Plan B Trustees Ltd v Parker [No 2]

Case [2013] WASC 216


PLAN B TRUSTEES LIMITED -v- PARKER [No 2] [2013] WASC 216



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 216
Case No:CIV:1494/201228, 29 NOVEMBER 2012 & 8 MAY 2013
Coram:EDELMAN J30/05/13
66Judgment Part:1 of 1
Result: Directions given
B
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Parties:PLAN B TRUSTEES LIMITED
as trustee for MARTU IDJA BANYJIMA CHARITABLE TRUST
MAITLAND PARKER
as personal representative of the beneficiaries of MARTU IDJA BANYJIMA CHARITABLE TRUST
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
BHP BILLITON IRON ORE PTY LTD

Catchwords:

Trusts and trustees
Directions under s 92 of Trustees Act 1962 (WA)
Directions sought that trustee is justified in not commencing various legal proceedings
Factors relevant to whether the directions should be given
Circumstances when a trustee seeking directions should provide a legal opinion from counsel
Directions given

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Trustees Act 1962 (WA)

Case References:

Andrews v M'Guffog (1886) 11 App Cas 313
Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328
Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247
Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185
Armitage v Nurse [1998] Ch 245
Attorney General v Corporation of Exeter (1826) 2 Russ 45
Attorney General v The Governors of the Sherborne Grammar School (1854) 18 Beav 256, 280; (1854) 52 ER 101
Barlow Clowes International Ltd (in liq) & Ors v Vaughan [1992] 4 All ER 22
Barnes v Addy (1874) LR 9 Ch App 244
Bartlett v Barclays Trust Co Ltd (No 2) [1980] 1 Ch 539
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Citibank NA v QVT Financial LP [2007] EWCA 11
Clephane v Lord Provost of Edinburgh (1869) LR 1 HL Sc 417
Commissioner of Taxation of the Commonwealth of Australia v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204
Dingle v Turner [1972] AC 601
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 286 ALR 12; (2012) 86 ALJR 296
FAI General Insurance v Australian Hospital Care (1999) 153 FLR 448
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Guinness v Saunders [1990] 2 AC 663
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 16
HIH Casualty and General Insurance Australia Ltd v DellaVedova [1999] FCA 456; (1999) 10 ANZ Ins Cas 61-431
In re Freeston's Charity [1978] 1 WLR 120
Landsdale Pty Ltd v Moore [2009] WASCA 176
Langsam v Beachcroft LLP & Ors [2012] EWCA Civ 1230
Langsam v Beachcroft LLP [2011] EWHC 1451 (Ch)
Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160; (2006) 66 NSWLR 112
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop…

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PLAN B TRUSTEES LIMITED -v- PARKER [2013] WASC 216
Case
[2013] WASC 216
Decision Date

CaseChat Overview and Summary

In this case, the plaintiff, Plan B Trustees Ltd, sought directions from the court pursuant to section 92 of the Trustees Act 1962 (WA), seeking clarification on whether the trustee was justified in not initiating certain legal proceedings. The defendant, Parker, contested the application. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue for the court was to determine the factors relevant to granting the sought directions, and to decide whether the trustee should provide a legal opinion from counsel in circumstances where directions were being sought. Specifically, the court had to consider whether the trustee had acted reasonably and in the best interests of the trust by not initiating the legal proceedings.

The court held that the trustee was justified in not commencing the legal proceedings, based on a detailed consideration of the circumstances and the potential risks and benefits involved. The court found that the trustee had acted reasonably and in the best interests of the trust by not initiating the legal proceedings. The court also noted that the circumstances did not necessitate the trustee to provide a legal opinion from counsel. The court concluded that the trustee was entitled to the directions sought, and accordingly, gave the directions.

The final orders of the court were that directions were given to the trustee as sought by the plaintiff.

Orders

Orders of the court

Directions given

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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