Cameron Donald-Oates v Megan Lea Mitchell Donald

Judgment 1The plaintiff is the defendant's brother. This is very unfortunate litigation relating to dealings with family property between persons who are closely related. Before they take the case to hearing the parties would be wise to consider whether any compromise can be reached. There is a risk that the costs will be disproportionate to the value in dispute. The application before me was strongly presented by Senior Counsel and cannot be disposed of briefly. 2Underlying the plaintiff's claims is a discretionary Family Trust created by a deed dated 19 December 2003 the terms of which are not in evidence, of which Jo Donald Nominees Pty Ltd was the trustee. The Family Trust is sometimes called the Jo Donald Family Trust. The company came to be wholly controlled by the defendant who was its only director and officer. The plaintiff and the defendant were the primary objects or potential beneficiaries of the Family Trust. There were also secondary objects. The company bought an investment property at William Street, Double Bay on 9 December 2003. The plaintiff alleges that the parties and the company agreed that in consideration of his advancing $130,000 to the Family Trust to fund that purchase, the plaintiff would be paid $130,000 of the proceeds of sale of the property before any proceeds were distributed to beneficiaries. The purchase was funded by an advance of approximately $130,000 by the plaintiff and by $388,000 borrowed by the company from National Australia Bank on mortgage. 3Then the plaintiff alleges that he caused renovations to the William Street property to be carried out, a new kitchen, new bathroom, painting and other renovations, and paid about $37,027 for the renovations. 4About 12 May 2006 the defendant caused the company to transfer the property to herself for $480,000; the plaintiff alleges that this happened without his knowledge or consent. He alleges that there were breaches of trust in this transaction, and that the defendant knew of them. She paid out the mortgage debt and refinanced with a new loan, again on mortgage from National Australia Bank. Then about 25 September 2006 she caused the company to be deregistered. She held the property for some years, received rents and refinanced the mortgage with ANZ Banking Group, paid out the mortgage loan in full and sold the property in May 2011 to an unrelated party for $615,000. She received the proceeds of sale after discharging liabilities and $192,000 is held in a controlled monies account under interlocutory orders made by Gzell J on 4 May 2011. 5Stated shortly, the plaintiff claims that he has not been repaid $130,000 or $32,027 by the Family Trust and that the trust is accountable to him, and the defendant is accountable to the Family Trust for her dealings with the property, including receiving rent and selling the property. There are ancillary claims relating to the appointment of a new trustee, and other claims. 6The remedies claimed by the plaintiff would require the defendant to transfer the proceeds of the sale to a new trustee to be appointed by the court, with an accounting and just allowances for her dealings with the property; and there are several alternative claims for equitable remedies. The conjectural new trustee should pay the plaintiff's claims before distributing surplus proceeds of the sale to beneficiaries. 7There were further claims about alleged loans to the plaintiff and her husband of $30,000 and $50,000 to buy houses which they later sold without repaying the loans. The plaintiff's counsel told me that all the passages in the Statement of Claim which deal with claims for $30,000 and $50,000 are not pressed; these are paragraphs 26 to 31 and claim 15, which I will strike out. 8Important contextual facts, not in the pleadings and not disputed for the purpose of this application, are that the plaintiff became bankrupt on 15 November 2004 on his own application, that Mr A H J Wily was appointed trustee in bankruptcy, that Mr Wily executed a deed of release on 16 June 2006 the parties to which were Mr Wily as bankruptcy trustee, the defendant and the company, under which the defendant and the company paid significant sums to Mr Wily and he gave releases. The plaintiff was not a party to the deed of release. The bankruptcy trustee was fully able to deal with the plaintiff's property at that time, and the later discharge from bankruptcy does not affect this. 9The bankruptcy was annulled on 20 October 2008 pursuant to the Bankruptcy Act 1966 (Cth) s 74(5). Acts done by the trustee in bankruptcy before the annulment are valid, and any remaining property reverted to the bankrupt: see s 74(6). The plaintiff did not apply to the Federal Court to set aside the deed of release or to deal in any way with the bankruptcy trustee's activities; see s 178. 10The plaintiff commenced these proceedings by summons on 2 May 2011. Within a few days Gzell J heard the application for interlocutory restraint. The plaintiff filed his Statement of Claim on 10 June 2011. The defendant applied by Notice of Motion on 19 July 2011 for orders including dismissal of the proceedings. The Notice of Motion was amended on 17 August 2011 and added a claim for security for costs under UCPR 42.21. In my view the application for security for costs was made appropriately promptly. Three years have since passed the bankruptcy annulment and this does not suggest urgency. The defendant has not filed a Defence; I would have preferred to see her Defence but it is appropriate to dispose of the security for costs application at this early stage. 11The defendant did not proceed with claim 1 in the Notice of Motion which asked that the proceedings be dismissed, or with claims 3 and 4 dealing with some interlocutory matters, or with claim 5 which was resolved by agreement. The defendant pressed claim 6 for security for costs. The principal debate related to claim 2 which asks that many paragraphs in the Statement of Claim be struck out under UCPR 14.28. Some of these paragraphs deal with the plaintiff's claim that there were breaches of trust in the sale and that the defendant incurred liability to the Family Trust; the defendant did not pursue this. 12Statement of Claim paragraphs 7, 8(b) and 24(c) and claim 9 relate to plaintiff's claim that he advanced $130,000 for the purchase of the William Street property. Statement of Claim paragraphs 9, 10, 24(b) and claim 8 relate to the plaintiff's claim to have expended $37,027 on repairs and renovations. 13The plaintiff's standing in these claims is personal in that they arise from his own dealings with the Family Trust: and not from his being a beneficiary or object of the trust. His standing in the claims about dealings with trust property is different; he did not have a vested interest in trust assets, as there has not been a discretionary decision allocating some interest to him. He makes these claims in a representative capacity on behalf of all objects of the trust potentially interested. Thought should be given to whether he should sue as representative of the whole class other than the defendant, or should ask the Court to appoint him to represent the class. 14According to their terms, the plaintiff's claims with respect to $37,027 and $130,000 are claimable, if against anybody, against the company and against the conjectural new trustee. They were claimable by the plaintiff and by no one else if he had not become bankrupt, and they were assets in the bankruptcy with which the bankruptcy trustee could deal, and for which he could give releases. When I asked the plaintiff's counsel how the obligation to pay $37,027 could be regarded as an obligation of the defendant he said that the plaintiff seeks a declaration that the new trustee of the discretionary trust, whom the court is to appoint, will be indebted to the plaintiff in respect of this obligation, that this will have an effect on the quantum of the trust assets, and in this way it affects the interests of the defendant; further, the plaintiff seeks orders that the defendant give equitable compensation to the new trustee and give an account of profits as in claims 6 and 7. 15In substance the defendant's position is that having regard to the terms of the deed of release, these two claims are not reasonably arguable and should be struck out for that reason. 16In the deed of release a number of recitals under the heading "Background" state that the plaintiff and the defendant were beneficiaries as joint tenants in equal shares of the estate of their late mother Joan Roberta Donald, and that the estate included a family home at Bondi and a quarter interest in a house at Double Bay. (This is not the investment property in William Street.) Recitals refer to some dealings with interests in estate properties, to some dealings, claims and controversies relating to those properties, and the willingness of the defendant to pay sums to the bankruptcy trustee representing what she contended was the plaintiff's interest in the Double Bay house ($198,658.96) and their late mother's share in the family home at Bondi ($137,128.27, total $335,787.43). 17The recitals state that the plaintiff and the defendant as beneficiaries in the estate of their late mother take the assets of the estate in equal shares: and then go on to refer to assets of the estate, a house property in Bondi, which was the family home, and a quarter interest in a house property in Double Bay. Recitals then refer to transfers by the plaintiff to the defendant on 18 May 2005 (during the bankruptcy) of his shares in those properties for valuable consideration. That the bankruptcy trustee claimed that the transfer of the plaintiff's interest in the Double Bay house was voidable and asked the defendant to pay him a sum in respect of it, but after obtaining an appraisal of the Bondi property believed that there was no equity available in it, and for that reason had not requested the defendant to pay money in respect of it (recitals 7 and 10). That to protect her reputation the defendant was willing to pay money to the bankruptcy trustee in respect of each of these two properties and the monies payable total $335,287 (recitals 11 and 16). That the Family Trust was indebted to the deceased's estate for $37,027, and the defendant "... has offered and the Trustee has accepted the offer that [she] forward payment to the trustee of the Bankrupt's share of the debt owed to the Estate by the Jo Donald Trust ($18,513.50)." Then by recital 15 the company agreed to pay the trustee "in relation to the debt owed to the Estate any other matter related to or in any way connected with dealings with the matters recited herein." 18Recitals 14, 15 and 16 are in the following terms: 14. The Jo Donald Trust is indebted to the Estate in the amount of $37,027 in respect of the purchase by the Jo Donald Trust of the Double Bay Unit. Donald has offered and the Trustee has accepted the offer that Donald forward payment to the Trustee of the Bankrupt's share of the debt owed to the Estate by the Jo Donald Trust ($18.513.50). 15. Without admission of any liability and in consideration of the release hereinafter contained Jo Donald Nominees agrees to pay to the Trustee the sum of $18,513.50 in relation to the debt owed to the Estate and any other matter related to or in any way connected with the matters recited herein. 16. Without admission of any liability and in consideration of the release hereinafter contained Donald agrees to pay the Trustee the sum of $335,787.43 in relation to the Bondi Property and the Double Bay Property and any other matter related to or in any way connected with the matters recited herein. 19In recital 14 the sum of $37,027 is treated as debt owed to the deceased estate, and the recital speaks as if the Family Trust should pay to the estate the whole of that amount. If the Family Trust did that the plaintiff would have been entitled to a half share under the will, and the plaintiff would have been obliged to pay that half share to the bankruptcy trustee as after-acquired property. The sum of $18,513.50 which the company was to pay to the bankruptcy trustee represented payment of what the plaintiff was entitled to as his share of what the estate received. 20In the operative parts clause 2.1 acknowledges payment of $335,787.43 by the defendant and $18,513.50 by the company. 21The release is in the following terms: 3. Trustee releases Donald and Jo Donald Nominees 3.1 Release The Trustee releases and discharges Donald and Jo Donald Nominees from all actions, suits, claims, demands, causes of action, legal, equitable, under statute and otherwise, costs and expenses and other liabilities of any nature (whether or not the parties were or could have been aware of them) which the Trustee: (a) now has; (b) at any time had; (c) may have; or (d) but for this deed, could or might have had, against Donald and/or Jo Donald Nominees in relation to the Assets or the facts and circumstances recited in this deed or the allegations or circumstances arising out of or in any way connected or related to the Assets or the facts and the circumstances recited in this deed, or anything in anyway related to them. 22"Assets " is defined in clause 1.1: " Assets" means and includes: (a) all property of the Bankrupt which was transferred to or received by: (i) Donald; (ii) Jo Donald Nominees; and/or (iii) Jo Donald Trust, in or during the period 5 years before 15 November 2005. (b) real property situate at and identified as follows: (i) 20 Forest Road, Double Bay, New South Wales; ("Double Bay Property"); (ii) 29 Murriverie Road, Bondi, New South Wales; ("Bondi Property");and (iii) unit 1 of 20 William Street, Double Bay, New South Wales; ("Double Bay Unit") 23The definition of "Assets" includes properties which were part of the deceased estate and also the Double Bay unit which was not. The deed of release deals with it separately from those assets. That definition is not limited to real property and it is not limited to dealings with assets of the deceased estate. 24The operative parts also include: 5. Bar to further proceedings This deed may be pleaded as a full and complete defence by either party to any action, suit, or proceedings commenced, continued or taken by the other party or on its behalf in relation to any of the matters referred to in this deed. 25In clause 10 there are acknowledgements including these: (a) The parties acknowledge that they enter into this deed fully and voluntarily on their own information and investigation. Each party to this deed acknowledges that it is aware that it or its advisers, agents or lawyers may discover facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this deed and that it is their intention to, and they do, fully, finally, absolutely and forever settle according to the provisions of this deed any and all actions, suits, liabilities, claims, disputes, and differences which now exist, or may exist or have ever existed between them relating in any way to the matters the subject of this deed. (b) For the avoidance of doubt, the Trustee acknowledges that Donald retains the Assets or the proceeds of sale of the Assets and the Trustee has no claim, right, title or interest in or to the Assets or the proceeds of sale of the Assets. 26A claim recognisably similar to the claim to $37,027, down to the amount, is referred to in the deed of release, but it does not at all take the same form as the plaintiff puts forward now. There is no express reference in the deed to a claim which could be the claim for $130,000 which the plaintiff now makes. If any such claim existed, it was then the property of the trustee in bankruptcy, and he was capable of giving a release in respect of it. 27Defendant's counsel contended that the terms of release clause 3.1 are sufficiently wide to include release of any claim in respect of funding the purchase of the William Street investment property. He contended that having regard to the language of clause 3.1 it is not reasonably arguable that the release did not extend to the claim now made. 28Counsel for the plaintiff observed that these claims are personal choses in action, and accepted that they were vested in the bankruptcy trustee on bankruptcy. He contended that arguably they are not caught by the deed of release and that the issues relating to them should go to trial. He pointed out, correctly, that if arguably they are caught by the deed the claim should go to trial. 29According to his counsel's contentions, the plaintiff's claim is for a declaration that the new trustee is liable to the plaintiff and should bring these sums into account when accounting for trust assets in its possession as a sum which should be credited to the plaintiff before any sum is distributed all to beneficiaries. The claims are choses in action and on the true construction are not caught by the definition of "Assets". That definition does not extend to choses in action vested in the plaintiff against the trustee of the discretionary trust or against the conjectural new trustee. Counsel contended that the plaintiff's claims against the trust do not fit within any of the categories in the definition and in clause 3.1. These choses in action are not referred to in the recitals and they are not defined to be "Assets". They do not arise out of facts or circumstances recited in the deed, and are not connected with facts or circumstances recited in the deed. The definition does not extend to include a chose in action vested in the plaintiff and held against the trustee. That asset was not "transferred to or received by" any of the entities named in any of the workings of the definition of "Assets". 30Counsel referred to the terms of release clause 3.1 and the references to claims which the bankruptcy trustee had, claims in relation to "Assets" as defined, to the facts recited and to related facts. He contended that the choses in action which the plaintiff alleges do not fit within any of these categories; that the claims are not in relation to an asset as defined and they are not based on facts recited. Although words of broad import are used, choses in action are not defined to be assets, are not referred to in recitals and he contended, do not arise out of and are not connected with assets or with circumstances recited in the deed. He contended to the effect that the claims now made were not under consideration when the deed was prepared, and are not reflected in its terms, and for this reason they are not caught by the deed. 31Counsel also contended that these transactions and the facts and circumstances relating to them are material facts of the case relating to breaches of trust and dealings by the defendant with the company, and that this is a discretionary consideration against striking out the passages: that the facts about these claims should not be taken out of consideration. 32Counsel contended that if there is any ambiguity the Contra Proferentem rule applies against the defendant, in that evidence shows that Clayton Utz, who are the solicitors for the defendant, were then acting for her. I do not accept this as there is no substantial evidence showing who was the profferor of the deed. 33The defendant's counsel contended that both claims are picked up by clause 3.1. 34The dealings in the recitals are different dealings to the dealings alleged by the plaintiff in these proceedings, and underlying recital 14 is a view of the facts in which the company became indebted to the deceased or to her estate for $37,027 in some way connected with the purchase by the Family Trust of the Double Bay unit. Also underlying recital 14 is an assumption that it was for the Family Trust to pay to the deceased's estate $37,027, and that half of that payment would go to the plaintiff as his share in the estate assets and become an asset in the bankruptcy. The company agreed to pay half that amount to the bankruptcy trustee. 35In the definition of "Assets", paragraph (a) refers to all property of the plaintiff "... which was transferred to or received by [the defendant, the company or the Family Trust] during the period 5 years before 15 November 2005". By its plain language paragraph (a) includes all money which the plaintiff paid to the defendant or to the company in that period. The plaintiff's claims in the Statement of Claim paragraphs 7 and 8 clearly fall within the meaning of advances, are advances to the Family Trust, and they are within para (a) of the definition of "Assets". 36The language of the deed of release at two places goes to lengths to establish that the effect of the release is not limited to transactions referred to in recitals, and is not limited to transactions or claims of which the parties had knowledge at the date of the deed. This wide reach should be understood with the recitals according to which the defendant and the Family Trust were paying the bankruptcy trustee much more money than he had claimed. The language of the release in clause 3.1 is extremely general. Extension of the release to claims whether known or unknown is spelt out. The acknowledgement in clause 10(b) is also quite general and extends to anything falling within the release. 37I accept that the plaintiff's claims can be categorised as choses in action which the plaintiff held against the trustee of the Family Trust, and claims to be entitled to bring into account against the conjectural new trustee. Notwithstanding that this categorisation is available, it is no less correct that the definition of "Assets" extends to the payments allegedly made to the company, and the broad language of the release in clause 3.1 extends to actions, suits, claims, demands, (and so forth) which have the stated wide range of relations to those payments. 38Although the claim relating to $130,000 is not referred to in the deed at any place, that sum and the claim for it fall within the definition of "Assets" in the deed and within the terms of the release in clause 3.1. Those terms, and other passages in the deed, confirm the generality of the release granted, and plainly and unarguably extend to that payment. 39Notwithstanding that the recitals show a different concept of the dealings with $37,027 to that put forward by the plaintiff in these proceedings, there is in my opinion no room for doubt or argument that the release extends to the plaintiff's claims for that amount. The company was protected by the release in relation to those payments, and was not accountable for them when the William Street property was transferred: and the defendant was also protected. 40In my opinion, it is altogether clear that these claims are not maintainable and cannot succeed. Passages in the Statement of Claim which relate to them are not relevant to the alleged breaches of trust. It was not a breach of trust for the company not to account for them when it transferred the investment property to the defendant, because they had been released. Accordingly I propose to strike out these passages. 41The plaintiff is not resident in Australia and in such a case it is usual to order security for costs if a timely application is made. The power is discretionary. The plaintiff's counsel made an open offer to provide security for $10,000 and offered the plaintiff's undertaking to the Court not to contest registration in Hong Kong of any costs order made in these proceedings; and not to seek security for costs to be provided by the defendant in registration proceedings in Hong Kong. Debate related rather to the sufficiency of this offer than to whether in principle security should be ordered. 42The plaintiff does not claim to have assets within Australia relevant to the application for security for costs. The plaintiff gave evidence which shows that his residence and usual activities are situated in Hong Kong. In the Summons he did not give any address for himself, although (naturally) the prescribed form requires one. In the Statement of Claim he gave an address in care of his solicitors in Sydney. Ms Drayton, a solicitor employed by the plaintiff's solicitors, said in evidence "17. I am advised and verily believe that the plaintiff resides at Apartment 6A, House No 1, No 1 Plantation Road, The Peak, Hong Kong." The plaintiff in an affidavit of 6 September 2011 sworn in Hong Kong, again gave his address in care of his solicitors in Sydney and said: