Gerard Batt & Deleece Batt as trustees for the Gerard Batt Superannuation Fund & Anor v Clipse

[1] ANN LYONS J: On 25 June 2010 the applicants Gerard and Deleece Batt, who I shall call the first and second applicants, and Keith and Margaret Batt who I shall call the third and fourth applicants, filed originating applications in proceedings 6661/10 and 6665/10 seeking orders for the appointment of statutory trustees under s 38 of the Property Law Act 1974 (Qld) (the PLA) for the sale of certain real property held by the respondent as trustee of two separate unit trusts constituted on identical unit trust deeds. There are eight separate unit holders within the unit trusts. Those applications sought the appointment of the Public Trustee as statutory trustee for sale.

[2] Those applications were heard on 19 July 2010. At the hearing of the applications the second applicant Dr Deleece Batt attended in person and advised the Court that the solicitors firm Gerard Batt Lawyers did not have instructions to act for her. The Public Trustee also declined appointment as statutory trustee for sale. Pursuant to an order made by Byrne SJA, the applications were adjourned to a date to be fixed and Gerard Batt the first applicant was ordered to pay the respondent's reasonable costs thrown away by the adjournment on an indemnity basis. The first applicant Gerard Batt is a solicitor and the former husband of Dr Batt.

[3] On 12 May 2011 the respondents filed applications in both proceedings seeking orders that the applications filed on 25 June 2010 be dismissed and that Gerard Batt pay the respondent's costs of and incidental to the application on an indemnity basis.

[4] On 2 June 2011 the third and fourth applicants filed applications in both proceedings seeking orders that Mr James McManus and Mr Sergio Tosoni be appointed trustees of the properties, that the first and second applicants Gerard and Deleece Batt as trustees for the Gerard Batt Superannuation Fund, be removed as applicants to the proceeding and that the costs of and incidental to the application be paid out of the proceeds of the sale of the properties.

[5] Accordingly by these current applications Keith and Margaret Batt as trustees of the KL & MJ Superannuation Fund (the third and fourth applicants) seek orders pursuant to s 38 of the PLA for the sale of three properties at Caloundra which for the purposes of this application can be described as Lot 10, Lot 271 and Lot 1. Proceeding 6665/10 relates to Lot 271 and Lot 1. Proceeding 6661/10 relates to Lot 10. Pursuant to r 395 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) an Order was made on 7 July 2010 that the affidavits filed in either proceeding be evidence in each proceeding. As the two applications involve the same parties, the same facts and seek similar orders the two applications have been heard and determined together.

[6] The applications to remove Gerard and Deleece Batt as applicants were not opposed by any party and Dr Batt indicated that she would abide the order of the Court. I considered that an order removing the first and second applicants was appropriate in the circumstances accordingly pursuant to r 69 (1)(a) of the UCPR I therefore ordered that Gerard and Deleece Batt as trustees for the Gerard Batt Superannuation Fund be removed as applicants in the proceedings and that the originating applications filed on 25 June 2010 be amended to remove them from those applications. I also ordered that the cost of and incidental to those applications up to and including 31 May 2011 be paid by Gerard Batt Lawyers on an indemnity basis to the respondents.

[7] Gerard Batt as trustee for the Caloundra Central Trust entered into a contract dated 21 August 2006 to purchase Lot 10 for $6.5 million. At that time he issued an Information Memorandum for the purpose of attracting investors in relation to Lot 10 and that contract. Lot 10 was subsequently acquired by the Caloundra Central Trust. The original trustee was Gerard Batt.

[8] The Caloundra Central Trust was constituted under the Unit Trust Deed. The Schedule to the Unit Trust Deed shows that there are 98 issued units shared between eight entities. The third and fourth applicants, Keith and Margaret Batt, hold 15 of the 98 units in the trust.

[9] Clauses 5 to 7 of the Unit Trust Deed prescribe the mode of transfer of units. Clause 7 sets out rights of pre-emption for 28 days in relation to the sale of units by unit holders. Every unit holder who desires to sell is required to give notice in writing to the Trustee. The notice then constitutes the Trustee as the agent for the sale of the units at a price to be agreed between the Vendor and the Trustee, or otherwise as determined by an independent person nominated by the Trustee.

[10] On 15 April 2008 a second unit trust was established - "Caloundra Central Trust No. 2" - having the same unit trust structure, deed provisions and involving the same unit holders as the Caloundra Central Trust and having the same purposes.

[11] Caloundra Central Trust No 2 acquired Lot 271 and Lot 1. Those lots are located near Lot 10. Financing in relation to all of the Lots was obtained through the National Australia Bank.

[12] The Trustee appointed in respect of Caloundra Central Trust No. 2 was Clipse Pty Ltd (Clipse).

[13] In September 2009 Clipse was appointed as the new Trustee to each of Caloundra Central Trust and Caloundra Central Trust No. 2 (the Trusts).

[14] Pursuant to letters dated 15 and 18 December 2009, the four original applicants gave notice of their intention to sell their units in each of the Trusts. In accordance with clause 7 of the unit trust deeds, the respondent agreed to act as agent for the sale of those units. Correspondence ensued in relation to valuation of the units in each of the Trusts. The respondent sought Ernst & Young to prepare an audit report in July 2010. That report indicated there were irregularities in the administration of the Trusts when under the control of the previous Trustee. Valuations were obtained from National Australia Bank in April 2011. The respondent indicated that those valuations would be used to value units in the Trusts.

[15] The affidavit material indicates that there is no agreement as to the value of the units as between the applicants and the respondents. The respondents indicate that the value to be ascribed will be that of the accountants retained by the respondents because they submit that there is no challenge to their independence. The finalised report is yet to be completed but the unit holders will then have 28 days to exercise pre-emptive rights.

[16] Section 38(1) of the PLA provides:

"38 Statutory trusts for sale or partition of property held in

"(1) Where any property (other than chattels personal) is held in

co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition."

co-owner has a corresponding meaning and includes an encumbrancee of the interest of a joint tenant or tenant in common.

co-ownership means ownership whether at law or in equity in possession by 2 or more persons as joint tenants or as tenants in common."

[17] Counsel for the third and fourth applicants argue that as unit holders they hold a beneficial interest in each of the trusts and therefore each of the applicants is a co-owner for the purposes of an application under s 38 of the PLA.

[18] In particular the third and fourth applicants rely on the Interpretation section of the Trust Deed which provides at para (j) that "Trust Property" or "Trust Fund" shall consist of the sum paid to the Trustee by the Settlor, all investments acquired by the Trustee and any other property subject to the trust. Reliance is also placed on Clause 2.1 which contains the Declaration of Trust in the following terms;

"In consideration of the premises the Settlor HEREBY DECLARES that the Trustee shall and the Trustee HEREBY DECLARES that it will henceforth stand possessed of the Trust Fund and the income thereof upon the trusts and with and subject to the powers and provisions herein expressed concerning the same."

[19] Counsel for the applicants argues that the Trust Fund must be held in light of Clause 3 of the Trust Deed. Clause 3.1 provides;

"The beneficial interest in the Trust Fund as originally constituted and as existing from time to time shall be vested in the Unit Holders for the time being."

[20] It is therefore submitted that the beneficial interest in the real property is vested in the unit holders and that this conclusion is reinforced by Clause 3.6 which limits the ability of the Trustee to issue any further units unless there is unanimous consent of the unit holders and Clause 9.3 which places the Trustee under an obligation with respect to the net income. It is argued that this clause provides no real discretion in relation to the payment of income. Particular reliance is placed on the decision in Charles v Federal Commissioner of Taxation[1] where the High Court of Australia held that a unit holder has a proprietary interest in all the trust property and that the trust deed before them conferred a proprietary interest in all the property which for the time being is subject to the trust.

[21] The applicants also rely on the decision in Ex parte Eimbart Pty Ltd[2] where McPherson J noted that the right to partition and to sale is an incident of the property of a co-owner of land and that it would be difficult to conceive of circumstances in which the discretion, if any, conferred by the word "may" in s 38(1) of the PLA would be exercised against the exercise of the appointment of the statutory trustee.

[22] Counsel for the third and fourth applicants also points to the fact that the respondent Trustees have taken no steps to fulfil their obligations under clause 7.1 of the Trust Deed and the affidavit of Keith Batt filed on 25 June 2010 outlines those failures. Counsel submits that the applicants are no further along the path of obtaining a sale of their units in the Trust and that the Trustee is not genuinely acting as their agent or acting in a bona fide manner. Counsel submits that the respondents have had all the financial information necessary to complete whatever valuations were required since May 2010 and that there has been a continuing course of conduct of delay and prevarication. Counsel argues that the Trustee requires constant supervision from the Court to encourage it to perform.

[23] The affidavit of Mr Keith Batt also deposes that the properties owned by the Trust have diminished in value and that it is likely that his superannuation fund will be required to pay further amounts to support the Trust and that he has no desire to do so. He has concerns in particular that the Trusts are in default with respect to the loan to value ratio and that the intention of the other unit holders is to purchase additional adjacent properties to the properties currently owned by the Trust.

[24] Counsel for the third and fourth applicants argues that it is clear from the current applications that Keith and Margaret Batt have no wish to further expose themselves by further purchases but have been unable to utilise the mechanism provided by Clause 7 of the trust deed due to "prevarication and what appears to be disingenuous conduct on the part of the respondent as Trustee. It is to the benefit of the other unit holders to keep the Applicants in the fold and contributing."

[25] Counsel for the third and fourth applicants also submits that as the 'Indicative Valuation' report indicates that the value of the Applicants units is zero, then Clause 7 fails to provide any mechanism for them to challenge that valuation. Furthermore it is argued that a combination of clauses 7 and 15 limits the way the applicants can seek an alienation of their interests in the Trust and that "In effect then, the provisions of the Trust Deed become a complete restraint on alienation." This aspect was not fully developed in argument but it seems to me that it is not a restraint from alienation as a unit holder as the unit holders have rights under the Unit Trust Deed.

[26] Counsel also argues that the effect of Clause 15.1 is not to oust the ability of the applicants to apply pursuant to s 38 of the PLA and that s 37 of the PLA recognises that there can be co-ownership of an equitable interest. In addition it is argued that the contention that clause 15.1 ousts relief pursuant to s 38 is not supported by Clause 10 of the Trust Deed which gives the Trustee the power to act as if it were 'the absolute owner of the Trust Property'. It is submitted that Clause 10 recognises that the equitable ownership rests with the unit holders but provides the Trustee with the power to act as if it were the full owner and it does not deem the Trustee to be the beneficial owner. Counsel argues that if equitable and legal ownership is vested in the Trustee then it is "a legal absurdity and not a valid trust."

[27] Counsel also argues that if it was intended by this Trust Deed to oust the jurisdiction of this Court that it should have been made patently clear by the terms of the Trust Deed that that was the effect of the clause. The essence of the applicant's argument is that they hold a part equitable ownership in the Trust Property and that this is sufficient to entitle them to seek the appointment of statutory trustees for the sale of the land in circumstances where there has been a complete breakdown in the relationship of the parties and the sale mechanism contemplated by clause 7 has also failed.

Are the third and fourth applicants co-owners pursuant to s 38 of the PLA?

[28] I note the third and fourth applicants reliance on Charles v Federal Commissioner of Taxation to argue that the third and fourth applicants are co-owners for the purposes of s 38 of the PLA. It is clear however that in the decision of Re S & D International Pty Ltd (No 4)[3] Robson J reviewed the relevant authorities as follows:

"[133] Mr Velos submits that in CPT Custodian Pty Ltd v Commissioner of State Revenue (CPT's case). The High Court has reconsidered the nature of the interest a unit holder has in particular trust fund assets and declined to follow Charles or Costa. In CPT's case the High Court was considering whether a unit holder was an 'owner' for the purposes of land tax. There were specific provisions dealing with the definition of 'owner.' The plaintiffs submit that the High Court did not deal with the broader question of the nature of a unit holder's interest in property of a unit trust. However, as I see it, the High Court did in fact deal with the issue at general law in response to a submission by the Commissioner that as a matter of general law, because the trust deeds conferred upon each unit holder fixed and ascertainable rights, in relation to the distribution of income and capital, and not depending upon the exercise of discretion, the trust deeds conferred upon each unit holder an equitable estate or interest in each asset from time to time comprising the trust fund; (ii) no other person or class had any such rights or interests; and (iii) these equitable estates or interests answered the statutory requirement in the definition of 'owner' of entitlement to land for any estate of freehold in possession.

[134] The High Court rejected these propositions, accepting that a trust deed could be so framed that a trustee held both the legal and equitable proprietary interests in the trust assets and that the unit holders did not have an equitable interest in specific trust assets. The High Court referred with approval to the decision of Griffith CJ in Glenn v Federal Commissioner of Land Tax, in which his Honour, referring to an argument for the "Revenue" in that case, said it was:

'based on the assumption that whenever the legal estate in land is vested in a trustee there must be some person other than the trustee entitled to it in equity for an estate of freehold in possession, so that the only question to be answered is who is the owner of that equitable estate. In my opinion, there is a prior inquiry, namely whether there is such a person. If there is not, the trustee is entitled to the whole estate in possession, both legal and equitable.'

The High Court went on to describe Griffith CJ's statement as:

'[25] ...a prescient rejection of a "dogma" that, where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else because it is an essential attribute of a trust that it confers upon individuals a complex of beneficial legal relations which may be called ownership.'

[135] Thus the High Court accepted that under the terms of a trust the equitable ownership of the trust assets may be vested in the trustee. In Duppe, Brooking J had accepted that 'If there is a proprietary interest in the entirety, there must be a proprietary interest in each of the assets of which the entirety is composed.' (emphasis added) The High Court rejected this proposition and distinguished Charles, limiting its findings to the particular trust deed before the court which was of a much simpler nature.

[136] In doing so, the High Court said the correct approach was first to consider the terms of the trust rather than looking broadly at the characteristics of a 'unit trust'. Under the terms of the relevant trusts before it, the trustee had the right to provide out of receipts for future and contingent liabilities, to apply receipts in the purchase of any property or business, the power to invest receipts in authorised investments and the only right of the unit holder was to a proportionate share of the income of the fund for the year. These provisions are similar to those in the Unit Trust. The High Court rejected the argument that because a unit holder could bring the trust to an end and appropriate the trust assets to himself this made the unit holder the owner of the assets. The High Court said the rule in Saunders v Vautier did not give consideration to significance of the right of the trustee under general law to reimbursement or exoneration for the discharge of liabilities incurred in the administration of the trust. They held that under the terms of the unit trust before them the unit holders did not have an absolute vested and indefeasible interest in the capital and income of property.

[137] CPT's case was followed and applied by Mandie J in Lend Lease Funds Management Ltd v Commissioner of State Revenue where Mandie J said that depending on the terms of the unit trust, "where no persons can be identified as entitled to an equitable estate in the land, the trustee, despite being a trustee, is entitled to the whole estate both legal and equitable." In CPT Manager v Chief Commissioner of State Revenue Gzell J had observed in statement accepted as obiter that there was nothing in the High Court's decision in CPT's case 'to suggest that the holder of a unit in a unit trust lacks an equitable interest in the trust property.' Mandie J said that 'that statement was, with respect, incorrect or perhaps only relevant in the context of that case.'

[138] CPT's case has also been followed an [sic] applied in ING Life Ltd v Commissioner of State Revenue and by the High Court in Halloran v Minister Administering National Parks and Wildlife Act 1974 where the High Court held that consistently with CPT's case, a person who held units in a property trust 'would not have any interest in any particular part of the Trust Fund or in any investment thereof.' The case concerned the question of whether it was the unit holders or the trustee who should receive the benefit of compensation following compulsory acquisition of land owned by the unit trust. The issue under consideration was who was the 'owner of an interest in the land' - a matter to which general law considerations were relevant.

[139] In accordance with CPT's case, it is necessary to review the terms of the Unit Trust and compare them to the issues addressed in that decision. The CPT trust deeds provided that the unit holders owned the 'trust fund' as a whole. Similarly, clause 2(a) of the Trust Deed provides that the 'beneficial interest in the Trust Fund' (ie as a whole) be divided into units. As pointed out by the High Court in Buckle, this means that the unit holders have an interest in the trust fund as a whole. It does not mean, as suggested by the plaintiffs, that the unit holders therefore also have a proprietary interest in the individual trust assets. That proposition had been put by Brooking J in Costa and the High Court in CPT's case specifically referred to his Honour's statement and refused to accept it, noting instead the danger of confusing differing concepts of 'property' and 'interest'."

[29] These issues were also recently examined by Philip McMurdo J in ING Life Ltd v Commissioner of State Revenue[4];

"[27] The submission that ING Australia Ltd was the beneficial owner of these shares must be considered by reference to CPT Custodians Pty Ltd v Commissioner of State Revenue for the State of Victoria.9 The question there was whether the holder of all of the issued units in a unit trust was the "owner" of land which was part of that trust fund, for the purposes of the Land Tax Act 1958 (Vic). Under that Act, the term "owner" was defined to include "every person entitled to any land for any estate of freehold in possession". The Act provided for the liability and assessment of "the owner of any equitable estate or interest in land" as if that estate or interest was legal, and for a deduction for the amount of tax paid by the legal owner. The High Court held that the appellant, even as the holder of all units in the trust, was not an owner of the trust property, having regard to the terms of that trust. The Court emphasised that it was necessary to look at the terms of the trust in question, and to assess what interest, if any, those terms gave to unit-holders, rather than reasoning according to some general notion or understanding of the rights and interests of beneficiaries under any unit trust. So whilst, in general, unit-holders may have rights protected by a court of equity, it did not follow in every case that they would be beneficial owners of the trust property."

[30] Accordingly, I accept the respondent's submission that pursuant to CPT Custodian Pty Ltd v Commissioner of State Revenue[5] (CPT's Case) and subsequent decisions it has been established that ownership of units in a unit trust does not give rise to rights in respect of individual property held within the unit trust if the unit trust deed:

(a) grants to the trustee powers to deal with the unit trust property as if the trustee were the owner of the trust property at law and equity;

(i) contemplates payment of debts or other obligations to persons employed to administer the trust;

(ii) grants to the trustee a right of remuneration and exoneration from the trust property; and

(c) affords no express right to any particular property held by the trust

[31] It is clear that in accordance with the decision in CPT's case, the particular provisions of the trust deed need to be examined in each case. In my view the clauses set out below are of particular significance in relation to a determination of this issue in this particular case.

[32] Clause 9.3 of the Unit Trust Deed prescribes the payment or application of income periodically to unit holders. That application of income however, is subject to the payment of all costs for the administration of the Trust Property and the Trustee's right to remuneration, exoneration and the right to retain out of the trust property monies necessary to meet costs of and incidental to the management and administration of the Trust Property.

[33] Pursuant to Clause 10 the Trustee has unfettered power to act as if the absolute owner of the Trust Property. Clause 11 gives the Trustee broad discretionary powers of investment in relation to the trust property.

[34] Clause 12.1 gives the Trustee vast powers to carry on in its absolute discretion any form of business and to act as if it were absolutely entitled to the Trust Property. I consider that when one examines Clause 12 and 13 there are extremely broad powers conferred upon the Trustee which are entirely discretionary. In particular Clause 13.1 gives the trustee powers to:

(a) Purchase and use real property in any manner as it sees fit;

(b) To alter or develop any real property held in the Trust Property in any manner as it sees fit, and to deal with such property as if it were the absolute owner;

(c) To sell or convert any part of the Trust Property from time to time in its absolute discretion as it sees fit;

(d) To charge a reasonable remuneration for acting in execution of the trust and to employ others as the trustee in its sole discretion thinks advisable for the execution of the trust;

(e) To determine whether any money shall be considered capital or income and out of what part of the Trust Property or Trust Fund any expense or outgoings shall be borne; and

(f) To mortgage or charge any part of the Trust Fund.

[35] I consider that Clause 15.1 of Unit Trust Deed is of particular significance because it provides as follows:

"The Trust Property shall be under the sole superintendence and management of the Trustee. Units shall be personal property only and save as provided by this Deed no Unit Holder shall be entitled to require the transfer or assignment to him of any part of the Trust Property or save as provided by this Deed be entitled to interfere with the or question the exercise by the Trustee of any of the powers privileges or discretions conferred upon it hereunder."

[36] Clause 16.2 provides a right of exoneration and indemnity from the Trust Property in respect of the execution of the trust.

[37] Clause 18.1 permits the Trustee to retain monies to meet costs incurred.

[38] Pursuant to clause 19.1 the Trustee is permitted to retain its reasonable remuneration out of the Trust Property.

[39] Clause 23 specified the vesting date. Clause 24.1 provided that distribution to unit holders upon termination of the trust shall happen "only after payment of all debts and liabilities of the Trust".

[40] In my view having considered the provisions of the Unit Trust Deed in this case, particularly having considered clauses 9.3, 10, 12.1, 13.1, 15.1, 16.2, 18.1, 19.1 and 24, I am satisfied that the Unit Trust Deed clearly indicates that the unit holders have an interest in the trust fund as a whole and they do not have a proprietary interest in the individual trust assets.

[41] It would seem to me that the consequence of those clauses is that the actual property of the unit trust is indeed in a state of constant flux and that the property may change at any time as a consequence of the need to meet various obligations under the Unit Trust Deed.

[42] Whilst I note the applicants' argument that a distinction needs to be made between taxation statutes and statutes which operate for the benefit of a co-owner, I am not so satisfied given the High Court decision in CPT's case and agree with the views of Robson J in S & D International[6]. In that decision his Honour dealt with that particular argument specifically and made it clear that the High Court in CPT's case did deal with the issue at general law and clearly indicated that the High Court had considered the broader question of the nature of a unit holder's interest in property of a unit trust.

[43] Accordingly I do not consider that s 38 of the PLA is available to the applicants. They are not co-owners in possession of the property over which trustees are sought to be appointed.

[44] I do not therefore consider it necessary to turn to the alternative argument in relation to whether there is a discretion to refuse a co-owner's application for the appointment of statutory trustees for sale and the extent of any such discretion.

[45] The applications filed on 25 June 2010 in Proceeding 6661/10 and Proceeding 6665/10 are therefore dismissed.

[46] I will hear from Counsel as to the form of the order and as to costs.

[1] [1954] HCA 16; (1954) 90 CLR 598.

[2] [1982] Qd R 398.

[3] (2010) VSC 388; (2010) 79 ACSR 595 at 623.

[4] [2008] QSC 248 at [27].

[5] [2005] HCA 53; (2005) 224 CLR 98 at [133].

[6] [2010] VSC 388 at 133.