Quinlan v. Luxford

[2008] QSC 7

[2008] QSC 7

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 7438 of 2007

ELIZABETH QUINLAN	Applicant
and
SYDNEY LUXFORD (JUNIOR)	Respondent

BRISBANE

..DATE 30/01/2008

ORDER

HER HONOUR:  There are two applications before the Court.  It is convenient first to deal with the application made by the trustees and in order to understand that application it is necessary to give a brief history.

The dispute is between a brother and sister, the respondent and applicant, respectively, in this matter.  Their father, Sydney Luxford Senior, died either in April 1960, as told to me by the trustees, or in 1961, as Mr Luxford Junior said in his submissions.  It matters little what year, but obviously many, many years ago, and left inter alia a life interest in his estate to his wife, who is the mother of the applicant and the respondent.  Upon her death the applicant and the respondent acquired an interest in the estate, two-thirds to Mr Luxford Junior, and one-third to his sister, Mrs Quinlan.  There are various properties in that estate.

The applicant and the respondent unfortunately are at loggerheads and were unable to resolve their differences.  The matter was brought to Court in an application which was heard by Mr Justice Chesterman who made orders on the 13th of September 2007 inter alia appointing two solicitors as trustees of the estate for the purpose of completing the administration of the estate.  The order of the Court was made pursuant to an agreement made by the parties which was annexed to the Court order.

The trustees now seek orders pursuant to section 82 of the Trusts Act essentially to get in the property of the estate and to give directions which enable them to deal with the property, which is both their entitlement and their duty as trustees. A draft order to that effect has been given to me. That application is supported by one of the beneficiaries, Ms Quinlan, but objected to by Mr Luxford Junior.

He has provided a lot of written material but summarised in his oral submissions his objections.  Firstly, he is concerned about the tax implications of the trustees getting in the property.  The trustees have a duty to get in the property, so that cannot be a matter, in the absence of any agreement to the contrary between the beneficiaries, and there clearly is no such agreement here, for them not to get in the property which they are obliged to do as trustees, having been appointed by the Court pursuant to an agreement between the parties.

Secondly, Mr Luxford in his submissions essentially said that he wished to renege on the agreement which he made about one of the properties, the Hill Street property, because he was not fully informed at the time he made the agreement.  He is a man of full capacity, he is entitled to make or not make a contract, but once made he cannot then go back on it because he didn't think he was fully informed at the time he made it.  He is bound by that contract, the contract is annexed to a Court order and that is not a reason to set aside that contract, if indeed an application had properly been made to set aside the contract, which it has not.

He alleges that his sister, when she was joint trustee with him of the estate, did some things wrongly with what he alleges is his money, and that he now has some duty as trustee which means that it is he and not the present trustees who should deal with the matter.  In fact, he is no longer a trustee and the question of how the estate is divided and how the accounts are taken is now a matter properly within the remit of the independent trustees who have been appointed by the Court pursuant to the agreement of the parties.  He says he cannot sign the tax returns as he does not believe them to be true and correct but I am informed by counsel for the trustees that they believe the tax returns to be true and correct and are able and willing to sign them.

He has made further submissions about the ownership of various items of property but that is a matter for the trustees, in my view, to give effect to the compromise. 

In all the circumstances it appears to me entirely appropriate to make the order that the trustees get in the property which are the three pieces of land which are listed in the draft order and I will make the order in accordance with paragraph 1.  Mr Luxford Junior objects to paragraph 2, which gives the trustees the power to release any mortgage or security over the properties because he says there is no mortgage over the properties but as he agreed in submissions if there is indeed no mortgage or security then there is no harm done, the trustees should have the power to release any mortgage or security over the properties in order, as is proposed in the draft order, to facilitate the administration of the estate.

The third order sought is that the parties, the applicant, Ms Quinlan, and the respondent, Mr Luxford Junior, attend at the office of the trustees to sign the estate income tax returns.  Mr Luxford has told the Court he is unwilling to do so, so in my view it is appropriate to order that the trustees be empowered to sign and deliver the 2006 and 2007 income tax returns for delivery to the Australian Tax Office.

Fourthly, the trustees seek that they make an assessment of any moneys owing by any party to the estate and be permitted to adjust the distribution of the residue accordingly.  That order is entirely appropriate and ought to be made. 

Paragraph 5 seeks that the trustees have liberty to apply on the giving of three days notice to either the applicant or the respondent herein.  It appears to me appropriate that the parties should also have liberty to apply on the working out of this order.  Therefore all parties, the trustees and the parties, should have liberty to apply on those terms.

The only remaining question on that application is the question of costs.  It is appropriate that the costs of the trustees of and incidental to this application be assessed on an indemnity basis and paid out of the deceased estate and no party objected to that. 
It does appear to me that this application has been necessary not because of the attitude of the applicant but because of the attitude of the respondent to an agreement made by him and orders previously made by this Court.  Therefore it appears appropriate to me that the respondent pay the costs of the applicant of and incidental to the application to be assessed. 

The next question is the question of the application made by the respondent.  That application seeks various orders, many of which have been dealt with in the main application.  Others are matters which should be determined by the trustees in determining the due administration of the estate, and I do not intend to make any of the orders sought by the applicant, who is the respondent in the main application, that is at the instance of Mr Luxford.  I should also mention that he sought to be appointed as a third trustee of this estate.  That is contrary to an order previously made by this Court and would be entirely inappropriate.  When there are two disinterested trustees it would be quite wrong to appoint an interested trustee. 

The whole of Mr Luxford's application is dismissed and the costs order on that will be the same as the costs order on the trustees' application.  Those are the orders of the Court.

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