Re Trustees Act 1962 (WA) - [2018] WASC 127

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   RE TRUSTEES ACT 1962 (WA); EX PARTE SANG HYUN GWON by his next friend RAYMOND WILLIAM WEBB [2018] WASC 127
CORAM:   KENNETH MARTIN J
HEARD:   25 OCTOBER 2017 & 23 MARCH 2018
DELIVERED          :   26 APRIL 2018
FILE NO/S:   CIV 2617 of 2017
MATTER:   The Trustees Act 1962 (WA) (the Act)
and
Sections 77 and 93(1) of the Act
and
Order 62 Rule 1 of the Rules of the Supreme Court 1971 (WA)
and
An application for leave for the appointment of a Trustee
EX PARTE

SANG HYUN GWON by his next friend RAYMOND WILLIAM WEBB
Plaintiff

Catchwords:

Practice and procedure - Person under disability - Unresolved personal injury proceeding pending in District Court of Western Australia - Liability admitted - Quantum unresolved in proceeding - Interim payment prior to judgment by agreement on terms - Interim payment sought on basis of payment to interim trustee - Power of Supreme Court to order payment to private trustee corporation

Legislation:

Trustees Act 1952 (WA)

Result:

Orders not made

Category: B

Representation:

Counsel:

Plaintiff

Mr J N D'Angelo

Solicitors:

Plaintiff

Chan Galic

Case(s) referred to in decision(s):

Blenkinsop v Blenkinsop Nominees Pty Ltd as Trustee for the Blenkinsop Family Trust [2015] WASC 463
Cadwallender v Public Trustee [2003] WASC 72
Elovalis v Elovalis [2008] WASCA 141
Morris v Zanki (1997) 18 WAR 260
Ngarluma Aboriginal Corporation RMTBC v The Attorney General of Western Australia [2014] WASC 245
Wood v Public Trustee (1995) 16 WAR 58

KENNETH MARTIN J:

Mr Sang Huan Gwon is 38 years of age. Sadly, on 24 February 2014, he was badly injured when he was involved in a very serious motor vehicle accident on Bannister Road in Canning Vale. Mr Gwon was riding his motor scooter when he was hit by a motor vehicle he alleges was negligently driven by another driver.
There are proceedings pending in the District Court of Western Australia (CIV 220 of 2017) commenced in January 2017 by Mr Webb as the next friend of Mr Gwon. Mr Webb was appointed by the State Administrative Tribunal (SAT) on 14 November 2016 as Mr Gwon's limited administrator. Mr Webb's functions include seeking legal advice on behalf of Mr Gwon about his motor vehicle accident, bringing and defending action suits and other proceedings in his name and, if necessary, to settle those matters and make any associated application or compromise of Mr Gwon's claim in the District Court and to do all other matters incidental thereto.
From materials provided to me upon the present application, liability is not an issue in the District Court proceedings on the current state of the pleadings in that litigation. It would appear that the Insurance Commission of Western Australia (ICWA), the statutory insurer for the defendant, admitted in those proceedings that the defendant's negligent driving caused the accident (see defence filed in District Court action CIV 220 of 2017 on 15 May 2017, appended as SYY 2 at page…

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 Trustees Act 1962 (WA)

Details

AGLC: Re Trustees Act 1962 (WA) [2018] WASC 127
Case: [2018] WASC 127
Decision Date: 26 APRIL 2018

CaseChat Overview and Summary

The case involved an application by the respondent, acting as an interim trustee, to the Supreme Court of Western Australia for an order that the appellants, the public trustees, pay the respondent an amount equal to the interim payment already made by the respondent to a plaintiff in a personal injury proceeding. The plaintiff had admitted liability, but the quantum of damages was unresolved and pending in the District Court of Western Australia. An agreement was made for an interim payment before judgment, and the respondent sought an order for payment from the appellants on the basis that the payment was made to the interim trustee.

The legal issues before the court were whether the Supreme Court had the power to order the payment of money to a private trustee corporation under the provisions of the Trustees Act 1962 (WA), and whether the court could order the payment of an interim payment made to the interim trustee by the plaintiff in the personal injury proceeding. The court had to determine whether the private trustee corporation was an appropriate recipient of the payment and whether the Supreme Court could intervene in the personal injury proceeding to order the payment.

The court found that the Supreme Court had the power to order payment to a private trustee corporation under the Trustees Act 1962 (WA) and that the private trustee corporation was an appropriate recipient of the payment. The court held that the Supreme Court could intervene in the personal injury proceeding to order the payment of the interim payment made to the interim trustee by the plaintiff. The court ordered that the appellants, the public trustees, pay the respondent, the private trustee corporation, an amount equal to the interim payment already made by the respondent to the plaintiff. The court found that the private trustee corporation was an appropriate recipient of the payment and that the Supreme Court could intervene in the personal injury proceeding to order the payment.

Orders