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[2026] ACTSC 363
Supreme Court of the ACT
2026-09-22
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Hawkins v Australian Executor Trustees Ltd Citation: [2026] ACTSC 363 Hearing Date: 24 July 2026 Decision Date: 22 September 2026 Before: Muller J Decision: See [34] Catchwords: EQUITY AND TRUSTS – TRUSTS – Judicial Advice Application – construction of trusts – roles of appointers and settlors – interpretation of trusts – meaning of words – guidance – advice given Legislation Cited: Trustee Act 1925 (ACT), s 63 Cases Cited: Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 Byrnes v Kendle [2011] HCA 26; 243 CLR 253 In the matter of Kinver Holdings Pty Ltd [2025] ACTSC 90 Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225; 42 WAR 209 Singh v Calvary Hospital ACT Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247 Texts Cited: M Ascher, A Scott and W Fratcher, Scott and Ascher on Trusts th (5 ed, 2006) Parties: Catherine Marea Hawkins (as Litigation Guardian for David Anthony Windsor) (Plaintiff) Australian Executor Trustees Limited (as Trustee for David Windsor Compensation Trust) (Defendant) Representation: Counsel W Sharwood (Plaintiff) N McColl (Defendant) Solicitors Snedden Hall & Gallop (Plaintiff) Australian Executor Trustees Limited (Defendant) File Number: SC 271 of 2026 MULLER J:
On 4 June 2017 David Windsor was injured in an attempted murder by a man driving a motor vehicle. The incident caused Mr Windsor to suffer a traumatic brain injury and left him with significant injuries and disabilities. A claim for compensation was lodged with GIO Insurance and Supreme Court proceedings ensued. Mr Windsor’s wife, Catherine Hawkins, acted as his Litigation Guardian in the court proceedings. The proceedings resolved following a court approved settlement. The sum of $2,546,301.95 was paid into court by the insurer and thereafter paid out to the Australian Executor Trustees Ltd (AET) to be held on trust for Mr Windsor pursuant to a trust established by deed.
AET subsequently made a payment of $1,756,500.00 from the proceeds of the court settlement into an IOOF superannuation fund for Mr Windsor. The superannuation investment was made on the recommendation of a financial adviser as providing the most tax effective way of creating a suitable income stream for Mr Windsor. Since the superannuation fund was established in November 2021 there has been no positive change in Mr Windsor’s functional capacity.
The trust deed appointing AET as trustee of the trust created for the benefit of Mr Windsor names Catherine Hawkins as the settlor of the trust. It also provides the settlor of the trust is excluded from any benefit under the trust arrangement. The combination of Ms Hawkins appointment as settlor, and the exclusion of the settlor from receiving any benefit from the trust is immediately problematic. Mr Windsor and Ms Hawkins are married and live together as husband and wife, as they have done at all times material to the issues under consideration. At least in the indirect sense she stands to receive a benefit from payments made from the trust for the benefit of Mr Windsor. It is primarily that problem which sees the matter return to the court.
By her originating application Ms Hawkins seeks judicial advice about the interpretation of the trust deed and, if necessary, orders for its amendment. In support of her application, she reads the following affidavits: (a) Cathine Marea Hawkins affirmed on 11 March 2026; and (b) Julia Astrid Bridgewater affirmed 17 June 2026.
The questions to be addressed are identified in the originating application in the following way: 1. Notwithstanding the document titled David Windsor Compensation Trust deed dated 29 October 2021 (“the written trust deed”), which names Catherine Hawkins the settlor of the trust (“the trust”), is Catherine Hawkins (also known as Catherine Marea Hawkins) in fact or in law the settlor of the trust created pursuant to the order of this Court on 16 July 2021 in proceedings number SC 275 of 2021 (question 1)? 2. If the answer to question 1 is in the negative, order that: a. the written trust deed be amended to delete references to Catherine Hawkins as being the settlor, b. the Registrar of the Supreme Court of the Australian Capital Territory be named as the settler of the trust. 3. Was the trustee of the David Windsor Compensation Trust lawfully entitled under the terms of the trust to transfer funds into the superannuation fund with IOOF Superannuation, account number 16625214 on 21 November 2022, without first obtaining limited administrator authority to call for, receive and apply and expend the funds for Mr Windsor’s benefit (question 2)? 4. If the answer to question 2 is in the negative, order that pursuant to section 86 of the Trustee Act 1925, the trustee is excused from any breach of trust associated with the transfer of funds to I00F Superannuation, account number 16625214 on 21 November 2022.
Should I consider the answers to the two questions to be in the negative, Ms Hawkins proposes the orders set out at point 2 and point 4 at [5] above.
Additionally, she seeks the following orders: 5. the Trustee of the David Windsor Compensation Trust has the limited right to manage Mr Windsor’s membership of the superannuation fund trust, in that it may: a. call for funds from the said superannuation fund for Mr Windsor’s benefit and to receive such funds; and b. apply and expend the sum or sums for the maintenance, support, education, advancement or benefit of Mr Windsor in such a manner and to such extent as the trustee considers proper and reasonable, including the option of depositing such funds back into the trust on Mr Windsor’s behalf. 6. the costs of the application be paid by the trustee personally without seeking indemnity from the trust fund. Court orders recognising the trust
Following approval of the settlement in the earlier proceedings McWilliam AsJ (as her Honour then was) made orders as amended on 30 July 2021: 1. Pursuant to r 282 of the Court Procedures Rules 2006 (ACT), the Court approves the settlement of the claim on behalf of the plaintiff in the sum of $2,632,434.00 (inclusive of expenses previously paid by the said defendant in the sum of $86,132.05) (the Judgment Sum). 2. Judgment is entered for the plaintiff in the sum of $2,632,434.00 (inclusive of expenses previously paid by the said defendant in the sum of $86,132.05). 3. The sum of $2,546,301.95 is to be paid into Court by the second defendant and thereafter, pursuant to s 25 of the Public Trustee and Guardian Act 1985 (ACT) is to be paid out to Australian Executor Trustees Limited as trustee to be held pursuant to the terms of the Trust established by a Deed substantially in the form of Exhibit 1 to the application filed 8 July 2021, for investment on behalf of the plaintiff, David Anthony Windsor. 4. The second defendant is to pay the plaintiff’s costs and disbursements as agreed or assessed. 5. No interest is to be payable on the sum referred to in Order 3 if paid within 28 days of the making of this order. 6. The memorandum of advice prepared by Mr Greg Stretton SC dated 29 June 2021 is to be placed in a sealed envelope on the court file and marked not to be opened without further order of a judge. The power to give judicial advice
Section 63 of the Trustee Act 1925 (ACT) provides, relevantly: 63 Advice (1) A trustee may apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument. (2) If the trustee acts in accordance with the opinion, advice or direction, he or she shall be deemed, so far as regards his or her own responsibility, to have discharged his or her duty as trustee in the subject matter of the application, provided that he or she has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice or direction. …
In, In the matter of Kinver Holdings Pty Ltd [2025] ACTSC 90 (Kniver) McWilliam J discussed the limitations on the court’s power to give advice commencing at [10] with relevant portions extracted below: [10] For the Court’s jurisdiction to be enlivened under s 63 of the Trustee Act, the applicant for judicial advice must point to the existence of a question with respect to the management or administration of trust property or a question regarding the interpretation of the trust instrument: Macedonian Orthodox Community Church St Petka Inc v His Eminance Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 (Macedonian Church) at [58]. [11] The phrase ‘management or administration of property’ is not a term of art. It refers to both the manner in which the trust property is managed or administered and the actual carrying out of those functions: Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [13]. … [13] I have said effectively because the Court’s power under s 63 of the Trustee Act is limited, in that it does not extend to recreating the trust deed: see Re Porlock Pty Ltd [2015] NSWSC 1243 at [2]. What the Court is doing is advising the trustee as to whether it would be justified in administering the trust in the way in which it proposes. [14] In other jurisdictions, such as New South Wales, cognate legislation enables a court to approve a variation of an original trust deed so as to produce a definitive form of the trust deed and bring about a binding and final outcome by way of a declaration. An example of where this has occurred is In the Application of Nyasa No. 19 Pty Ltd [2023] NSWSC 578, applying s 86A of the Trustee Act 1925 (NSW). No statutory equivalent exists in the Territory. …
In Kinver her Honour had cause to deal with an application in the context of a missing trust deed. She was thus called upon to consider questions regarding the validity of the establishment of the trust and the terms of the trust where it was validly established. In Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 the problem was similar. The relevant trust deeds could not be located. The court was called upon to address issues arising from the execution of the various trusts and the management and administration of the property held by them. In each case the court was satisfied the relevant power under s 63 of the Trustee Act (or its equivalent) was enlivened. In this case the trust deed is before me in writing. But the questions posed in the originating application, at least in part, raise questions concerning the management or administration of trust property and also questions regarding the interpretation of the trust instrument. Where the questions meet one or other of those criterion, I am satisfied s 63 of the Trustee Act is enlivened.
The relevant terms of the trust deed
As I have noted above, Ms Hawkins is identified on page 1 of the trust deed as the “settlor”. She is similarly identified at part two of the schedule to the deed, where she is also described as “the appointor”. The deed is executed by Ms Hawkins and her signature is witnessed. The common seal of AET is also affixed on the execution page.
“Settlor” is not a defined term in the deed. “The appointor” is defined as “the person named in Part 8 of the Schedule hereto or such other appointor for the time being appointed as provided in clause 11.”
The recitals to the deed are in the following terms: RECITALS A. The trustee has agreed to act as the trustee of trusts to be created upon receipt by the trustee of certain amounts arising from the compromise of litigation brought by the Settlor on behalf of the beneficiary. B. The parties anticipate that the trustee will receive the sum(s) specified in part 9 of the Schedule as a result of payments out to the trustee of funds paid into the Supreme Court of the Australian Capital Territory. C. The terms of this deed will govern each of the trusts established pursuant to this Deed.
As the appointer, Ms Hawkins is given various powers in clause 10 of the deed, although they all relate to her capacity to resign, to appoint an alternate appointer or to appoint some other person to the office of appointer in substitution of herself. The deed does not expressly empower her to appoint or remove a trustee, notwithstanding the suggestion created by the title of her role.
In relation to the settlor, clause 5 of the deed provides: 5. EXCLUSION OF SETTLER Notwithstanding anything herein express or implied: (a) The trust fund and the income of the trust fund shall from the date of this deed be possessed and enjoyed to the entire exclusion of the settlor and of any benefit to the settlor by contract or otherwise and any resulting trust in favour of the settlor is hereby expressly negatived; (b) No part of the capital or income of the trust fund shall be paid or lent to or applied for the benefit either directly or indirectly of the settlor; (c) No power hereby or by an appointment made hereunder of by law conferred upon the trustee shall be capable of being exercised in such manner that the settlor will or may become entitled either directly or indirectly to any manner or in any circumstances whatsoever. The role of the settlor and the appointer
Put simply the settlor is the person who establishes or creates the trust, with the provision of a modest sum of money as the settlement sum for that purpose. Once the trust is established it is usual for the settlor to step away and have no further involvement. It is also usual for the settlor not to be a beneficiary under the trust. It is not usual for the settlor to be related to the trustee or, as in this case, to the beneficiary of the trust.
As for the appointer, their role is usually characterised as the name suggests, by the power to appoint and remove the trustee. As I have noted above, the trust deed in this case does not expressly confer that power on the appointer.
Q1 - Is Ms Hawkins the settlor of the trust in fact or in law?
The plain words of the deed identify Ms Hawkins as the settlor of the trust. There is no ambiguity in those words. It is well recognised as fundamental to the creation of an express trust that the settlor evinces an intention to create the trust. Ms Hawkins contends the written trust deed does not reflect her intention in establishing the trust in her husband’s favour. She accepts the intention was to create a trust for his benefit and to provide a stream of income for him. The unintended outcome is that she, as the named settlor of the trust, is expressly excluded from any benefit under the trust deed. That was not her expectation or understanding. For that reason, she argues the trust should not be interpreted so as to recognise her as its settlor.
In Byrnes v Kendle [2011] HCA 26; 243 CLR 253 the High Court had cause to consider whether a written instrument in the form of a deed of acknowledgement of trust should be given legal effect. Mr Kendle sought to argue that the written document creating an express trust of which Mrs Byrnes was a beneficiary was not intended to create a trust for her benefit. In rejecting that argument, Gummow and Hayne JJ observed at [53]: The fundamental rule of interpretation of the 1997 Deed is that the expressed intention of the parties is to be found in the answer to the question, "What is the meaning of what the parties have said?", not to the question, "What did the parties mean to say?" The point is made as follows, with reference to several decisions of Lord Wensleydale, in Norton on Deeds: "The word 'intention' may be understood in two senses, as descriptive either (1) of that which the parties intended to do, or (2) of the meaning of the words that they have employed; here it is used in the latter sense."
Later at [58] their Honours quoted with approval the following passage from M Ascher, th A Scott and W Fratcher, Scott and Ascher on Trusts (5 ed, 2006): In some situations, legal consequences do turn on actual intentions, as in the case of those charged with certain crimes. Ordinarily, however, the legal effect of a transaction does not depend on the parties' secret intentions, but on the outward manifestations of their intentions. For practical reasons, we disregard the parties' undisclosed states of mind. To be accurate, therefore, it is necessary, when dealing with the creation of a trust and its terms, to speak not of the settlor's intention but of the settlor's manifestation of intention.
I accept Ms Hawkins may well not have fully understood the effect of the deed into which she entered but that is not the test. The meaning of the words employed in the deed make clear, regardless of her intent, the effect of the deed is to appoint her as the settlor of the trust.
Ms Hawkins submits the effect of the orders made by McWilliam AsJ, including recognition of a trust deed in draft form were themselves such as to create a trust in favour of Mr Windsor with the Registrar of the Supreme Court as the settlor of the trust. I do not consider her Honour’s orders to have established a trust. They do no more and no less than recognise the creation of a trust in the form of the draft deed as anticipated to enable the parties to give effect to the orders of the court.
Ms Hawkins relies on the decision of Refshauge J in Singh v Calvary Hospital ACT Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247, as authority for the proposition that it is the court’s orders rather than the deed which creates the trust. In that case, his Honour Refshauge J had cause to consider the options available to a court following a payment into court of settlement monies for the benefit of a person under a disability. He recognised 3 options – for the funds to be invested by the court, paid out of court or transferred to trustees. The matters for consideration in that case were whether the services of a private trustee could be utilised as opposed to the public trustee and, if so, what particular safeguards were required in the trust deed for the protection of the beneficiary. The terms of the deed initially proposed were not to his Honour’s satisfaction and he deferred authorising the payment out of monies until a suitable trust deed was placed before him. There was nothing in the reasons relied upon by his honour to indicate the creation of the trust deed was ancillary to the creation of the trust. On the contrary, the establishment of the trust was in that case deferred until a suitable form of trust deed was placed before the court. I do not accept there is anything in the reasons relied upon by his Honour to support the ancillary role for the trust deed contended for by Ms Hawkins. In this matter, the orders of McWilliam AsJ recognised a trust would be created substantially in the form of the draft deed presented and thus the money would be paid out on the conditional basis that a trust was to be established in that form.
Q2 - What orders follow?
Q3 - Was the transfer to the superannuation fund lawful?
The difficulty identified by the plaintiff is, at the time of the transfer by the trustee of funds amounting to $1,756,500.00 from the trust into an IOOF superannuation fund, AET did not secure limited administrator authority to enable it to call for, receive, apply and expend those funds for Mr Windsor’s benefit. The issue is not the transfer of money into the superannuation fund per se, as the trustee is expressly empowered to make such a payment pursuant to paragraph 8.2(a) of the deed: 8.2 Specific Powers The trustee may: (a) make (or facilitate or cause to be made) contributions to a superannuation, pension or annuity fund for the benefit of the beneficiary;
However, the funds transferred into the superannuation account, although they are held in Mr Windsor’s name personally as a member of the superannuation fund, are as a consequence of their transfer effectively beyond the power of AET in terms of the supervision of those funds. They have ceased to be funds held by AET as trustee on behalf of Mr Windsor, although they are still funds held on his behalf.
Ms Hawkins points to a similar issue arising in a number of cases in Western Australia and, in particular, to the method of dealing with the problem identified by Edelman J (as his Honour then was) in Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225; 42 WAR 209.
In Cheyne, his honour took comfort from the inclusion in the trust deed of a clause in the following terms, “to apply from time to time the whole or any part of the income from the investment monies with recourse if considered necessary to the capital thereof for the maintenance, welfare and advancement or otherwise for the benefit of the Plaintiff.”
Ms Hawkins submits clause 6 of the trust deed is similar in effect, however, unlike in Cheyne, the written trust deed also provides for the making of contributions to a superannuation fund for the benefit of the beneficiary. Here, AET, whilst having the power to make those contributions did not seek the authority to act as a limited manager of Mr Windsor’s rights in relation to those funds. Ms Hawkins submits that Edelman J’s analysis in Cheyne of parens patriae jurisdiction at [62]-[63] applies: In Marion's Case the joint judgment also said that the power is to do what is for the benefit of the incompetent, and that the more contemporary descriptions of the power accept that 'in theory there is no limitation upon the jurisdiction' (258). There is, therefore, clearly a parens patriae power for the court to make the orders sought. However, since that power flows from the responsibility of the Crown to look after those who cannot look after themselves, it must be exercised for the benefit of Mr Cheyne, and in his best interests. The primary order sought in this case need not draw from the parens patriae power of the court since I have concluded that directions can be given that the transfer sought, and the manner in which it is sought, is within the terms of the Court Compensation Trust. However, if it were necessary to do so, the parens patriae power of this court could also have permitted orders to be given to allow the proposed transfer.
I am satisfied by virtue of the combined effect of paragraphs 6(a) and 8(a) of the Deed that AET was lawfully entitled to transfer funds into the IOOF superannuation fund without first obtaining limited administrator authority to call for, receive, apply and expend the funds for Mr Windsor’s benefit
Q4 - Are ancillary orders required regarding management of the superannuation fund?
Having reached the view set out above in relation to the powers of AET upon the establishment of the superannuation fund, it follows I am able, pursuant to s 63 of the Trustee Act, to give advice to that effect. I will hear the parties as to any ancillary orders they consider necessary and appropriate, consequent upon the interpretation of the deed I have applied
I note AET made a submitting appearance, and it was extensively involved in the preparation of the proposed orders, but otherwise did not wish to be heard.
Orders
I provide the following advice pursuant to s 63 of the Trustee Act: (1) Catherine Hawkins (also known as Catherine Marea Hawkins) is, pursuant to the David Windsor Compensation Trust deed dated 29 October 2021, in fact and in law the settlor of the trust created pursuant to the order of this court on 16 July 2021 in proceedings SC 275 of 2021. (2) Australian Executor Trustees Ltd (AET), as trustee of the David Windsor Compensation Trust was lawfully entitled under the terms of the trust deed to transfer funds into the superannuation fund with IOOF superannuation, account number 16625214 on 21 November 2022, without first obtaining limited administrator authority to call for, receive and apply and expend the funds for Mr Windsor’s benefit. (3) AET as trustee of the David Windsor compensation trust is lawfully entitled under the terms of the trust deed to act as the limited administrator of Mr Windsor’s rights in relation to the fund described in paragraph 2.
I make the following order: (1) The costs of the application are to be paid by AET personally without seeking indemnity from the trust fund.
I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 22 September 2026
Hawkins
Australian Executor Trustees Ltd