Palmer v Palmer - [2022] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer v Palmer and ors [2022] QSC 263

PARTIES:

RYAN ANDREW PALMER AS TRUSTEE OF THE ROSS LESLIE PALMER TESTAMENTARY TRUST

(applicant)

v
ROSS LESLIE PALMER AND ORS
(respondents)

FILE NO/S:

BS10625 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2022

JUDGE:

Hindman J

ORDER:

1. Pursuant to section 96 of the Trusts Act 1973 (Qld), the applicant is directed, upon the written amended statement of facts that is exhibit SJFS119 to the affidavit of Ms Forward-Smith filed 18 November 2022, that he would be justified in entering into and proceeding with the settlement deed in the amended form that is exhibited to the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022.

2. The opinion of Counsel and the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022 be placed in a sealed envelope and marked “Not to be opened without order of the Court.”

3. The applicant’s costs of the proceeding be paid on an indemnity basis from the assets of the Ross Leslie Palmer Testamentary Trust.

4. Except as ordered above, the proceeding is otherwise dismissed with no order as to costs.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – where the applicant is a trustee of a testamentary trust – where there are multiple testamentary trusts created by the same will – where the testamentary trusts are each to receive a proportion of the estate – where there are ongoing disputes including in respect of the administration of the estate – where the trustee is concerned as to how the estate has been administered – where the estate appears to have been fully distributed, apart from household items – where the applicant applied pursuant to s. 96 of the Trusts Act1973 (Qld) for directions that he would be justified in taking certain steps which included the institution of a proposed proceeding – where some parties have subsequently reached a settlement of all disputes – whether the trustee is justified in entering into and proceeding with the settlement deed – whether entering into the settlement deed is in the best interests of the trust estate.

Succession Act1981 (Qld)
Trusts Act 1973 (Qld), ss. 95, 96, 97

Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1, cited

Coore v Coore [2013] QSC 196, applied

Exxonmobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd (2010) 29 VR 356, cited

Gisborne v Gisborne (1877) 2 App Cas 300, cited

Grain Technology Australia Ltd v Rosewood Research Pty Ltd (Official recs and mgrs apptd) [2019] NSWSC 1744, applied

Macedonian Church v Eminence Petar (2008) 237 CLR 66, applied

McKinnon v Samuels [2000] VSC 393, cited

Re Allen-Meyrick’s Will Trusts; Mangnall v Allen-Meyrick [1966] 1 WLR…

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 Palmer v Palmer

Details

AGLC: Palmer v Palmer [2022] QSC 263
Case: [2022] QSC 263
Decision Date: 28 November 2022

CaseChat Overview and Summary

In the case of Palmer v Palmer, the applicant, a trustee of a testamentary trust, sought directions from the court regarding the steps he could take, including the initiation of legal proceedings. The trust in question was one of several created by a will, each intended to receive a portion of the estate. The dispute centred on the administration of the estate, with the trustee concerned about how it had been managed. The estate appeared to have been fully distributed, with the exception of household items. The trustee applied for directions under section 96 of the Trusts Act 1973 (Qld), seeking justification for entering into a proposed settlement deed. Some parties had already reached a settlement of their disputes, prompting the trustee to question whether proceeding with the settlement deed was in the best interests of the trust estate.

The court was required to determine whether the trustee was justified in entering into the settlement deed and if doing so would be in the best interests of the trust estate. This involved considering the implications of the trustee’s actions on the trust’s beneficiaries and the overall administration of the estate. The court's decision was influenced by the need to balance the trustee's fiduciary duties with the practicalities of managing ongoing disputes within the estate. The court examined the terms of the settlement deed, the advice provided by legal counsel, and the affidavits submitted by the parties involved.

The court found that the trustee would be justified in entering into and proceeding with the settlement deed, provided it was in the amended form as exhibited to the affidavits filed by Ms Forward-Smith. The court emphasised that the trustee's decision should align with the best interests of the trust estate and its beneficiaries. The court directed that the opinion of Counsel and the affidavits be sealed and marked to prevent premature disclosure. Additionally, the court ordered that the applicant’s costs of the proceeding be paid on an indemnity basis from the assets of the Ross Leslie Palmer Testamentary Trust. The proceeding was dismissed in all other respects, with no order as to costs.

Orders

Orders of the court

1. Pursuant to section 96 of the Trusts Act 1973 (Qld), the applicant is directed, upon the written amended statement of facts that is exhibit SJFS119 to the affidavit of Ms Forward-Smith filed 18 November 2022, that he would be justified in entering into and proceeding with the settlement deed in the amended form that is exhibited to the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022.

2. The opinion of Counsel and the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022 be placed in a sealed envelope and marked “Not to be opened without order of the Court.”

3. The applicant’s costs of the proceeding be paid on an indemnity basis from the assets of the Ross Leslie Palmer Testamentary Trust.

4. Except as ordered above, the proceeding is otherwise dismissed with no order as to costs.

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.

CITATION:	Palmer v Palmer and ors [2022] QSC 263
PARTIES:	RYAN ANDREW PALMER AS TRUSTEE OF THE ROSS LESLIE PALMER TESTAMENTARY TRUST (applicant) v ROSS LESLIE PALMER AND ORS (respondents)
FILE NO/S:	BS10625 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2022
JUDGE:	Hindman J
ORDER:	1. Pursuant to section 96 of the Trusts Act 1973 (Qld), the applicant is directed, upon the written amended statement of facts that is exhibit SJFS119 to the affidavit of Ms Forward-Smith filed 18 November 2022, that he would be justified in entering into and proceeding with the settlement deed in the amended form that is exhibited to the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022. 2. The opinion of Counsel and the two confidential affidavits of Ms Forward-Smith filed by leave on 23 November 2022 be placed in a sealed envelope and marked “Not to be opened without order of the Court.” 3. The applicant’s costs of the proceeding be paid on an indemnity basis from the assets of the Ross Leslie Palmer Testamentary Trust. 4. Except as ordered above, the proceeding is otherwise dismissed with no order as to costs.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – where the applicant is a trustee of a testamentary trust – where there are multiple testamentary trusts created by the same will – where the testamentary trusts are each to receive a proportion of the estate – where there are ongoing disputes including in respect of the administration of the estate – where the trustee is concerned as to how the estate has been administered – where the estate appears to have been fully distributed, apart from household items – where the applicant applied pursuant to s. 96 of the Trusts Act1973 (Qld) for directions that he would be justified in taking certain steps which included the institution of a proposed proceeding – where some parties have subsequently reached a settlement of all disputes – whether the trustee is justified in entering into and proceeding with the settlement deed – whether entering into the settlement deed is in the best interests of the trust estate. Succession Act1981 (Qld) Trusts Act 1973 (Qld), ss. 95, 96, 97 Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1, cited Coore v Coore [2013] QSC 196, applied Exxonmobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd (2010) 29 VR 356, cited Gisborne v Gisborne (1877) 2 App Cas 300, cited Grain Technology Australia Ltd v Rosewood Research Pty Ltd (Official recs and mgrs apptd) [2019] NSWSC 1744, applied Macedonian Church v Eminence Petar (2008) 237 CLR 66, applied McKinnon v Samuels [2000] VSC 393, cited Re Allen-Meyrick’s Will Trusts; Mangnall v Allen-Meyrick [1966] 1 WLR…