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Saul v Lin (No 2)

Saul v Lin (No 2)

Case [2004] NSWSC 332 23 April 2004

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Reported Decision:
60 NSWLR 275

Supreme Court

CITATION: Saul & Ors v Lin (No 2) [2004] NSWSC 332

HEARING DATE(S): 21 April, 2004

JUDGMENT DATE:
23 April 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Public Trustee to be appointed as new trustee.

CATCHWORDS: TRUSTS - NEW TRUSTEE - whether persons having close family ties to beneficiaries should be appointed new trustees - principles discussed - PROTECTED ESTATES - TRUSTS - sole trustee is a protected person - whether there is power under s.71(1) Protected Estates Act to order that the Protective Commissioner may administer the trust generally in the name of the protected person - history of the section reviewed - principles discussed - NEW TRUSTEE - whether representative of life tenant should be appointed by Court - principles discussed.

LEGISLATION CITED: De Praerogativa Regis 17 Ed II, c 9 & 10
Lunacy Act 1890 (England) - s.128, s.129
Lunacy Act 1898-1955 (NSW) - s159, s.160
Protected Estates Act 1983 (NSW) - s.13(2), s.71
Trustee Act 1925 (NSW) - s.70
Trustee Act 1850 (UK)
Trustee Act 1852 (UK)
34 & 35 Henry VIII c.5
4 Geo II c.10 (1731)
36 Geo III c.90 (1796)
1 & 2 Geo IV c.114
6 Geo IV c.74
7 Geo IV c.43
11 Geo IV & 1 Will IV c.60
16 & 17 Vic c.70

CASES CITED: - Currie, In re (1878) 10 ChD 93
- Earl of Stamford, In re; Payne v Stamford [1896] 1 Ch 288
- Kemp's Settled Estates, Re (1883) 24 Ch D 485
- Moorhouse, In re [1946] 4 DLR 542
- Spencer's Settled Estates, Re [1903] 1 Ch 75
- Tempest, In re (1866) 1 LR Ch App 485
- Ward, Re (1850) 2 Mac & G 73 [42 ER 29]
- Wilding v Boulder (1855) 21 Beav 222 (52 ER 845)
- Brydall "The Law Relating to Natural Fools, Mad-Folks, and Lunatick Persons" (1700)
- Elmer's "Practice in Lunacy" (1892) 7th Ed.
- Highmore's "The Law of Idiocy & Lunacy" (1807)
- Pollock & Maitland "The History of English Law" (1923) 2nd Ed., Vol.I p.481
- Pope's "Law & Practice of Lunacy" (1890) 2nd Ed.
- Seton's "Judgments & Orders" (1912) 7th Ed.
- Miller & Horsell "Equity Forms & Precedents"

PARTIES :
Jennifer Suzie Saul - First Plaintiff
Hannah Saul by her Tutor M.P. Saul
Alexander Saul by his Tutor M.P. Saul
Tsung Chen Lin - Defendant

FILE NUMBER(S): SC 2294/04

COUNSEL: Ms. J. Needham - Plaintiffs
M. Ashhurst - Defendant

SOLICITORS: Teece Hodgson & Ward - Plaintiffs
Protective Commissioner - Defendant

Introduction
1 On 15 April 2004, I gave judgment in this matter, making a declaration that a valid trust existed of which the Defendant was trustee and the Plaintiffs were beneficiaries: Saul v Lin [2004] NSWSC 307. The Plaintiffs also sought an order that the Defendant be removed as trustee of the trust on the ground that he was incapable of managing his affairs, an order having been…

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 Saul v Lin (No 2)

Details

AGLC: Saul v Lin (No 2) [2004] NSWSC 332
Case: [2004] NSWSC 332
Decision Date: 23 April 2004

CaseChat Overview and Summary

In the matter of Saul v Lin (No 2), the court addressed the appointment of a new trustee for a trust where the existing sole trustee was deemed a protected person under the Protected Estates Act. The dispute arose from the incapacity of the sole trustee, necessitating the appointment of a replacement. The case before the court involved the intricacies of trust administration and the application of relevant statutory provisions to ensure the trust's continued operation.

The primary legal issues the court was required to decide encompassed whether individuals with close family ties to the beneficiaries should be appointed as new trustees, the interpretation of section 71(1) of the Protected Estates Act, and whether the court had the power to order that the Protective Commissioner could administer the trust on behalf of the protected person. The court also considered whether a representative of the life tenant should be appointed by the court under the circumstances.

In delivering its judgment, the court meticulously examined the relevant statutory provisions and principles governing the appointment of new trustees. The court found that while the close family ties of potential trustees could be a relevant consideration, it was not determinative. The court also reviewed the legislative history and purpose of section 71(1) of the Act, concluding that the section empowered the court to direct the Protective Commissioner to administer the trust in the name of the protected person. Furthermore, the court determined that in the specific circumstances presented, it was appropriate to appoint a representative of the life tenant to act as a trustee.

The court ordered that the Protective Commissioner be appointed to administer the trust in the name of the protected person, in accordance with the provisions of the Protected Estates Act. Additionally, the court appointed a representative of the life tenant as a co-trustee to ensure the trust's continued operation and to protect the interests of all beneficiaries.

Orders