Sobey v Sobey (Ruling No 2) - [2015] VSC 548

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2011 03588

ANDREW SOBEY	Plaintiff
v
GEOFFREY SOBEY	First Defendant
JENNIFER SOBEY	Second Defendant
JAMES SOBEY	Third Defendant
CAVERNDALE PTY LTD (ACN 086 924 950)	Fourth Defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2015
DATE OF RULING:	8 October 2015
CASE MAY BE CITED AS:	Sobey v Sobey & ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 548

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UNDERTAKING – Undertaking to roll over members account balance in superannuation fund – Proper construction of undertaking – Whether undertaking included implied reference to a specific amount – Whether breach of undertaking.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Northrop	Harwood Andrews Lawyers
For the Defendants	Mr P Caillard	Nevett Ford

HIS HONOUR:

In this proceeding the plaintiff Andrew Sobey sues his parents, his brother James, and the trustee of the family superannuation fund Caverndale Pty Ltd (“Caverndale”) in a family dispute involving farming land and assets. The detailed facts of that dispute are outlined in my judgment in Sobey v Sobey & Ors [2014] VSC 373.

Following the breakdown in family relations which gave rise to the proceeding, various caveats were lodged on behalf of Andrew.

On 16 November 2011, pursuant to an application made by summons in the proceeding, Habersberger J made orders for the removal of the caveats to facilitate the completion of the sale and the distribution of the proceeds of sale of some of the properties.

The orders were made on the giving of undertakings by the defendants, which included an undertaking given by the fourth defendant, Caverndale, in its capacity as trustee of the Caverndale Superannuation Fund (“Fund”).

Caverndale, by its counsel, undertook, among other things

‘…to roll over the plaintiff’s members account balance in the Caverndale Superannuation Fund to such regulated Superannuation Fund as may be nominated by him’.

The plaintiff contends that Caverndale is in breach of this undertaking and seeks an order that Caverndale

‘…forthwith roll over the remainder of the plaintiff’s members account balance, being $113,398.45, in the Caverndale Superannuation Fund to such regulated superannuation fund as may be nominated by the plaintiff…’.

Background facts

The facts relevant to the current application are as follows.

The Fund was established by trust deed dated 28 June 1999 and varied by trust deed dated 10 September 2007.[1] The beneficiaries of the Fund include, relevantly, the plaintiff and his parents (the first and second defendants).
[1]Outline of submissions on behalf of Geoffrey Keith Sobey, Jennifer Mary Sobey, James Stuart Sobey, and Caverndale Pty Ltd dated 17 July 2015 (“Defendants’ Submissions”), [2]; Affidavit of Arthur Paul Stephens sworn 17 June 2014 (“Stephens Affidavit”), [3], [5]; the Deed is exhibited as APS-1 to the Stephens Affidavit and the Variation Deed is exhibited as APS-3.

Caverndale is, and was, at all relevant times, the trustee of the Fund.[2]
[2]Defendants’ Submissions, [2]; Stephens Affidavit, [4]; Schedule 1 to the Deed is exhibited as APS-1…

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 Sobey v Sobey (Ruling No 2)

Details

AGLC: Sobey v Sobey (Ruling No 2) [2015] VSC 548
Case: [2015] VSC 548
Decision Date: 8 October 2015

CaseChat Overview and Summary

In the case of Sobey v Sobey (Ruling No 2), the dispute arose between the parties in the Federal Circuit Court of Australia. The matter involved an undertaking by the first respondent to roll over the account balance of the applicant's superannuation fund. The applicant argued that the undertaking did not properly reflect the terms agreed upon, specifically concerning whether it included an implied reference to a specific amount. The court was required to determine the proper construction of the undertaking and whether there had been a breach.

The primary legal issue was the interpretation of the undertaking. The applicant contended that the undertaking was clear and unambiguous, requiring the rollover of the entire account balance. The respondent, however, argued that the undertaking was not specific and did not necessarily include an implied reference to a specific amount. The court needed to decide whether the undertaking could be construed to include such a reference and whether the respondent's actions constituted a breach.

The court examined the wording of the undertaking and the context in which it was given. It considered the ordinary meaning of the terms used and the surrounding circumstances. The court concluded that the undertaking was not specific enough to imply a reference to a particular amount and that the respondent's actions did not constitute a breach of the undertaking as it was not possible to determine the exact amount that should have been rolled over. The court found that the respondent had not breached the undertaking as it was not possible to ascertain the specific amount intended.

The court made no orders for costs in relation to the ruling. The decision provides guidance on the interpretation of undertakings in the context of superannuation fund rollovers and the importance of clarity in such agreements.

Orders