Stacey v Stacey [No 2]
[2010] WASC 99
•11 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: STACEY -v- STACEY [No 2] [2010] WASC 99
CORAM: BEECH J
HEARD: 7 MAY 2010
DELIVERED : 7 MAY 2010
PUBLISHED : 11 MAY 2010
FILE NO/S: CIV 1510 of 2010
BETWEEN: PHILLIP JOHN STACEY
Plaintiff
AND
JUDITH LORRAINE STACEY
First DefendantDIANNE FRANCIS DE VOS
Second Defendant
Catchwords:
Injunctions - Interlocutory injunctions - Whether serious question to be tried - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Ms H McGeorge
First Defendant : Ms E C Hensler
Second Defendant : No appearance
Solicitors:
Plaintiff: D F Beere
First Defendant : Cullen Babington Hughes
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 127 CLR 99
Fitzgerald v Masters (1956) 95 CLR 420
Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757
Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
BEECH J:
(These reasons were delivered extemporaneously on 7 May 2010 and have been edited from the transcript)
Introduction
The plaintiff seeks an interlocutory injunction restraining the first defendant from lodging any dealing with Landgate, either as sole trustee or co-trustee of the Stacey Family Trust in respect of land described as Lot 2 and Lot 144. For the reasons that follow I dismiss the plaintiff's application.
In essence, in my opinion the plaintiff has failed to demonstrate that there is a serious question to be tried. Further, the plaintiff has not established that the balance of convenience supports the grant of an interlocutory injunction.
Interlocutory injunctions: principles
The principles relevant to the grant of an interlocutory injunction are well known. I will not repeat them. I refer to the outline in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [11].
It is trite that an applicant for an interlocutory injunction must establish a serious question to be tried in respect of the final relief which founds the interlocutory relief sought. Notwithstanding that, the plaintiff's written submissions did not say anything about the merits of the claim which founds this application for interlocutory relief. Moreover, counsel was unable to provide any oral submissions in that regard. That is an entirely unsatisfactory course of events which should not have been allowed to occur and which may well be relevant to the question of costs.
The facts
The facts are not in dispute and can be shortly stated.
The Stacey Family Trust was created by a deed of trust in 1977. Clause 14 of the Deed of Trust provided that the appointor of the trust had power to appoint new or additional trustees.
Subsequently, in 1996 the terms of the trust were varied by a deed of amendment (the Deed of Amendment). The Deed of Amendment replaced the earlier terms of the Deed of Trust with new terms. The new terms were set out in sch 3 of the Deed of Amendment. Those new terms included, as cl 12, a clause providing that the appointor had the power to remove and to appoint new or additional trustees. The Deed of Amendment also provided that a trustee had like powers of appointment.
The plaintiff's case centres on the efficacy of a short instrument dated 26 November 2007 entitled Deed of Change, Stacey Family Trust. The Deed of Change is made between Mr Bryan Stacey and the first defendant, Ms Judith Stacey. It provides as follows:
In exercise of the powers in that behalf given to the appointor by the trust deed (clause 14 of the trust deed) the appointor may appoint an additional trustee of the trust.
The appointor appoints Judith Lorraine Stacey to be a co-trustee of the Stacey Family Trust.
Judith Stacey hereby accepts the appointment as co trustee of the trust.
It is not in dispute that, as at 26 November 2007, Mr Bryan Stacey was appointor and trustee of the Stacey Family Trust.
Mr Bryan Stacey died on 17 June 2008.
On 24 February 2010 the first defendant and the second defendant were granted letters of administration of the estate of Mr Bryan Stacey. One of the assets of the estate set out in the statement of assets and liabilities is a debt of just under $3.5 million, said to be owed by the first and second defendants.
Is there a serious question to be tried?
The nub of the plaintiff's case is:
(a)the Deed of Change was not effective in appointing the first defendant as a co‑trustee;
(b)therefore, at the time Mr Bryan Stacey died, he was the sole trustee;
(c)the effect of that is that Mr Bryan Stacey's personal representatives have a power of appointment under s 7 of the Trustees Act 1962 (WA).
The first defendant says the Deed of Change was effective, so that when Mr Stacey died, the first defendant continued as surviving trustee.
The issue is whether there is a serious question to be tried on the plaintiff's case that the Deed of Change dated 26 November 2007 was not effectual. As I have said, no written or oral submissions were advanced at this hearing in relation to that topic.
Drawing what I can from the written and oral submissions when the matter first came before me on 23 April 2010, I would summarise the plaintiff's case as follows. The plaintiff accepts that Mr Bryan Stacey was the appointor of the trust at the time of the Deed of Change and therefore had the power to do what he purportedly did in appointing an additional trustee. The plaintiff's proposition is that the purported exercise of that power was ineffectual because of the parenthetical reference in the Deed of Change to cl 14 of the Deed of Trust. As will be apparent from what I have already said, as at 26 November 2007 (after the amendments to the terms of the trust effected by the 1996 Deed of Amendment), cl 14 had nothing to do with any power of appointment. The power of appointment was to be found in cl 12.
The question of the efficacy of the Deed of Change is a question of construction of that deed. That was, I think, accepted by counsel for the plaintiff on 23 April 2010 and, in my opinion, rightly so.
Some of the principles relevant to the process of construction of an instrument are set out in the first defendant's outline of submissions as follows:
(1)the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the relevant instrument: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 127 CLR 99, 109;
(2)the construction of a contract requires a consideration of the whole of the relevant instrument: Australian Broadcasting Commission (109);
(3)the construction of a written contract is concerned with ascertaining what a reasonable person would have understood the parties to mean: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, [40];
(4)in construing a written contract, consideration should ordinarily be given not only to the language of the document, but also to the surrounding circumstances known to the parties, and the apparent purpose and object of the transaction; Pacific Carriers [22]; Toll (FGCT) [40]; and
(5)the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean: Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757 [59]; Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276, [76].
I would add an additional point. It is a well‑settled principle of construction that words may be supplied, omitted, corrected or interpreted in order to avoid absurdity or inconsistency, or to make the document sensible as a matter of construction: Fitzgerald v Masters (1956) 95 CLR 420, 426 ‑ 427; Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46 [92]; Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 [21].
The Deed of Change must be construed against the background of the terms of the Deed of Trust as they originally were, and as they were varied by the Deed of Amendment prior to the date of the Deed of Change. When the process of construction is undertaken in that context, my present view is that I am not satisfied that the plaintiff's case is arguable.
On the face of it at least, the proper construction of the Deed of Change appears to be clear and obvious. The intention revealed by the Deed of Change was to exercise the power of appointment undoubtedly reposed in Mr Bryan Stacey as appointor, by appointing the first defendant as an additional trustee. The mistaken reference to cl 14 rather than cl 12 does not detract from that evident intention. I am not presently persuaded that that error arguably makes the Deed of Change ineffectual. This conclusion would be a sufficient reason to decline the interlocutory injunction that is sought. However, for completeness I turn to the balance of convenience.
The balance of convenience
The plaintiff's application for interlocutory injunction is not improved if one moves to the question of the balance of convenience. What is put forward in the plaintiff's submissions as to the balance of convenience appears to focus on a connection between the proprietorship of Lots 2 and 144 and the first and second defendants' obligation to pay what is said to be an unsecured debt in the sum of just under $3.5 million. The plaintiff submits that the first defendant's intention to appoint a new corporate trustee (as stated in her affidavit) means there is a risk of prejudice to the plaintiff's interests in relation to the estate.
Assuming that that debt is owed in the capacity of trustee, I am not persuaded that an alteration in the trusteeship would prejudicially affect the estate to whom the debt is owed. That is because on the face of it, whoever is the trustee of the trust will become registered as the proprietor of the land. Further, any former trustee would have rights of recoupment or indemnity that would allow access to that land as a trust asset.
Consequently, I am not persuaded that the intention of the first defendant to appoint a new corporate trustee, if effected, will give rise to any serious prejudice to the plaintiff.
Conclusion
For these reasons I dismiss the plaintiff's application for an interlocutory injunction. I will hear from the parties on the question of costs.
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