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Ross v Gordon

Ross v Gordon

Case [2021] ACTSC 41 24 March 2021

Fiduciary Duty

Trusts & Equity

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ross v Gordon
Citation:	[2021] ACTSC 41
Hearing Date(s):	20 April 2020; 22 April 2020; 29 July 2020
Decision Date:	24 March 2021
Before:	Loukas-Karlsson J
Decision:	See [210]
Catchwords:	TRUSTS AND ESTATES – statutory interpretation – Cheques Act 1986 (Cth) – Whether liability created through operation of Cheques Act – whether liability greater than assets in estate – whether assets available for distribution in accordance with will – claim for equitable tort of devastavit – claim for fraud on the power – claim for breach of fiduciary duty
FAMILY PROVISION AND MAINTENANCE – Claim under the Family Provision Act 1969 (ACT) – Whether adequate provision
for the proper maintenance, education, or advancement in life of
the plaintiff made under the will – no order for further provision made – claim dismissed
Legislation Cited:	Administration and Probate Act 1929 (ACT) pt 4.2; s 41C Bankruptcy Act 1966 (Cth) s 108 Cheques Act 1986 (Cth) ss 10, 17, 35, 36, 50, 53, 58, 59, 60, 69, 70, 72, 74 Civil Law (Wrongs) Act 2002 (ACT) s 15 Domestic Relationships Act 1993 (ACT) Evidence Act 2011 (ACT) s 131 Family Law Act 1975 (Cth) Family Provision Act 1969 (ACT) ss 7, 8, 22 Succession Act 2006 (NSW) pt 3.3
Cases Cited:	Austin v Austin (1906) 3 CLR 516 Australian Conservation Services v Liladel Holdings [2017] ACTSC 162; 12 ACTLR 124 Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459 Barns v Barns [2003] HCA 9; 214 CLR 169 Bovaird v Trustee of the Bankrupt Estate of Frost [2010] FCA 1159; 118 ALD 263 Brunoro v Brunoro (No 3) [2016] ACTSC 189 Chan v Zacharia (1984) 154 CLR 178 Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694 Crossman v Riedel [2004] ACTSC 127 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Frost v Bovaird [2014] FCAFC 20; 223 FCR 275
Government Employees Superannuation Board v Martin (1997) 19 WAR 224 Johnson v Trotter [2006] NSWSC 67 Jones v AMP Perpetual Trustee Company NZ Ltd (1994) 1 NZLR 690 Jones v Dunkel (1959) 101 CLR 298 Kearns v Hill (1990) 21 NSWLR 107 Keech v Sandford (1726) Sel Cas T Ch 61; 25 ER 223 Kulczycki v Public Trustee [2013] ACTSC 230
Lancedale Holdings Pty Ltd v Heath Group Australasia Pty Ltd
[1999] NSWCA 460; 33 ACSR 247 MacGregor v MacGregor [2003] WASC 169 Mayfair Trading Co Pty Ltd v Dreyer (1958) 100 CLR 428 Mercanti v Mercanti [2016] WASCA 206; 50 WAR 495 Mitchell v McLear [2020] VSC 25 Midgley v Midgley [1893] 3 Ch 282 Muschinski v Dodds (1984) 160 CLR 583
National Trustees and Executors and Agency Company of
Australasia Ltd v Dwyer (1940) 63 CLR 1 Nocton v Lord Ashburton [1914] AC 932 Norman v Federal Commissioner for Taxation (1962) 109 CLR 9
O’Halloran v R T…

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 Ross v Gordon

Details

AGLC: Ross v Gordon [2021] ACTSC 41
Case: [2021] ACTSC 41
Decision Date

CaseChat Overview and Summary

In Ross v Gordon, the plaintiff, James Young Ross, sought declaratory relief, damages for the tort of devastavit, and relief in equity against the defendants, who were the deceased's daughter and the executors of the deceased's estate, Olga Hart. The plaintiff also sought a declaration that the cheques drawn by the deceased to a trust did not create a debt, and an order for further provision pursuant to the Family Provision Act 1969 (ACT). The defendants denied liability and opposed the claims. The court held that the deceased's assets were insufficient to meet the liabilities of the estate, including the cheques drawn to the trust. The court found that the cheques did not create a debt, and that the estate's executors did not commit fraud on the power or breach their fiduciary duties. The court also found that the deceased's will made adequate provision for the plaintiff, and that the plaintiff was not entitled to further provision under the Family Provision Act. The court dismissed all of the plaintiff's claims and ordered the plaintiff to pay the defendants' costs.

Orders