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.:

1. 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).

1. 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.

1. 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. 

1. 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.

1. 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 order, to order a distribution of the proceeds of sale to the beneficiaries of

the clauses Y and T trusts.  Until and unless such an application is made, that question is academic.  Until and unless the judge below has considered the application and the materials put in support of it, it would be precipitant for us to express any view as to the way in which his Honour ought exercise his powers.

1. Consequently, the court is of the view that the orders which should be made are in substance those which were referred to in paragraph 54 of our reasons for judgment or reasons of judgment, published on 7 April 2005. 

WARREN C.J.:

1. The orders of the court are as follows: 

1.        The appeal is allowed. 

2.The judgment and paragraph one of the order of Mandie, J. made on 23 November 2004 are set aside, and in lieu thereof it is ordered that the preliminary question be answered as follows: 

On the assumption stated in "other matters" in the order of Mandie, J., the shares to be issued in Tattersall’s Ltd should be:

(a)distributed as to 5 per cent to the employees in accordance with the compromise recorded in the settlement deed approved by paragraph 16 of the order made on 11 November 2004;

(b)held as to the remainder for the other beneficiaries in proportions in accordance with their entitlements to the net profits of the Sweeps' business under both clauses Y and T (via clauses Z, CC and FF) of the Will. 

3.The costs of all parties of and incidental to the appeal be paid out of the estate and taxed as between solicitor and client.

WARREN C.J.:

1. Are you content with that, Mr O'Bryan?

MR O'BRYAN: 

1. Yes, indeed, Your Honour.

WARREN C.J.:

1. Mr Macaw?

MR MACAW:

1. Yes, if the court pleases.

WARREN C.J.: 

1. Mr Merralls.

MR MERRALLS: 

1. Yes, Your Honour.

WARREN C.J.: 

1. Those orders are made.

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