Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Rinehart v Rinehart [2022] NSWCA 66 Hearing dates: 16 February 2022 Decision date: 29 April 2022 Before: Gleeson JA at [1];
Leeming JA at [2];
White JA at [91].Decision: 1. Appeal allowed.
2. Set aside the stay of orders 2 and 3 made on 17 December 2020 with effect from 14 days from today, and in lieu thereof dismiss Gina’s application for a stay or for dispensation from production.
3. Note that the effect of order 2 above is that Gina is required to deliver up the Sceales Files and the Bankruptcy Transcripts to Bianca no later than 14 days from today.
4. Set aside order 2 made on 6 January 2021, and in lieu thereof order that Gina pay Bianca’s costs of Bianca’s amended notice of motion seeking delivery up of the Sceales Files and Bankruptcy Transcripts and of Gina’s application to stay the delivery up of those documents or for dispensation in relation thereto.
5. Gina to pay Bianca’s costs of the appeal.
Catchwords: TRUSTS – new trustee – provision of documents by former trustee to new trustee – effect of vesting order – former trustee prima facie required to provide trust documents to new trustee – where former trustee failed to distinguish between documents received and possessed by her as trustee and documents received and possessed by her in other capacities – former trustee required to make copies of documents used by her, even if not owned or co-owned by her, for new trustee – primary judge found that particular documents were trust documents but need not be provided to new trustee until completion of pending arbitration – whether primary judge found that former trustee did not own or co-own documents in her capacity as trustee – whether primary judge erred in the exercise of discretion – appeal allowed and former trustee ordered to provide documents to new trustee
Legislation Cited: Trustee Act 1925 (Bermuda), s 31
Trustee Act 1925 (NSW), ss 70, 78
Trustees Act 1962 (WA), ss 77, 78, 85
Trusts Act 2019 (NZ), s 48
Cases Cited: Avanes v Marshall (2007) 68 NSWLR 595; [2007] NSWSC 191
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53
Ellison v Sandini Pty Ltd (2018) 263 FCR 460; [2018] FCAFC 44
Hancock v Rinehart [2015] NSWSC 646; 106 ACSR 207
Hancock v Rinehart (Trust documents) [2018] NSWSC 1684
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
In re Ogier Trustee (Jersey) Ltd [2006] JRC 158
In the matter of the Bird Charitable Trust and the Bird Purpose Trust (2012) (1) JLR 62
Lambie Trust Ltd v Addleman [2021] NZSC 54
Lord Strathcona Steamship v Dominion Coal Co [1926] AC 108
McDonald v Ellis (2007) 72 NSWLR 605; [2007] NSWSC 1068
Meadows v Khan [2021] UKSC 21; [2021] 3 WLR 147
Mond v Hyde [1997] BPIR 250
Rawlinson & Hunter Trustees…
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- AGLC
- Rinehart v Rinehart [2022] NSWCA 66
- Case
- [2022] NSWCA 66
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge erred in exercising discretion by staying the delivery of these documents until the completion of pending arbitration, and whether the primary judge had made a finding that the former trustee did not own or co-own the documents in her capacity as trustee. The Court was required to determine the extent of a former trustee's obligation to provide trust documents to a new trustee, particularly where the former trustee had received and possessed documents in multiple capacities.
The Court of Appeal found that a former trustee is prima facie required to provide trust documents to a new trustee. It held that the primary judge had erred in exercising discretion by imposing a stay on the delivery of the Sceales Files and Bankruptcy Transcripts. The Court reasoned that the former trustee's failure to distinguish between documents held in her capacity as trustee and those held in other capacities meant she was required to make copies of documents used by her in her trustee role, even if she did not solely own them. The Court allowed the appeal, setting aside the stay and ordering the former trustee to deliver up the specified documents to the new trustee within 14 days. The former trustee was also ordered to pay the costs of the applications related to the delivery of the documents and the costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the stay of orders 2 and 3 made on 17 December 2020 with effect from 14 days from today, and in lieu thereof dismiss Gina’s application for a stay or for dispensation from production.
3. Note that the effect of order 2 above is that Gina is required to deliver up the Sceales Files and the Bankruptcy Transcripts to Bianca no later than 14 days from today.
4. Set aside order 2 made on 6 January 2021, and in lieu thereof order that Gina pay Bianca’s costs of Bianca’s amended notice of motion seeking delivery up of the Sceales Files and Bankruptcy Transcripts and of Gina’s application to stay the delivery up of those documents or for dispensation in relation thereto.
5. Gina to pay Bianca’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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