PTD Nominees v Deacon - [2023] VSC 245

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02143

IN THE MATTER of PTD Trust

- and -

IN THE MATTER of ss 48 and 63A of the Trustee Act 1958 and in the inherent jurisdiction of the Court

PTD NOMINEES PTY LTD (ACN 069 927 591)	Plaintiff
v
PAMELA DEACON	First Defendant
- and -
ALICE SOPHIE DEACON	Second Defendant
- and -
PATRICK DEACON	Third Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2023
DATE OF JUDGMENT:	12 May 2023
CASE MAY BE CITED AS:	PTD Nominees v Deacon
MEDIUM NEUTRAL CITATION:	[2023] VSC 245

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TRUSTS – Application for judicial advice granted – Court advised proper exercise of power in Trust Deed to make amendments, inter alia, removing discretionary class of beneficiaries – Application for removal of trustees granted – Where former trustees consent to removal – Independent trustee appointed – Application for removal of appointor granted – Where removal of appointor is for the benefit of the third defendant and fair and proper arrangement overall – Independent appointor appointed – Supreme Court (General Civil Procedure) Rules 2015, r 54.02 – Trustee Act 1958, ss 48 and s 63A - Miller v Cameron (1936) 54 CLR 572; Kearns v Hill (1990) NSWLR 107; Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Perpetual Trustees v Barns (2012) 34 VR 387; Morris v Smoel & Ors [2013] VSCA 11; McNee v Lachlan McNee Family Maintenance Pty Ltd [2020] VSC 273.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Harvey KC with Mr N Baum	Monaco Lawyers
For the First and Second Defendants	Mr A Ford	James Mapleston
For the Third Defendant	Mr J Smith	Suzanne Lyttleton Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Disputation.......................................................................................................................................... 3

Arrangements for Patrick’s care................................................................................................. 4
Changes in control of PTD Nominees and the PTD Trust...................................................... 5

Current proceeding............................................................................................................................ 6

The PTD Trust.................................................................................................................................... 8

Orders of the Senior Master: November 1992 – June 2001......................................................... 9

The Financial Plan........................................................................................................................... 18

Pamela and Alice’s position........................................................................................................... 20

Unauthorised withdrawals from PTD Trust bank accounts................................................... 23

Judicial advice................................................................................................................................... 24

Removal of Pamela and Alice as trustees and appointment of independent trustee......... 33

Removal of Pamela as appointor and appointment of independent appointor.................. 35

Costs.................................................................................................................................................... 36

HIS HONOUR:

Introduction

Patrick Tristram Deacon,[1] who was born on 27 February 1986, suffered in utero and birth complications resulting in life long disabilities including cerebral palsy, intellectual impairment, blindness and epilepsy. Patrick’s disabilities are profound such that he is entirely dependent on 24 hour care to maintain his life.[2]
[1]To avoid confusion and without intending any disrespect, I will refer to the parties and family members by their first names.
[2]Patrick suffers from severe cerebral palsy with severe hypotonic spastic quadriplegia, severe gastro-oesophageal reflex, cortical visual impairment, aphasia, severe epilepsy, scoliosis, hip dysplasia, limb contractures, asthma, recurrent aspiration, one collapsed lung, one scarred lung, subluxated hips…

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 PTD Nominees v Deacon

Details

AGLC: PTD Nominees v Deacon [2023] VSC 245
Case: [2023] VSC 245
Decision Date: 12 May 2023

CaseChat Overview and Summary

In the matter of PTD Nominees, the dispute arose from a complex web of trust arrangements and the management of these arrangements by the trustees and appointor. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether it should provide judicial advice regarding the proper exercise of powers under the trust deed, specifically whether the trustees had the authority to make certain amendments to the trust, including the removal of a discretionary class of beneficiaries. Additionally, the court had to determine if the application to remove the trustees and appointor should be granted, and if so, under what conditions an independent trustee and appointor should be appointed.

The court found that the trustees did have the authority to amend the trust as they saw fit, including the removal of the discretionary class of beneficiaries, based on the terms of the trust deed and relevant statutory provisions. The court also determined that the application to remove the trustees should be granted, as the former trustees had consented to their removal and the appointment of an independent trustee. Furthermore, the application to remove the appointor was also granted, as the removal was deemed to be in the best interests of the trust and constituted a fair and proper arrangement overall. An independent appointor was subsequently appointed. The court relied on various legal precedents and statutory provisions, including the Supreme Court (General Civil Procedure) Rules 2015, the Trustee Act 1958, and several key cases such as Miller v Cameron, Kearns v Hill, Monty Financial Services Ltd v Delmo, Perpetual Trustees v Barns, Morris v Smoel & Ors, and McNee v Lachlan McNee Family Maintenance Pty Ltd.

Following the court's decision, the final orders included granting the application for judicial advice, confirming the trustees' authority to amend the trust deed, removing the existing trustees and appointor, and appointing new independent trustees and appointor. The court's decision provided clarity and guidance on the exercise of powers under the trust deed and the process for appointing independent trustees and appointors.

Orders