Wilson v Indigenous Services Pty Ltd - [2021] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WILSON -v- INDIGENOUS SERVICES PTY LTD [2021] WASC 56
CORAM:   ALLANSON J
HEARD:   2 MARCH 2021
DELIVERED          :   3 MARCH 2021
FILE NO/S:   CIV 1043 of 2021
BETWEEN:   TERRENCE KIM WILSON
First Plaintiff

URSULA WILSON
Second Plaintiff

MAVIS WESTERMAN
Third Plaintiff

LESLEY RHONDA THORNHILL
Fourth Plaintiff

KAREN BEASLEY
Fifth Plaintiff

AND

INDIGENOUS SERVICES PTY LTD
First Defendant

ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second Defendant

NJAMAL COMMUNITY CORPORATION PTY LTD
Third Defendant

Catchwords:

Trusts - Charitable trust - Where plaintiffs challenge the validity of the appointment of the Trustee - Where plaintiffs seek an interim payment out of the Trust Fund for their legal costs - Whether such an order within the power of the court

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr C Stokes
Second Plaintiff	:	Mr C Stokes
Third Plaintiff	:	Mr C Stokes
Fourth Plaintiff	:	Mr C Stokes
Fifth Plaintiff	:	Mr C Stokes
First Defendant	:	Mr L Christensen
Second Defendant	:	Ms M J Elliott
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Chris Stokes & Associates
Second Plaintiff	:	Chris Stokes & Associates
Third Plaintiff	:	Chris Stokes & Associates
Fourth Plaintiff	:	Chris Stokes & Associates
Fifth Plaintiff	:	Chris Stokes & Associates
First Defendant	:	CX Law
Second Defendant	:	State Solicitor for Western Australia
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Wareham v Marsella [No 2] [2020] VSCA 118

ALLANSON J:

Introduction

The plaintiffs commenced these proceedings by originating summons filed 25 January 2021. The plaintiffs seek relief, including declarations that the first defendant, Indigenous Services Pty Ltd, has been removed as the trustee of the Njamal Peoples Trust, and Njamal Community Corporation Pty Ltd has been validly appointed and remains the validly appointed trustee of the Trust.
The Attorney General of Western Australia is named as the second defendant to the application, and is a proper party because the Trust is a charitable trust.
The plaintiffs seek an order that they be indemnified out of the Trust Fund in respect of their costs of the proceedings. In a minute of proposed orders, filed 18 February 2021, the plaintiffs sought, as interim relief, that the Trustee pay to them the sum of $80,000 from the Trust Fund in respect of their legal costs of this application.
After a short hearing on 2 March 2021, I dismissed the application for interim relief, with reasons to be published. These reasons are concerned solely with the interim application.

The evidence

The plaintiffs relied on the affidavit of Terrence Kim Wilson, filed in support of the originating summons and sworn 18 January 2021; and affidavits of Mr Wilson and Sharon Westerman, both sworn 24 February 2021, in support of the interim application.
The first defendant filed an affidavit of Kathryn…

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 Wilson v Indigenous Services Pty Ltd

Details

AGLC: Wilson v Indigenous Services Pty Ltd [2021] WASC 56
Case: [2021] WASC 56
Decision Date

CaseChat Overview and Summary

The plaintiffs in Wilson v Indigenous Services Pty Ltd brought proceedings against the Trustee of the Njamal Peoples Trust, the Attorney General of Western Australia, and Njamal Community Corporation Pty Ltd. The plaintiffs sought, among other things, declarations regarding the validity of the appointment of the Trustee, and an order that the Trustee pay $80,000 from the Trust Fund to the plaintiffs towards their legal costs. The plaintiffs are all of Njamal descent and currently receiving Centrelink benefits. The Supreme Court of Western Australia was required to determine whether it had the power to order the Trustee to exercise its discretion to make a payment from the Trust Fund to the plaintiffs for their legal costs. The Court found that it had no power to make such an order.

The court first considered whether it could rely on its general costs powers under s 37 of the Supreme Court Act 1935 (WA) to make the order sought by the plaintiffs. It found that the order was not an order for costs, and therefore the court could not rely on its costs powers. The court next considered whether it could rely on s 21 of the Charitable Trusts Act 1962 (WA) to make the order. It found that it did not have such a power. Finally, the court considered whether it could rely on s 94 of the Trustees Act 1962 (WA) to make the order, but found that the plaintiffs had no standing to apply under that section. The court was not aware of any other relevant source of power that would allow it to make the order sought by the plaintiffs. The application was dismissed.

Orders