Zevering v Callaghan

Case [2011] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

Zevering v Callaghan & Ors; Callaghan & Anor v Zevering [2011] QCA 180

PARTIES:

CORNELIA ELLEN ZEVERING
(appellant/respondent)
v
LYNNE CALLAGHAN and YVONNE SHIRLEY RAYMONT as trustees of THE OUTLOOK ESTATE TRUST
(respondents/applicants)

FILE NO/S:

Appeal No 10552 of 2010
SC No 10480 of 2009

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeal
Application for Dismissal for Want of Prosecution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2011

JUDGES:

Fraser and White JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The parties are allowed seven days in which to file submissions as to the form of the proposed orders.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – REMUNERATION – ALLOWANCE BY THE COURT – PRINCIPLES AND GROUNDS FOR GRANT OR REFUSAL – where a unit trust was engaged in the development and sale of real property – where the unit holders had resolved to remunerate trustees at a specified rate – where the appellant’s claim for remuneration was considered excessive by the current trustees – whether exceptional circumstances must be shown for the Court to exercise discretion under s 101 of the Trusts Act 1973 (Qld) – whether and in what amount the appellant is entitled to remuneration

Acts Interpretation Act 1954 (Qld), s 14B
Trusts Act 1973 (Qld), s 101

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13, cited
Plomley v Shepherd (1896) 17 LR (NSW) Eq 215, distinguished
Re Application of Sutherland (2004) 50 ACSR 297; [2004] NSWSC 798, cited
Re Postle and Hodsdon’s Application [1991] 1 Qd R 160, cited

COUNSEL:

The appellant/respondent appeared on her own behalf
B J Clarke SC, with B McGlade, for the respondents/applicants

SOLICITORS:

The appellant/respondent appeared on her own behalf
Macrossans Lawyers for the respondents/applicants

  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of Peter Lyons J.  I agree with those reasons and with the order proposed by his Honour.

  1. WHITE JA:  I have read the reasons for judgment of Peter Lyons J and agree with the order proposed by his Honour for those reasons.

  1. PETER LYONS J: The appellant was for a number of years a trustee of The Outlook Estate Trust. She made an application invoking the Supreme Court’s inherent jurisdiction as well as pursuant to s 101 of the Trusts Act 1973 (Qld) (Trusts Act) for an order for her remuneration as a trustee, which, in effect was for an increase beyond that which the current trustees are prepared to pay.  She appeals against the dismissal of that application.

Background

  1. In 1999, some 26 persons, including the appellant, became participants in a solicitor’s contributory mortgage scheme (the scheme).  The funds they contributed to the scheme were advanced to…

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AGLC
Zevering v Callaghan [2011] QCA 180
Case
[2011] QCA 180
Decision Date

CaseChat Overview and Summary

In the case of Zevering v Callaghan, the dispute revolved around the remuneration of trustees within a unit trust involved in real property development and sales. The court was called upon to decide the entitlement of the appellant to remuneration, a matter contested by the current trustees who found the appellant's claim excessive. The appellant, a former trustee, sought compensation under section 101 of the Trusts Act 1973 (Qld), which grants the court discretion to award remuneration to trustees.

The legal issues before the court involved interpreting the statutory provisions concerning the remuneration of trustees and the criteria for determining whether exceptional circumstances warranted an allowance by the court. The central question was whether the court should exercise its discretion under section 101 and, if so, the appropriate amount of remuneration for the appellant.

The court examined the principles and grounds for the grant or refusal of remuneration, focusing on whether the appellant had demonstrated exceptional circumstances justifying a departure from the usual remuneration arrangements agreed upon by the unit holders. The court concluded that the appellant had not presented sufficient evidence to meet the threshold for exceptional circumstances, and therefore, the claim for remuneration was not substantiated under the statutory framework. The court did not find it necessary to exercise its discretion in favour of the appellant, and thus, the appellant was not entitled to the sought remuneration.

The court ordered that the parties have seven days to file submissions regarding the form of the proposed orders, indicating the resolution of the dispute in accordance with the findings on the appellant's claim for remuneration.

Orders

Orders of the court

The parties are allowed seven days in which to file submissions as to the form of the proposed orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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