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Northgate Park Pty Ltd v Floyd

Northgate Park Pty Ltd v Floyd

Case [2022] VSC 783 23 December 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2022 03576

IN THE MATTER OF AN APPLICATION PURSUANT TO RULE 54.02 OF THE SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 (VIC)
BETWEEN:
NORTHGATE PARK PTY LTD (ACN 051 201 202) AND OTHERS	Plaintiffs
v
PENELOPE JANE FLOYD AND OTHERS	Defendants

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 27 October 2022
FURTHER SUBMISSIONS:	29, 30 November 2022
DATE OF JUDGMENT:	23 December 2022
DATE OF ADDENDUM:	6 March 2023
CASE MAY BE CITED AS:	Northgate Park Pty Ltd v Floyd
MEDIUM NEUTRAL CITATION:	[2022] VSC 783

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TRUSTS – Express trust – Family discretionary trust – Lost trust deed – Evidence of trust – Existence established – Whether trust fails for uncertainty – Secondary evidence – Expert evidence – Powers and duties of trustee confirmed by subsequent trust deed – Whether effective – Whether terms of later trust deed require amendment.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	I Percy	King & Collins
J Carney
For the 1^st and 3^rd defendants	D Clough	Macpherson Kelley
For the 2^nd defendant	M Shanker (solicitor)	Norton Rose Fulbright
Interested non-parties	J Barber SC

HIS HONOUR:

A. Introduction

A.1 Background

On 5 September 2022, the trial commenced in a proceeding (“the Main Proceeding”) between Penelope Floyd (“Penny”) and Jason Trompf (“Jason”) as plaintiffs (“the Claimants”), and Merilyn Floyd (“Merilyn”), Robert Floyd (“Robert”) and Northgate Park Pty Ltd (“Northgate”) as defendants (“the Present Owners”).[1] In the Main Proceeding, Merilyn is sued in her own right and as trustee of the FES superannuation fund. More significantly for present purposes, Northgate is sued in its own right and as trustee of the Floyd family trust (“the Family Trust”). On the pleadings, there was no issue that Northgate was the trustee of the Family Trust.
[1]Merilyn and Robert are the directors of Northgate.
Penny is the daughter of Merilyn and Robert. Jason is her husband. Penny’s only sibling is her sister Jodi Floyd (“Jodi”), who is approximately 2 years younger. Jodi is not a party to the Main Proceeding.
In the very broadest of terms, in the Main Proceeding the Claimants allege, amongst other things, a right to farming property held in the name of Northgate in its capacity as trustee of the Family Trust. It is alleged this right arose from, amongst other things, a promise that was said to be made by Merilyn and Robert to the Claimants in 1995 (“the Promise”).[2]
[2]There are many other allegations, including those the subject of a counterclaim filed by the Present Owners.
On the first 2 days of the trial of the Main Proceeding, both the Claimants and the Present Owners opened their respective cases. Towards the end of the second day, counsel for the Present Owners informed the court that it appeared the operative documentation with respect to the Family Trust was not the 2 trust deeds in the court book (“the Later Deeds”),[3] but rather…

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 Northgate Park Pty Ltd v Floyd

Details

AGLC: Northgate Park Pty Ltd v Floyd [2022] VSC 783
Case: [2022] VSC 783
Decision Date: 23 December 2022

CaseChat Overview and Summary

The case of Northgate Park Pty Ltd v Floyd involved a dispute over the existence and terms of a family discretionary trust. The plaintiff, Northgate Park Pty Ltd, sought to establish the validity of the trust and the powers and duties of the trustee as outlined in a subsequent trust deed. The defendant, Floyd, challenged the existence of the trust and argued that the subsequent trust deed did not effectively confirm the trustee's powers and duties. The matter was heard and determined by the Supreme Court of Queensland.

The legal issues that arose in this case included whether the existence of the trust could be established in the absence of the original trust deed, whether the trust failed due to uncertainty, and whether the subsequent trust deed effectively confirmed the trustee's powers and duties. The court had to determine if the evidence presented, including expert evidence, was sufficient to prove the existence of the trust and the terms of the subsequent trust deed.

The court found that the existence of the trust could be established despite the loss of the original trust deed. It held that the evidence presented, including secondary evidence and expert testimony, was sufficient to demonstrate the existence of the trust. The court also found that the subsequent trust deed effectively confirmed the trustee's powers and duties, despite the defendant's arguments to the contrary. The court concluded that the terms of the later trust deed did not require amendment as they were consistent with the powers and duties confirmed by the subsequent deed.

The final orders of the court confirmed the existence of the family discretionary trust and the powers and duties of the trustee as outlined in the subsequent trust deed. The court ruled that the trust was valid and enforceable, and that the subsequent trust deed effectively governed the trustee's role.

Orders