First Defendants : Mr L G Foster SC & Mr M J Deleuil

Third Defendant : Mr L G Foster SC & Mr M J Deleuil

Bickersteth v Shanu [1936] AC 290

Chichester Diocesan Fund & Board of Finance v Simpson [1944] UKHL 2; [1944] AC 341

Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337

Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329

Davidson v Shearer (1992) 106 FLR 357

Dibbs v Goren [1849] EngR 205; [1849] 50 ER 904

Doe v Godwin [1815] EngR 809; (1815) 4 M & S 265

Falkiner v Commissioner of Stamp Duties (NSW) [1972] ALR 983

Gertsch v Atsas [1999] NSWSC 898

Goss v Chilcott [1996] 3 WLR 180

Hare v Gladwin & Ors (1988) 82 ALR 307

Hawkesley v May [1956] 1 QB 304

Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271

Hood v Murray [1889] 14 AC 124

Hutchinson v National Refuge for Homeless and Destitute Children [1920] AC 794

In re Bacharach's Will Trusts [1959] Ch 245

In re Blackwell [1926] Ch 223

In re Follett [1955] 1 WLR 429

In re Gibbs [1907] 1 Ch 465

In re Hooper [1936] Ch 442

In re Leek [1968] 1 All ER 793

In re Morris [1971] P 62

In re Robinson v Public Trustee [1911] 1 Ch 502

In re Scarisbrick [1951] 1 Ch 622

In re Sharp [1906] 1 Ch 793

In re Towndrow [1911] 1 Ch 662

Karlson v Clay & Ors, unreported; SCt of WA; Library No 960655; 15 November 1996

Lightfoot v Maybery [1914] AC 782

Lucus-Tooth v Lucus-Tooth [1921] 1 AC 594

MacPhillamy v Fox (1932) 32 SR(NSW) 427

McHenry v Lewis (1882) 22 Ch D 397

McKechnie v Campbell (1996) 17 WAR 62

Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571

Moore v Inglis (1976) 9 ALR 509

National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd [1999] 2 NZLR 211

Palmer v Blue Circle Southern Cement Ltd [1999] NSWSC 697

Pearks v Moseley (1880) 5 AC 714

Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225

Pukallus v Cameron [1982] HCA 63; (1982) 180 CLR 447

RBC Dominion Securities Inc v Dawson (1994) 111 DLR (4th) 230

Re Flavelle (Dec) [1969] 1 NSWLR 361

Re Harris' Will Trusts, unreported; SCt of SA; 23 December 1987

Re Hinkson [1959] VicRp 89; [1959] VR 686

Re McIlrath [1959] VR 720

Re Symm's Will Trusts [1936] 3 All ER 236

Re Villar (1929) 1 Ch 243

Rogers v Kabriel [1999] NSWSC 368

Scottish Equitable plc v Derby [2000] 3 All ER 793

South Tyneside Metropolitan Borough Council v Svenska International plc [1995] 1 All ER 545

Staden v Maxwell (1931) 32 SR(NSW) 1

State Bank of NSW v Swiss Bank Corp (1995) 39 NSWLR 350

Thomas v Houston Corbett & Co [1969] NZLR 151

Tidex v The Trustees Executors & Agency Co Ltd [1971] 2 NSWLR 453

1 ANDERSON J: These proceedings were commenced by originating summons in which three beneficiaries of a trust, which it will be convenient to refer to as the Clay trust, claim "determination of the following issues arising out of the decision of this Honourable Court upheld on Appeal that the Trust vested on 10 June 1974 ... ". The issues identified in the originating summons and which are said to arise out of the decision referred to are:

"1.1 Whether on 10 June 1974, the Trust vested in interest and in possession in the members of the Specified Class living at that date.

1.2 Whether upon the vesting of the Trust at the end of the Trust Period on 10 June 1974 the trustees of the Trust held the assets:

(a) in equal shares on 5 bare trusts one for each of the members of the Specified Class living at that date including the Plaintiffs; alternatively

(b) on a bare trust for the members of the Specified Class living at that date as tenants in common in equal shares.

1.3 Whether payments made from the vested assets of the Trust after 10 June 1974 to a member of the Specified Class must be taken into account as a payment from that member's share in the vested assets and in reduction of that member's residual entitlement in the remaining vested assets.

1.4 Whether there are any terms of the Trust Deed that defer or make defeasible the interest that vested in each of the members of the specified class at the end of the Trust Period on 10 June 1974 and if so what those terms are.

1.5 Whether it is an implied term of the Trust that immediately at the end of the Trust Period or as soon as reasonably practical thereafter the trustees of the Trust shall pay or transfer the trust fund to the members of the specified class living at the end of the Trust Period in equal shares.

1.6 Whether the words 'Trustees' and the 'Trustee' in clauses 6 and 7(b) respectively of the Trust Deed only contemplate and encompass trustees duly appointed to act as trustees pursuant to the Trust Deed.

1.7 Whether the power conferred by clause 7(a) on the Appointor to remove Trustees and appoint new Trustees ceased at the end of the Trust Period.

1.8 Whether clauses 6 and 7(b) of the Trust Deed had any continuing effect after the end of the Trust Period and if so what continuing effect each of those clauses had."

2 This and other proceedings, including the decision of this Court which is referred to in this originating summons, arise out of a deed of settlement made on 29 October 1969 by John William Ward as settlor of the one part and the same John William Ward, together with Leonard Charles James and David Merritt Speed, as trustees of the other part. Pursuant to the deed of settlement, the settlor settled $11 upon certain trusts. Clause 1 of the deed provided that:

"1 Until the death of the last survivor of the heirs of the King of England, George V (hereinafter called 'the Trust Period') the Trustees shall hold the Trust Fund upon trust to pay divide or apply the whole of the income thereof to or between or for the maintenance support or benefit of all or any one or more of the persons or classes of persons specified in the Schedule hereto (all of whom are hereinafter collectively referred to as 'the Specified Class') in such proportions and in such manner as the Trustees shall in their uncontrolled discretion think fit PROVIDED ALWAYS THAT the Trustees may at any time or times thereafter during the Trust Period if in their uncontrolled discretion they think fit pay or apply the whole or any part or parts of the capital of the Trust Fund to or for the benefit of any one or more of the specified class."

3 The trustees of the Clay trust have been changed from time to time, but are presently the first defendants, Messrs James and Karlson and Ms Walker. The plaintiffs are the children of the first marriage of James Edward Carter Clay. The second defendant, Mrs Jeanette Ramona Clay, is the second wife of Mr Clay. They were married in 1963. The fifth defendant, Jeannette Simone Clay, is the only child of the second marriage. Mr Clay died on about 20 November 1970. There are five members of the specified class, they being the three plaintiffs, the second defendant, Mrs Jeannette Clay, and the fifth defendant, Jeannette Simone Clay.

4 On 11 January 1995, solicitors acting for the plaintiffs intimated to the trustees' solicitors that the plaintiffs believed the trust had vested in 1974. The basis of this contention was that the last survivor of the heirs of King George V was the Duke of Gloucester, and he had died on 10 June 1974. On receipt of this advice, the trustees brought proceedings for, inter alia, determination of the question whether the trust had vested. Those proceedings are CIV 1309 of 1995. On 15 November 1996, Wallwork J declared that the trust had vested on 10 June 1974 upon the death of the Duke of Gloucester. That decision was confirmed on appeal: Clay v Karlson (No 2) (1998) 19 WAR 287. The subsequent disputation arises from the fact that the trustees had not, on 10 June 1974 or thereafter, applied the trust fund in accordance with the deed as upon a vesting. They continued to administer the trust as if it had not vested. In the period since 10 June 1974, the trustees have made distributions of income and capital to the beneficiaries. Each beneficiary has received different amounts. The trustees have filed affidavits in which they depose that all of the distributions (except for a distribution of shares made in 1999) were made in the mistaken belief that the Clay trust was still subsisting. A range of actions are on foot, all of which, broadly speaking, seek to have resolved the rights and obligations and liabilities of the trustees and the beneficiaries. I do not attempt to summarise the various proceedings which are on foot. I should say that I have grave misgivings about the competence of this application now before me. I am not confident that I fully understand its true provenance or how it can be efficacious in resolving the issues that are reflected in the questions that have been asked. I am informed that the issues presented for my consideration actually are issues or questions which arise in the other actions, or one or other of them; and on more than one occasion during the course of the hearing I was urged to treat the questions enumerated in the originating summons as in truth preliminary issues in the other suits between these (or some of these) parties and to try them accordingly. That is, to try them as if I was engaged in the trial of preliminary issues in those other actions. I do not see how I could possibly do that. Quite apart from the serious risk of creating total confusion, I do not see how I have any authority to determine issues arising in actions which are not before me. It seems to me that if preliminary issues are thought to arise in other proceedings between some or all of these parties, they should be dealt with in the proper way in those proceedings. For reasons which I confess I do not really understand, the parties have not followed that procedure. However, for what it may be worth and notwithstanding my misgivings, I will go straight to the questions asked in this application and attempt to answer them.

1.1 Whether on 10 June 1974, the Trust vested in interest and in possession in the members of the Specified Class living at that date

5 The answer to this question is provided in cl 2 of the deed, the terms of which include the following direction:

"2. Subject to the trusts aforesaid the Trustees shall hold the Trust Fund on trust as to both capital and income for the member or members or the specified class living at the expiration of the Trust Period and if more than one in equal shares."

6 In my opinion, this means that on the vesting date, that is the expiration of the trust period, the trustees held the trust fund for the members of the specified class living at that date in equal shares and those members were entitled, as at that date, to immediate possession and if more than one, in equal shares. The duty of the trustees was to pay the amount of the trust fund in accordance with the settlement deed and otherwise to take all steps necessary to wind up the trust. The entitlement of the members of the specified class was to immediate possession of the whole of the interest in equal shares. In this sense, the property held under the settlement vested in both interest and in possession on the vesting date in the members of the specified class living at that date. Subject to what I will say at the end of these reasons concerning the stance taken by the fourth defendant, it is accepted that the vesting date is 10 June 1974, that being the date of death of the Duke of Gloucester.

1.2 Did the trustees of the settlement hold the trust property in equal shares on five bare trusts or on one bare trust for the specified class on 10 June 1974?

8 I am not at all sure of the point of this question, but there seems to be two aspects to it. The first is whether, on the expiration of the trust period on 10 June 1974, the trust was somehow converted into five separate trusts. The second is whether the trust or trusts subsisting on and after that date should be regarded as "bare".

9 As to the first matter, I cannot see any reason to say that on the expiration of the trust period five separate trusts came into existence. I can see nothing in the deed itself which would bring about that result nor have I been directed to any doctrine which would make it necessary to hold that any such thing happened or should be taken to have happened. There remained but the one trust.

10 As to whether it was or was not a "bare" trust, I am once again uncertain of the point of the question. I would answer it by saying that in my opinion the duty of the trustees upon the expiration of the trust period was to deal with the trust fund in accordance with cl 2 of the deed. That clause is in the following relevant term:

"Subject to the trusts aforesaid the Trustees shall hold the Trust Fund on trust as to both capital and income for the member or members or the specified class living at the expiration of the Trust period and if more than one in equal shares."

11 The trustees' broad obligation was therefore to hold the trust fund on trust as to both capital and income for the members of the specified class in equal shares and to transfer it to those persons in five equal shares. Of course, the trustees would have a duty to do all other things necessary to wind up the trust. The duty would have a temporal element which I would describe as a duty to wind up the trust as soon as practicable. There would also be a duty to protect the assets of the trust for the time being. It may be that these duties are like the duties of a bare trustee, but I do not think there is any more to it than that. I would reject the idea which is implicit in the question that the vesting of the trust imposed upon the trustees a set of duties not arising from the trust itself. Such duties as the trustees had arose from their office as trustees of the Clay trust in the events that had happened. They did not become trustees of a different trust. The Clay trust subsists until it is wound up. No new trust arose on 10 June 1974. The duty to wind up the trust and distribute the fund is a duty or set of duties inherent in the trusteeship of this settlement. A failure to wind up the trust would be a breach of the obligation imposed by the trust deed, not of an obligation arising from a new "bare" trust.

1.3 Whether payments made from the vested assets of the Trust after 10 June 1974 to a member of the Specified Class must be taken into account as a payment from the member's share in the vested assets and in reduction of that member's residual entitlement in the remaining vested assets

13 This question reflects the main difference of opinion between the plaintiff, Mr Mark Clay, and the trustees and the second defendant, Mrs Clay. According to Mark Clay, matters should be rectified in the following way. The trust fund should be identified and nominally quantified as at 10 June 1974 and notionally divided into five equal parts. These parts should be regarded as the vested interest to which each beneficiary was entitled. Distribution to beneficiaries after 10 June 1974 should go in discharge of that entitlement. Beneficiaries who, since 10 June 1974, have received distributions equal to or greater than that entitlement as ascertained as at 10 June 1974 should be treated as paid in full and as not entitled to participate in the distribution of the trust fund on a winding-up now.

14 In my opinion, this would be quite unfair to those beneficiaries (and I am told Mrs Jeanette Clay is such a beneficiary) who happened to have received distributions since 1974 which equal or exceed one-fifth of what was the value of the fund in 1974. The approach proposed by Mr Clay ignores the fact (which for present purposes I must assume to be the fact) that no-one appreciated the trust had vested on 10 June 1974. None of the beneficiaries knew until 1995 at earliest that they were entitled to call for capital and income on 10 June 1974. All the beneficiaries accepted that the trust was a subsisting trust and none of them believed that such distributions as they were receiving were distributions of their aliquot portion of the entire trust fund as on a vesting. I can see no justice or equity in requiring beneficiaries to accept the payments they have received since 10 June 1974 as distributions in discharge of a vested interest. I know of no authority that would support such an approach, and it is inconsistent with the approach taken in cases of bona fide overpayment and in the hotchpot cases. Of course, this is not a case of overpayment or wrong payment as between the beneficiaries, as to which see Livesey v Livesey [1827] EngR 710; (1830) 38 ER 583; In re Ainsworth [1915] 2 Ch 96; In re Musgrave [1916] 2 Ch 417. Nor is it a hotchpot case. The trust deed does not contain a hotchpot clause. Neither is it possible to see that there was any intention that beneficiaries who received a distribution of income or capital during the subsistence of the trust must bring those distributions into account at the expiration of the trust period. But, in my opinion, the general principles applicable in the overpayment cases and the hotchpot cases are those which should be applied in this case. Assuming the trustees to have been honestly mistaken, the Court will intervene to rectify the mistake as fairly as possible as between all the beneficiaries. Leaving aside issues that might well arise on the facts of this case, such as whether a defence of change of position may be available to any beneficiary and whether and to what extent the trustees may be entitled to exoneration or to rely on the defence of acquiescence with respect to their conduct in continuing the administration of the trust, the method to be adopted in adjusting the entitlements as between the members of the special class is the one which was proposed by Mr Foster SC, senior counsel for the first and third defendants. The payments made to beneficiaries after 10 June 1974 should not be treated as payments made in discharge or partial discharge of the obligation to distribute the entire fund as on a winding-up. The fund as it now subsists should be identified as to its assets and valued at its present value. All distributions made since 10 June 1974 should be added back. The total should then be divided by five so as to arrive at what Mr Foster called a prima facie entitlement. From each prima facie entitlement should be deducted the total distributions actually paid to that beneficiary since 10 June 1974 so as to arrive at a present entitlement for each beneficiary: In re Mansel [1930] 1 Ch 352 at 356. No beneficiary should be required to pay interest: In re Hargreaves (1903) 88 LT 100 per Romer LJ at 101; Merriman v Perpetual Trustee Co Ltd (1896) 17 LR (NSW) Eq 325 at 350; In re Diplock [1948] Ch 465 at 506 - 507. That is the answer I would give to this question. Whether this answer is of any practical assistance to the parties I do not know. There obviously are many issues still to resolve which cannot be resolved in this summons. For example, should the assets be sold and converted into cash? To what extent are the trustees entitled to be reimbursed their expenses in arriving at a quantification of the fund? And so on.

15 Before leaving this question, I should say that Mr Donaldson, counsel for Mrs Clay, proposed a third solution. He submitted that on the affidavits of Mrs Clay it was clear that a change of position defence had been made out by her. That is, it was established on her uncontested affidavit evidence (so Mr Donaldson submitted) that Mrs Clay had changed her position as a result of the distributions made to her from the trust since 10 June 1974 in the bona fide belief that she had an indefeasible right to receive them. Mr Donaldson submitted that in these circumstances Mrs Clay should not be required to bring into account, at all, any of the advances which she received from the trustees. He referred to a number of authorities, including Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548 and David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, and to s 65(8) of the Trustees Act 1962 and s 125 of the Property Law Act 1969. Mr Donaldson submitted that I should dispose of this part of the originating summons on the basis that whereas Mrs Clay had made out a change of position defence and should not suffer any deduction or adjustment to her equal share of the fund, the other members of the specified class had not attempted to make out any such defence. Their share should be adjusted, but hers should not.

16 The injustice likely to result if I were to accede to this submission needs no adumbration. It is a neat illustration of the inappropriateness of attempting to deal with issues arising in other suits by hiving them off and putting them into the form of abstract questions in an originating summons in which one set of beneficiaries is plaintiff. I have little doubt that if the defence of change of position had been pleaded by one beneficiary in a suit in which it was properly raised as a defence (such as in an application by trustees for directions as against all beneficiaries as to the method that should be adopted in calculating the entitlement of each beneficiary) each other defendant beneficiary to whom the same defence was available would also have raised it.

1.4 Whether there are any terms of the Trust Deed that defer or make defeasible the interest that vested in each of the members of the specified class at the end of the Trust Period on 10 June 1974 and if so what those terms are

18 It is agreed by all parties that the answer to this question should be "No". I also agree. There is nothing in the deed which defers or makes defeasible that interest which vested in each of the members of the specified class on the expiration of the trust. As Mr Donaldson pointed out in his submissions, there would be conceptual difficulties in regarding an interest as having vested if that interest was defeasible by a term of the trust. I think that perhaps the question which is intended is whether there is any reason in law or equity why there should not now be a distribution of the entire fund. If that is the question that was intended to be asked, it should also be answered "No".

1.5 Whether it is an implied term of the Trust that immediately at the end of the Trust Period, or as soon as reasonably practical thereafter, the trustees of the Trust shall pay or transfer the trust fund to the members of the specified class living at the end of the Trust Period in equal shares

19 I can see no basis upon which any such term should be implied. There is simply no necessity to do so. The settlement vested in interest and possession in the members of the specified class on 10 June 1974. Each of them had an immediate right to possession of an equal share of the trust fund. There is no contest on that issue. The trustees do not contend, and so far as I know have never contended, that upon a vesting they were not required to distribute the entire fund in accordance with the Trust Deed.

1.6 Whether the words 'Trustees' and the 'Trustee' in clauses 6 and 7(b) respectively of the Trust Deed only contemplate and encompass trustees duly appointed to act as trustees pursuant to the Trust Deed

21 The reference to "trustees" and "trustee" in cl 6 and cl 7(b) respectively can only be intended to refer to a trustee duly appointed in accordance with the terms of the settlement. It is only such a person purporting to act in the execution of the trust and powers in the settlement who are protected by these clauses. This question should be answered "Yes".

1.7 Whether the power conferred by clause 7(a) on the Appointor to remove Trustees and appoint new Trustees ceased at the end of the Trust Period

22 This question obtains its significance in virtue of the fact that each of the trustees, that is, the present trustees, was appointed after the expiration of the trust period on 10 June 1974. Mr James was appointed on 28 February 1976, Mr Karlson on 1 March 1984 and Ms Walker on 24 January 1987. Each of the appointments was made by one of the original trustees, Mr Speed, in whom there was vested by cl 7(a) of the settlement the power of removal and appointment.

23 I can see no reason in principle and I have been referred to no authority which is to the effect that the power of appointment and removal of trustees terminates on a vesting of the trust. It is a question of intention to be ascertained upon a proper construction of the trust deed. There is nothing in the deed itself which limits the duration of the power of appointment and removal and there would seem to me to be no reason to attribute to the parties to the deed an intention to limit the duration of the power to any period less than the period during which trustees still have duties to perform.

24 I can see no reason why the appointor under a settlement should not have the power to, for example, appoint new trustees after a vesting for the purposes of winding up the trust. It is not to the point that this is not what Mr Speed purported to do in the exercise of his power to appoint the present trustees. That the only duties which trustees had to perform after a vesting date were the duties involving in winding up the trust does not provide a basis for a contention that the power of appointment itself did not survive the vesting date. The trust deed did not stand cancelled or become void on that date.

1.8 Whether clauses 6 and 7(b) of the Trust Deed had any continuing effect after the end of the Trust Period and if so what continuing effect each of those clauses had

26 I can see no reason why the protective clauses (cl 6 and cl 7(b)) of the settlement did not continue to have full effect after the end of the Trust Period. In my opinion, the clauses continue to have effect during the continuation of the deed. For reasons already stated, the deed did not cease to have effect on a vesting of the trust. It did not stand cancelled as at that date.

27 The answer to this question is "Yes. Full effect".

28 They are the answers that I would give to each of the questions asked in this summons.

29 There is another matter that must be mentioned. The fourth defendant is Freehill Hollingdale & Page who were, I gather, at all material times the solicitors for the trustees. That firm is defendant in an action brought by the first-named plaintiff, Mr Mark Clay. I am told that there are issues in that action which may be resolved by my answers to the questions asked in this originating summons. As I understand Mr Clay's submissions, it is on that basis that Freehill Hollingdale & Page are joined as a defendant in these proceedings. The plaintiffs want to ensure that Freehill Hollingdale & Page are bound by the answers given in these proceedings so that the same questions need not be litigated again in the other proceedings. This is another illustration of the inconveniences that arise in attempting to settle questions arising in one suit by starting another suit. Those other proceedings are not before me and have not been gone into before me, and I have not examined the court record of those proceedings. I am not to be taken as agreeing or ruling that the questions which I have answered in these proceedings are the same questions that arise in any other proceedings, including the proceedings in which Freehill Hollingdale & Page is a defendant. As I have already said, I have grave reservations about the whole process.

30 The point made by Mr Gentilli, who appeared as counsel for Freehill Hollingdale & Page in these proceedings, was that the questions which are asked in these proceedings and which I have answered are premised on the proposition that this trust vested on 10 June 1974. As Mr Gentilli pointed out, that proposition, in turn, has its provenance in the judgment of Wallwork J in CIV 1309 of 1995, confirmed on appeal in Clay v Karlson (No 2) (supra). According to Mr Gentilli, that basal proposition stems entirely from the adjudication of this Court in that case and it was a case in which Freehill Hollingdale & Page were not a party. Mr Gentilli therefore submitted that it was inappropriate that Freehill Hollingdale & Page should be joined in this originating summons, the reason being that that firm was not bound by the judgment in that case and is therefore not bound to accept that the trust vested on 10 June 1974.

31 In my opinion, the answer to this is that, for better or for worse, question 1.1 must be seen as raising the issue as between all parties in this originating summons as to the date upon which the trust vested in interest and in possession. It is true that argument before me proceeded largely upon an acceptance of the correctness of the judgment of Wallwork J in CIV 1309 of 1995. However, in anticipation that Freehill Hollingdale & Page would contend that it was not bound by that judgment, Mr Clay did present evidence, which I accept, that the Duke of Gloucester was the last survivor of the heirs of the King of England George V and did die on 10 June 1974. In my opinion, insofar as they are binding at all, the answers that I have given to the questions in this originating summons are binding on all of the parties to it.