Re Dove Family Trust - [2022] VSC 625

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01867

IN THE MATTER of an application for advice and directions pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

ADAM JOHN DOVE PTY LTD (ACN 140 039 532) as trustee for the DOVE FAMILY TRUST

Plaintiff

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2022
DATE OF JUDGMENT:	20 October 2022
CASE MAY BE CITED AS:	Re Dove Family Trust
MEDIUM NEUTRAL CITATION:	[2022] VSC 625

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TRUSTS – Original trust deed lost – Trust administered in accordance with copy of trust deed with missing page – Declaratory relief inapplicable – Judicial advice given – r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Sutton v NRS(J) Pty Ltd (2020) NSWSC 826; Re Cleeve Group Pty Ltd (No 2) [2022] VSC 362.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Kirsti Halcomb	TBA Law

HIS HONOUR:

Background

On 29 April 1994, a trust deed establishing the Dove Family Trust was executed by Phillip Daniel Grant as settlor and Fenning Falls Pty Ltd (Fenning Falls) as trustee. Fenning Falls was later removed as trustee and Adam John Dove appointed in its place. Later, on 4 November 2009, Adam John Dove was removed as trustee and the plaintiff, Adam John Dove Pty Ltd, was appointed in his place.

Graeme Dove is a director of Adam John Dove Pty Ltd. In January 2020, he became aware that copies of the trust deed for the Dove Family Trust were incomplete. After searching for the original trust deed, he was told by his accountants that they did not hold the original of the trust deed. Despite extensive searches, Graeme Dove has since been unable to find an original copy of the trust deed. Further, the copies of the trust deed which have been located are incomplete; they are missing page 5.

It is in these circumstances that Adam John Dove Pty Ltd, as trustee for the Dove Family Trust, has filed an originating motion for advice and directions pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005. The primary relief sought in its amended originating motion later were declarations as follows:

1.A declaration that a deed in the form of the trust deed exhibited as exhibit GJD-2 to the second affidavit of Graeme John Dove affirmed 20 April 2022 in this proceeding (‘the Trust Deed’) was duly executed on 29 April 1994 and stamped for duty.
2.A declaration that the sum of $100 was settled on Fenning Falls Pty Ltd (ACN 063 596 038) by Phillip Daniel Grant on 29 April 1994 pursuant to the terms of the Trust Deed.
3.A declaration that the assets described in the affidavit of Graeme John Dove affirmed 11 February 2022 filed in this proceeding, and held in the name of Adam John Dove Pty Ltd (ACN 140 039…

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: [2022] VSC 625
Decision Date: 20 October 2022

CaseChat Overview and Summary

The case of Re Dove Family Trust involved the Dove Family Trust, which had lost its original trust deed. The trust was administered based on a copy that had a missing page. The dispute arose regarding the validity of the trust deed and the administration of the trust. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the missing page from the trust deed invalidated the administration of the trust and whether declaratory relief was applicable. Additionally, the court considered whether it should provide judicial advice under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

The court examined previous cases such as Sutton v NRS(J) Pty Ltd and Re Cleeve Group Pty Ltd to determine the appropriate course of action. The court found that the missing page did not invalidate the trust deed, as the remaining parts of the document sufficiently outlined the terms of the trust. However, the court determined that declaratory relief was not applicable in this instance. Instead, the court opted to provide judicial advice under rule 54.02, guiding the parties on how to proceed with the administration of the trust and the management of the trust property.

Following its reasoning, the court concluded that the trust deed, despite the missing page, was valid and enforceable. The court provided detailed advice to the parties on how to administer the trust and manage the trust property in accordance with the terms of the deed. This advice included recommendations for the trustees to secure a certified copy of the trust deed and to take steps to ensure the proper management of the trust assets.

The final orders included the court's advice to the trustees on managing the trust property and ensuring that the trust was administered in accordance with the terms of the deed, despite the missing page. The court also directed the parties to seek a certified copy of the trust deed and to follow the advice provided to avoid any future disputes regarding the validity of the trust or its administration.

Orders