State Trustees Ltd v Edwards - [2009] VSC 57

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 96 of 2007

IN THE MATTER OF THE WILL AND ESTATE OF BRYAN WATSON EDWARDS (Deceased)

STATE TRUSTEES LIMITED

Appellant

BERNADETTE MARY EDWARDS

Respondent

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2008
DATE OF JUDGMENT:	27 February 2009
CASE MAY BE CITED AS:	State Trustees v Edwards
MEDIUM NEUTRAL CITATION:	[2009] VSC 57

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PRACTICE – Nature of subpoena power - Immunity of State Trustees from subpoena - Appeal from Associate Justice - s.17 State Trustees (State Owned Company) Act 1994 - s 58D and 58 E Guardianship and Administration Act - s 34 - s 36 of the Victorian Civil and Administrative Tribunal Act 1998 – Held: no immunity to validly issued subpoena.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.E. Marantelli	State Trustees Limited Legal Branch
For the Respondent	Mr P.N. Wikramanayake SC with Mr D. Carlisle	Simon Parsons & Co

HIS HONOUR:

Introduction

This is an appeal from a decision of an Associate Justice of this Court on 26 August 2008 in which she dismissed an objection by State Trustees Limited (“STL”) to a subpoena issued to it on behalf of Bernadette Edwards (“Bernadette”), the daughter of the late Mr Bryan Edwards (“Bryan”) who died on 29 July 2007. That subpoena sought production of documents held by STL relevant to the dispute between Mrs Cornelia Edwards (“Cornelia”) and Bernadette over Bryan’s estate.

On 8 January 2007, STL was appointed administrator of Bryan’s legal and financial affairs.

The contest between Bernadette and Cornelia relates to the validity of a Will executed on 10 January 2007 in favour of Cornelia excluding Bernadette and her sisters.

Although STL originally relied upon some four grounds upon which to set aside the subpoena, the contest before me related to the application of a series of statutory provisions which STL argues renders it immune to compliance with the subpoena.

Factual background

On 26 April 2006, Bryan executed a Will in which Bernadette and her sisters were the beneficiaries. By November 2006, he had commenced to suffer from the effects of a brain tumour. He saw a solicitor, a Mr Gary Singer, and executed a further Will on 1 December 2007 again in respect of which Bernadette and her sisters were the beneficiaries.

On 5 December 2006, a temporary guardianship order was made by a member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) in relation to Bryan pursuant to s 22 of the Guardianship and Administration Act (“the GAA Act”).

On 12 December 2006, Bryan married Cornelia. Coincidentally, on that day the Tribunal extended the temporary guardianship order.

On 10 January 2007, Bryan executed his Will, leaving his estate exclusively to Cornelia.

STL remained Bryan’s guardian until his death on 29 July 2007.

Cornelia then sought to propound the Will as the sole executor, trustee and beneficiary of the 10 January Will.

Bernadette lodged a…

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 State Trustees Ltd v Edwards

Details

AGLC: State Trustees Ltd v Edwards [2009] VSC 57
Case: [2009] VSC 57
Decision Date: 27 February 2009

CaseChat Overview and Summary

State Trustees Limited sought an order against Ms Edwards to compel her to provide documents, which she refused to do. The matter came before the Supreme Court, which was required to decide whether State Trustees Limited could be subject to a subpoena in the context of the documents it held. State Trustees Limited claimed that it was immune from the subpoena under section 17 of the State Trustees (State Owned Company) Act 1994. Ms Edwards argued that section 17 did not apply to a subpoena issued under the Guardianship and Administration Act 2014 (Vic) and therefore the subpoena was valid. The court found that the proper interpretation of section 17 was to provide immunity from a subpoena under the Guardianship and Administration Act 2014 (Vic). The court determined that the subpoena was validly issued and State Trustees Limited was not immune from the subpoena. The appeal was dismissed.

Orders