Sweeney v Sweeney - [2016] VSC 483

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT

S ECI 2016 0061

WILLIAM JOSEPH SWEENEY & ANOR (according to attached Schedule of Parties)	Plaintiffs
v
CHARLES AUGUSTINE SWEENEY & ORS (according to attached Schedule of Parties)	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2016
DATE OF JUDGMENT:	15 August 2016
CASE MAY BE CITED AS:	Sweeney & Anor v Sweeney & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 483	First Revision: 16 August 2016

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PRACTICE AND PROCEDURE – Originating motion – Application under Order 54 Supreme Court (General Civil Procedure) Rules 2005 – Section 63 of the Trustee Act 1958 – concerning the exercise of trustees’ powers to dispose of land the subject of a trust – Summons pursuant to r 27.07(a) of the Rules, further or alternatively pursuant to the inherent jurisdiction of the Court – application to strike out affidavit material as irrelevant and scandalous – potential relevance of material deposed to an affidavit filed in other proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Costello	Tolhurst, Druce & Emmerson
For the First Defendant	Mr C Sweeney QC
For the Second, Third and Fourth Defendants	No appearance

HIS HONOUR:

By originating motion the plaintiffs seek declarations as to their power to enter into a contract of sale for the disposition of certain land at Lot 1, Buckley’s Road, Merrimu at Bacchus Marsh in Victoria (the Land). The plaintiffs also seek a declaration that the Land is held on trust for the defendants in certain undivided shares.

The plaintiffs are trustees of a trust entitled the Bacchus Marsh Land Trust (the Trust). The defendants in this proceeding are the beneficiaries of the Trust, and also include the plaintiffs in their personal capacity as two of the beneficiaries of the Trust.

The trial of the plaintiffs’ originating motion has been fixed for 5 September 2016. On 6 May 2016 certain interlocutory orders were made by this Court including orders granting leave to the first defendant, Charles Augustine Sweeney (Charles Sweeney), to file and serve an affidavit in support of his case objecting to the orders sought by the trustees.

In accordance with those orders Charles Sweeney filed and served his affidavit sworn 3 July 2016. The plaintiffs assert that much of the contents of the affidavit of Charles Sweeney, sworn 3 July 2016 is irrelevant, further or alternatively is scandalous, and accordingly should be struck out pursuant to r 27.07(a) of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules), further or alternatively pursuant to the Court’s inherent jurisdiction to so order in appropriate circumstances.

Background

A conditional contract of sale dated 30 October 2015[1] has been entered into between the trustees and Bacchus Marsh Developments Pty Ltd (BMD) in relation to the Land. The contract of sale is rendered conditional by operation of special condition [3] which expressly requires the trustee vendors to either obtain an order of the Court, or the consent of the beneficiaries,…

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 Sweeney v Sweeney

Details

AGLC: Sweeney v Sweeney [2016] VSC 483
Case: [2016] VSC 483
Decision Date: 15 August 2016

CaseChat Overview and Summary

Sweeney v Sweeney was a case before the Supreme Court of Victoria that involved a dispute between family members over the disposal of land held in trust. The matter was brought before the Court through an originating motion, with the applicant seeking orders under various rules and provisions to strike out certain affidavit material that had been filed in support of the motion.

The legal issues before the Court included whether the affidavit material was relevant to the exercise of the trustees' powers to dispose of the land, and whether it contained scandalous content that should be excluded from consideration. The Court was also required to determine whether it had the inherent jurisdiction to strike out the material, in addition to its power under the Supreme Court Rules.

In its decision, the Court considered the nature of the relief being sought and the potential relevance of the material deposed to in the affidavit. The Court found that the material was relevant to the exercise of the trustees' powers and could not be struck out on the basis of being scandalous. The Court also held that it did not have the inherent jurisdiction to strike out the material, as it had already been considered in other proceedings.

The final orders of the Court were that the application to strike out the affidavit material was dismissed, and the case was to proceed on the merits. The Court emphasised the importance of considering the context in which the material was deposed to, and the potential relevance it had to the issues before the Court.

Orders