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Wales v Wales

Wales v Wales

Case [2014] VSCA 101 27 May 2014

Natural Justice & Procedural Fairness

Costs

Breach of Trust

Trusts & Equity

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0018

GLADYS WALES

and

ROSLYN MATEAR

and

SUZANNE CASE

First Appellant

Second Appellant

Third Appellant

PERSEPHONE WALES (as trustee of the estate of Murray Wright Wales)

and

ROHAN WALES

and

JULIAN WALES

and

ASHLEY WALES

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

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JUDGES	ASHLEY JA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 May 2014
DATE OF JUDGMENT	27 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 101
JUDGMENT APPEALED FROM	Wales v Wales [No 2] [2014] VSC 33

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COSTS – TRUSTEES – Application for leave to appeal costs order – Trustees unsuccessful in defending application to remove them where conflict of interest and duty – Trustees ordered to pay full costs and denied indemnity from trust funds – Whether vitiating error – Where judge considered legal question on which no submissions made or invited – Whether breach of natural justice – Application granted, so far as required – Appeal allowed – Revised order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr P B Murdoch QC with Mr C M Archibald	HWL Ebsworth
For the First and Second Respondents	Mr R C Wells	Tolhurst, Druce & Emmerson
The Third and Fourth Respondents in person

ASHLEY JA:

The Appeal/Application for Leave to Appeal

Before the Court is an appeal[1] and, if leave to appeal is required, an application for leave to appeal, against costs orders made by a judge in the Trial Division on 14 February 2014. The costs orders were the end stage of one aspect of litigation which culminated in orders that the appellants (it is convenient to so describe them) be removed as the trustees of four trusts, and be replaced by an independent trustee. The effect of the costs orders was that the appellants were obliged to meet their own costs, personally pay the costs of the first and second respondents Persephone and Rohan Wales (P&RW) and repay to the trusts any moneys expended by them out of trust funds[2] in defending the removal application. The costs orders which the appellants had sought were, in effect, that the costs of all parties to be met out of trust funds.
[1]The President has determined, pursuant to s 11(1A) of the Supreme Court Act1986, that two judges constitute and may exercise all the jurisdiction and powers of the Court of Appeal.
[2]By which I refer to the funds of all four trusts; I will not constantly repeat it.

The circumstances generally described

Various findings made by the judge in the removal application were relied upon by the competing parties in their submissions respecting costs. To understand those findings, something of the facts of the matter must be set out.

Harry and Marion Wales had three children: Murray Wales, Geoffrey Wales and Beverley Hutchison (née Wales).

Murray Wales and his wife had three children: Rohan, Julian and Ashley.

Geoffrey Wales and his wife Gladys had two children: Roslyn and…

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 Wales v Wales

Details

AGLC: Wales v Wales [2014] VSCA 101
Case: [2014] VSCA 101
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case of Wales v Wales involved a dispute regarding the removal of trustees and the subsequent costs order. The matter was heard in the Family Court of Australia, where the primary judge ruled on the application to remove the trustees and the associated costs. The trustees, who were also parties to the proceedings, sought leave to appeal the costs order, which required them to pay full costs and denied them indemnity from the trust funds. They argued that the judge's consideration of a legal question on which no submissions were made or invited amounted to a vitiating error and a breach of natural justice.

The central legal issues before the court were whether the judge's consideration of the legal question constituted a vitiating error and, if so, whether this breach of natural justice warranted the grant of leave to appeal. The trustees contended that the absence of submissions on the legal question meant that the judge's decision was flawed. The court considered whether the error was significant enough to affect the outcome and whether it was appropriate to grant leave to appeal. The trustees further argued that the costs order was disproportionate and unjust, given their position as trustees and the potential impact on the trust funds.

In determining the application, the court acknowledged that the judge's consideration of the legal question without submissions did amount to an error. However, the court found that this error did not vitiate the entire proceeding. The court recognised that the trustees' position as trustees and the conflict of interest necessitated a careful examination of the costs order. Ultimately, the court allowed the application for leave to appeal to the extent necessary, and the appeal was subsequently allowed. The court made a revised order as to costs, aiming to ensure a fair and just outcome for all parties involved.

Orders