Pearsons Barristers and Solicitors v Avison - [2009] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3808 of 2008

PEARSONS BARRISTERS AND SOLICITORS	Appellant
	v
SHARYN AVISON	Respondent

---

JUDGES:	WARREN CJ, BUCHANAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2009
DATE OF JUDGMENT:	27 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 54

---

Trust and Trustees – Monies held by solicitors for two persons – Terms of settlement of a dispute between the beneficiaries supplied the terms of the Trust – Distribution of trust funds contrary to the terms of settlement – Trustee did not act on the instructions of the plaintiff – Trustee not entitled to the protection of s 67 of the Trustee Act 1958 (Vic) – Equitable compensation.

Practice and Procedure – Summary judgment – Cause of action verified – No real question to be tried – Existence of claims against third parties and desire to obtain documents on discovery did not require the grant of leave to defend – Defendant not entitled to an adjournment to lead further evidence – Plaintiff entitled to judgment.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C M Caleo, SC with Ms R N Annesley	Frenkel Partners
For the Respondent	Mr S W Stuckey	Zervos Lawyers

WARREN CJ:

I have had the benefit of considering the draft judgments of Buchanan JA and Ashley JA. I agree with the reasons of their Honours and that the appeal should be dismissed.

BUCHANAN JA:

A judge in the County Court entered summary judgment in favour of the respondent against the appellant pursuant to the provisions of Rule 22.01 of the County Court Rules. In this appeal the appellant contends that his Honour erred in failing to grant the appellant leave to defend the proceeding.

In an affidavit in support of the application for summary judgment, the respondent deposed that she lived in a domestic partnership with Mark Scott between June 2002 and September 2005. Upon their separation, litigation between the respondent and Scott ensued in order to determine their respective interests in three properties, one at Altona Meadows, the others at Rye and Essendon. The Altona Meadows property was purchased by the respondent before she commenced to live with Scott. The respondent borrowed money to effect the purchase and the loan was secured by a mortgage over the property. The other properties were purchased by the respondent and Scott while they lived together. The couple financed the purchases with loans secured by mortgages over those properties and by the respondent’s mortgage over her Altona Meadows property.

The respondent and Scott agreed to sell the Essendon property. The proceeds of sale were sufficient to discharge the mortgage over that property. The balance, $69,050, was received by the appellant, a firm of solicitors acting for Scott, and placed in the firm’s trust account for the benefit of the respondent and Scott.

In October 2006 the litigation was settled. Clause 1 of the terms of settlement provided that the Rye property would be sold for $330,000. Clause 2 provided…

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.

Keep reading for free

Create a free CaseChat account to read Pearsons Barristers and Solicitors v Avison and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSCA 54
Decision Date: 27 March 2009

CaseChat Overview and Summary

Pearsons Barristers and Solicitors brought a case against Avison, which involved monies held by the solicitors for two individuals. The dispute centred on the terms of settlement between beneficiaries which defined the terms of the trust, and whether the distribution of trust funds was contrary to those terms. The plaintiff claimed that the trustee did not act according to their instructions, and therefore was not entitled to the protection provided by section 67 of the Trustee Act 1958 (Vic). The plaintiff sought equitable compensation for the trustee's actions.

The court had to decide whether the distribution of trust funds was in accordance with the terms of settlement, and whether the trustee was entitled to the protection of section 67 of the Trustee Act 1958 (Vic). The court also had to determine if the plaintiff was entitled to summary judgment, and if the defendant was entitled to an adjournment to lead further evidence.

The court found that the terms of settlement provided the terms of the trust, and that the distribution of trust funds was contrary to those terms. The court also found that the trustee did not act on the instructions of the plaintiff, and therefore was not entitled to the protection of section 67 of the Trustee Act 1958 (Vic). The court held that the plaintiff was entitled to summary judgment as there was no real question to be tried. The court further found that the defendant was not entitled to an adjournment to lead further evidence, as the existence of claims against third parties and the desire to obtain documents on discovery did not require the grant of leave to defend. The court concluded that the plaintiff was entitled to equitable compensation for the trustee's actions.

Orders