Ngarluma Aboriginal Corporation RNTBC v The Attorney General of Western Australia
[2014] WASC 245 (S)
•16 JULY 2014
NGARLUMA ABORIGINAL CORPORATION RNTBC -v- THE ATTORNEY GENERAL OF WESTERN AUSTRALIA [2014] WASC 245 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 245 (S) | |
| Case No: | CIV:1844/2014 | 14 JULY 2014 | |
| Coram: | ALLANSON J | 16/07/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs of plaintiff to be paid from Ngarluma Direct Benefits Trust Costs of defendant to be paid from Ngarluma Charitable Trust | ||
| B | |||
| PDF Version |
| Parties: | NGARLUMA ABORIGINAL CORPORATION RNTBC THE ATTORNEY GENERAL OF WESTERN AUSTRALIA |
Catchwords: | Costs Costs to be paid out of trust property |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 4(1) Supreme Court Act 1935 (WA), s 37(1) Trustees Act 1962 (WA), s 77, s 93, s 97 |
Case References: | Ngarluma Aboriginal Corporation RNTBC v The Attorney General of Western Australia [2014] WASC 245 Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
the Ngarluma Charitable Trust and the Ngarluma Direct Benefits Trust
- Plaintiff
AND
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
First Defendant
Catchwords:
Costs - Costs to be paid out of trust property
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 4(1)
Supreme Court Act 1935 (WA), s 37(1)
Trustees Act 1962 (WA), s 77, s 93, s 97
Result:
Costs of plaintiff to be paid from Ngarluma Direct Benefits Trust
Costs of defendant to be paid from Ngarluma Charitable Trust
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Howard SC & Mr D R Chandler
First Defendant : Ms M J Elliott
Solicitors:
Plaintiff : Cleary Hoare Solicitors
First Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ngarluma Aboriginal Corporation RNTBC v The Attorney General of Western Australia [2014] WASC 245
Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S)
1 ALLANSON J: On 7 July 2014, the court published reasons that dealt with the application by the plaintiff for orders appointing a trustee in substitution for the existing trustee in each of two trusts: the Ngarluma Direct Benefits Trust and the Ngarluma Charitable Trust. In those reasons, I considered the plaintiff's standing on the application regarding the Ngarluma Charitable Trust. The application was adjourned to enable the plaintiff to consider its position, in the light of those reasons, and to enable further consideration by the Attorney General.
2 The matter came back before the court on 14 July 2014. On this occasion, upon the plaintiff giving an undertaking to the court in terms agreed between the parties, the Attorney General moved for orders in regards to the Ngarluma Charitable Trust. The court ordered that:
1. Perpetual Trustee Company Ltd (ACN 000 001 007) ('Perpetual') be appointed as the trustee of the Ngarluma Direct Benefits Trust in substitution for the existing trustee, Ngarluma Tharndu Karrungu Maya Ltd ('NTKML').
2. Perpetual is appointed and NTKML is removed as trustee of the Ngarluma Direct Benefits Trust without prejudice to any future removal of Perpetual and appointment of NTKML as trustee of the Ngarluma Direct Benefits Trust in accordance with the RTIO Ngarluma Indigenous Land Use Agreement (Body Corporate Agreement) ('ILUA') and respective trust instruments and related agreements.
3. The monies of the Ngarluma Direct Benefits Trust in the bank accounts set out in items 3, 4 and 5 of Annexure A [to the orders] vest in Perpetual.
4. The plaintiff’s costs of this application be paid from the Ngarluma Direct Benefits Trust save as they have been otherwise unreasonably incurred.
5. Perpetual be appointed as the trustee of the Ngarluma Charitable Trust in substitution for the existing trustee, NTKML.
6. Perpetual is appointed and NTKML is removed as trustee of the Ngarluma Charitable Trust without prejudice to any future removal of Perpetual and appointment of NTKML as trustee of the Ngarluma Charitable Trust in accordance with the ILUA and respective trust instruments and related agreements.
7. The monies of the Ngarluma Charitable Trust in the bank accounts set out in items 1 and 2 of Annexure A [to the orders] vest in Perpetual.
8. The costs of the defendant be paid out of the trust fund of the Ngarluma Charitable Trust on an indemnity basis (except to the extent that any costs were unreasonably incurred or of an unreasonable amount) and in default of agreement between the trustee of the Ngarluma Charitable Trust and the defendant taxed on that basis.
3 These are my reasons for making the costs orders.
4 First, for the reasons given in the principal application, I am satisfied that the application brought by the plaintiff was reasonably brought. In my opinion, the application was not only reasonable but necessary because, without court intervention, the trusts could not operate for the benefit of those intended or for the purpose for which the Ngarluma Charitable Trust was established.
5 I am not satisfied that the plaintiff had standing to bring the application with regard to the Ngarluma Charitable Trust. I am satisfied, however, that all of the material that was compiled and the work done with regard to the application was necessary for the application to the extent it related to the Ngarluma Direct Benefits Trust. The two trusts are interconnected as the two components of the Benefit Management Scheme under the ILUA. Some of the material is common to both trusts. The court needed to consider the whole scheme and all of the documents.
6 In my opinion, it is not feasible to separate work done in relation to each trust.
7 I have been provided with helpful submissions by both counsel with regard to entitlement for costs, and in particular the principles summarised by Murphy JA in Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S).
8 Under s 37(1) of the Supreme Court Act 1935 (WA) the court has full power to determine by whom or out of what estate, fund, or property, and to what extent costs are to be paid.
9 Under O 66 r 4(1) of the Rules of the Supreme Court 1971 (WA):
Where property is the subject of any action or matter, or where any question arising therein will affect any right or claim to property, the court may make an order that the costs of any party may be recovered out of the property with or without recourse against any other party: provided that no such order shall be made unless the court is satisfied that the party seeking the order had a genuine interest to protect, or that it was reasonable in the circumstances that he should appear.
10 Section 97 of the Trustees Act 1962 (WA) also confers a wide discretion on the court to order that the costs and expenses of and incidental to any application for any order under the Act 'be raised and paid out of the property in respect of which any of them is made, or out of the income of the property, or to be borne and paid in such manner and by such persons as the Court thinks fit'.
11 The particular matters which in my opinion entitle the plaintiff to the costs order are these.
12 First, the application was necessary. Except by court order, there was no expedient way to resolve the problem of NTKML being unable to carry out its functions as trustee.
13 Second, the plaintiff provides the function of Executive Office to the two trusts. It is also a party to the ILUA, and the Prescribed Body Corporate in the relevant agreements. In relation to the Ngarluma Direct Benefits Trust, in the absence of a trustee who could give instructions and apply to the court, it was reasonable that the plaintiff should do so. While others may have been entitled to bring the application under s 77 and s 93 of the Trustees Act, the plaintiff was the most appropriate party to do so.
14 Third, the plaintiff brought the proceedings and incurred costs for the benefit of the trust generally.
15 Fourth, I do not regard it as unreasonable that the plaintiff also sought orders in relation to the Ngarluma Charitable Trust, although ultimately I did not accept the argument regarding beneficial interest under s 93 of the Trustees Act, and did not accept that the plaintiff could bring the application. Even on that question of standing, while the Attorney General took the position that the plaintiff did not come within s 93 of the Trustees Act, he accepted that the court might still deal with the application: see Ngarluma Aboriginal Corporation RNTBC v The Attorney General of Western Australia [2014] WASC 245 [52]. In short, there is nothing that disentitles the plaintiff from claiming the costs incurred.
16 Fifth, there is no question that the plaintiff has litigated unreasonably or has incurred unnecessary expense in the proceedings before the court. Where the application has been properly brought for the benefit of the trust generally, it is appropriate to order that the costs be paid out of the trust property either on a solicitor and client or indemnity basis.
17 The Attorney General was a necessary party to the proceedings regarding the Ngarluma Charitable Trust. In my opinion, the Attorney General is also entitled to his costs out of the trust property and should be reasonably indemnified for his necessary involvement.
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