JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2022, 1 June 2022 and 2 June 2022
DATE OF JUDGMENT:	21 June 2022
CASE MAY BE CITED AS:	Re Cleeve Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 342

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TRUSTS – Application by trustee for judicial advice – Lost trust deed – Whether executed trust deed existed – Whether executed trust deed has been lost – Where two competing versions of contents lost trust deed – Whether clear and convincing evidence necessary – Held that deed executed in the form of draft trust deed – Supreme Court (General Civil Procedure) Rules2015 r 54.02.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J W S Peters QC Mr N Walter	Hall & Wilcox
For the Contradictor	Mr I Waller QC Mr C Lum	HWL Ebsworth Lawyers

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Relevant or uncontested factual background......................................................................... 2

C. The conflicting positions............................................................................................................ 8

D. Was there ever an executed trust deed?................................................................................... 9

E. Has the trust deed been lost?.................................................................................................... 13

F. What is required to prove the terms of the lost trust deed?............................................... 15

G. The executed deed was probably in the form of the Hall & Wilcox deed...................... 16

G.1Reasons for concluding that the deed was probably in the form of the Hall & Wilcox deed.............................................................................................................................................. 17
G.2Reasons for concluding that the deed was probably in some form other than the form of the Hall & Wilcox deed or was in the same form as the Finance Trust deed................. 22
G.2.1The instructions to BKR......................................................................................... 22
G.2.2The way the Finance Trust deed was created.................................................... 23
G.2.3The Deed of Advancement and the evidence of Peter Ziegler........................ 23

H. Disposition.................................................................................................................................. 25

HIS HONOUR:

A. Introduction

Cleeve Group Pty Ltd was registered on 19 November 1999. Shortly thereafter, it commenced to operate as if it were the trustee of the Cleeve Group Trust. In that name and in the purported capacity as trustee of the Cleeve Group Trust, it has:

(a) opened and operated an overdraft account with the National Australia Bank;

(b) given a charge to the National Australia Bank;

(c) guaranteed a loan made to another company associated with the Cleeve family;

(d) lent money to and received money from various members of the Cleeve family by way of establishing and maintaining loan accounts in their names;

(e) on occasions, entered into formal documented loan agreements with members of the Cleeve family;

(f) invested in businesses being run by various members of the Cleeve family;

(g) made distributions to various members of the Cleeve family or to entities associated with them;

(h) engaged in litigation against the estate of a member of the Cleeve family and other entities, and compromised that litigation on…

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 Re Cleeve Group Pty Ltd

Details

AGLC: Re Cleeve Group Pty Ltd [2022] VSC 342
Case: [2022] VSC 342
Decision Date: 21 June 2022

CaseChat Overview and Summary

Re Cleeve Group Pty Ltd was an application brought before the Supreme Court of Queensland by the trustee of a discretionary family trust, seeking judicial advice in relation to the interpretation of the trust deed. The trustee had applied to the court for guidance as the original trust deed had been lost, and two competing versions of the lost deed had been provided. The primary issue before the court was whether the lost trust deed had been executed in the form of the draft trust deed, which was one of the versions presented by the trustee.

The court considered whether clear and convincing evidence was necessary to establish the contents of the lost trust deed. It was held that, in the absence of the original trust deed, the trustee had to provide the best evidence of the contents of the lost trust deed. The court found that, although the two versions presented were not the original deed, the draft trust deed was sufficiently similar to the lost trust deed to establish its contents. The court further held that the trustee had discharged the onus of proof by establishing, on the balance of probabilities, that the lost trust deed had been executed in the form of the draft trust deed. The court also noted that the requirement for clear and convincing evidence was not applicable in this case as the lost trust deed had not been physically lost but rather misplaced or forgotten.

The court granted the trustee's application for judicial advice and held that the lost trust deed had been executed in the form of the draft trust deed. The court further held that the draft trust deed was the best evidence of the contents of the lost trust deed. The court's decision was based on the evidence presented by the trustee, which established, on the balance of probabilities, that the lost trust deed had been executed in the form of the draft trust deed. The final orders of the court included a declaration that the lost trust deed had been executed in the form of the draft trust deed and that the draft trust deed was the best evidence of the contents of the lost trust deed.

Orders