Thorn v Bettens - [2006] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
THORN v BETTENS
Reasons of Judge Lunn a Master of the Supreme Court
3 March 2006
EQUITY - TRUSTS AND TRUSTEES - TRUSTEES - THEIR APPOINTMENT, DISMISSAL, ESTATE, ETC
Application under s 36 Trustee Act to remove trustee - trust beneficiaries were infant children - action brought by grandmother of the children who was not a beneficiary of the trust or the guardian of the children - held she was not a person who had a proper interest in the trust under s 36(1c)(e) of the Act and so had no locus standi to be the plaintiff - defendant voluntarily appointed Public Trustee to the trustee in his place - held there should be no order as to costs.

THORN v BETTENS
[2006] SASC 59
Reasons on cross applications for the costs of the action.

JUDGE LUNN: Sally Anne Smith (“the deceased”) had four children, two of whom were Blake and Kiara Smith, who were born respectively in 1995 and 1996. It is asserted the father of those two children was Kewyn John Thorn. He was not married to the deceased. The defendant disputed that it had been properly proved under s 7 of the Family Relationships Act 1975 that Kewyn Thorn was the father of these two children. I need not go into the issue as it does not affect my decision. The plaintiff is the mother of Kewyn Thorn and I will assume she is the grandmother of the two children in question.
The deceased owned a house property at 9 Yarnbrook Street, Davoren Park (“the house”). She resided there with her four children.
The deceased died on 24 December 2001. The defendant took out probate over her estate. Her four children were the beneficiaries under her Will but no copy of the Will has been put before the Court in this action.
On 14 May 2004 the Family Court of Australia appointed Charmaine Drowley as the guardian of the four children. That Order gave her the sole responsibility for the long term and day to day care, welfare and development of the children, but did not give her control of any assets of the children. Mrs Drowley, her husband, her own children and the four children of the deceased continued to live in the house. She was obliged to pay rent to the defendant as the then trustee of the deceased’s estate. There was no suggestion that there was any tenancy agreement.
The plaintiff and her son regularly visited Blake and Kiara at the house. The plaintiff became concerned at the poor state of repair of the house. She consulted her solicitors who wrote to the defendant on 9 June, 27 July, 2 and 30 November 2004 and 16 February 2005 complaining about its state of repair, requesting that improvements be made and threatening Court proceedings when it appeared the defendant was not attending to the matters as requested. The only reply made by the defendant was in a letter…

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 Thorn v Bettens

Details

AGLC: Thorn v Bettens [2006] SASC 59
Case: [2006] SASC 59
Decision Date: 3 March 2006

CaseChat Overview and Summary

The case of Thorn v Bettens involved an application under section 36 of the Trustee Act 1936 (NSW) to remove a trustee. The trust in question held assets for the benefit of infant children. The applicant, the grandmother of the children, initiated the proceedings but was neither a beneficiary of the trust nor the guardian of the children. The primary legal issue was whether the grandmother had the standing to bring the action under section 36(1c)(e) of the Act. The court determined that she did not possess a proper interest in the trust, and thus lacked the necessary standing to proceed with the application.

The court's reasoning focused on the statutory criteria for standing under section 36(1c)(e) of the Trustee Act. It held that the applicant must have a proper interest in the trust to bring such an application. As the grandmother was neither a beneficiary nor a guardian of the children, she did not meet the statutory requirements. Consequently, the application was dismissed for lack of standing. The court also noted that the defendant had voluntarily appointed the Public Trustee to replace the existing trustee, thus rendering any further order unnecessary. The court decided not to award costs, given the voluntary appointment and the lack of contentious issues in the application.

In summary, the court dismissed the grandmother's application to remove the trustee due to her lack of standing under the Trustee Act. The decision was based on the statutory requirements for standing and the voluntary appointment of a new trustee by the defendant. No costs were awarded in the proceedings.

Orders