PERPETUAL TRUSTEES (WA) LIMITED -v- NASO [1999] WASCA 80

Reported Decision:	(1999) 21 WAR 191
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 80
Court:	THE FULL COURT (WA)
Case No:	FUL:27/1999	Heard:	12 APRIL 1999
Coram:	WHITE J PARKER J	Delivered:	23/06/99
No of pages:	14	Judgment Part:	1 of 1
Result:	Leave to appeal grantedAppeal allowedProceeding stayed until further order
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Parties:	PERPETUAL TRUSTEES (WA) LIMITED MAX ELIO NASO
Catchwords:	Procedure Supreme Court Order for medical examination Meaning of examination Trusts Constituted by Court until further order Whether adult sole beneficiary might extinguish Rule in Saunders v Vautier not applicable
Legislation:	Rules of the Supreme Court O 28 r 1
Case References:	Crouch v Hudson (1968) 89 WN (Pt 1) (NSW) 3 Payne v Egan (1967) 86 WN (Pt 1) (NSW) 64 Polairet v Carew (1863) 32 Beav 564, 55 ER 222 Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 Pucci v Humes (1970) 92 WN (NSW) 32 Saunders v Vautier (1841) 4 Beav 115, 49 ER 282 Stace v The Commonwealth (1989) 51 SASR 391 State of Western Australia v Bond Corporation (1991) 5 WAR 40 Thomas v Perpetual Trustee Co (Ltd) (1955) 94 CLR 537 Thomasset v Thomasset [1894] P 295 Weatherall v Thornbugh (1878) 8 Ch D 261 Wharton v Masterman [1895] AC 186 Wilson v Metaxas [1989] WAR 285 Cocchi v Cocchi [1989] 1 Qd R 266 Hearle v Greenbank 3 Atk 695 Howell v Lewis (1892) Lanitis v Lanitis [1970] 1 WLR 503 Laughton v Taylor (1840) 151 ER 592 Payne v Egan (1967) 86 WN (Pt 1) (NSW) 64 Ping v Van der Kroft [1982] 2 NSWLR 731 Pollock v Wellington (1996) 15 WAR 1 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 R v Gyngall [1893] 2 QB 232 Re K (KJS)(an infant) [1966] 1 WLR 1241 T v H [1985] 3 NSWLR 270 The Queen v R (1993) 70 A Crim R 59 Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324 Wood v Public Trustee (1995) 16 WAR 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PERPETUAL TRUSTEES (WA) LIMITED -v- NASO [1999] WASCA 80 CORAM : WHITE J

PARKER J

HEARD : 12 APRIL 1999 DELIVERED : 23 JUNE 1999 FILE NO/S : FUL 27 of 1999 MATTER : Application for leave to appeal from Master BETWEEN : PERPETUAL TRUSTEES (WA) LIMITED

Applicant (Defendant)

AND

MAX ELIO NASO

Respondent (Plaintiff)

Catchwords:

Procedure - Supreme Court - Order for medical examination - Meaning of examination

Trusts - Constituted by Court until further order - Whether adult sole beneficiary might extinguish - Rule in Saunders v Vautier not applicable

Legislation:

Rules of the Supreme Court O 28 r 1

(Page 2)

Result:

Leave to appeal granted

Appeal allowed

Proceeding stayed until further order

Representation:

Counsel:

Applicant (Defendant) : Mr D M Bruns

Respondent (Plaintiff) : Mr T H Brickhill

Solicitors:

Applicant (Defendant)…

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.

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Details

Case: [1999] WASCA 80
Decision Date: 23 JUNE 1999

CaseChat Overview and Summary

The case of Perpetual Trustees (WA) Ltd v Naso involved a dispute concerning a trust established by the parties. The matter was brought before the Supreme Court of Western Australia, where the court was required to determine the meaning of the term "examination" in the context of an order for a medical examination of the beneficiary. The legal issue at hand was whether an adult beneficiary could potentially extinguish a trust that had been constituted by the court until further order, and whether the rule in Saunders v Vautier was applicable in such circumstances.

In addressing these issues, the court found that the term "examination" in the context of an order for a medical examination of the beneficiary should be interpreted in a manner that aligns with the purpose of the order. The court concluded that the rule in Saunders v Vautier, which allows beneficiaries to demand the termination of a trust, was not applicable in this case. The court held that the trust could not be extinguished by the adult beneficiary, and that the trust would continue to exist until further order from the court. The court also found that the meaning of "examination" in this context did not permit the beneficiary to extinguish the trust.

The court granted leave to appeal and allowed the appeal, staying the proceedings until further order. The decision underscores the importance of carefully considering the language used in court orders and the potential implications of such orders on the rights of beneficiaries in trust matters. The court's interpretation of the term "examination" and its ruling on the applicability of the rule in Saunders v Vautier provides clarity for future cases involving similar issues.

Orders

Orders of the court

Leave to appeal grantedAppeal allowedProceeding stayed until further order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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