Petsus Nominees v Bauer - [2020] VSC 443

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

Not Restricted

S CI 2016 0295

PETSUS NOMINEES PTY LTD (ACN 005 031 390)

(as Trustee of the Franz Bauer Family Trust)

Plaintiff

PETER BAUER

Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2019
DATE OF JUDGMENT:	27 July 2020
CASE MAY BE CITED AS:	Petsus Nominees v Bauer
MEDIUM NEUTRAL CITATION:	[2020] VSC 443 (First Revision 31 July 2020)

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TRUST AND TRUSTEES – Judicial advice – Originating Motion – Interpretation of Trust Deed – Determination of questions concerning powers of a Trustee under Trust Deed - Supreme Court (General Civil Procedure) Rules 2015, r 54.02(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Sanders	KCL Law
For the Defendant	Mr C Mӧller	Pro Bono direct briefing

HIS HONOUR:

The Application

The plaintiff, Petsus Nominees Pty Ltd as Trustee of the Franz Bauer Family Trust (Trustee), seeks assistance from the Court with respect to the administration of the Franz Bauer Family Trust (Trust).

By its Second Further Amended Originating Motion dated 8 February 2019,[1] the Trustee sets out the questions which it seeks to have determined pursuant to r 54.02(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules of Court) arising out of the administration of, or in execution of, the Trust (Application).
[1]CB1-3.

Material relied upon

In the Application, the parties relied upon the following material:

Trustee’s material:

(a) Affidavits of Daniel Lustig affirmed:

(i) 22 January 2016 (First Lustig Affidavit);[2]
[2]CB7-99.

(ii) 19 April 2016 (Second Lustig Affidavit);[3] and
[3]CB100-125.

(iii) 11 September 2018 (Third Lustig Affidavit) (filed in the Victorian Civil and Administrative Tribunal);[4]
[4]CB157-198.

(b) Affidavits of Paul Beasant sworn:

(i) 27 July 2017 (First Beasant Affidavit);[5] and
[5]CB126-156.

(ii) 5 February 2019 (Second Beasant Affidavit);[6]
[6]CB220-250.

(c) Submissions dated 22 July 2019 (Trustee Submissions);

(d) Submissions in Reply dated 5 September 2019 (Trustee Reply Submissions).

Defendant’s material:

(e) Affidavits of Peter Bauer sworn:

(i) 27 March 2017 (First Bauer Affidavit);[7]
[7]CB199-219.

(ii) 5 March 2019 (Second Bauer Affidavit);[8] and
[8]CB251-253.

(iii) 28 August 2019 (Third Bauer Affidavit).

(f) Defendant’s Submissions dated 29 August 2019 (Defendant Submissions).

General Background

The last surviving beneficiary of the Trust, Mr Peter Bauer (defendant) disputes the Trustee’s interpretation of the Trust and raises issues of construction in relation to the Trust and its proper administration and execution. The defendant also earlier foreshadowed cross-claims against the Trustee in respect of its administration and execution of the Trust, however these matters were not pressed.

The Trustee was incorporated in 1974 as the corporate Trustee for the Trust. Mr Daniel Lustig (Lustig) and Mr Kevin Courtney are the current directors of the Trustee, and Lustig has responsibility for the day to day running of the Trust. The Trustee is also the registered proprietor of a property at Flat 1, 731 Punt Road, South Yarra in the State of Victoria (the Property), which forms part of…

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 Petsus Nominees v Bauer

Details

AGLC: Petsus Nominees v Bauer [2020] VSC 443
Case: [2020] VSC 443
Decision Date: 27 July 2020

CaseChat Overview and Summary

In the case of Petsus Nominees v Bauer, the matter before the court involved a dispute concerning the interpretation of a Trust Deed and the associated powers of a Trustee. The court was asked to provide judicial advice on these matters, which arose from an originating motion filed under the Supreme Court (General Civil Procedure) Rules 2015. The central legal issues for the court to determine were the interpretation of the Trust Deed and the extent of the powers held by the Trustee in relation to certain trust assets.

The court considered the specific provisions of the Trust Deed and the legal principles relevant to the interpretation of trust instruments. It examined the language used in the Deed and the context in which it was written to ascertain the intentions of the parties. Furthermore, the court evaluated the scope of the Trustee's powers, taking into account the statutory framework and common law principles governing trustees' duties and authority. The court's analysis was meticulous, ensuring that it adhered to the relevant procedural rules and provided a clear and reasoned decision on the matters before it.

In its judgment, the court determined that the Trust Deed should be interpreted in a manner consistent with the parties' intentions, as expressed in the document. The court found that the Trustee's powers were limited to those expressly granted in the Trust Deed, and that any actions outside these powers were not permissible. The decision provided clarity for the parties involved and established the boundaries of the Trustee's authority moving forward.

The court made orders in line with its findings, providing the necessary judicial advice to the parties. The orders clarified the interpretation of the Trust Deed and the powers of the Trustee, ensuring that the trust assets were managed in accordance with the legal framework established by the Deed and applicable law.

Orders