Waites v Brown - [2021] VSC 509

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 00074

IN THE MATTER of an application pursuant to s 36 of the Settled Land Act 1958 (Vic)

BETWEEN:

BRADLEY CAMPBELL WAITES and TERRI-ANN LE PAGE	Plaintiffs
v
IRENE ALICE BROWN (as the executor and trustee of the estate of Marianne Waites, deceased and the executor and trustee by representation of the estate of Hammie George Campbell Waites, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	19 August 2021
CASE MAY BE CITED AS:	Waites & Anor v Brown
MEDIUM NEUTRAL CITATION:	[2021] VSC 509

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WILLS AND TRUSTS – Where remaindermen of settled land seek vesting orders on death of sole surviving trustee – Where executor of sole surviving trustee of settled land is executor by representation – Where executor by representation is trustee of settled land for purposes of transferring properties to remaindermen – Settled Land Act 1958 (Vic) ss 30, 36; Administration and Probate Act 1958 (Vic) s 17; Trustee Act 1958 (Vic) ss 51, 52, 70.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr WF Gillies	RB Legal Pty Ltd
For the Defendant	Mr D G L Misso Neesham White Gentle

HER HONOUR:

Introduction

Hammie George Campbell Waites (‘the deceased’) died on 16 July 1978. Probate of the deceased’s will dated 22 May 1978 was granted to Marianne Waites (‘Ms Waites’) and Geoffrey Neill Doolan on 29 August 1978. The deceased devised a life interest in two properties to Ms Waites and, on her death, the properties were to pass to the plaintiffs who are the remaindermen in respect of the two properties.

Geoffrey Neill Doolan died on 21 August 2004. Probate of his will was granted to his son, David Doolan, on 9 November 2004. David Doolan then purported to be a trustee of the estate of the deceased, pursuant to s 17 of the Administration and Probate Act 1958 (Vic).

On 27 May 2015, a deed of retirement and appointment was executed whereby David Doolan purported to retire as trustee and Jonathan Bloom (‘Mr Bloom’) purported to be appointed trustee in his place. Mr Bloom is a solicitor at the firm RB Legal Pty Ltd.

In an earlier proceeding (‘the earlier proceeding’) Mr Bloom as plaintiff sought the removal of Ms Waites as trustee of the estate of the deceased and the appointment of Charles Rechnitzer (‘Mr Rechnitzer’) in substitution for her. Mr Rechnitzer is also a solicitor in the firm RB Legal Pty Ltd.[1]
[1]Bloom v Waites [2020] VSC 367, [6] (McMillan J).

In the course of the earlier proceeding, Mr Bloom sought to amend the proceeding and, to that end, forwarded a draft summons and a draft affidavit by him to the Court. The draft summons seeks that the remaindermen be substituted as the plaintiffs in the proceeding and that Mr Bloom and Mr Rechnitzer be appointed as trustees…

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 Waites v Brown

Details

AGLC: Waites v Brown [2021] VSC 509
Case: [2021] VSC 509
Decision Date: 19 August 2021

CaseChat Overview and Summary

The case of Waites v Brown involved the remaindermen of settled land seeking vesting orders following the death of the sole surviving trustee. The dispute was heard in the Supreme Court of Victoria. The central issue was whether the executor of the sole surviving trustee, acting by representation, could also serve as the trustee to transfer the settled land to the remaindermen. The court had to determine the applicability of various statutory provisions, including sections 30 and 36 of the Settled Land Act 1958 (Vic), section 17 of the Administration and Probate Act 1958 (Vic), and sections 51, 52, and 70 of the Trustee Act 1958 (Vic).

The court examined the roles and responsibilities of the executor by representation and the trustee. It considered whether the executor could perform the dual role of executor and trustee for the purposes of transferring the settled land to the remaindermen. The court held that the executor by representation could indeed act as a trustee in this scenario, provided that they adhered to the statutory requirements set out in the relevant legislation. The court found that the executor by representation was not precluded from transferring the settled land to the remaindermen, as the statutory provisions allowed for such an action.

Consequently, the court ruled in favour of the remaindermen, granting the vesting orders they sought. The executor by representation was authorised to transfer the settled land to the remaindermen, thereby resolving the dispute. The court's decision was grounded in the interpretation and application of the relevant statutory provisions, ensuring that the executor by representation could fulfil their role as trustee without violating any legal requirements.

Orders