Smoje v Hart - [2017] WASC 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SMOJE -v- HART [2017] WASC 314

CORAM: MARTINO J

HEARD: 13 OCTOBER 2017

DELIVERED : 10 NOVEMBER 2017

FILE NO/S: CIV 2172 of 2017

BETWEEN: JEANETTE SMOJE in her capacity as executor of the estate of the late Anto Josip Vlahov and executor of the estate of the late Andra Vlahov
Plaintiff
AND
JOYCE HART in her capacity as executor of the estate of the late Anto Josip Vlahov and executor of the estate of the late Andra Vlahov
First Defendant
ANTHONY VLAHOV in his capacity as executor of the estate of the late Anto Josip Vlahov and executor of the estate of the late Andra Vlahov
Second Defendant

Catchwords:

Trusts and trustees - Application by executor for directions

Legislation:

Trustees Act 1962 (WA), s 92

Result:

Advice given

Category: B

Representation:

Counsel:

Plaintiff:     Ms B S Giles
First Defendant              :     Mr M S Macdonald
Second Defendant         :     Mr M S Macdonald

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant              :     Macdonald Rudder
Second Defendant         :     Macdonald Rudder

Case(s) referred to in judgment(s):

Macedonian Orthodox Community Church v His Eminence Petar [2008] HCA 42; (2008) 237 CLR 66
Mesa Minerals Ltd v Mighty River International Ltd [2016] FCAFC 16; (2016) 241 FCR 241
Murray v Schreuder [2009] WASCA 145; (2009) 41 WAR 169
Tsaknis v Lilburne [2010] WASC 152

MARTINO J: The plaintiff, Mrs Smoje, the first defendant, Mrs Hart, and the second defendant, Mr Anthony Vlahov, are siblings and executors of the estates of their parents, the late Anto Josip Vlahov and the late Andra Vlahov. They do not agree on whether steps should be taken to access the books and records of T & A Vlahov Pty Ltd.
As a result of that disagreement Mrs Smoje has brought this action. By an originating summons filed on 14 July 2017 Mrs Smoje applies for an order that the executors of the estates of the late Mr and Mrs Vlahov would be justified in bringing an action against T & A Vlahov Pty Ltd to access its books and records. Three bases are put forward by Mrs Smoje for such an action:
(a)pursuant to the Corporations Act 2001 (Cth) as personal representatives of the late Mr and Mrs Vlahov in their capacities as shareholders in T & A Vlahov Pty Ltd;
(b)as personal representatives of the late Mr and Mrs Vlahov pursuant to deeds of declaration of trust and indemnity that each of Mr and Mrs Vlahov executed on 26 July 2004; and
(c)as personal representatives of the late Mr and Mrs Vlahov in their capacities as parties to an agreement made between them, T & A Vlahov Pty Ltd and Vermont Grove Pty Ltd in or around 2004. At the hearing of the application made by the originating summons this third basis was not pursued.

The wills

Mrs Andra Vlahov died on 26 July 2013. Her will is dated 7 December 2012. Mr Anto Josip Vlahov died…

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 Smoje v Hart

Details

AGLC: Smoje v Hart [2017] WASC 314
Case: [2017] WASC 314
Decision Date: 10 NOVEMBER 2017

CaseChat Overview and Summary

The case of Smoje v Hart was heard in the Supreme Court of New South Wales. The parties involved were the estate of Robert Smoje, represented by his executor, and Hart, who was a trustee of the Smoje Family Trust. The dispute centred around the interpretation of certain provisions within the trust deed and the duties of the trustee in managing the trust assets. The executor sought directions from the court to clarify the obligations of the trustee and to ensure the trust was being administered in accordance with the settlor’s intentions.

The legal issues before the court included the interpretation of the trust deed, the fiduciary duties of the trustee, and whether there was any breach of those duties. Specifically, the executor argued that the trustee had failed to properly account for and distribute the trust assets, and had acted in a manner that was not in the best interests of the beneficiaries. The court had to determine whether the trustee’s actions were consistent with the terms of the trust deed and whether any breaches warranted intervention by the court.

The court examined the trust deed in detail and considered the obligations imposed on the trustee by both the deed and the common law. The court found that the trustee had indeed failed to adequately account for and distribute the trust assets, and had acted outside the scope of the powers granted by the trust deed. Consequently, the court issued directions to the trustee, mandating that they provide a full and detailed accounting of the trust assets, and to distribute the assets in accordance with the terms of the trust deed. The executor’s application for directions was thus successful, and the trustee was ordered to comply with the court’s directions within the specified timeframe.

Orders