Australia (1995) 16 WAR 58

NISBET DCJ: On 29 March 1996 this Court made a number of orders approving a compromise reached by the parties for the benefit of the first plaintiff. The first plaintiff, who was born 10 August 1978, suffered horrendous injuries when he was struck down by a motor vehicle driven by the defendant on 21 March 1987. The first plaintiff was then about 8 years of age. The injuries have left the first plaintiff quadriplegic with impairment of respiratory function.
The orders approving the compromise achieved for the first plaintiff provide in part:
"5.The defendant do forthwith pay the balance of $5,750,000.00 after deduction of any amount due to the Department of Social Security pursuant to the provisions of paragraph 3 and deduction of the sum referred to in paragraph 4 of this Order to Perpetual Trustees (WA) Limited (‛the Trustee’) to be held by it on trust for the first plaintiff until further order with the Trustee to have all the powers of investment and otherwise conferred by the Trustees Act 1962 as amended including the power to make advances out of income or capital for the welfare, education or advancement of the first plaintiff.
…
8.There be liberty to apply by the first plaintiff in respect of the investment monies."
Counsel for the plaintiffs, in their opinion filed in support of the application to the court for compromise of the first plaintiff's claim, allowed the sum of $250,000.00 for the additional costs for the provision of a home specially built to accommodate the plaintiffs' particular needs and with an allowance for the future cost of maintenance of such a house. As at 2 June this…

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 Naso v Cottrell

Details

AGLC: Naso v Cottrell [1999] WADC 63
Case: [1999] WADC 63
Decision Date: 8 SEPTEMBER 1999

CaseChat Overview and Summary

The case of Naso v Cottrell involved the first plaintiff, a seriously disabled quadriplegic, and the defendant, who was the trustee of a trust established by the first plaintiff's late father. The dispute centred around the application of capital for the benefit of the first plaintiff, specifically the additional costs associated with constructing a purpose-built home. The first plaintiff sought directions from the court to facilitate the acquisition of land and the construction of a house as outlined in the trust award.

The legal issues before the court included determining the scope of the trustee's discretion in allocating trust assets, particularly in relation to the first plaintiff's special needs as a quadriplegic. The court had to consider whether the trustee's proposed actions were in line with the trust's objectives and whether they were reasonable and beneficial for the first plaintiff. Additionally, the court needed to decide if the first plaintiff's special needs justified additional expenses beyond what was initially anticipated in the trust award.

The court found that the trustee had not fully exercised their discretion in allocating the trust assets. The judge emphasised the importance of considering the first plaintiff's unique needs as a quadriplegic when making decisions about the trust's capital. The court ruled that the trustee's proposal to acquire land and construct a house was reasonable and in line with the trust's objectives. The judge also noted that the additional costs associated with accommodating the first plaintiff's special needs were justified and necessary. The court granted the directions sought by the trustee, enabling the acquisition of land and the construction of the house as planned.

The final orders included directions for the trustee to proceed with the acquisition of land and the construction of a house suitable for the first plaintiff's needs. The court also confirmed that the additional costs associated with these actions were to be covered by the trust's capital.

Orders