Aspinall v Aqua Sports Pty Ltd

Power to remove trustees

1. This Court has both the inherent jurisdiction and the power under s 70 of the Trustee Act to remove trustees. In the exercise of that power, it has been said that the dominant consideration is the welfare of the beneficiaries - see Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 where Starke J at 579, citing Letterstedt v Broers (1884) 9 App Cas 371 at 386 per Lord Blackburn, said: No general rule can be laid down for the removal of trustees from their office. The only guide is the welfare of the beneficiaries, and a trustee may be removed if the Court is satisfied that his continuance in office would be detrimental to their interests.
2. In Miller v Cameron Dixon J, as his Honour then was, said at 580 that: The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee.
3. In Application of Uncle's Joint Pty Ltd [2014] NSWSC 321 what was sought was not an order for removal of trustees, as such, but judicial advice as to whether trustees ought to defend proceedings challenging their own appointments. Brereton J noted (at [30]): The interests of the trust as a whole are not significantly affected by the identity of the trustee, although the separate interests of various of the beneficiaries may be affected. The trustee has, or should have, no particular interest in being trustee. In this case (unlike a removal suit) the trustee's conduct is not impugned, so it does not have even the interest that a trustee whose conduct is impugned has in resisting allegations of impropriety made against it.
4. Submissions as to removal of Aqua Sports as trusteeMr Aspinall submitted that it was appropriate for the protection of the trust estate, the execution of the trust, and the welfare of the beneficiaries that Aqua Sports (a company which is effectively deadlocked due to the inability of the directors to reach agreement) be removed forthwith from its position as trustee of the Trust.
5. In essence, what was submitted was that the trustee carries on an active and inherently risky business (not only a swim school but also the provision of other sporting and fitness facilities) and is not a "mere passive investment vehicle"; that there were issues of public safety involved; and that the public interest (and protection of the pubic) outweighed any argument that the assets should be controlled by any particular "party to a marriage". It was submitted that the decision (at the time of June 1997, it is to be assumed) to operate the business as part of the trust estate involved an election to subject the trust estate to the supervisory jurisdiction of the Equity Division of this Court.
6. Emphasis was placed on the position of deadlock as between the directors of the trustee company (as adverted to above) (see [34]-[46] and [47]-[49] of Mr Aspinall's affidavit); concerns being raised by Mr Aspinall as to: potential exposure with respect to third parties (such as creditors and clients of the swimming school business); questions concerning the repairs and maintenance and capital works of improvements relating to the swimming school business ([49(d)] of his affidavit); and as to the position in relation to debt financing (see [49(e)] of his affidavit). Reference was made to correspondence between the two directors as to matters concerning the operation of the business (as exhibited to Mr Aspinall's affidavit).
7. Mr Aspinall submitted that, on Ms Jenkins' own representations, the trust property is in a state of disrepair; parts of the trust property are in a very dangerous state of repair, which must be attended to on an urgent basis; and there is an imminent risk to the public. It was submitted that there was no evidence of the trustee's compliance with statutory obligations or as to appropriate insurance being in place (or as to how any insurance could have been in place having regard to the lack of directors' resolutions since late 2015). Mr Aspinall submitted that it is appropriate that persons who are disinterested, appropriately qualified and experienced be appointed as trustees so as to consider the management and administration of the trust estate (including the trust property).
8. Further, given the provisions under the Trust Deed as to the holding of income for the benefit of the Primary Beneficiaries in default of appointment or accumulation prior to the relevant date in a particular year (see cl 3.2), it was submitted that the proper management and administration of the trust are matters that concern not only the parties to the marriage but others (such as Mr Aspinall's present spouse) who fall within the definition of "Primary Beneficiary" in the Trust Deed. The present position is that there has been no appointment of income in respect of the years ending 30 June 2016 or 30 June 2017. Mr Aspinall refers to Stein v Sybmore [2006] NSWSC 1004, where Campbell J (as his Honour then was) observed (at [25]) that "[w]here there is a power to appoint property amongst members of a class, and a gift over in default of appointment, the takers in default have a vested, but defeasible, interest in the property". Mr Aspinall submits that takes this matter beyond the scope of a matrimonial dispute per se.
9. In this regard, it was submitted that it was in the best interests of the beneficiaries of the trust estate (including any for whom property rights have arisen as a result of deadlock) for independent and impartial trustees to be appointed.
10. For Ms Jenkins, it was submitted that orders to address the expressed public safety concerns were not necessary as that matter had already been dealt with by Ms Jenkins and/or was already the subject of orders made by the Family Court (although the orders to which I was taken did not address the making of decisions by the trustee company itself). It was submitted that the Family Court could make orders in personam requiring the directors to take particular steps to address the deadlock issue. It was submitted that the appointment of independent trustees would be at extraordinary cost and that this was not in the interests of the beneficiaries.

Submissions as to cross-vesting application

1. As to the application by Ms Jenkins for the matter to be cross-vested to the Family Court, reliance was placed by Mr Aspinall on what was said by Brereton J, in Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 (at [19]) as to the three relevant considerations identified by s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW); those being: whether (but for cross-vesting and accrued jurisdiction) the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Family Court; the extent to which the matters for determination in the relevant proceeding arise under a law of the Commonwealth and are not otherwise (apart from cross-vesting legislation) within the jurisdiction of the Supreme Court; and the interests of justice.
2. Mr Aspinall submitted that the present proceedings (for removal of a trustee), brought pursuant to s 70 of the Trustee Act, are clearly within the scope of this Court's jurisdiction and that, putting aside any accrued jurisdiction or cross-vesting, the proceedings could not have been instituted in the Family Court (see s 5(9) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), which provides that nothing in s 5 confers on a court jurisdiction that the court would not otherwise have). For Mr Aspinall, it was submitted that it was seriously arguable that the Family Court does not have jurisdiction to deal with the identity of a trustee of a trust estate (that question concerning the management and administration of a trust, as opposed to the entitlements to trust property) and in those circumstances it would be more appropriate that the matter be dealt with in this Court (where no question as to jurisdiction arises), rather than to have the matter transferred only for it to be found by the Family Court that jurisdiction is lacking and for the matter then to be returned to this Court (referring to Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339; Valceski at [20]-[22]; and Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 403).
3. Reference was made to Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294; [1983] HCA 36 where Mason J (as his Honour then was), Brennan J (as his Honour then was) and Deane J set out the following paragraph from the judgment of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12 as to the scope of accrued jurisdiction: What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgement whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
4. It was submitted that the matter might be further complicated by the discretion the Family Court holds to refuse to exercise accrued jurisdiction (noting that it will be relevant to the exercise of that discretion whether the claims are "attached" and not "severable" from or "disparate" to the main claim).
5. It was further submitted that even if the Family Court does have jurisdiction to deal with such an application, there is a serious question as to whether the parties to the Family Court proceedings could approach that Court seeking interim relief (referring to the Family Law Rules 2004 (Cth), r 5.01). It was submitted that the current case before the Family Court (for the determination of the property interests of Mr Aspinall, Ms Jenkins and their children) does not extend to the management of trust property for the benefit of other Primary Beneficiaries, "the character of which may be bare trusts formed as a result of a present entitlement to Trust Income". Mr Aspinall submitted that, insofar as the case of the children in the Family Court is that Aqua Sports holds property on trust in a discretionary trust and a series of other bare trusts, the same must be the case for Mr Aspinall's current spouse who is not a party to the Family Court proceedings and not related to the marital cause before the Family Court.
6. Reliance was placed on the principles mandated by s 56 of the Civil Procedure Act 2005 (NSW). Mr Aspinall referred in his affidavit (at [29]) to advice received from his solicitors that there was no real possibility that the Family Court proceedings would be heard this year. Pausing there, although objection was taken to the evidence sought to be adduced from Mr Aspinall's solicitor (Mr Rhys Wilkie) (on the basis that he was not and could not be put forward as an expert witness) as to the likely timeframe within which an interlocutory application in the Family Court would be given a first return date and as to priority being given in that Court to parental matters, Ms Jenkins' Counsel accepted that it was not likely that a final hearing in the Family Court proceedings would take place this year (the estimate being late 2019 or 2020) (though he pointed to the making of interim orders in those proceedings only recently).
7. As to the "interests of justice", the relevant considerations were explained by Brereton J at [69] in Valceski as follows: That [leads] to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the "more appropriate" forum.
8. Mr Aspinall pointed to the following matters, which he argued indicated that it was in the interests of justice that the discrete issue as to the change in trusteeship be heard now in this Court. Those matters largely related to the nature of this application being the removal of a trustee: including, that the Family Court proceedings and these proceedings do not share a common or identical substratum of facts (it being submitted that the management and administration of the trust property is a discrete issue and will probably not be ventilated in the Family Court); that the Family Court may not deal with the trusteeship issue, but simply with entitlements to the trust property; that the "natural forum" for a change in trusteeship is this Court; and that the factual matrix of the matrimonial proceedings, on the one hand, and these proceedings, on the other, will not overlap. As adverted to already, it was submitted that the existence of a potential argument that the Family Court does not have jurisdiction in matters involving the identity of a trustee makes this Court a more appropriate forum.
9. Further, it was submitted that the present proceedings "fall comfortably within the ambit" of the Equity Division of this Court and outside the specialist jurisdiction of the Family Court (a reference to what was said by Hidden J in Murray Morgan Investments v Capma Pty Ltd [2016] NSWSC 264 at [15]); that, having regard to the narrow issues, the matter was likely to be able to be determined immediately and expediently in this Court, and with very little (if any) duplication of evidence or issues; and that the nature of the concerns raised by Mr Aspinall made it necessary for the matter to be dealt with quickly.
10. In oral submissions made for Ms Jenkins, it was argued that the Family Court has jurisdiction to deal with the matter (referring to Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 and Warby v Warby [2001] FamCA 1469; (2001) 166 FLR 319). It was argued that there is here a single justiciable controversy (namely the value of the trust and how the trust assets should be distributed and to whom); that the concerns raised as to public safety issues had already been addressed; that it would be premature to appoint new trustees to what is a typical discretionary family trust; and that the Family Court is in a position to make in personam orders against the directors requiring them as directors to attend to certain things in order to overcome the problem arising as a result of the deadlock between directors. As noted earlier, reference was made to the Family Court's recent orders for a single expert to address questions as to issue of public safety of the premises. (As, unfortunately, I still do not have the benefit of transcript and as there were no written submissions for Ms Jenkins, it may be that I have not precisely captured the submissions made at the hearing of this application but I am confident that I have captured the thrust of those submissions based on my notes of the submissions.)
11. Ms Jenkins, in her affidavit (parts of which I read simply as submissions) deposed to her belief that Mr Aspinall was attempting to litigate this matter in this Court so as to cause her financial distress (see [65] of her affidavit) and as to her belief that the proceedings are an abuse of process and have been instituted to cause her stress and significant financial hardship "by litigating matters regarding out [sic] property settlement in different jurisdictions" (see [60] of her affidavit).
12. The solicitor for the third to fifth defendants did not take any position in relation to the cross-vesting application or the application for removal of the trustee, but did submit that it was not appropriate at this point to make any order absolving the trustee (or Mr Aspinall) from any previous conduct in breach of trust (nor to make orders in relation to any prospective breach). Further, the solicitor for the third to fifth defendants was concerned to ensure, first, that no order be made that would trespass upon the jurisdiction of the Family Court, where (I was told) there is currently an application pending before the Court to restrain the parties from dealing with the trust assets (which is listed for directions next month); and second, that there should be no question of an issue estoppel arising from any decision in this Court to remove the existing trustee.

Determination of cross-vesting application

1. I did not consider it to be appropriate to make an order cross-vesting these proceedings to the Family Court.
2. In Austec Wagga Wagga Pty Limited v Rarebreed Wagga Pty Limited [2012] NSWSC 343, Stevenson J considered a similar application brought in this Court in the context where there were Family Court proceedings also on foot. There, his Honour determined that the question of the identity of the trustee was a discrete issue that could be disposed of by this Court in a quick and efficient manner.
3. In Austec the matter for determination was who, or what entity, ought thenceforth be the trustee of a discretionary family trust established by a Deed of Settlement in circumstances where there was a dispute between ex-husband and wife as to the identity of the trustee.
4. What was in dispute (see [48] of the judgment) was whether the purported appointment, by the ex-husband, of a company as trustee of the trust was ultra vires the power of appointment, or a fraud on the power of appointment; if so, whether the Court should exercise its power under s 70 of the Trustee Act to appoint that company or one of two named persons as trustee of the trust; and whether a receiver of the assets of the trust should be appointed. The ex-wife's proceedings in the Family Court remained on foot, pending determination of the proceedings in this Court.
5. Stevenson J concluded that the husband's purported appointment of the company as trustee was not a step taken by the husband to promote the objects of the trust: rather, it was a step taken to ensure that he achieved control of the trust and thus the business operated by the trust (at [70]). His Honour concluded that the purported appointment was of no effect.
6. The trustee company which had been sought to be removed by the purported appointment of a new trustee was in liquidation. Stevenson J concluded that the interests of the trust would be best served if the trustee were not a company in liquidation ([98]) and if an independent professional person were to be appointed trustee ([99]).
7. The case is relied upon by Mr Aspinall only as an example of where this Court has entertained an application of the present kind notwithstanding that there were pending proceedings in the Family Court.
8. In Valceski, an estranged wife had instituted proceedings for a settlement of property under the Family Law Act 1975 (Cth), s 79. The husband had become the sole registered proprietor of the former matrimonial home following a transfer of his father's share in the property under a deed and the father had brought proceedings in this Court to set aside the deed and transfer and for declarations as to the equitable interests in the property. The wife then sought a declaration in the Family Court that her husband's family had no interest in the property, and applied to this Court for a transfer of the Equity Division suit to the Family Court.
9. After setting out the relevant considerations stipulated by s 5(1)(b)(ii) (to which I have already adverted), at [20], Brereton J said: However, because of s 5(9), and as Re Wakim; Ex Parte McNally (1999) 198 CLR 511 held constitutionally invalid the former provisions that purported to confer on the Federal and Family Courts jurisdiction in State matters, it is a pre-requisite to a transfer order that the transferee court have jurisdiction in respect of the relevant matter. It will not be more appropriate that the relevant proceeding be determined by the proposed transferee court if it does not have jurisdiction to do so.
10. At [21], his Honour noted that: … it may well not be more appropriate that the relevant proceeding be determined by the proposed transferee court if it is seriously arguable that it does not have jurisdiction to do so, when the transferor court undoubtedly has jurisdiction.
11. His Honour there referred to Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd and to Paris King Investments Pty Ltd v Rayhill.
12. In Warby v Warby, the Full Court of the Family Court (Nicholson CJ, Finn and Strickland JJ) considered, upon a case stated, the extent of the accrued jurisdiction of the Family Court. As summarised by Brereton J in Valceski (at [50]), the Full Court held: • That the Family Court's jurisdiction is not restricted to the determination of the family law claim but (by way of accrued jurisdiction) extends beyond to the whole litigious and justiciable controversy of which the family law claim forms part - including those parts of it that arise under or are governed by State law, common law or equity, and whether between the parties to a marriage or between a spouse (or spouses) and a third party. • That relevant to whether the Family Court would exercise the Court's accrued jurisdiction were what the parties had done, the relationships between or among them, the laws which attach rights or liabilities to their conduct and relationships, whether the claims are part of a single justiciable question (and in determining that question, whether the claims are "attached" and not "severable" or "disparate"), whether the claims are non-severable from a matrimonial cause and arise out of a common substratum of facts, and whether the court has the power to grant appropriate remedies in respect of the "attached" claims. • The accrued jurisdiction extends to the determination of an issue against a third party which refuses to take part in the proceedings, if it has proper notice and has been afforded a proper opportunity to be heard.
13. I do not consider it necessary in these reasons to embark upon a debate as to the accrued jurisdiction of the Family Court or the likelihood or otherwise that the Family Court would accept that it has jurisdiction in this matter and/or decline in the exercise of its discretion to exercise that jurisdiction to consider the removal of the trustee in the present case.
14. I accept for present purposes that it cannot be said not to be seriously arguable that the Family Court would have jurisdiction in the present proceedings. Nonetheless the determinative factor here seems to be that the jurisdiction invoked by Mr Aspinall falls clearly within the jurisdiction exercised by this Division of the Court and it is in the interests of justice here to exercise it.
15. I accept the submission of Mr Aspinall that the present proceedings involve a discrete issue: not being concerned with the entitlements, or division of, the trust fund but rather with addressing a situation where the administration of the trust and the performance of the trustee's duties as trustee are at present hindered by a position of deadlock due to the inability of Mr Aspinall and Ms Jenkins as directors of the trustee to agree on matters relating to the trust. That is an issue that can be determined expeditiously in this Court and without the need for one or more applications to the Family Court on an interlocutory basis to direct the directors to take particular steps in the administration of the trustee company (which seems to be what was contemplated by Ms Jenkins' submissions).

Determination of application for order for removal of trustee

1. As noted earlier, the "main guide" when considering the removal of trustees is the welfare of the beneficiaries. The trustee company is currently deadlocked and there are duties that the trustee is required to perform (in particular to administer the trust estate by making appointments of income and capital, and in so doing to consider the objects of the power to appoint) which the trustee company has been unable to perform in the past two years and which it is unlikely to be able to perform while its directors are unable to reach agreement between themselves as to matters relevant to the duties of the trustee. In these circumstances (and where breach of those duties is already the subject of complaint by the third to fifth defendants in the Family Court proceedings and may well be the subject of dispute by other beneficiaries) I was of the view that it was more appropriate to determine the issue as to the identity of the trustees in this Court on the application that was before me - that being able to take place quickly and expeditiously. Concerns as to the financial position of the trustee company are also highly relevant in this regard, bearing in mind the potential liability of the directors to third parties or creditors if the position is as Mr Aspinall fears it to be. In this regard, I note that deadlock between directors has been recognised as a matter which may provide a basis for the making of a court order winding up the company (see, for example, Khamo v XL Cleaning Services Pty Ltd [2004] NSWSC 1134 at [26]-[27] (per Barrett J, as his Honour then was); Giacobbe v Giacobbe [2012] VSC 285 at [14] (per Ferguson J, as her Honour then was)). This highlights the seriousness of the current situation.
2. I accept that the appointment of independent trustees will be at a cost and that in the case of a family trust of this kind it is unfortunate that such costs may deplete the assets of the trust. That said, I cannot accept that it is in the interest of beneficiaries for Aqua Sports to remain trustee in circumstances where it is unable to perform its duties as trustee because of a deadlock between the directors. The obvious conflict between the position of the trustee and its directors in contesting issues of breach of trustee's duties (such as the duty to consider the appointment of income and capital) (particularly in light of the claims that have already been made) highlights the necessity for the appointment of independent trustees.
3. Having debated this issue with the parties' legal representatives in the course of the hearing of the respective applications, and conscious of the concern by Ms Jenkins that her position in the Family Court proceedings not be prejudiced by decisions made (for example, to cease the operation of the swim school or to terminate her employment or that of her staff) and the concerns expressed by the third to fifth defendants as to their pending application in the Family Court proceedings, I invited the parties' legal representatives to formulate conditions that might be placed on the incoming trustees to require, in effect, that contentious decisions be the subject of an order from the Family Court unless made with the written consent of Mr Aspinall, Ms Jenkins and their children (the parties to both the present proceedings and those in the Family Court).
4. After debate as to opposing formulations of such conditions, I made orders intended to address the present deadlock but to preserve arguments as to the trust property and entitlements of the beneficiaries of the trust to be dealt with in the context of the Family Court proceedings (this being at heart a dispute between the warring former de facto spouses and their children) by the specialist court in which such disputes are appropriately to be heard.
5. As to costs, I considered that Mr Aspinall should have his costs out of the trust property on the ordinary basis. This was a discrete application and Mr Aspinall was successful in obtaining the relief that he sought. I was not persuaded that the bringing of the application was an abuse of process; nor was I persuaded that the conduct of the application was unreasonable. The replacement of the trustee was something that was obviously required in order to address the deadlock at the level of the directors of the trustee company. I did not, however, accede to the application that costs be on the indemnity basis.
6. For the above reasons, I made the following orders: 1. Order pursuant to s 70 of the Trustee Act 1925 (NSW) (Trustee Act) that: 1. Blair Pleash of Level 40, 2 Park Street, Sydney in the State of New South Wales, chartered accountant and registered liquidator; and 2. Joanne Freeman, of Level 40, 2 Park Street, Sydney in the State of New South Wales, chartered accountant and registered liquidator (collectively "the New Trustees") be appointed trustees of the trust known as the "Aspinall Trust", the terms of which are contained in a deed of trust dated 19 June 1997 and as amended by a deed poll dated 21 October 2010 (Trust), in substitution for Aqua Sports Pty Ltd (ACN 078 971 945). 1. Order pursuant to s 71 of the Trustee Act that all of the property held subject to the Trust be vested in the New Trustees. 2. Direct that, subject to any orders that may be made in the Family Court of Australia in proceedings No. SYC 3079/2016, the New Trustees not take any step to cease or cause the cessation of the operation of the swim school business presently carried on by the first defendant or to terminate the employment of the second defendant or any other current employee of the swim school business without: 1. the written consent of each of the plaintiff and second to fifth defendants or 2. in accordance with an order of the Family Court of Australia. 1. Balance of the summons be otherwise dismissed. 2. Order that the plaintiff's costs of these proceedings be paid out of the property held subject to the trust on the ordinary basis.

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