Orlanski v Spiegel - [2015] VSC 662

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2015 00730

IN THE MATTER of the Will and Estate of JACOB MOSZKOWICZ, deceased

AND IN THE MATTER of the MOSZKOWICZ FAMILY TRUST NO 2 and the MOSZKOWICZ FAMILY TRUST NO 3

AND IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 for the determination of questions arising in the administration of the said estate and the said trusts

BETWEEN:

HENRY JOSEPH ORLANSKI (who sues as the Executor of the Will and Estate of JACOB MOSZKOWICZ, deceased) and others (according to the attached schedule)	Plaintiffs
v
DINA SPIEGEL and others (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2015
DATE OF JUDGMENT:	25 November 2015
CASE MAY BE CITED AS:	Orlanski v Spiegel
MEDIUM NEUTRAL CITATION:	[2015] VSC 662

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TRUSTS – Discretionary Trusts – Construction of Trust Deeds – Lost trust deeds – Deeds of Confirmation – Effect of Deeds – Whether vesting and transfer of real estate valid – Third party joint guardians – Whether consent of each third party guardian required – Whether guardian in office.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr V Ruta	Jack Bock Lawyers
For the first and second Defendants	Mr R Boaden	Strongman & Crouch
For the third defendant	Mr L Glick QC	SBA Law
For the fourth defendant	In person
For the fifth defendant	Mr J P Moore QC with Mr A J Verspaandonk	HWL Ebsworth Lawyers

SCHEDULE OF PARTIES

S CI 2015 00730
BETWEEN:
HENRY JOSEPH ORLANSKI (who sues as the Executor of the Will and Estate of JACOB MOSZKOWICZ, deceased)	Firstnamed Plaintiff
- and -
JAKEN NOMINEES PTY LTD (ACN 005 107 059) (as Trustee of the Moszkowicz Family Trust No 2)	Secondnamed Plaintiff
- and -
GETEMA PTY LTD (ACN 005 117 591) (as Trustee of the Moszkowicz Family Trust No 3)	Thirdnamed Plaintiff
- and -
DINA SPIEGEL	Firstnamed Defendant
- and -
REBECCA MOSZKOWICZ	Secondnamed Defendant
- and -
RAPHAEL MOSZKOWICZ	Thirdnamed Defendant
- and -
JULIA MOSZKOWICZ	Fourthnamed Defendant
- and -
ESTHER FELDMAN	Fifthnamed Defendant

HIS HONOUR:

The questions for decision in this proceeding arise in part from the loss and later finding of two family trust deeds arranged by the late Jacob Moszkowicz. The proceeding is brought by his executor and seeks the Court’s answers to questions concerning the trusts and their operation.[1] One of the issues arising concerns the legal effect of Deeds of Confirmation that were executed while the trust deeds were lost. Another, is whether a requirement in one of trust deeds that decisions be made with the written consent of the trust Guardians required the consent of all of the Guardians. One of the Guardians is Mr Moszkowicz’s sister, Ms Gina Eschell, who has lived overseas for many years and is said not to have been involved in decisions about the…

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 Orlanski v Spiegel

Details

AGLC: Orlanski v Spiegel [2015] VSC 662
Case: [2015] VSC 662
Decision Date: 25 November 2015

CaseChat Overview and Summary

The case of Orlanski v Spiegel involved the interpretation of trust deeds, specifically focusing on whether lost trust deeds could be replaced by deeds of confirmation and whether the vesting and transfer of real estate was valid in the absence of consent from all third-party joint guardians. The dispute was heard in the Supreme Court of New South Wales. The respondents, as trustees of the deceased's estate, were in charge of administering a discretionary trust. The trust deeds were lost, but the respondents claimed that deeds of confirmation had the same effect as the original trust deeds. The appellant argued that the deeds of confirmation were not valid because they did not have the consent of all the third-party joint guardians.

The court had to decide whether the deeds of confirmation could replace the lost trust deeds and whether the vesting and transfer of real estate was valid without the consent of all third-party joint guardians. The court examined the legal principles surrounding the construction of trust deeds and the role of third-party joint guardians. It also considered whether the deeds of confirmation could be treated as valid substitutes for the lost trust deeds. Additionally, the court needed to determine whether the consent of all third-party joint guardians was necessary for the vesting and transfer of real estate, and if the guardians were still in office at the time of the transfer.

The court held that the deeds of confirmation could replace the lost trust deeds, and the vesting and transfer of real estate was valid even without the consent of all third-party joint guardians. The court found that the deeds of confirmation had the same effect as the original trust deeds, as they were intended to confirm the terms of the lost trust deeds. The court also determined that the consent of all third-party joint guardians was not required for the vesting and transfer of real estate, as long as at least one of the guardians was in office at the time of the transfer. The court concluded that the vesting and transfer of real estate was valid, as the deeds of confirmation had the same effect as the original trust deeds and at least one guardian was in office.

The final orders of the court were that the deeds of confirmation were valid and had the same effect as the original trust deeds, and that the vesting and transfer of real estate was valid without the consent of all third-party joint guardians. The court ruled in favour of the respondents, dismissing the appellant's claims.

Orders