Philip Macpherson Robertson v Robert Samuel Allen - [2004] NSWSC 199

CITATION: PHILIP MACPHERSON ROBERTSON v. ROBERT SAMUEL ALLEN & ORS [2004] NSWSC 199

HEARING DATE(S): 15/03/2004

JUDGMENT DATE:
15 March 2004

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Declaration that appointment of the 4th defendant and the removal of the 3rd defendant as trustee of the Leith Trust were effectual. 1st and 2nd defendants are to transfer to the 4th defendant the 48,002 shares held by the 1st and 2nd defendants in Multi Transit Company Pty Ltd. see [28]

CATCHWORDS: WILLS PROBATE AND ADMINISTRATION- further consideration of transfer of shares considered in [2003] NSWSC 848 after appointment of new trustee - executors obliged to transfer shares directly to new trustee. - TRUSTS AND TRUSTEES- new trustee-new trustee entitled to transfer from executors of shares left in will to former trustee without first transferring shares to former trustee-equity regards as done that which ought to have been done.

CASES CITED: Saunders v Vautier (1841) 41 ER 482
Robertson v Allen [2003] NSWSC 848

PARTIES :
Philip Macpherson Robertson - Plaintiff
Robert Samuel Allen - First Defendant
Christopher William Welsh - Second Defendant
Philrob Nominees Pty Limited (CAN 055 131 706) - Third Defendant
Lance Raymond Boswell - Fourth Defendant

FILE NUMBER(S): SC SC 6090/01

COUNSEL: Dr C Birch SC & J Loofs - Plaintiff
A Hill - 1st and 3rd Defendants
Evans - 2nd Defendant

SOLICITORS: Kell Moore - Plaintiff
Addisons - Defendants
Submitting- 4th Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

MONDAY 15 MARCH 2004

6090/01 PHILIP MACPHERSON ROBERTSON v ROBERT SAMUEL ALLEN & ORS

JUDGMENT

1 HIS HONOUR: These reasons relate to further consideration of claims in these proceedings which I reserved in the orders made on 26 September 2003. The reasons I now give must be read with, and understood with, reasons published on that day [2003] NSWSC 848.

2 Since then the plaintiff has, by leave, filed a second further amended statement of claim, in fact filed in court today, which adds as a new party the fourth defendant, Mr L R Boswell, and makes claims based on some events which have happened since 26 September.

3 The plaintiff appointed Mr Boswell new trustee of the Leith Trust in place of the third defendant Philrob Nominees Pty Ltd, by a deed of appointment of 3 October 2003. The plaintiff did this in exercise of a power conferred on him as appointor in the deed of settlement which constituted the Leith Trust, and the operative provision which appoints Mr Boswell as new trustee also removes the third defendant Philrob Nominees as trustee of the Trust. There has been no suggestion in the hearing before me today that this appointment was not fully effectual in accordance with its purport.

4 Mr Boswell proceeded by a letter of 9 October 2003 directed to the executors, who are the first and second defendants Mr Allen and Mr Welsh, to notify them of his appointment and to call for transfer to him,…

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: [2004] NSWSC 199
Decision Date: 15 March 2004

CaseChat Overview and Summary

In the case of Philip Macpherson Robertson v Robert Samuel Allen, the dispute centred on the proper handling of shares bequeathed by a deceased person's will and the subsequent transfer of these shares to a new trustee. The matter was heard by the Supreme Court of New South Wales, which had previously addressed the issue of share transfer in a related case in 2003. The current proceedings involved the executors of the estate and a new trustee appointed under the deceased's will. The legal issues before the court involved determining the executors' obligations in transferring shares to a new trustee and whether the new trustee could directly receive the shares without the executors first transferring them to the former trustee.

The court considered the principles of equity, particularly the doctrine that equity regards as done that which ought to have been done. It examined whether the executors were required to transfer the shares to the former trustee before the new trustee could receive them. The court held that the executors were not obliged to follow this procedural step and could instead transfer the shares directly to the new trustee. This decision was based on the premise that the shares were to be held by the new trustee and that equity would not compel the executors to follow a process that was not necessary for the fulfilment of the testator's intentions. The court also highlighted that the former trustee's interest in the shares had been extinguished by the appointment of the new trustee, thereby negating any need for an intermediate transfer.

As a result, the court found in favour of the new trustee, Robert Samuel Allen, ruling that the executors could directly transfer the shares to him without first transferring them to the former trustee. The court's decision emphasised the importance of adhering to the terms of the will and the equitable principle that actions should be taken to ensure the testator's wishes are fulfilled in the most efficient manner possible. The court's ruling provided clarity on the executors' obligations in such matters and reinforced the principle that equity would not compel unnecessary procedural steps when the substantive outcome could be achieved directly.

The final orders of the court mandated that the executors, Philip Macpherson Robertson and his co-executor, transfer the shares directly to Robert Samuel Allen, the new trustee, without any intermediate transfer to the former trustee. This decision was aimed at ensuring the efficient and equitable administration of the estate in accordance with the deceased's wishes.

Orders