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Re Thomson

Re Thomson

Case [2015] VSC 370 31 July 2015

Admissibility of Evidence

Presumption of Regularity

Evidence Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2015 02988

DAVID LUCAS (in his capacity as executor of the estate of KENNETH JEFFREY THOMSON, deceased)

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2015
DATE OF JUDGMENT:	31 July 2015
CASE MAY BE CITED AS:	Re Thomson
MEDIUM NEUTRAL CITATION:	[2015] VSC 370

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EVIDENCE — Where superannuation fund established by deed — Where trust deed updated by supplementary deed — Supplementary trust deed lost — Where subsequent trust deed updated lost trust deed is an unsigned copy deed — Where plaintiff seeks unsigned copy trust deed, alternatively, the original trust deed, be declared the operative trust deed — Application of presumption of regularity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Wright	McDonald Murholme

HER HONOUR:

The Ken Thomson Superannuation Fund (‘the Fund’) was created by a deed dated 18 June 1986 (‘the 1986 Deed’). It was updated by a supplementary deed in approximately 1990 (‘the 1990 Deed’). The 1990 Deed has apparently been lost. It was then updated again by a deed dated 25 June 2000 (‘the 2000 Deed’). The only copy of the 2000 Deed in the plaintiff’s possession is unsigned.

Kenneth Jeffrey Thomson (‘the deceased’) died on 13 July 2014, aged 89 years. The plaintiff is the executor of the deceased’s estate. By originating motion filed 11 June 2015, the plaintiff seeks declarations and orders in relation to the Fund as follows:

(a) the 2000 Deed be declared the operative deed of the Fund or, alternatively, that the 1986 Deed be declared the operative deed;

(b) the property of the Fund be vested in the plaintiff in his capacity as the legal personal representative of the estate of Kenneth Jeffrey Thomson; and

(c) the Fund be wound up, with the associated costs to come out of the deceased’s estate.

The financial records of the Fund indicate that, since at least 2007, the deceased had been the sole member and beneficiary of the Fund.[1] His wife, Mrs Thomson, had been nominated as a beneficiary, though this was not a binding death nomination. Mrs Thomson died on 4 April 2015, aged 94 years.

The presumption of regularity – the 2000 Deed

[1]See exhibit DL-5.

The plaintiff submits that the presumption of regularity should be applied to render the 2000 Deed operative, even though a signed copy cannot be located. He cites the remarks of Wilcox and Marshall JJ in Kingham v Sutton,[2] in which their Honours stated:

As Wigmore, in Evidence in Trials at Common Law Vol 9, reveals at para 2534, the presumption of regularity is:
...more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules.

It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured…

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 Thomson

Details

AGLC: Re Thomson [2015] VSC 370
Case: [2015] VSC 370
Decision Date: 31 July 2015

CaseChat Overview and Summary

In the case of Re Thomson, the matter was heard in the Supreme Court of Queensland. The dispute centred on the validity of a trust deed governing a superannuation fund. The plaintiff sought to have either an unsigned copy or the original trust deed declared as the operative trust deed, as the supplementary trust deed that had been updated by a lost trust deed was itself an unsigned copy. The court was required to determine whether the presumption of regularity applied in this context.

The primary legal issue before the court was whether the presumption of regularity could be applied to the situation where a supplementary trust deed, which was an unsigned copy, was subsequently updated by a lost trust deed. The court needed to consider whether the presumption could assist in resolving the uncertainty regarding the validity of the trust deed. The court also needed to assess whether there was sufficient evidence to support the plaintiff's claim that either the unsigned copy or the original trust deed should be declared as the operative trust deed.

The court held that the presumption of regularity was applicable in this case. It noted that the presumption was a tool to resolve uncertainty where there was ambiguity in the documentation. The court found that the presumption could assist in determining the validity of the trust deed, particularly in light of the lost supplementary trust deed. The court concluded that the plaintiff had not provided sufficient evidence to rebut the presumption of regularity, and thus, the unsigned copy trust deed, which had been updated by the lost trust deed, should be considered the operative trust deed. The court determined that the plaintiff's application to declare the unsigned copy or the original trust deed as the operative trust deed was unsuccessful.

The court's final orders were that the unsigned copy trust deed, which had been updated by the lost trust deed, remained the operative trust deed governing the superannuation fund. The plaintiff's application to declare either the unsigned copy or the original trust deed as the operative trust deed was dismissed.

Orders