Selden v Allen - [2022] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SELDEN -v- ALLEN [2022] WASC 83
CORAM:   MASTER SANDERSON
HEARD:   25 NOVEMBER 2021
DELIVERED          :   11 MARCH 2022
PUBLISHED           :   11 MARCH 2022
FILE NO/S:   CIV 1805 of 2021
BETWEEN:   DAVID PETER SELDEN
Plaintiff
AND
SUZANNE GAYE ALLEN
First Defendant
RIVERSIDE ASSET PTY LTD
Second Defendant
THOMAS MARTHINUS SMALBERGER
Third Defendant

Catchwords:

Trust - Application for appointment of receiver to trust and vesting of trust - Turns on own facts

Legislation:

Trustees Act 1962 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	JJ Hockley & JW Fickling
First Defendant	:	M Curwood SC & N Ricciardi
Second Defendant	:	M Curwood SC & N Ricciardi
Third Defendant	:	JC Yeldon

Solicitors:

Plaintiff	:	D'Angelo Legal
First Defendant	:	Frichot Lawyers
Second Defendant	:	Frichot Lawyers
Third Defendant	:	Fort Knox Legal

Cases referred to in decision:

Allen v Smalberger [2021] WASC 306
Baker v Kettle (No. 3) [2007] FamCA 1653
Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [No 5] [2021] WASC 331
Re Arthur Brady Family Trust [2014] QSC 244
Yunghanns v Candoora No. 19 Pty Ltd (No. 2) [2000] VSC 300
Yunghanns v Candoora No. 19 Pty Ltd (No. 3) [2000] VSC 387

MASTER SANDERSON:

By amended originating summons filed 25 October 2021 the plaintiff sought the following orders:
Whereas on 23 September 2021 orders were made in CIV 1246 of 2021 and the trustees of both the Peter Selden Family Trust ('PSFT') and the Peter Selden Family Trust No 2 ('PSFT2') became Riverside Asset Pty Ltd and as modifications to the vehicle or mechanism for vesting PSFT and PSFT2 were contemplated on page 19-20 filed by the Plaintiff on 29 September 2021 the orders sought are accordingly modified, appended and expanded in further detail herein.
Whereas the drafting of these orders has been further informed by the reason for decision of Warren J in Yunghanns v Candoora No. 19 Pty Ltd (No. 2) [2000] VSC 300 (4 August 2000) and partially set out in Yunghanns v Candoora No. 19 Pty Ltd (No. 3) [2000] VSC 387 at [10], Baker v Kettle (No. 3) [2007] FamCA 1653 and Re Arthur Brady Family Trust [2014] QSC 244.
1.By way of section 79(1) of the Trustees Act 1962 (WA) ('Trustees Act') and the power of the Court more generally in its powers of administration of trusts and the protection of assets of trusts in Western Australia, (a Court nominated receiver or one of the parties identified in the affidavit of Kealeigh Ann Barker filed on 23 September 2001] ('Receiver') be appointed to Riverside Asset Pty Ltd).
2.The Receiver is given the object ('the Object') of protecting, administering and realising the assets and undertaking of the PSFT, paying the debts of the PSFT and bringing forward the vesting day of the PSFT and is empowered to do in Australia all things necessary or convenient to be done or in connection with…

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.

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Details

Case: [2022] WASC 83
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, David Peter Selden, sought the appointment of a receiver for two discretionary trusts, the Peter Selden Family Trust (PSFT) and the Peter Selden Family Trust No 2 (PSFT2), as well as the vesting of the assets of these trusts. The first defendant, Suzanne Gaye Allen, and the second defendant, Riverside Asset Pty Ltd, opposed the application. The central issue before Master Sanderson was whether the circumstances warranted the appointment of a receiver for the trusts and if the assets should be vested. The court examined the precedent set in Yunghanns v Candoora No. 19 Pty Ltd, which outlined that a receiver should be appointed when there is strong evidence that trust assets are being depleted to the detriment of beneficiaries. The evidence presented showed that the first defendant had received distributions from PSFT2 while the deceased's estate had an unpaid present entitlement. However, the court found that the assets of neither trust were at risk and that the appointment of a receiver was unwarranted. Master Sanderson did, however, suggest that the parties consider expediting the realisation of PSFT assets and directed the matter to be relisted for further consideration of appropriate directions and costs.

Orders