Playoust v Hornsby and Osr - [2005] VSCA 84

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7676 of 2004

JULIEN PHILIP FERNAND PLAYOUST (WHO IS SUED IN HIS PERSONAL CAPACITY AND AS THE APPOINTED REPRESENTATIVE OF THE CLASS OF PERSONS DEFINED IN THE SCHEDULE)	Appellant
	v.
RAYMOND JAMES HORNSBY AND OTHERS (ACCORDING TO THE SCHEDULE) (AS TRUSTEES OF THE ESTATE OF THE LATE GEORGE ADAMS)	Respondents

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JUDGES:	WARREN, C.J. and CHARLES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2005
DATE OF JUDGMENT:	14 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 84

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. Merralls QC with Mr M.R. Pearce	Bazzani Brand Lawyers
For the First to Fourth Respondents	Mr N.J. O'Bryan SC with Mr A.J. Kelly	Herbert Geer & Rundle
For the Fifth Respondent	Mr R.C. Macaw QC with Mr J.P. Moore	Aitken Walker & Strachan

NETTLE , J.A.:

In the court's reasons for judgment, which were published on 7 April 2005, it was proposed that we should order:

Upon the proper interpretation of the will, if the proposed restructure were implemented, the consideration received for the sale or transfer of the Sweeps business should be held on the trusts as to net profits contained in clauses Y and T (via clauses Z, CC and FF).

Mr O'Bryan for the trustees, and Mr Merralls for the appellant, have now submitted that the order to be made ought include terms to the effect, or which would be construed as meaning, that if application were made to the judge below pursuant to s.63 or s.63A of the Trustee Act 1958, and the judge made an order, the judge would be bound to direct that the proceeds of sale be distributed only to the beneficiaries of the clauses Y and T trusts. We are not disposed to accede to that application and we consider that the basis on which it has been propounded is misplaced.

The judge below concluded that there was power under the Will for the trustees to distribute the proceeds of sale to the beneficiaries. The effect of our reasons for judgment, published on 7 April 2005, is that there is no such power under the Will and that accordingly, the proceeds of sale must be held by the trustees upon trust for the beneficiaries of Clauses Y and T trusts.

As we endeavoured to make clear in our reasons of 7 April 2005, if the proceeds of sale are to be distributed to the beneficiaries, it may only be done pursuant to the rule in Saunders v. Vautier[1], or by reason of a variation of the trusts pursuant to s.63 or s.63A of the Trustee Act 1958.

[1](1841) Cr. & Ph. 240, [1835-42] All E.R. Rep. 58.

The effect of what is proposed by Mr O'Bryan and Mr Merralls would be that we make a determination in advance of application being made to the judge below under s.63 or 63A, that his Honour would be bound, if he were disposed to make such an…

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: [2005] VSCA 84
Decision Date: 14 April 2005

CaseChat Overview and Summary

Julien Fernand Playoust appealed against a decision of Mandie J in the Supreme Court of Victoria regarding the interpretation of the will of George Adams. The dispute involved the distribution of the net profits of the Sweeps business and the shares in Tattersall's Ltd, as well as the application of sections 63 and 63A of the Trustee Act 1958. The court was tasked with determining whether the trustees had the authority to distribute the proceeds from the sale of the Sweeps business and the shares in Tattersall's Ltd to the beneficiaries of the Clauses Y and T trusts, and whether such distribution could be mandated by a judge under sections 63 or 63A of the Trustee Act.

The court concluded that there was no power under the will for the trustees to distribute the proceeds of sale to the beneficiaries, and that any distribution could only occur under the rule in Saunders v Vautier or by variation of the trusts under sections 63 or 63A of the Trustee Act. The court held that it was not appropriate to make a determination in advance of an application to the judge below under sections 63 or 63A. The court found the application to pre-empt the judge's discretion misplaced and declined to order that the judge would be bound to direct a distribution of the proceeds of sale to the beneficiaries of the Clauses Y and T trusts.

The court allowed the appeal and set aside the judgment and order of Mandie J, ordering instead that the shares to be issued in Tattersall’s Ltd should be distributed as per the agreement. The costs of the appeal were ordered to be paid out of the estate and taxed as between solicitor and client.

Orders