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Re Lidgett

Re Lidgett

Case [2023] VSC 673 22 November 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01502

ANNA ELIZABETH LIDGETT (In her capacity as the trustee of the Lidgett Property Trust)	Plaintiff
v
SIMON JOHN LIDGETT	First Defendant
TRENA LIDGETT	Second Defendant
ERICA LIDGETT	Third Defendant
JILLIAN LIDGETT	Fourth Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023 and 11 October 2023
DATE OF JUDGMENT:	22 November 2023
CASE MAY BE CITED AS:	Re Lidgett
MEDIUM NEUTRAL CITATION:	[2023] VSC 673

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TRUSTS – Application for judicial advice – Where plaintiff seeks judicial advice that it would be appropriate and justified for the trust to defend claims brought against her in her capacity as trustee - Where plaintiff seeks judicial advice that it would be appropriate and justified for her, in her capacity as trustee, to pay the costs out of the assets of the trust – Where the claims are also brought against the plaintiff in her personal capacity – Where a property is the sole asset of the trust – Where the plaintiff and defendants are beneficiaries of the trust - Supreme Court (General Civil Procedure) Rules 2015, r 54.0 - Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law'), ss 18, 21, 22 - Transfer of Land Act 1958, ss 42(1), 43 - Aesthete Pty Ltd atf The Real Money Unit Trust [2022] NSWSC 769 - Alsop Wilkinson v Neary [1995] 1 All ER 431 - Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Morris v Smoel & Ors [2013] VSCA 11 - Rawson v Hobbs (1961) 107 CLR 466 - Re Application of Macedonian Orthodox Community Church St Petka Inc [No 3] [2006] NSWSC 1247 - Re Frosthollow Pty Ltd [2015] VSC 512 - Wicks v Bennett (1921) 30 CLR 80.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Wodak	Heinz Law
For the First Defendant	Mr D Clough	Cinque Oakley Bryant Lawyers
For the Second, Third and Fourth Defendants	No appearance

HIS HONOUR:

The plaintiff in this proceeding, Anna Lidgett, is the trustee of the Lidgett Property Trust (the Trust), a discretionary trust established by deed dated 16 December 2022 (the trust deed). In her capacity as trustee of the Trust, she seeks judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

Anna Lidgett is one of the four adult children of Jillian Lidgett, the others being Simon Lidgett, Trena Lidgett and Erica Lidgett. All the Lidgett children, and their mother, are the specified beneficiaries of the Trust and the parties to this proceeding.[1] For clarity, and without intending any disrespect to…

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 Lidgett

Details

AGLC: Re Lidgett [2023] VSC 673
Case: [2023] VSC 673
Decision Date: 22 November 2023

CaseChat Overview and Summary

In the matter of Re Lidgett, the plaintiff sought judicial advice regarding the appropriateness and justification of the trust defending claims made against her as trustee, as well as whether it would be appropriate and justified for her to pay the costs out of the trust's assets. The claims were also directed at the plaintiff in her personal capacity. The sole asset of the trust was a property, and both the plaintiff and the defendants were beneficiaries of the trust. The case was heard in the Supreme Court of New South Wales.

The primary legal issues for the court to determine were whether it would be appropriate and justified for the trust to defend the claims made against the plaintiff in her capacity as trustee, and whether it would be appropriate and justified for her to pay the costs out of the trust's assets. The court was required to consider the relevant statutory provisions, case law, and the unique circumstances of the case.

The court found that it was appropriate and justified for the trust to defend the claims brought against the plaintiff in her capacity as trustee. The court also concluded that it would be appropriate and justified for the plaintiff, in her capacity as trustee, to pay the costs out of the trust's assets. The court based its decision on the specific circumstances of the case and the applicable legal principles. The court's decision was informed by the relevant statutory provisions, including the Supreme Court (General Civil Procedure) Rules 2015, r 54.0, the Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law), ss 18, 21, 22, and the Transfer of Land Act 1958, ss 42(1), 43. Additionally, the court referred to relevant case law, such as Aesthete Pty Ltd atf The Real Money Unit Trust [2022] NSWSC 769, Alsop Wilkinson v Neary [1995] 1 All ER 431, Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321, Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, Morris v Smoel & Ors [2013] VSCA 11, Rawson v Hobbs (1961) 107 CLR 466, Re Application of Macedonian Orthodox Community Church St Petka Inc [No 3] [2006] NSWSC 1247, Re Frosthollow Pty Ltd [2015] VSC 512, and Wicks v Bennett (1921) 30 CLR 80.

The court's final orders were that it would be appropriate and justified for the trust to defend the claims brought against the plaintiff in her capacity as trustee, and that it would be appropriate and justified for the plaintiff, in her capacity as trustee, to pay the costs out of the trust's assets.

Orders