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Re Application of Rinehart

Re Application of Rinehart

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Case Copied 16 November 2020 71 min read

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Supreme Court

New South Wales

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Medium Neutral Citation: Application of Rinehart: 2020/142504 [2020] NSWSC 1624
Hearing dates: 1, 24 September 2020; further written submissions ending 2 October 2020
Date of orders: 16 November 2020
Decision date: 16 November 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [205]

Catchwords:
CONFLICTS OF LAWS – trust law – administration of trust – judicial advice – Western Australian trust – inherent equitable jurisdiction – whether New South Wales statutory advice provision applies – court relies on cross-vested Western Australian statutory power
EQUITY – trusts and trustees – judicial advice – appeal – applicable principles – proposed appeal from judgment referring trustee’s claim to arbitration and otherwise staying proceedings – proposed appeal from adverse costs order

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 101(4)-(5)
Corporations Act 2001 (Cth), ss 247A, 237
Interpretation Act 1987 (NSW), s 12(1)(b)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 4
Matrimonial Causes Act 1859 (UK)
Trustee Act1925 (NSW), ss 3, 63
Trustee Act 1936 (SA), s 59C
Trustees Act 1962 (WA), ss 77(2)(a), 92
Trusts Act 1973 (Qld), s 96
Uniform Civil Procedure Rules 2005 (NSW), pt 54
Variation of Trusts Act 1958 (UK)

Cases Cited:
Application of Macedonian Orthodox Church St Petka Inc (No 3) [2006] NSWSC 1247
Application of Rinehart [2017] NSWSC 282
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Chellaram v Chellaram [1985] Ch 409
Commissioner of Succession Duty v Hargrave (1972) 3 SASR 118
Ewing v Orr Ewing (1883) 9 App Cas 34
Faye v Faye [1973] WAR 66
Forsyth v Forsyth [1891] P 363
Frost and Fallon [2011] NSWSC 591
Gosper v Sawyer (1985) 160 CLR 548
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442
Hancock v Rinehart [2015] NSWSC 646
LM Investment Management Ltd v Drake [2020] QSC 265
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66
Olsen v James [2020] NSWSC 1015
Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338
Pozniak v Smith (1982) 151 CLR 38
Re Attia [2020] NSWSC 94
Re BTA Institutional Services Australia Ltd & BNY Trust (Australia) Registry Ltd [2009] NSWSC 1294
Re Constantinou [2013] 2 Qd R 219
Re Dion Investments Pty Ltd [2013] NSWSC 1941
Re Ker’s Settlement Trusts [1963] Ch 553
Re O’Donoghue [1998] 1 NZLR 116
Re Paget’s Settlement [1965] 1 WLR 1046
Re Rosewood Research Pty Ltd (No 2) [2014] NSWSC 1226
Re Webb (1992) 57 SASR 193
Rinehart v Hancock Prospecting Pty Ltd (2019) 93 ALJR 582
Rinehart v Rinehart (No 2) [2020] NSWSC 235
Rinehart v Rinehart (No 3) [2016] NSWSC 1645
Rinehart v Rinehart [2020] NSWSC 68
Rinehart v Welker (2012) 95 NSWLR 221
Salkeld v Salkeld (No 2) [2000] SASC 296
Smith v Beal (1894) 25 OR 368

Texts Cited:
Davies, M, AS Bell, PLG Brereton, M Douglas,

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

Case: [2020] NSWSC 1624
Decision Date: 16 November 2020

CaseChat Overview and Summary

The case before the court involved an application regarding the administration of a trust. The applicant, Rinehart, sought judicial advice on issues related to the trust, which had been established under Western Australian law. The primary dispute was whether a New South Wales statutory provision, which allows for judicial advice in trust matters, could be applied to a trust governed by Western Australian law. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the New South Wales statutory provision could be applied to a trust governed by Western Australian law and, if not, what alternative legal principles or powers could be used to provide the necessary judicial advice. The court needed to determine the appropriate legal framework for addressing the applicant's request for judicial advice concerning the administration of the trust.

The court found that the New South Wales statutory provision did not apply to a trust governed by Western Australian law. Instead, the court exercised its inherent equitable jurisdiction to provide the necessary judicial advice. The court relied on its cross-vested statutory power under Western Australian law to address the applicant's request. The court concluded that the inherent equitable jurisdiction and the cross-vested statutory power provided sufficient authority to grant the requested judicial advice. Additionally, the court stayed the proceedings and referred the trustee's claim to arbitration, and made an order for costs.

In conclusion, the court granted the applicant's application for judicial advice, relying on its inherent equitable jurisdiction and cross-vested statutory power under Western Australian law. The court also stayed the proceedings and referred the trustee's claim to arbitration, and made an order for costs. The applicant was granted leave to appeal from the judgment and the adverse costs order.

Orders