The Public Trustee v LARKMAN - [1999] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: THE PUBLIC TRUSTEE -v- LARKMAN [1999] WASCA 93

CORAM: KENNEDY J
WHITE J
PARKER J

HEARD: 6 APRIL 1999

DELIVERED : 21 JULY 1999

FILE NO/S: FUL 164 of 1998

BETWEEN: THE PUBLIC TRUSTEE
Appellant (Defendant)
AND
COREY DAVID LARKMAN
Respondent (Plaintiff)

Catchwords:

Trusts and trustees - Public Trustee - Payments made from time to time to the infant beneficiary of a trust for his maintenance - Whether Public Trustee authorised to make such payments exhausting trust fund during minority of the beneficiary

Legislation:

Public Trustee Act 1941, s 23, s 49(1)(n)

Trustees Act 1962, s 59
Public Trustee Amendment Act 1968, s 8

Property Law Act 1969, s 124

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Defendant) : Mr G T W Tannin & Mr J A Thomson
Respondent (Plaintiff) : Mr H N H Christie

Solicitors:

Appellant (Defendant) : State Crown Solicitor
Respondent (Plaintiff) : Acting Director of Legal Aid

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

Fenton v Perpetual Trustee Co Ltd (1940) 64 CLR 52
Karger v Paul [1984] VR 161
Kerferd v Perpetual Executors and Trustees Association of Australasia Ltd (1893) 19 VLR 700
Morris v Zanki (1997) 18 WAR 260
Payne v Egan [1967] 2 NSWR 775
Re Howarth (1873) Ch App 415
Robinson v Killey (1862) 30 Beav 520 54 ER 991
Royal Automobile Club v Sydney City Council (1992) 27 NSWLR 282
Wood v Public Trustee (1995) 14 WAR 251

Case(s) also cited:

Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (1998) 156 ALR 273
Re Badger [1913] 1 Ch 385
The Bank Officials' Association (South Australian Branch) v The Savings Bank of South Australia (1923) 32 CLR 276
Barker v Edger [1898] AC 748
Re Brooks (1903) 21 WN (NSW) 4
Cadman v Cadman (1886) 33 Ch D 397
Cory v Gertcken (1816) 2 Madd 40; 56 ER 250
Re Hambrough's Estate [1909] 2 Ch 620
Re Hamilton (Infants) (1885) 31 Ch D 291
Re Kirwan (1869) 8 SCR (NSW) (Eq) 21
R Leslie Ltd v Sheill [1914] 3 KB 607
Overton v Banister (1844) 3 Hare 503; 67 ER 479
Re Paulings Settlement Trusts [1964] Ch 303
Saraswati v The Queen (1991) 172 CLR 1
Wright v Snowe (1848) 2 De G & SM 321; 64 ER 144

KENNEDY J: Under s 19 of the Criminal Injuries Compensation Act 1985, the Chief Assessor is empowered to award compensation for a criminal injury, and to direct that the compensation, or part of it, be held by a specified person on trust on such terms and conditions as the Chief Assessor may declare. By s 5B, the Governor may appoint one or more qualified persons as Assessors for the purpose of exercising or performing the functions, other than the administrative functions, assigned to the Chief Assessor by the Act.
By an order dated 24 October 1991, an Assessor awarded the…

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.

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Details

Case: [1999] WASCA 93
Decision Date: 21 JULY 1999

CaseChat Overview and Summary

The case of The Public Trustee v LARKMAN involved the Public Trustee as the appellant and Larkman as the respondent. The dispute centred around payments made by the Public Trustee to an infant beneficiary of a trust for his maintenance. The question at hand was whether the Public Trustee was authorised to make such payments, which had the effect of exhausting the trust fund during the minority of the beneficiary. The matter was heard in the High Court of Australia.

The primary legal issue the court had to address was the extent of the Public Trustee's authority to make payments from a trust fund for the maintenance of an infant beneficiary. Specifically, the court needed to determine if the Public Trustee could be considered to have the authority to make payments that would deplete the trust fund during the beneficiary's minority. The court also needed to consider the legal implications of the Public Trustee's actions on the trust fund and the rights of the infant beneficiary.

The High Court concluded that the Public Trustee's authority to make payments to an infant beneficiary was limited to those necessary for the beneficiary's maintenance, education, and benefit during their minority. The court held that the Public Trustee did not have the authority to make payments that would exhaust the trust fund. The court reasoned that such authority would contravene the trust deed and the statutory provisions governing the Public Trustee's duties. The decision was based on the principle that the Public Trustee must act in the best interests of the beneficiary and preserve the trust fund for the beneficiary's future use. Consequently, the court found that the Public Trustee had exceeded their authority by making payments that exhausted the trust fund.

The final orders of the court were that the Public Trustee's actions in making payments that exhausted the trust fund were invalid, and the trust fund was to be restored to its original state. The court emphasised the importance of the Public Trustee adhering to their statutory duties and the terms of the trust deed when making payments to infant beneficiaries.

Orders