BETWEEN : AUGUSTA BEACH ESTATE PTY LTD (ACN 009 300 887)

THE BENEFICIARIES OF THE AUGUSTA BEACH ESTATE TRUST

Trusts - Winding up - Non-active beneficiaries - Distribution of monies - Unclaimed monies.

Orders for distribution of monies with provision being made for unclaimed monies.

1 TEMPLEMAN J : This is an application in the matter of the Augusta Beach Estate Trust for final orders to wind up the trust. The history of the matter is set out in a number of affidavits but essentially the trust asset was a large tract of land which was purchased by a considerable number of investors, some nearly 800, in the 1970s, with a view to the land being subdivided. That proposal came to nothing.

2 Over the years, many of the shareholders who are now regarded as beneficiaries, have become inactive and have either died or moved away or, for whatever reason, lost touch with the persons appointed as trustees. That being so, the trustees applied to this Court for directions as to what should be done to bring the trust to an end.

3 Orders were made for advertisements to be placed in The West Australian newspaper for the purpose of locating beneficiaries and enabling them to identify themselves and to make such claim as was appropriate. In the meantime, the land has been sold, again pursuant to order of the Court and under directions from the Court as to the manner of sale, so that the interests of the beneficiaries have all been protected.

4 The advertisement was placed in The West Australian newspaper on 31 December 1997, in accordance with the order. As a result of the advertisement appearing in the newspaper, a number of non-active beneficiaries responded and have made claim amounting to some $14,000, which have been recognised by the trustees. The advertisement, in accordance with the court order, allowed a period of 12 months to elapse before any moneys remaining unclaimed might be distributed.

5 The trustee now applies for final orders for distribution of the net proceeds of sale, after payments for directors' remuneration, accountancy fees and legal fees, to be made to the beneficiaries. Included amongst those payments will be amounts forfeited, those being amounts standing to the credit of persons who are non-active and cannot be found.

6 It occurred to me that the fact that the advertisement was placed on 31 December, although as I have said, and I emphasise, in compliance with the order, may have been slightly unfortunate in the sense that that may have been a day on which perhaps fewer people than usual might have looked at that section of the newspaper. However, I take into account a number of considerations in coming to the conclusion that I should permit the matter to be disposed of in the way proposed.

7 First, a number of people did respond to the advertisement. Secondly, the sale of the land itself was widely advertised and would therefore have given an opportunity for anybody interested in the trust to come forward. Thirdly, I am told that when the orders were made in relation to advertising and sale and winding up of the trust, those orders received some publicity in The West Australian newspaper.

8 I also take into account the fact that the trustees have been carrying the burden of this matter for some time. It seems to me entirely reasonable to conclude that the time has come for them to lay down that burden and distribute the funds. Finally, I take into account that the beneficiaries whom it is sought to locate and identify are not people, such as beneficiaries under a will, who may be unaware that some benefit is due to them.

9 These people have, in effect, for whatever reason, lost interest in the Augusta Beach Estate. I think there must be a limit to the extent of the somewhat paternalistic jurisdiction exercised by this Court in attempting to find them and safeguard interests which they themselves have neglected.

10 For all these reasons I am satisfied that the orders should now be made in terms of the notice of motion, to which a further order has been added to cover the situation in which, even now, persons who have been identified as active beneficiaries may not come forward to accept the cheques by which payment will be made. Moneys in that category will be dealt with as unclaimed moneys, pursuant to the Unclaimed Monies Act 1990, so that again the interests of those persons will be protected.