Smith v Kennedy - [2025] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Kennedy [2025] QSC 27

PARTIES:

ANNA CHRISTINE SMITH as Litigation Guardian for XAVIER RICHARD KENNEDY and ALICE MAY KENNEDY

(applicant)

v
PAUL JOHN KENNEDY as Trustee of the Richard Kennedy Testamentary Trust

(respondent)

FILE NO/S:

BS 12859/24

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2024

JUDGE:

Cooper J

ORDER:

1. Pursuant to s 80 of the Trusts Act 1973 (Qld):

a.   the respondent is removed as trustee of the Richard Kennedy Testamentary Trust (the Trust); and

b.   Renee Anne Bennett (the New Trustee) is appointed as trustee of the Trust in substitution for the respondent.

2. Pursuant to ss 82 and 90 of the Trusts Act 1973 (Qld), the title to any property:

a.   in the name of the Trust;

b.   in the name of the respondent on behalf of the Trust; or

c.   in the name of any other persons on behalf of the Trust,

vest in the New Trustee.

3. Pursuant to s 114 of the Land Title Act 1994 (Qld), the New Trustee be registered as proprietor of any real property of the Trust.

4. Pursuant to s 101 of the Trusts Act 1973 (Qld), the New Trustee be authorised to charge remuneration for her services as trustee of the Trust with such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust.

5. Pursuant to s 94 of the Trusts Act 1973 (Qld), the New Trustee be authorised to retain Wilson/Ryan/Grose Lawyers to act on her behalf in relation to the administration of the Trust and to pay them their professional costs and outlays in so acting to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust.

6. Pursuant to s 94 of the Trusts Act 1973 (Qld), all documents in the possession or the control of the parties relating to the Trust be delivered to the New Trustee within 14 days from the date of these orders.

7.   Paragraph 1(b) of the orders of Justice Martin of 8 February 2021 in Supreme Court proceeding BS11801/20 cease to have effect from the date of these orders such that the respondent has no further entitlement to retain any funds from the accounts of the estate of the late Richard Kennedy or the Trust from the date of these orders.

8.   The New Trustee has liberty to apply for further orders or directions concerning the administration of the Trust on the giving of 3 days written notice to the parties.

9.   The costs of each of the Applicant and the Respondent of the proceeding are to be paid out…

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 Smith v Kennedy

Details

AGLC: Smith v Kennedy [2025] QSC 27
Case: [2025] QSC 27
Decision Date: 27 February 2025

CaseChat Overview and Summary

The case of Smith v Kennedy involves a dispute concerning the administration of a testamentary trust. The deceased had left a rural residence and other property to be held on trust for his two children. The trust's executor and trustee was the deceased's brother, Kennedy. The trust allowed for the income and capital to be used for the maintenance, education, and advancement of the beneficiaries. The beneficiaries' mother, Smith, sought reimbursement and payment of various expenses from the trust. Kennedy refused to pay certain expenses, and the value of the trust's assets had significantly increased under his management. The relationship between Kennedy and Smith deteriorated, leading to this legal action. Smith sought Kennedy's removal as trustee and the appointment of an independent trustee.

The central legal issues the court had to address were whether Kennedy should be removed as trustee and if an independent trustee should be appointed in his place. The court had to consider the grounds for removal as stipulated in the Trusts Act 1973 (Qld) and determine if Kennedy's actions warranted his removal. The court also needed to assess if the trust's administration would benefit from the appointment of a new trustee and if such a change would be in the best interests of the beneficiaries.

The court found that Kennedy's relationship with Smith had deteriorated to the point that it was detrimental to the trust's administration. The court held that Kennedy's refusal to pay certain expenses from the trust, despite the trust's broad discretion, was unreasonable. Given the material increase in the trust's value under Kennedy's management, the court concluded that his removal was warranted. The court appointed Renee Anne Bennett as the new trustee, recognising her suitability and independence from the contentious relationship between Kennedy and Smith. The court's decision was based on the need to ensure the trust's proper administration and the beneficiaries' best interests.

The court issued several orders to effect the transition of trusteeship. Kennedy was removed as trustee, and Bennett was appointed in his place. The title to any property held in the trust's name or on behalf of the trust vested in Bennett. Bennett was authorised to charge remuneration for her services and retain legal representation, with costs to be paid from the trust. All documents related to the trust were to be delivered to Bennett. Kennedy's previous entitlement to retain funds from the trust was revoked. The new trustee was granted the liberty to apply for further orders concerning the trust's administration. The costs of the proceeding were to be paid from the trust.

Orders

Orders of the court

1. Pursuant to s 80 of the Trusts Act 1973 (Qld):

a. the respondent is removed as trustee of the Richard Kennedy Testamentary Trust (the Trust); and

b. Renee Anne Bennett (the New Trustee) is appointed as trustee of the Trust in substitution for the respondent.

2. Pursuant to ss 82 and 90 of the Trusts Act 1973 (Qld), the title to any property:

a. in the name of the Trust;

b. in the name of the respondent on behalf of the Trust; or

c. in the name of any other persons on behalf of the Trust,

vest in the New Trustee.

3. Pursuant to s 114 of the Land Title Act 1994 (Qld), the New Trustee be registered as proprietor of any real property of the Trust.

4. Pursuant to s 101 of the Trusts Act 1973 (Qld), the New Trustee be authorised to charge remuneration for her services as trustee of the Trust with such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust.

5. Pursuant to s 94 of the Trusts Act 1973 (Qld), the New Trustee be authorised to retain Wilson/Ryan/Grose Lawyers to act on her behalf in relation to the administration of the Trust and to pay them their professional costs and outlays in so acting to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust.

6. Pursuant to s 94 of the Trusts Act 1973 (Qld), all documents in the possession or the control of the parties relating to the Trust be delivered to the New Trustee within 14 days from the date of these orders.

7. Paragraph 1(b) of the orders of Justice Martin of 8 February 2021 in Supreme Court proceeding BS11801/20 cease to have effect from the date of these orders such that the respondent has no further entitlement to retain any funds from the accounts of the estate of the late Richard Kennedy or the Trust from the date of these orders.

8. The New Trustee has liberty to apply for further orders or directions concerning the administration of the Trust on the giving of 3 days written notice to the parties.

9. The costs of each of the Applicant and the Respondent of the proceeding are to be paid out of the Trust on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Kennedy [2025] QSC 27
PARTIES:	ANNA CHRISTINE SMITH as Litigation Guardian for XAVIER RICHARD KENNEDY and ALICE MAY KENNEDY (applicant) v PAUL JOHN KENNEDY as Trustee of the Richard Kennedy Testamentary Trust (respondent)
FILE NO/S:	BS 12859/24
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 February 2025
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2024
JUDGE:	Cooper J
ORDER:	1. Pursuant to s 80 of the *Trusts Act* 1973 (Qld): a. the respondent is removed as trustee of the Richard Kennedy Testamentary Trust (the Trust); and b. Renee Anne Bennett (the New Trustee) is appointed as trustee of the Trust in substitution for the respondent. 2. Pursuant to ss 82 and 90 of the *Trusts Act* 1973 (Qld), the title to any property: a. in the name of the Trust; b. in the name of the respondent on behalf of the Trust; or c. in the name of any other persons on behalf of the Trust, vest in the New Trustee. 3. Pursuant to s 114 of the *Land Title Act* 1994 (Qld), the New Trustee be registered as proprietor of any real property of the Trust. 4. Pursuant to s 101 of the *Trusts Act* 1973 (Qld), the New Trustee be authorised to charge remuneration for her services as trustee of the Trust with such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust. 5. Pursuant to s 94 of the *Trusts Act* 1973 (Qld), the New Trustee be authorised to retain Wilson/Ryan/Grose Lawyers to act on her behalf in relation to the administration of the Trust and to pay them their professional costs and outlays in so acting to be assessed by an independent costs assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and paid at approximately two month intervals and on completion of the Trust. 6. Pursuant to s 94 of the *Trusts Act* 1973 (Qld), all documents in the possession or the control of the parties relating to the Trust be delivered to the New Trustee within 14 days from the date of these orders. 7. Paragraph 1(b) of the orders of Justice Martin of 8 February 2021 in Supreme Court proceeding BS11801/20 cease to have effect from the date of these orders such that the respondent has no further entitlement to retain any funds from the accounts of the estate of the late Richard Kennedy or the Trust from the date of these orders. 8. The New Trustee has liberty to apply for further orders or directions concerning the administration of the Trust on the giving of 3 days written notice to the parties. 9. The costs of each of the Applicant and the Respondent of the proceeding are to be paid out…