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[2023] NSWSC 378

Batten v Salier

1. DECLARE that the Plaintiff is, and has been since he turned 18 years of age in April 2022, entitled to require the termination of the trust created by the will of the deceased (undated, but stated to be dated 27 April 2007 in the grant of Letters of Administration with the Will Annexed in solemn form issued on 1 April 2014) in respect of the gift to him of the property at 19/8 Allen Street, Waterloo, New South Wales, being lot 19 in Strata Plan 84149 (“the Property”), and the income thereof (“the Trust”), and to call for the transfer to him of the Property, the income (including accrued income) derived from the Property and such, if any, other asset of the estate. 2. ORDER, pursuant to rule 54.3 of the Uniform Civil Procedure Rules 2005 NSW, that the first defendant transfer the Property, income and any other asset of the Trust to the Plaintiff. 3. NOTE that no order is made as to the costs of the proceedings to the intent that each party pay or bear his own costs of the proceedings, without prejudice to such (if any) entitlement the first defendant may have to recourse to assets of the estate of the deceased. 4. RESERVE to any party liberty to apply, in these proceedings, for consequential or other relief for the purpose of implementation of these orders. 5. ORDER that these orders be entered forthwith.

Catchwords

TRUSTS – Termination of trusts – Termination of trust by beneficiary – Rule in Saunders v Vautier – Beneficiary entitled to terminate trust

Cases cited

  • CPT Custodian Pty Limited v Commissioner of State Revenue(2005) 224 CLR 98
  • Estate of Laura Angius; Angius v Angius[2013] NSWSC 1895
  • Gianna (Jenny) Angius v Estate of the late Laura Angius[2019] NSWSC 1012
  • Gordon Salier v Robert Angius[2015] NSWSC 853
  • Miller v Cameron(1936) 54 CLR 572
  • Saunders v Vautier (1841) 4 Beav 115; 49 ER 282; affirmed (1841) Cr & Ph 240; 41 ER 482

Legislation cited

  • Trustee Act 1925 NSW
  • Uniform Civil Procedure Rules 2005 NSW

Judgment

  1. [1]

    HIS HONOUR: Laura Angius (“the deceased”) died between 3 January 2012 and 4 January 2012 aged 79 years, leaving an undated “informal” will admitted to probate in solemn form by a grant of letters of administration to Gordon A Salier, the first defendant in these proceedings, issued on 1 April 2014 pursuant to reasons for judgment published by Hallen J as Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 on 17 December 2013. The letters of administration identify the date of the will as 27 April 2007.

  2. [2]

    The plaintiff (Sean Robert Batten) is a grandson of the deceased, by the deceased’s daughter, Gianna (Jenny) Angius. He was born in April 2004 and attained his majority in April 2022. He is named in the will of the deceased as beneficiary of a gift of property known as 19/8 Allen Street, Waterloo, in the State of New South Wales. The title to that property remains registered in the name of the first defendant, subject to any orders made in the current proceedings.

  3. [3]

    In reasons for judgment, on a construction suit, published on 1 July 2015 as Gordon Salier v Robert Angius [2015] NSWSC 853, Ball J determined (by orders set forth in paragraph [94] (7)-(8), supported by reasons articulated at paragraphs [76]-[83]) the nature of the plaintiff's gift in terms to the following effect:

  4. [4]

    In the proceedings before Ball J, “the first defendant” was the present plaintiff’s uncle, the second defendant in the current proceedings (Robert Angius). The fourth defendant in the proceedings before Ball J is the plaintiff in the present proceedings.

  5. [5]

    The present proceedings were commenced by a summons filed on 17 October 2022 and amended on 17 February 2023. In his amended summons, the plaintiff seeks:

  6. [6]

    The plaintiff’s contradictor, if any, is the second defendant. In his judgment of 1 July 2015 Ball J (at [65]-[67]) determined, in effect, that the second defendant was the deceased’s residuary beneficiary upon a proper construction of the will.

  7. [7]

    Both the first defendant and the second defendant have filed submitting appearances in these proceedings. The plaintiff’s claims for relief are not opposed.

  8. [8]

    In support of the plaintiff’s primary claim for relief the following features of the case are noted:

  9. [9]

    In CPT Custodian Pty Limited v Commissioner of State Revenue (2005) 224 CLR 98 at 119 [47], the High Court of Australia recognised as the modern formulation of the rule in Saunders v Vautier the following statement in Thomas on Powers (1998):

  10. [10]

    In my opinion, the plaintiff is entitled to relief in the nature of that sought in his primary claim for relief because, upon a proper construction of the deceased’s will, he has an absolute vested and indefeasible interest in the capital and income of the trust property held for his benefit.

  11. [11]

    In these circumstances, it is not necessary to consider whether, if the trust were to continue in operation, the second defendant should be displaced as trustee of the trust.

  12. [12]

    Were it necessary to make a determination of the plaintiff’s alternative claim for relief, I would be minded to accede to that claim.

  13. [13]

    The primary rule governing identification of a trustee is that the Court is guided by the welfare of the beneficiary as the dominant consideration: Miller v Cameron (1936) 54 CLR 572 at 575, 579, 580 and 581.

  14. [14]

    It is not necessary to explore in these reasons for judgment particular reasons advanced by the plaintiff for displacement of the second defendant as trustee. It is sufficient to note that questions have been raised by the plaintiff as to the suitability of the second defendant to act as trustee and, if the second defendant were to be displaced as trustee, there is evidence of the suitability and consent of the plaintiff’s sister to act as trustee.

  15. [15]

    In the circumstances outlined in these reasons, the appropriate course is to make orders to the following effect.

    1. (1)

      DECLARE that the plaintiff is, and has been since he turned 18 years of age in April 2022, entitled to require the termination of the trust created by the will of the deceased (undated, but stated to be dated 27 April 2007 in the grant of letters of administration with the will annexed in solemn form issued on 1 April 2014) in respect of the gift to him of the property at 19 Allen Street, Waterloo, NSW, being lot 19 in strata plan 84149 (“the Property”) and the income thereof (“the Trust”), and to call for the transfer to him of the Property, the income (including accrued income), and such, if any, other asset of the Trust.

    2. (2)

      ORDER, pursuant to rule 54.3 of the Uniform Civil Procedure Rules 2005 NSW, that the first defendant transfer the Property, income and any other asset of the trust to the plaintiff.

    3. (3)

      NOTE that no orders are made as to the costs of the proceedings, to the intent that each party pay or bear his own costs of the proceedings, without prejudice to such (if any) entitlement the first defendant may have to recourse to assets of the estate of the deceased.

    4. (4)

      RESERVE to any party liberty to apply in these proceedings for consequential or other relief for the purpose of implementation of these orders.

    5. (5)

      ORDER that these orders be entered forthwith.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.