Re Cleeve Group Pty Ltd (No 2)

[2022] VSC 362

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 03681

CLEEVE GROUP PTY LTD (IN ITS CAPACITY AS THE TRUSTEE OF THE CLEEVE GROUP TRUST)	Applicant
v
TERENCE RAYMOND CLEEVE	Contradictor

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	23 June 2022
CASE MAY BE CITED AS:	Re Cleeve Group Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 362

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TRUSTS – Application by trustee for judicial advice – Lost trust deed – Form of Order – 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

HIS HONOUR:

1. Since in or about late 1999, Cleeve Group Pty Ltd has been acting as if it were the trustee of the Cleeve Group Trust.  It is unable to locate an executed trust deed.  On 21 June 2022, I published reasons in which I expressed my conclusion that the Cleeve Group Trust was established by a trust deed that was executed in or about late 1999 that was in the form of an unexecuted trust deed prepared by Hall & Wilcox and sent to Keith and Audrey Cleeve care of the Cleeve Group Pty Ltd’s accountants under cover of a letter dated 2 December 1999.[1]

   [1][2022] VSC 342.

1. The parties to this proceeding have been unable to agree on the form of order that I ought to make to give effect to my reasons, save that they have agreed on the appropriate costs order.

1. The application was for judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.The applicant sought that I make orders in the following form:

Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015:

a.A deed in the form of the unexecuted deed annexed to these orders was duly executed in or about December 1999 as the deed for the Cleeve Group Trust (Trust Deed);

b.The sum of $20 was settled on the Applicant by Sophie Karzis in December 1999 pursuant to the terms of the Trust Deed; and

c.The Applicant is and has been justified in managing and administering the Cleeve Group Trust according to the terms of the Trust Deed.

1. The respondent, who was a contradictor, submitted that I instead ought to order that:

Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, the Applicant is, and has been since December 1999, justified in managing and administering the Cleeve Group Trust according to the terms of the unexecuted trustee prepared by Hall & Wilcox or about December 1999, a copy of which is annexed to these orders.

1. Conceptually, I am giving judicial advice to Cleeve Group Pty Ltd in its capacity as trustee, rather than finding a cause of action established or making declarations. Although I had to make findings of fact on the basis of the evidence put before me in the course of determining whether or not to give judicial advice to Cleeve Group Pty Ltd and if so what advice to give, in my view the order ought to be expressed in the form of advice, rather than in the form of factual conclusions.

1. The advice that the trustee was justified in managing and administering the trust according to the terms of the trust deed carries with it the assumption that the trust deed was executed and settled.  I see no need to include findings that these things were done in the advice.  But I do consider it appropriate that the advice identify from when the advice applies to the conduct of the trustee.  This date will be, of course, the date or approximate date of upon which the deed was executed and settled. 

1. Accordingly, I will make an order in the following terms:

Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, the applicant is, and has been since December 1999, justified in managing and administering the Cleeve Group Trust according to the terms of the unexecuted trust deed prepared by Hall & Wilcox in or prior to December 1999, a copy of which is annexed to these orders.

1. I will state in ‘other matters’ that the order is made following findings made that the annexed trust deed was executed and settled in December 1999. 

1. I accept the position put by the parties that it is appropriate that the costs of each be paid on an indemnity basis out of the trust assets, and will so order.