Williams v Robba

Case [2025] QSC 203

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Robba [2025] QSC 203

PARTIES:

PAUL FRANCIS WILLIAMS

First applicant

MARK ANTHONY WILLIAMS

Second applicant

v

JAMES ROBBA

First respondent

MORGAN LANE

Second respondent

GAYLE DIANNE WILLIAMS

Third respondent

FILE NO:

BS 15647 of 2024

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2025

JUDGE:

Hindman J

ORDER:

1.   The originating application is dismissed.

2.   The Court will hear from the active parties in relation to the costs of the proceeding.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – GENERAL MATTERS – RULES GOVERNING EXERCISE OF DISCRETION – where the first and second respondents are the trustees of a self-managed superannuation fund (the Fund) – where the terms of the Fund provide that the trustees have absolute discretion in distributing the residual death benefit under the Fund to the dependants under the Fund – where the trustees made inquiries of all of the dependants under the Fund – where the trustees decided, in essence, to split the residual death benefit under the Fund equally between two of the dependants – where the two dependants had differing levels of need – where the applicants seek the Court’s review of the trustees’ decision and that the decision be remitted to the trustees – whether common law principles are applicable to a review under s. 8(1) of the Trusts Act 1973 (Qld) – whether the Court is permitted to examine the extent of and nature of the inquiries made by trustees in gathering information for the exercise their discretion – whether the trustees are subject to a higher standard to properly inform themselves because the Fund is a superannuation fund – whether the trustees exercised real and genuine consideration in making their decision

Trusts Act 1973 (Qld), ss. 8(1), 94(1)

Superannuation Industry (Supervision) Act 1993 (Cth), s. 10

Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618, considered
Attorney-General (Cth) v Breckler (1999) 197 CLR 83, considered
Burns v Burns [2008] QSC 173, explained
Finch v Telstra Super Pty Ltd (2010) 242 CLR 254, distinguished
Gisborne v Gisborne (1877) 2 App Cas 300, explained
Hennessey v Perpetual Trustees Queensland Ltd [2000] QSC 311, followed
Karger v Paul [1984] VR 161, applied
Owies v JJE Nominees Pty Ltd (2022) 22 ASTLR 89, distinguished
Re Roper’s Trusts (1897) 21 Ch D 272, cited
Re Whitehouse [1982] Qd R 196, considered
Tierney v King [1983] 2 Qd R 580, considered

Vance v MIM Holdings Ltd [1999] QSC 210, considered

COUNSEL:

S S Monks for the applicants

M R Bland for the first and second respondents

No appearance for the third respondent

SOLICITORS:

Muir Legal for the applicants
QBM Lawyers for the first and second respondents
No appearance for the third respondent

Introduction

  1. This proceeding was commenced by way of originating application by Paul Francis…

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AGLC
Williams v Robba [2025] QSC 203
Case
[2025] QSC 203
Decision Date

CaseChat Overview and Summary

In Williams v Robba, the applicants sought the review of a decision made by the trustees of a self-managed superannuation fund to distribute the residual death benefit. The applicants, who were previously trustees, argued that the trustees had not exercised their discretion in accordance with the terms of the trust deed and sought the Court’s review of the trustees’ decision and that the decision be remitted back to the trustees. The trustees had absolute discretion to distribute the residual death benefit and made inquiries of all the dependants under the fund before deciding to split the benefit equally between two of the dependants. The applicants argued that the trustees had not adequately considered the differing levels of need between the two dependants and had not properly informed themselves before making the decision.

The court examined whether common law principles apply to the review of the trustees’ decision under section 8(1) of the Trusts Act 1973 (Qld), and whether the court can examine the extent of and nature of the inquiries made by the trustees in gathering information for the exercise of their discretion. The court found that the trustees had conducted inquiries of all the dependants and had given real and genuine consideration to the exercise of their discretion. The court held that it was not appropriate to examine the substance of the inquiries made by the trustees, as the trustees had made inquiries of all the dependants and had properly informed themselves before making the decision. The court found that the trustees had exercised real and genuine consideration in making their decision and dismissed the application.

The court held that the decision in Owies was not applicable to the present case, as the trustees had made inquiries of all the dependants and had properly informed themselves before making the decision. The court found that the trustees had exercised real and genuine consideration in making their decision and dismissed the application. The court ordered that the originating application be dismissed and that the active parties be heard in relation to the costs of the proceeding.

Orders

Orders of the court

1. The originating application is dismissed.

2. The Court will hear from the active parties in relation to the costs of the proceeding.

Background

Background to the litigation

In brief, section 94 allows the Court to make orders conferring power upon a trustee to deal with trust property for the expedient management or administration of the property or the best interests of the beneficiaries under the trust. The relief sought by the applicants in this case is for the Determination to be remitted back to the Trustees. It is not necessary for the Court to confer a power upon the Trustees. Therefore, I consider that the relief sought would be appropriately granted under section 8(1) and it is not necessary for me to consider the orders sought under section 94(1) any further.Factual background The factual background relevant to the proceeding is largely uncontentious.The Fund The Fund was constituted by a deed dated 1 July 2009 (the Deed).Clause 1.1 of the Deed describes the Fund as being a superannuation fund. The reference schedule to the Deed sets out the initial trustees and members of the Fund as being Anthony and his first wife, Margaret Patrice Williams (Margaret). Margaret predeceased Anthony. Anthony passed away on 28 December 2021. The total value of the residual death benefit in the Fund at the time of Anthony’s passing appears to comprise about $550,000 (being commercial premises at Benalla with that approximate value). After Anthony’s passing, the applicants were the trustees of the Fund. On 14 July 2023, Martin SJA ordered that the applicants be removed as trustees of the Fund and that the Trustees be appointed. On 26 September 2023, Paul wrote to the Trustees via email confirming that the only dependants of Anthony at that time were Gayle, and Anthony’s four children, Mark, Paul, Peter and Louise Marie Hart (nee Williams) (Louise).The Trustees seek information The Trustees sought information as to the needs and circumstances of each of the dependants and received material in response. In September 2023, email communications took place between the Trustees and Paul requesting documents and information regarding the Fund. On 13 October 2023, the Trustees’ lawyer wrote a letter to all five dependants under the Fund requesting that each dependant “provide to our clients particulars of any facts or matters that you would like our clients to consider in determining whether to exercise their discretion to apply the death benefit to you or to any other Dependent [sic]”.[2][2]Affidavit of Peter William Muller sworn 14 January 2025 (CDI 5-8), ex PWM-1, p 28 (Muller Affidavit). In November 2023, more specific requests for information were made by the Trustees’ lawyer via email to Paul, Mark and Louise, such as each person’s financial status, assets and liabilities, needs such as medical needs, employment and income, details of Anthony’s estate and its value to the dependant, and any special circumstances. When some responses were given, the Trustees’ lawyer asked more specific questions – for example, whether Louise owned any real property, more details concerning a property left to Peter from Anthony’s estate, and each of the dependants’ financial dependency.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, the applicants submitted that the Trustees had a duty to resolve the conflicting information presented to them regarding the value of the property left to Peter in Anthony’s will. As outlined above, Gayle’s submissions described the property as having “an estimated value of $531,000”. Mark then informed the Trustees that the property had been valued at $450,000, less the encumbrance upon the property. I do not consider this to be a significant enough discrepancy that reasonably required the Trustees to carry out any more investigation. The values were approximations only, and it could reasonably have been the case that Gayle’s submissions did not account for the mortgage. It was sufficient to inform the Trustees of Peter’s general financial situation to know that he had been left a property valued somewhere in the order of $450,000 to $550,000 that was subject to a mortgage of approximately $90,000. Though not pointed out by the parties, I note also that different valuations were provided as to the value of the property owned by Gayle – Gayle’s submissions indicated that her property was worth $570,000,[20] while Mark’s email indicated that it was worth $400,000 to $425,000.[21] In my view, this would support an inference that Mark’s estimations of the value of real property were generally lower and Gayle’s were generally higher. In circumstances where the information provided was not supported by expert evidence and appeared only to be approximations, I consider that the discrepancies in these values were not significant enough to oblige the Trustees to resolve them.[20]Muller Affidavit, ex PWM-1, p 38.[21]Muller Affidavit, ex PWM-1, p 187.Conclusion and orders In summary, I find that that has been no lack of real and genuine consideration given by the Trustees in making the Determination. There are no proper grounds upon which the Court may review the Determination. The originating application is dismissed. I will hear from the active parties in relation to the costs of the proceeding.

Ratio Decidendi

Legal Principle Established

Against that conclusion, the applicants rely on the decision in Owies. I do not consider anything in Owies to be inconsistent with the conclusion I have reached. In setting out the principles that govern the requirement to give real and genuine consideration, the Court in Owies wrote at [97] (emphasis added):“Although the validity of the outcome of an exercise of power is not to be assessed by notions of fairness or reasonableness, the process must be one in which the trustee is able to exercise the power in a manner that is just, in the sense of it not being arbitrary or capricious, and it must accord with the purpose of the trust. Often that will require ensuring that the trustee is adequately informed so as to put itself in a position to properly exercise the power. As Callaway JA said in Telstra Super Pty Ltd v Flegeltaub, ‘one cannot ordinarily decide a question of fact in good faith and give it real and genuine consideration without conducting some investigation and in some cases that will entail making an inquiry of a person who is willing to provide information and is in the best position to do so. It is not a matter of natural justice but bona fide inquiry and genuine decision making.’” That passage indicates that, to give real and genuine consideration, a trustee may be required to conduct investigations. It does not say anything about examining the content of those investigations or the adequacy thereof. The Court went on to make findings consistent with that premise. The facts of Owies are materially different to the present case and involved circumstances where there was no evidence that the relevant material had been put before the trustee at all. Owies concerned a family trust with five beneficiaries – two parents and their three children – where income under the trust was distributed at the end of each financial year, and two of the children had not received any distributions at all over the course of nine years. The Victorian Court of Appeal noted that the trustee had not made inquiries of those two children, and, given the strained relationship between them and the rest of the family, the fact that the two children had been in contact with the parents was an insufficient basis to infer that the trustee came into possession of information about those children’s financial circumstances. The present case is distinguishable. The Trustees here had directly made inquiries about Peter’s circumstances as well as asked for all information that may be relevant to their decision-making. In Owies, the fact that no inquiries had been made at all of two of the beneficiaries, alongside a number of other factual considerations specific to that case (such as the amount and regularity of the distributions) provided reason to conclude that the trustee had not given real and genuine consideration to the exercise of the discretion. The Court examined the absence of inquiries, not the substance of the inquiries. Therefore, I do not consider Owies to support a position that a court can examine the substance of inquiries that were in fact made to determine whether real and genuine consideration has been given.