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Pope v Pope

Pope v Pope

Case [2001] SASC 26 14 February 2001

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POPE v POPE AND OTHERS
[2000] SASC 26

Full Court: Doyle CJ, Duggan and Bleby J

1................ DOYLE CJ....... In my opinion the appeal should be dismissed. I agree with the reasons given by Bleby J, and there is nothing that I wish to add to those reasons.

2................ DUGGAN J.................... I agree that this matter should be dismissed for the reasons given by Bleby J.....

3................ BLEBY J:........ The appellant, Desmond Roy Pope, is a director of the respondent DRP Nominees Pty Ltd, which company was, until 5 November 1998, the trustee of the Pope Family Trust. For convenience I will refer to the company as “the former trustee”.

The first respondent Desmond Oliver Pope (“the plaintiff”) is one of a class of potential beneficiaries of the Pope Family Trust. On 14 May 1996 he commenced an application in this Court for an order for the appointment of an inspector of the trust pursuant to s 84C of the Trustee Act 1936. At that stage the sole defendant in the proceedings was the former trustee.
On 11 September 1996 a Master of this Court appointed an inspector. The former trustee appealed to the Full Court of this Court against that order, but on 6 March 1997, on the day when the appeal was listed for hearing, the former trustee abandoned the appeal. The Full Court ordered that the former trustee pay the plaintiff’s costs of the abandoned appeal on a solicitor and client basis. A further application that the former trustee be required to pay the costs personally, or alternatively that the present appellant should pay them, was adjourned for further consideration.
On 16 July 1997 the Master formally appointed an inspector, and on 8 December 1997 the former trustee issued an application seeking directions designed to confine the inspector’s powers. On 13 January 1998 that application was withdrawn.
On 22 February 1998 the inspector delivered his interim report to the court. It was highly critical of the administration of the trust in circumstances to which I shall later refer.
As a consequence of the report, on 6 March 1998 the plaintiff sought and was granted leave to amend the summons seeking a number of further orders, including an order for removal of the trustee and for the appointment of new trustees. Other orders sought included an order restraining the former trustee from indemnifying itself out of the assets of the trust in respect of any liability for costs of and incidental to the action, and a further order that in the event that the former trustee was unable to meet such liability, that the directors of the former trustee pay such costs.
At a subsequent hearing an intimation was given that the former trustee was desirous of retiring from the trust, and that the appellant, who was given the power of appointment under clause 10 of the relevant trust deed, wished to appoint a new personal trustee in its place. The plaintiff objected. The appellant sought…

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.

Continue reading Pope v Pope

Details

AGLC: Pope v Pope [2001] SASC 26
Case: [2001] SASC 26
Decision Date: 14 February 2001

CaseChat Overview and Summary

Desmond Roy Pope, a director of DRP Nominees Pty Ltd, which was the trustee of the Pope Family Trust, appeals against orders made by the trial judge in the South Australian Supreme Court for him to pay the costs of the proceedings to Desmond Oliver Pope, a beneficiary of the trust. The Full Court, consisting of Doyle CJ, Duggan and Bleby J, was required to determine whether the trial judge was correct in ordering that the appellant pay the costs of the proceedings, and if so, whether the order should be on a solicitor and client basis or on an indemnity basis. The Full Court found that the trial judge was correct in his orders for costs, and that the order should be on an indemnity basis. The Full Court reasoned that the former trustee had breached its trust obligations, and had acted unreasonably in resisting its removal. The court held that the appellant, as the effective decision-maker behind the former trustee, was liable for the costs of the proceedings. The Full Court also found that the appellant's conduct was unreasonable, and that the general circumstances of the case warranted an order for costs on an indemnity basis.

The Full Court dismissed the appellant's appeal, and affirmed the orders of the trial judge for the appellant to pay the costs of the proceedings on an indemnity basis. The Full Court held that the former trustee had breached its trust obligations, and that the appellant, as the effective decision-maker behind the former trustee, was liable for the costs of the proceedings. The Full Court also found that the appellant's conduct was unreasonable, and that the general circumstances of the case warranted an order for costs on an indemnity basis. The Full Court rejected the appellant's argument that the orders were invalid because they were based on findings of fact that had not been made against him personally. The Full Court held that the appellant's liability for costs was based on his conduct as the effective decision-maker behind the former trustee, and not on any findings of fact against him personally.

Orders