SUSAN REID AND MICHAEL JAMES REID (BY HIS LITIGATION GUARDIAN SUSAN REID)	Plaintiffs
v
CHARLES BERNARD GORE BRETT (IN HIS CAPACITY AS THE ADMINISTRATOR OF THE WILL AND ESTATE OF THE ABOVENAMED DECEASED) AND OTHERS	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 AUGUST AND 24 SEPTEMBER 2004
DATE OF JUDGMENT:	8 FEBRUARY 2005
CASE MAY BE CITED AS:	REID v BRETT
MEDIUM NEUTRAL CITATION:	[2005] VSC 18

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Wills – Application to appoint first plaintiff and her solicitor trustees of one of two funds set up under the will of the deceased – First defendant appointed administrator of the deceased's estate – Proceeding commenced by administrator seeking answers to questions concerning what was to be done with the net residue of the estate – Proceeding commenced by plaintiff seeking certain relief including orders sought in summons – Two proceedings set down for hearing – Application held to be premature.

Practice and Procedure – Application for leave to adduce further evidence – Relevant test.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms C.M. Molyneux QC and Mr A. Kirby	Marshalls & Dent
For the 1st Defendant	Mr M.J. Colbran QC and Mr W. Rimmer (on 6 August 2004) Mr R.A. Brett QC and Mr W. Rimmer (on 24 September 2004)	William Murray
For the 7^th and 8^th Defendants	Dr K.P. Hanscombe QC and Mr R.C. Wells	Aitken Walker & Strachan
For the 2^nd to 6^th Defendants	No appearance

HIS HONOUR:

The Application

This is an application by the plaintiffs, Susan Reid and her son, Michael James Reid, by his litigation guardian Susan Reid, by summons dated 30 July 2004 for:

(a)an order removing Bruce Sundberg and Dennis Francis Dalton as trustees of "Susan's Fund" under the terms of the will and estate of John Rickett Hubbard, deceased;
(b)an order appointing the first plaintiff and Claire Genevieve Jackman as trustees of "Susan's Fund"; and
(c)an order vesting all of the proceeds of execution of the judgment in proceeding No. 5682 of 2002 in the first plaintiff and Claire Genevieve Jackman as trustees of "Susan's Fund".

The Background

In order to understand what this application involved it is necessary to set out in some detail the relevant background in respect of the proceeding itself.

John Rickett Hubbard ("the deceased') died on 7 November 1998. He was survived by his widow, Minnie Isabel Hubbard, and his two adult children, John Harold Hubbard ("Mr John H. Hubbard") and Susan Reid ("Mrs Reid"). The deceased left as his last will, a will dated 16 October 1997.

In the deceased's last will, Mr John H. Hubbard and a solicitor, Mr Bruce Sundberg,…

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 Reid v Brett

Details

AGLC: Reid v Brett [2005] VSC 18
Case: [2005] VSC 18
Decision Date: 8 February 2005

CaseChat Overview and Summary

In Reid v Brett, the applicants sought to have themselves appointed as trustees of one of the funds established under the will of the deceased. The first defendant, who was appointed as the administrator of the deceased's estate, contested the application, and commenced a separate proceeding seeking clarification on what was to be done with the net residue of the estate. The applicants then commenced a proceeding seeking various reliefs, including orders sought in a summons. Two proceedings were set down for hearing, but the court found the application to be premature.

The legal issue that the court needed to determine was whether the application to appoint the applicants as trustees was premature and whether the applicants were entitled to adduce further evidence. The court found that the application was premature as it was brought before the court had made a final determination on the distribution of the estate. Furthermore, the court found that the applicants were not entitled to adduce further evidence as the matter was premature and there was no need for additional evidence at that stage of the proceedings.

The court held that the application was premature as the court had not yet made a final determination on the distribution of the estate. The court also found that the applicants were not entitled to adduce further evidence as the matter was premature and there was no need for additional evidence at that stage of the proceedings. The court found that the applicants' application was premature and that there was no need for further evidence at that stage of the proceedings. The court dismissed the application and set down the proceedings for a later date.

The court did not make any final orders in this case. The proceedings were set down for a later date, and the court did not make any orders regarding the appointment of the applicants as trustees or the distribution of the estate. The court did not make any orders regarding the application for leave to adduce further evidence as the application was premature and there was no need for additional evidence at that stage of the proceedings.

Orders