Urbancic, Estate of
[2000] QSC 170
•9/06/2000
SUPREME COURT OF QUEENSLAND
CITATION: Estate of Andrej Urbancic [2000] QSC 170 PARTIES: IN THE MATTER of the Trusts Act 1973
And
IN THE MATTER OF the Estate of ANDREJ
URBANCIC late of 18 Hilda St Mermaid Beach in the
State of Queensland
And
IN THE MATTER of an application by EMILIJA
KENNY as trustee of the infant ANA DANELLA
URBANCICFILE NO: 5996 of 1999 DIVISION: Trial DELIVERED ON: 9 June 2000 HEARING DATE: 23 December 1999, 18 January 2000, 3 February 2000, 15
March 2000JUDGE: Muir J ORDER:
1. That the application filed by Emilija Kenny on 28
June 1999 be dismissed as against the respondent
Westpac Banking Corporation Limited.2. That the application filed by Emilija Kenny on 23 December 1999 be dismissed.
3. That the application filed by Emilija Kenny on 7 January 2000 be dismissed.
4. That the applicant Emilija Kenny pay the costs of the respondent Westpac Banking Corporation including reserved costs of and incidental to each of the matters referred to in paragraphs 1, 2 and 3 hereof including reserved costs, if any.
5. The costs of the respondent Bronis Dmitronow of and incidental to such applications be reserved.
CATCHWORDS:
PRACTICE – ABUSE OF PROCESS – STRIKING OUT – applications made for relief against executor of will and banking corporation – no sustainable cause of action disclosed – to proceed would sanction oppressive and pointless conduct on the part of the applicant
PRACTICE – SUMMARY JUDGMENT – discretion should only be exercised where clearly there is no real question to be tried – r 293(2) UCPR
Tournier v National Provincial & Union Bank of England
[1924] 1 KB 461 (CA)
Fancourt v Mercantile Credits Limited (1983) 154 C.L.R. 87
Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122
Australia and New Zealand Banking Group Ltd v Barry
(1992) 2 Qd R 12
The Commissioner of Stamp Duties (Q) v Livingstone (1964)
112 CLR 12
Professional Nominees Pty Ltd v Walsh (Court of Appeal
29.9.1998 unreported)
Karger v Paul [1984] VR 161
Re The Earl of Radnor’s Will Trusts (1890) 45 Ch D
Tempest v Lord Camoys (1882) 21 Ch D 571.
Middleton v Dodwell (1806) 13 Ves 26
Saunders v Vautier (1841) 49 ER 282The Succession Act 1981 ss 45, 49
Uniform Civil Procedure Rules, rr 291, 292, 293
Trusts Act 1973, s 80(4)COUNSEL: Sheahan for the second respondent SOLICITORS: Allen, Allen & Hemsley for the second respondent
Applicant in personMatters for determination and history of applications
On 28 June 1999 the applicant, Emilija Kenny as trustee of her infant daughter Ana Danella Urbancic, made an application for various kinds of relief against one Bronis Dmitronow and Westpac Banking Corporation. Mr Dmitronow was the sole executor of the will of the late Andrej Urbancic, Mrs Kenny’s former husband who died on 2 March 1991. By the will, Mr Dmitronow was appointed trustee of the residue of the deceased’s estate. The two beneficiaries, who took in equal shares, were the infant daughter of the deceased and Mrs Kenny and the deceased’s sister, Natasha Bezjak.
| [2] |
|
“4. A direction for an Order that the Westpac Banking Corporation account for failing to give a proper account of the deceased’s funds and bank accounts at the time of the hearing on 16 June 1993 and subsequently for -
a) acting in breach of contract and trust
b) acting with negligence and conspiracy to defraud
c) failing to act in accordance with the law
5. A direction for an Order that the Westpac Banking Corporation pay EMILIJA KENNY as Trustee for ANA DANELLA URBANCIC for the damages caused in the estate.”
On 9 July 1999 Byrne J ordered that an affidavit of some 230 paragraphs filed by Mrs Kenny on 21 June 1999 and any affidavits in reply be treated as pleadings of the respective parties in the proceedings.
It was also ordered that Westpac provide Mrs Kenny and Mr Dmitronow with an account of transactions referred to in paragraphs 203-216 of that affidavit by 30 July 1999. It was further ordered that should the applicant be satisfied with such account, then the applicant –
“should discontinue her proceeding against Westpac Banking Corporation by signing a notice of discontinuance to be filed by consent within 14 days of receipt of the account and advise Bronis Dmitronow of her intention to discontinue.”
The account was provided. Mrs Kenny was not satisfied.
On 10 December 1999 Westpac made application under s 293 of the Uniform Civil Procedure Rules for summary judgment.
On 23 December 1999 Mrs Kenny filed an application, returnable that day, seeking inter alia, orders:
“(2) That… Westpac… explain for failing to release the bill of mortgage number 537734N… at the time of the repayment of Mr Urbancic’s loan in 1992. (3) That… Westpac… explain for the refusal of the applicant’s payment of Mr Urbancic’s loan of $150,000 in September 1991, January and April 1992, August 1993 and January 1994. (4) That… Westpac… provide the memo notes and/or records of the conversation held between Mr Wilkerson and Emilija Urbancic at the Broadbeach in May 1991. (5) That… Westpac… explain for allowing Mr Dmitronow to open an overdraft account for $150,000 under his name for the deceased with no grant of probate. (6) That… Westpac… produce a signed document from Mr Urbancic authorising the Westpac… to withdraw funds from his account after his death. (7) That… Westpac… produce signed documents of the commercial bill
provided to Mr Dmitronow in February 1992.(8) That… Westpac… provide proof of the commercial bill number
190406295 deposited into account 330129/1/91…… (12) That… Westpac… pay the costs of the damages to the estate in the
amount of $468,000.”
The matters came before me for hearing on 23 December 1999. They were part heard and I adjourned them to 18 January 2000. Westpac appeared at 9a.m. on 18 January but Mrs Kenny did not. The matters were adjourned to 9a.m. on 3 February 2000. Mrs Kenny did not appear on that occasion either. It seems however that she went to the general callover for applications at 10 a.m. A further hearing, attended by Mrs Kenny, took place on 15 March 2000.
On 7 January 2000 Mrs Kenny filed a further application, returnable on 8 February, which sought, inter alia, the following relief –
“2. That the Honourable Court determine the parties who caused
damage to the Estate of the late Andrej Urbancic.
3. That the Honourable Court invoke its discretion to ensure natural
justice for the infant beneficiary Ana Danella Urbancic.
4. That the Honourable Court make any inquiries, directions or
orders in relation to the Estate as the Honourable Court may seem
meet and further summon and add any parties which the Honourable
Court deems responsible.
5. That on this hearing the Honourable Court direct the parties at
fault to pay for the damages to the infant beneficiary’s entitlement in
the estate.
6. That the Honourable Court enable the infant beneficiary to receive
adequate remedy and natural justice.
7. That the matter of the application by Westpac Banking
Corporation adjourned on 23 December 1999 also be heard at this
hearing.”That matter was set down for hearing on 8 February 2000. It came before Shepherdson J and was adjourned to a date to be fixed. Mrs Kenny was ordered to pay the costs.
Westpac filed an application on 31 January 2000 in which it sought the following orders:
(a) That the applications filed by the applicant on 23 December 1999 and 7 January 2000 be set aside or permanently stayed as oppressive, frivolous, vexatious or an abuse of process;
(b) Mrs Kenny in her capacity as trustee of her infant daughter seek leave of the court prior to commencing or continuing any legal proceeding without legal representation;
(c) alternatively, conditions be imposed on the commencing or continuing of any legal proceeding by Mrs Kenny in her capacity as trustee for her infant daughter.
Mrs Kenny’s 30 June 1999 application
It is difficult to distil, with any degree of precision, allegations from Mrs Kenny’s affidavit filed on 28 June. In order to distinguish it from other affidavits I will refer to it as “the principal affidavit”. The affidavit contains a narrative of Mrs Kenny’s dealings in relation to the estate. She catalogues:
| • | difficulties experienced with the number of solicitors retained by her from time to time in relation to the estate; |
| • | her dealings with Mr Dmitronow; |
| • | the result of her investigations into the assets of the estate; |
| • | her success in ascertaining that Mrs Bezjak had withdrawn $155,000 from the testator’s account in March 1991; |
| • | the recovery of those moneys for the benefit of the estate; |
| • | advices received by her from various solicitors from time to time; |
| • | the history of various applications made to the court in relation to the estate; |
| • | her dealings with Mrs Bezjak; |
| • | her dealings with the Commonwealth Bank. |
The essence of Mrs Kenny’s allegations against Westpac appear to be that –
(a) Westpac declined to provide financial information relevant to the estate to Mrs Kenny at her request in 1991 and 1992;
(b) if Westpac, in 1993 after the date of the order referred to in paragraph 13 hereof, had provided Mrs Kenny with the information that the sum of approximately $140,000 had been deposited into one of the estate’s bank accounts with Westpac, Mr Dmitronow would have been prevented from selling the residential property owned by the deceased at Hilda Street, Mermaid Beach;
(c) the estate suffered loss and damage through the sale of the Hilda Street property as its value now exceeds $1 million (or $800,000) depending on which of Mrs Kenny’s affidavits one has reference to;
(d) if Westpac had provided unspecified financial information about the estate to Mrs Kenny, Mr Dmitronow “would have been held accountable for misappropriation and fraud”.
(e) the order authorising the sale of the Hilda Street property should be set aside as, at the date of the order, Mr Dmitronow had sufficient funds to repay any outstanding debts and was not obliged to sell the property.
Other matters of historical significance
At the date of the deceased’s death, he had title to a residential property at Mermaid Beach and a residential property in Slovenia. On 16 June 1993 an order (“the trustee order”) was made that Mrs Kenny be appointed “as trustee to administer the interest of (her infant daughter) in the estate of the deceased”. It was further directed that Mrs Kenny:
“… is authorised to give a valid discharge to Mr Dmitronow of his obligations to stand possessed upon trust of the interest in the terms of the will of the deceased to which the infant is or is contingently entitled and that from that time the interest of the said infant in the estate of the deceased vest as Emilija Kenny as trustee upon the terms of the trust contained in the will of the deceased.”
Also on that day an order was made that Mr Dmitronow, as executor, be at liberty to sell the Hilda Street property. Mrs Kenny was represented on the hearing and the making of the order was not opposed.
Notwithstanding the making of the order, Mrs Kenny attempted to prevent the sale of the property. Amongst other things, she caused a caveat to be lodged over the title. A contract for the sale of the property was eventually entered into on 22 February 1994.
Letters written by Mrs Kenny’s former solicitors, Messrs Phillips Fox, to Wilson and Copley (Mr Dmitronow’s firm) at the end of 1993 and during 1994 make it plain that Mrs Kenny withdrew the opposition to the sale of the Hilda Street property and actually supported it.
On 16 June 1993 solicitors acting on behalf of Mr Dmitronow filed and served on Mrs Kenny’s solicitors' accounts, which accurately stated the financial position of the estate as at June 1993 (insofar as that position was then known to Mr Dmitronow).
Mr Dmitronow was made aware of the transfer of funds overseas by the deceased on 29 April 1991. He set about investigating the circumstances surrounding that transaction. To that end, he wrote to Mrs Bezjak on 25 June 1991 seeking to enlist her assistance. He also spoke to Mrs Kenny and her solicitor about the matter in 1991. On 5 February 1992 Mrs Bezjak informed him that she had “no idea” of the whereabouts of the moneys. On 21 April 1992, he was advised by the Austrian bank to which the funds had been transmitted by the deceased, that they had been credited to a particular account in the name of A and A Urbancic. The bank declined to reveal any further information. He continued to pursue with the inquiries as did Mrs Kenny and her solicitor. Mrs Bezjak continued to deny knowledge of the transferred funds.
On 18 July 1995, well after the sale of the Hilda Street property (under a contract entered into on 22 February 1994), Mrs Kenny wrote to the solicitor acting for Mr Dmitronow, advising that she had discovered that Mrs Bezjak withdrew the sum of $155,000 from the testator’s account the day after his death. That information proved accurate, and on 12 October 1995 Mrs Bezjak paid $148,905.86 to Mr Dmitronow in his capacity as trustee. He attempted to obtain interest on the moneys for the period during which they were held by Mrs Bezjak, but was unsuccessful.
In about July 1992, Mrs Kenny made known to Mr Dmitronow her intention to bring a Succession Act 1981 (Qld) application on behalf of her daughter for further and better provision out of the estate. The application was finally served on 8 January 1993 but little, if anything, was done about prosecuting it. Discussions took place in 1994 between Mrs Bezjak, Mrs Kenny and their respective solicitors about a compromise of claims in respect of the estate. On 18 April 1996 White J made an order sanctioning an agreement whereby:
(a) No Succession Act application was to be made;
(b) The Slovenian property was to be transferred to Mrs Bezjak;
(c) Mrs Bezjak was to disclaim any further interest in the estate;
(d) Mrs Kenny was to receive, as trustee for her daughter, the balance of the estate moneys currently invested less any legal fees and outlays.
Mrs Kenny was represented by solicitors on and in relation to the sanction.
In the course of the hearing in December 1999 it was pointed out to Mrs Kenny that:
(a) There was difficulty in identifying any request for information made to Westpac after the trustee order of 16 June 1993 which was refused by Westpac;
(b) assuming a refusal to divulge information could be established, there was difficulty in ascertaining what loss, if any, flowed from any such failure on Westpac’s part.
The date of the trustee order is relevant because prior to that date, on any view of the matter, Westpac was not obliged to provide financial information relating to the estate to Mrs Kenny. Indeed it would have been in breach of its duty to its customer had it done so.1
In an affidavit filed on 7 January 2000, Mrs Kenny swore that shortly after 16 June 1993 she presented a copy of the order made that day to Westpac’s Broadbeach branch and asked for “… statements and details of the loan Mr Urbancic had with the bank” and that the request was refused.
Rules and principles relevant to Westpac’s application for summary judgment
Rule 293 of the Uniform Civil Procedure Rules permits a defendant at any time to apply to the court under Chapter 9 Part 2 for judgment.
Sub rule (2) of rule 293 enables the court to give judgment if satisfied that –
(a) “No reasonable cause of action is disclosed; or
(b) the proceeding is frivolous, vexatious or an abuse of the process of the court; or
(c) the defendant has a defence to the proceedings.”
Although rule 293 refers to “defendant” and rule 292 refers to “plaintiff”, rule 291 makes it plain that Part 2 of Chapter 9 applies to applications as well as claims. It provides –
“This part applies to any proceeding.”
The power to give summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[2]The principles expressed in such cases apply to applications under r 293.
[2]
Determination of the summary judgment application
Mrs Kenny does not identify the bank officer or officers to whom she claims to have spoken. Stephen William Clark, on behalf of Westpac, swears to there being no record of any attendance such as that deposed to by Mrs Kenny. For present purposes, I will assume in Mrs Kenny’s favour the correctness of her account.
The use Mrs Kenny seeks to make of the alleged breach of duty on the part of Westpac is to assert that had she known the details of the estate’s accounts she would have paid out the mortgage held by Westpac over the Hilda Street property or persuaded Mr Dmitronow to take that course. Furthermore, she contends that she would have had claims against Mr Dmitronow in her capacity as trustee.
Mrs Kenny does not identify the content of the information which she alleges Westpac could have provided in response to requests after 16 June 1993, and which would have changed her attitude to the sale of the Hilda Street property.
Mrs Kenny provides no evidence of her ability to pay out the mortgage at the relevant time. Mrs Bezjak was a beneficiary under the will. Her consent to any such dealing with the estate would have been needed. There is no evidence that such consent would have been forthcoming. At relevant times Mrs Kenny was pursuing the matter of the moneys withdrawn from the testator’s account in the Austrian bank and the evidence does not suggest that Mrs Bezjak was inclined to be entirely cooperative. The sale of the property took place over a fairly lengthy period. It was advertised for sale by auction and was passed in. Mrs Kenny had ample opportunity to make an offer to purchase had she wished to do so. No offer was made.
| [31] |
|
(a) Mrs Kenny consented to the making of the order on 16 June 1993 which sanctioned the sale of the property;
(b) as the above narrative shows, after lodging a caveat on the title, Mrs Kenny, by herself and her solicitors, consented to the sale of the property;
(c) in January 1994 Mrs Kenny wrote to Mrs Bezjak stating inter alia –
“We don’t object that the property at 18 Hilda Street, Mermaid Beach is to be sold as we believe these also be the deceased’s wishes.”
Those matters tend to contradict Mrs Kenny’s assertion, that by means unexplained, she would have paid out the mortgage.
There are other difficulties in the way of Mrs Kenny’s contentions. The will appointed Mr Dmitronow “sole executor and trustee” of (the)… will and further relevantly provided:
I DEVISE AND BEQUEATH the whole of my estate whatsoever and wheresoever to my trustee UPON TRUST that my trustee shall sell, call in and convert into money the same at such time and in such manner as my trustee shall think fit… MY TRUSTEE shall stand possessed of the residue of my estate for my daughter ANA URBANCIC if and when she shall attain the age of twenty-one years and my sister NATASA BEZJAK… in equal shares as tenants in common.”
The effect of the trustee order could not be to deprive Mr Dmitronow of his powers as executor or to confer any such powers on Mrs Kenny: s 80 (4) of the Trusts Act 1973 and ss 45 and 49 of the Succession Act 1981. Paragraph 2 of the trustee order is directed to the position pertaining when the executor has performed his executorial functions and stands “possessed of the residue of the estate for… Ana Urbancic and… Natasa Bezjak… in equal shares as tenants in common.” Before that time, Mr Dmitronow, as executor, had title to the deceased’s property and the residuary legatees had no beneficial interest in the assets of the estate. “The whole right of property (was) in… (the) executor… ”.[3] Accordingly, the order could not have had the effect that Mrs Kenny stood in the shoes of the executor upon the making of the order or otherwise became Westpac’s customer with a right to information.
[3]
The application for summary judgment must succeed because, even assuming in Mrs Kenny’s favour the making of a request for information after 16 June 1993 and its refusal –
•
Mrs Kenny was not entitled to be provided information by Westpac prior to the sale of the Hilda Street property.
•
Mr Dmitronow, as executor, had a duty under the terms of the will to sell the Hilda Street property. Even if it could be established that, at relevant times, Mrs Kenny opposed the sale, she had no right to prevent it and Mr Dmitronow was entitled to proceed with it. His conduct in selling the property also had the sanction of a court order.
•
Mrs Kenny received an up to date statement of the financial position of the estate on 16 June 1993. There is no suggestion by Mrs Kenny that it was erroneous (subject to the discrepancy in the assets of the estate caused by the moneys withdrawn by Mrs Urbancic). Disclosure of what in substance was the same information by Westpac could not have caused Mrs Kenny to take any different course of action in relation to the estate. Mrs Kenny does not identify information which Westpac could have provided which, on the balance of probabilities, would have altered her course of action or that of Mr Dmitronow or, for that matter, of Mrs Urbancic.
•
There is no admissible evidence which supports the conclusion that the Estate would have been better off financially if the Hilda Street property had not been sold. It follows from this and other matters referred to in this paragraph that even if Mrs Kenny had made good an allegation that Westpac was in breach of a legally enforceable duty to provide information as alleged, Mrs Kenny would not have succeeded in showing that loss flowed from the breach.
•
There is no admissible evidence which makes out a case of misappropriation and/or fraud against Mr Dmitronow or even which raises questions, which ought be investigated. Part of the complaint against Mr Dmitronow appears to be that he failed to protect Miss Kenny’s interests in relation to the Slovenian property. It will be recalled that the title to the Slovenian property was agreed to be transferred to Mrs Bezjak in consideration, inter alia, of Mrs Bezjak’s disclaiming further interest in the Estate. The settlement agreement was sanctioned by the Court and Mrs Kenny, in her capacity as trustee, was represented by solicitors. I further note that, assuming that the provision of further or different financial information by Westpac to Mrs Kenny would have alerted her to a claim against Mr Dmitronow for “fraud” or “misappropriation”. There is nothing to suggest that such a claim has been impaired or extinguished in any way.
No conceivable basis is laid for the order sought by Mrs Kenny that the order authorising the sale of the Hilda Street property be set aside. The order was acted on by Mr Dmitronow when selling the Hilda Street property. No point would be served by setting it aside. Furthermore, the material does not show the order to have been procured by fraud. This claim though has only peripheral relevance to the claims against Westpac. I conclude that there is no triable issue, serious question to be tried or matter which Mrs Kenny ought be permitted to investigate.
Mrs Kenny’s summons filed 28 June 1999
I turn now to the summons filed on 28 June 1999. Construed charitably, paragraph 4 of the summons, might be seen as referring to a failure by Westpac to provide information to Mrs Kenny about the estate’s accounts when requested to do so shortly after the hearing on 16 June 1993. The allegation of breach of contract might, if so construed, encompass such an alleged failure. But for the reasons explained above, Westpac was under no obligation to provide information to Mrs Kenny at the time in question and the claim must therefore fail. Also, as explained earlier, no loss or damage has been established. The principal affidavit contains nothing which would establish a breach of trust, negligence or conspiracy to defraud. Westpac has thus established a defence to the claims. The allegation of “failing to act in accordance with the law” is vexatious in that it is so general that Westpac is unable to determine the case it is called upon to meet.
Paragraph 5 has no effect independent of paragraph 4. It assumes the existence of damages. Having regard to the foregoing I am satisfied that there is no triable issue or real question to be tried and that summary judgment ought be given to Westpac on the originating summons.
Mrs Kenny’s application filed 23 December 1999
The application filed on 23 December 1999 seeks orders requiring –
(a) Westpac to explain various matters;
(b) Westpac to produce various documents;
(c) Westpac to provide specified information;
(d) Westpac to pay damages in the sum of $468,000.
The application was made returnable on 23 December 1999. It has no material in support of it apart from the material already discussed. The application, in essence, is a claim for specified damages in respect of an unstated cause of action, coupled with a request for orders that information be provided in order to assist in the proof of Mrs Kenny’s claims, whatever they may be. It is difficult to regard the application as one which seeks interlocutory relief in relation to the relief sought in the originating summons because the application is returnable on the same day as the originating summons.
The reality is that Mrs Kenny is in a state of confusion as to the nature of her claims and the appropriate mechanism for establishing them. The application of 7 January 2000, in effect, seeks to have the court mount an inquiry into what, if anything, has gone wrong in the course of the administration of the estate. It raises no ascertainable question or issue as to the rights or interests of Mrs Kenny or her daughter in relation to the estate. It merely assumes the existence of wrongdoing, seeks an inquiry into it and invites the court to make appropriate orders. It adds nothing to the summons filed on 28 June.
Although Mr Dmitronow is a party to the application filed on 23 December 1999, in the sense that the application was served on Mr Dmitronow’s solicitors and he was described in the document as the second respondent, it seeks no relief against him. Mr Dmitronow is also a party to the application filed on 7 January 2000. It seeks no relief against him either.
There is nothing to prevent Mrs Kenny or her daughter from seeking to have determined the questions arising in connection with the administration of the deceased’s estate, or any trust connected therewith, but it is of course necessary that issues for determination by the court be identified properly.
An alternative avenue available to beneficiaries for the scrutiny of the administration of executors and trustees lies in the provisions of Part 10 of Chapter 14 of the Uniform Civil Procedure Rules dealing with executors and trustees’ accounts. Those provisions are of no relevance to any claims against Westpac.
The 23 December 1999 application is an abuse of process as it makes a claim for damages which repeats a claim already made in other proceedings before the court.[4]The other aspects of it, once the damages claim is disregarded, appear to be claims which lack the support of a cause of action. There is also no evidence to support these further claims. They are groundless. At best for them, they stand or fall with the earlier applications. I order that the application be dismissed. As subsequent discussion shows there is an inherent jurisdiction to dismiss proceedings which are an abuse of process, frivolous or vexatious. There is a like power in r 16 of the Uniform Civil Procedure Rules. The application is an abuse of process and is vexatious for the reasons already stated.
The 7 January 2000 application
The 7 January 2000 application is an abuse of process and is vexatious. In Professional Nominees Pty Ltd v Walsh5 the court observed –
“Dixon J has described the power [i.e., to strike out claims which are an abuse of process, frivolous or vexations] as arising under the inherent jurisdiction of the court ‘to stop the abuse of its process when it is employed for groundless claims’. 1 It needs however to be very clear that a claim is groundless before a court will summarily dismiss it thereby preventing a hearing and determination in the usual way. 2 Some cases are identified as an abuse of process by reason of the way in which a party prosecutes or fails to prosecute the process. 3 Others may be seen to be groundless from inherent lack of logic or unsustainability of a point that is asserted as the basis of the claim.”.
If the application stood by itself, I would be disposed to order that it be treated as a claim and that Mrs Kenny deliver a statement of claim. But, as I mentioned earlier, it was made returnable on the day Mrs Kenny wished to have her substantive application heard and the evidence relied on in support of that application is the only material relied on to support the 7 January application. The application discloses no sustainable cause of action against the respondents to it. Rather, it seeks to have the Court engage in an enquiry or enquiries with a view to uncovering some unidentified wrong doing on the part of an unspecified person or persons. To permit the matter to proceed would be to sanction oppressive and pointless conduct on the part of Mrs Kenny. The application is an abuse of process and I will strike it out.
The appropriate course is to strike it out as an abuse of process. Restraint on the exercise by Mrs Kenny of powers as trustee
Westpac seeks the orders referred to in para 10(b) and/or 10(c) hereof.
It is submitted on behalf of Westpac that there is an inherent jurisdiction to control or review the exercise of trustees’ powers.[6] The learned authors state at the latter reference –
“Under its inherent jurisdiction a court of equity will interfere in the management and administration of a trust … where the trustee … is acting improperly, or where difficulties have arisen which cannot be removed without the assistance of the court … The court does not, however, interfere (i) to enforce the exercise of a power in a particular way by a trustee where he has been given an absolute discretion respecting it and he is not exercising the discretion wrongly or unreasonably, or (ii) to control his action or discretion in any other way, unless he acts improperly, or (iii) where the proceedings for obtaining administration by the court are vexatiously or unnecessarily instituted.”
[6]I accept that where, as is the case in relation to Westpac, Mrs Kenny is purporting to exercise powers as a trustee improperly or unreasonably, the Court has power to intervene.[7] The commencing and maintaining of proceedings which are oppressive, vexatious or an abuse of process would seem to be to fall within the description of improper behaviour.
[7]There is also power to grant an injunction or a receiver to the trustee property where a trustee is acting or threatening to act in breach of trust and the trust property is being or may be placed in jeopardy.8 I accept the submission that such a power exists, particularly if it is revealed that a beneficiary, who is a minor, requires protection for the Trustee’s conduct. I am extremely concerned that the applicant may end up materially diminishing or jeopardising her daughter’s inheritance.
Mr Splatt, a solicitor who acted for Mr Dmitronow, swore that in the course of the administration of the estate, Mr Dmitronow –
“… has been obliged to answer to seven firms of solicitors acting on behalf of Mrs Kenny as the trustee and next friend of Ana Urbancic. Most of those firms have requested that the executor’s solicitors advise them as to various aspects of the administration of the estate. This advice was largely repetitive and increased the cost of and time required for administration. The executor paid the costs of Mrs Kenny’s solicitors at her request.”
The principal affidavit contains references to possible claims by Mrs Kenny against various solicitors. It seems from Mr Splatt’s affidavit and other material that costs orders have been obtained by Mr Dmitronow against the estate.
However, Ana Urbancic is no longer a minor. She is the sole remaining beneficiary under the will – Mrs Bezjak having disclaimed any interest in the estate beyond the property transferred to her pursuant to the Court sanctioned settlement. Ana Urbancic may thus direct Mrs Kenny to transfer the trust property to her and put an end to the trust.[9] Consequently, I would not be disposed to make any order such as that sought by Westpac without affording Miss Urbancic the opportunity of being heard.
[9]
Conclusion
| [52] | The | orders | I | propose | to | make | are: |
1. That the application filed by Emilija Kenny on 28 June 1999 be dismissed as against the respondent Westpac Banking Corporation Limited.
2. That the application filed by Emilija Kenny on 23 December 1999 be dismissed.
3. That the application filed by Emilija Kenny on 7 January 2000 be dismissed.
4. That the applicant Emilija Kenny pay the costs of the respondent Westpac Banking Corporation including reserved costs of and incidental to each of the matters referred to in paragraphs 1, 2 and 3 hereof including reserved costs, if any.
5. The costs of the respondent Bronis Dmitronow of and incidental to such applications be reserved.
| 1 | Tournier v National Provincial & Union Bank of England [1924] 1 KB 461 (CA); The Law Relating to Banker and Customer in Australia, Weaver & Craigie, pp 2631-2634 and 3 Halsbury’s Laws of England 4th ed, para 97. | Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, 99; Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122, 133 and Australia and New Zealand Banking Group Ltd v Barry (1992) 2 Qd R 12, 14, 19-20. | |
| The Commissioner of Stamp Duties (Q) v Livingstone (1964) 112 CLR 12 at 17, 18 and 22. | |||
| 5 |
| ||
| Jacob’s Law of Trusts, 6th ed, paras 1556, 1607 Karger v Paul [1984] VR 161 and 48 Halsbury’s Laws of England, 4th ed, para 919. | |||
| In Re The Earl of Radnor’s Will Trusts (1890) 45 Ch D 402 and Tempest v Lord Camoys (1882) 21 Ch D 571. | |||
| 8 |
|
3
0
0