SUPREME COURT OF QUEENSLAND
CITATION:
Re Tracey [2016] QCA 194
PARTIES:
IN THE MATTER OF AN APPLICATION BY THE PUBLIC TRUSTEE OF QUEENSLAND AS TRUSTEE FOR LISA MARIE TRACEY AND AS FINANCIAL ADMINISTRATOR OF LISA MARIE TRACEY FOR ADVICE AND DIRECTION PURSUANT TO SECTION 134 PUBLIC TRUSTEE ACT 1978 (QLD) AND/OR SECTION 96 TRUSTS ACT 1973 (QLD)
FILE NO/S:
Appeal No 9262 of 2014
SC No 5240 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Case Stated
ORIGINATING COURT:
Supreme Court of Queensland at BrisbaneDELIVERED ON:
2 August 2016
DELIVERED AT:
Brisbane
HEARING DATE:
9 November 2015
JUDGES:
Holmes CJ and Fraser JA and Boddice J
Separate reasons for judgment of each member of the Court, Holmes CJ and Fraser JA concurring as to the orders made, Boddice J dissentingORDERS:
The questions in the Case Stated are answered as follows:
1. Whether The Public Trustee of Queensland, administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established by Court Order:
(a) Which, by its terms is expressed to operate until further Order; and
(b) Pursuant to which the Public Trustee holds assets on trust for that adult; and
(c) Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
No
2. Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trustee established by Court Order:
(a) Which, by its terms is not expressed to operate until further Order; and
(b) Pursuant to which the Public Trustee holds assets on trust for that adult; and under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
(c) Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
No
3. Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established under s 43(6) of the Public Trustee Act 1978 (Qld):
(a) Pursuant to the terms of which the Public Trustee holds assets on trust for that adult; and
(b) Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Yes
4. Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court terminate a trust established under s 44 of the Public Trustee Act 1978 (Qld):
(a) Pursuant to the terms of which he holds…
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- AGLC
- Re Tracey [2016] QCA 194
- Case
- [2016] QCA 194
- Decision Date
CaseChat Overview and Summary
The court found that the Public Trustee could not terminate any of these trusts without a court order. The reasoning behind this decision was grounded in the necessity for court supervision to protect the interests of incapacitated beneficiaries. The court emphasised that the rule in Saunders v Vautier requires the beneficiary to be sui juris, a condition not met by adults under a legal disability. Additionally, the Guardianship and Administration Act 2000 (Qld) did not confer on substitute decision-makers the authority to invoke the rule in Saunders v Vautier to terminate such trusts. The court concluded that the legislative framework did not support the notion that the Public Trustee, in their administrative capacity, could unilaterally terminate these trusts.
In light of the above findings, the court answered the questions posed in the case as follows: the Public Trustee could not terminate a trust established by court order, regardless of whether it was expressed to operate until further order; nor could they terminate trusts established under sections 43(6), 44, or 59 of the Public Trustee Act 1978 (Qld), or by settlement or agreement. These conclusions highlight the court’s commitment to ensuring that the interests of incapacitated beneficiaries are protected through its supervisory role.
The court made orders reflecting its findings, specifying that the Public Trustee could not terminate any of the mentioned trusts without a court order. This decision underscores the importance of judicial oversight in matters concerning incapacitated individuals and the need to safeguard their interests.
Orders
Orders of the court
The questions in the Case Stated are answered as follows:
1. Whether The Public Trustee of Queensland, administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established by Court Order:
(a) Which, by its terms is expressed to operate until further Order; and
(b) Pursuant to which the Public Trustee holds assets on trust for that adult; and
(c) Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
No
2. Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trustee established by Court Order:
(a) Which, by its terms is not expressed to operate until further Order; and
(b) Pursuant to which the Public Trustee holds assets on trust for that adult; and under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
(c) Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
No
3. Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established under s 43(6) of the Public Trustee Act 1978 (Qld):
(a) Pursuant to the terms of which the Public Trustee holds assets on trust for that adult; and
(b) Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Yes
4. Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court terminate a trust established under s 44 of the Public Trustee Act 1978 (Qld):
(a) Pursuant to the terms of which he holds assets on trust on behalf of that adult;
(b) Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Yes
5. Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court, terminate a trust established under s 59 of the Public Trustee Act 1978 (Qld):
(a) Pursuant to the terms of which he holds assets on trust on behalf of that adult;
(b) Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Yes
6. Whether the public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court, terminate a trust established by settlement or agreement:
(a) Pursuant to the terms of which he holds assets on trust on behalf of that adult;
(b) Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Yes
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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