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Pope v DRP Nominees Pty Ltd No. Scgrg-96-1003 Judgment No. S6994

Pope v DRP Nominees Pty Ltd No. Scgrg-96-1003 Judgment No. S6994

Case [1998] SASC 6994 30 November 1998

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POPE V DRP NOMINEES PTY LTD & ORS

[1998] SASC 6994

Full Court: Prior and Lander JJ

PRIOR J. I too would reject the application. I am not satisfied that there are special circumstances to warrant departure from the general rule that an appeal does not operate as a stay of execution or of proceedings under the decision of the court. The application is therefore refused.
LANDER J. This is an application for a stay by the second defendant. The application is supported by the first defendant, and the interveners. The plaintiff opposes the application and so also does one beneficiary who is a person under a disability.
The second defendant filed a Notice of Appeal on 11 November 1998 against orders made by Olsson J on 5 November 1998.
The action in which the second defendant has appealed was brought by his son who, with his mother and siblings (including the interveners), was a beneficiary of the Pope Family Trust.
The Pope Family Trust is a discretionary trust which was established by Oliver Edgar Pope as settlor. He is the father of the second defendant and the grandfather of the plaintiff.
The trustee of the trust is the first defendant, DRP Nominees Pty Ltd, and the directors of that company are WB Finnie Pty Ltd, and the second defendant. The second defendant is a director of WB Finnie Pty Ltd and therefore controls the trustee.
The Deed of Trust provides that the power of appointment of the trustee resides in the settlor and failing him the second defendant. The settlor died in 1977 so the power resides in the second defendant.
The plaintiff's case is that he has received no allocation from the trust since 1983. All income and distribution of capital has been to the plaintiff's siblings. The plaintiff claims that he and his father, the controller of the trustee, and the appellant, are on bad terms.
Initially the plaintiff applied for the appointment of an inspector and after argument a Master of the Court made such an appointment. The trustee appealed to the Full Court from that decision but the appeal was subsequently abandoned.
The inspector provided an interim report which was highly critical of the trustee. After receipt of that report the plaintiff then sought further relief including orders to remove the trustee and to appoint independent persons as trustees.
When the matter came before Olsson J the trustee advised the court that it wished to retire. The second defendant then advised the court that he wished to appoint two new trustees who are persons known to the second defendant.
On 28 July 1998 the second defendant advised the court he would abide by any order of the court. However, he later appeared by senior counsel and argued that there was no jurisdiction to make any order for the appointment of new trustees.
This Court has been told on this application for a stay that the second defendant only intended to abide by any order 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.

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Details

AGLC: Pope v DRP Nominees Pty Ltd No. Scgrg-96-1003 Judgment No. S6994 [1998] SASC 6994
Case: [1998] SASC 6994
Decision Date: 30 November 1998

CaseChat Overview and Summary

The case of Pope v DRP Nominees Pty Ltd & Ors [1998] SASC 6994 involved an application for a stay of execution by the second defendant, supported by the first defendant and interveners, against orders made by Olsson J on 5 November 1998. The plaintiff opposed the application, as did one beneficiary who is a person under a disability. The second defendant had filed a Notice of Appeal on 11 November 1998 against the orders made by Olsson J. The action was brought by the plaintiff's son, who, with his mother and siblings (including the interveners), was a beneficiary of the Pope Family Trust, a discretionary trust established by Oliver Edgar Pope as settlor. The trustee of the trust was DRP Nominees Pty Ltd, the first defendant, and the directors of that company were WB Finnie Pty Ltd, and the second defendant. The second defendant controlled the trustee and was the appointor of the trustee. The plaintiff's case was that he had received no allocation from the trust since 1983, and all income and distribution of capital had been to the plaintiff's siblings.

The legal issues the court had to decide were whether special circumstances existed to warrant departure from the general rule that an appeal does not operate as a stay of execution or of proceedings under the decision of the court, and whether a stay of the orders appealed against would be granted where the justice of the case required it. The Full Court found that the applicant, and those supporting the applicant, claimed there was a real disadvantage in allowing the order of appointment of the new trustees to stand and not be stayed. The disadvantage was that those appointed trustees by Olsson J would, according to their obligations pursuant to that appointment, investigate the assets of the trust at a significant cost to the trust, which would be irrecoverable in the event that the appeal was successful. However, the Full Court found that it would be inappropriate to grant a stay, having regard to the findings made by the trial judge, and in particular to his findings in relation to the various breaches of trust. The Full Court rejected the application for a stay.

The final orders of the court were that the parties opposing the stay were to have costs in this application, as well as in relation to the application before Olsson J. The court also found that the appointor should bear the costs of the stay application.

Orders