Von Risefer & Anor v Permanent Trustee Co Ltd - [2003] HCATrans 354

[2003] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B67 of 2000

B e t w e e n -
EUSTACE VON RISEFER and ELIZABETH VON RISEFER
Applicants
and
PERMANENT TRUSTEE COMPANY LIMITED
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 12.59 PM

MRS E. VON RISEFER appeared in person.

MR M.J. DRYSDALE: If the Court pleases, I appear for the respondent. (instructed by MacGillivrays)

MRS VON RISEFER: Your Honours, I like to have the leave of this Court ‑ ‑ ‑

KIRBY J: What is your name?

MRS VON RISEFER: I have to request the leave of this Court to file an affidavit for the notice of motion before this Court.

KIRBY J: I am not hearing you, I am afraid, Mrs von Risefer. You are Elizabeth von Risefer?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: You are one of the applicants in these proceedings?

MRS VON RISEFER: Yes.

KIRBY J: I think that Mr Eustace von Risefer, the other applicant, is unwell, is that correct?

MRS VON RISEFER: Yes, and he is ‑ ‑ ‑

KIRBY J: Does he know that the proceedings are before the Court today?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: Has he asked you to speak on his behalf as well as on your own behalf?

MRS VON RISEFER: Yes, your Honour.

KIRBY J: Yes, very well. Now, I think, Mr Drysdale, you are up in Brisbane and we can see you here on the video link and you are opposing the grant of special leave?

MR DRYSDALE: Yes, your Honour.

KIRBY J: Yes, very well. Yes, Mrs von Risefer. Would you raise your voice because it is otherwise very difficult for me to hear and it is important that Justice Hayne and I should hear you.

MRS VON RISEFER: Thank you. Your Honour, I will request first that the notice of motion to be heard and the leave of the Court to file those affidavits.

KIRBY J: What page is it?

MRS VON RISEFER: It is an affidavit sworn today and I need the special leave of the Court to file those. They have been faxed this morning to the other side.

KIRBY J: You have some documents you wish to hand up?

MRS VON RISEFER: Yes.

KIRBY J: Very well, hand up the additional documents, please. Have you sent a copy of these to the solicitors for the respondent so that Mr Drysdale could have these documents?

MRS VON RISEFER: Yes, your Honour, they have got all those documents.

KIRBY J: Have you seen an affidavit of Elizabeth von Risefer which is sworn 12 September 2003, Mr Drysdale?

MR DRYSDALE: Yes, your Honour, I was given a copy by the Registry of this Court.

KIRBY J: Yes, very well, thank you. We will just take 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.

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Details

Case: [2003] HCATrans 354
Decision Date

CaseChat Overview and Summary

The dispute in *Von Risefer & Anor v Permanent Trustee Co Ltd* concerned the interpretation of a will and the proper distribution of an estate. The applicants, Von Risefer and another party, sought to challenge the executor's (Permanent Trustee Co Ltd) proposed distribution of the deceased's assets. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the beneficiaries of a discretionary trust established by the will had a present entitlement to the trust property, or if their interest was merely a spes successionis (a hope of succession). This question was critical to determining whether the beneficiaries could compel the trustee to distribute the trust property to them.

The High Court considered the nature of discretionary trusts and the rights of beneficiaries in such arrangements. Their Honours applied established principles of trust law, noting that beneficiaries of a discretionary trust do not have a proprietary interest in the trust assets themselves. Instead, they possess a personal right to ensure the trust is administered according to its terms and that the trustee exercises its discretion properly. As the beneficiaries had no present entitlement to the trust property, they could not compel its distribution.

The High Court therefore dismissed the applicants' appeal, upholding the executor's proposed distribution of the estate.

Orders