Louise Lewis v Schon Gregory Condon as trustee of the bankrupt estate of Colleen Anne Rayhill

Judgment 1REIN J: These proceedings concern a property at 9 Robson Road Kenthurst, New South Wales ("the Property"). Until June 2012, the Property was registered in the name of Mrs Colleen Anne Lewis (also known as Mrs Colleen Anne Rayhill) ("Mrs Lewis"). In May 2012 Mrs Lewis was made bankrupt on the application of Mr Salvatore Russo, her former solicitor who obtained a judgment against her for approximately $1M in unpaid legal fees. Mr Schon Gregory Condon ("Mr Condon") the first defendant was appointed trustee of Mrs Lewis' bankrupt estate. In June 2012 the first defendant applied for registration as the owner of the Property in his capacity as trustee of Mrs Lewis' bankrupt estate and later became registered. The plaintiff (Ms Louise Lewis) is Mrs Lewis' daughter. 2In March 2010 Mrs Lewis mortgaged the Property to the ANZ Bank ("the Bank") securing a loan of $750K made to her by the Bank. In October 2012 the Bank obtained judgment for possession of the property by virtue of the default of Mrs Lewis under the mortgage. The Bank wishes to execute the order obtained by it which has led to what is described by Mr Grieve as a need for a determination of this matter before 15 February 2013, the date up to which the Bank has by order of McDougall J been restrained from enforcing the writ of possession. I was informed that the Property is valued at approximately $1.8M and the Bank is owed approximately $800K. 3On 6 September 2012 Robana Investment Pty Ltd ("Robana"), the second defendant, lodged a caveat claiming that it was the owner of the land by virtue of a trust deed executed in 2001 which created Kenthurst Investments Trust ("the Trust"). Apparently Robana had in June 2011 attempted to become the registered proprietor of the Property: see T5.44 - 50 and p 108 Exhibit 1. 4Proceedings (2012/00232952-1) were instituted by the first defendant in the current proceedings as trustee of the Bankrupt Estate of Rayhill against Robana (I shall refer to these proceedings as "the 2012 proceedings") and on 26 October 2012 Nicholas J declared that Mr Condon was entitled to be noted on the register in respect of the Property "as the registered proprietor in lieu of Colleen Lewis". 5The plaintiff describes herself as "[a]ppointer and [d]iscretionary beneficiary of the Kenthurst Investments Trust": see paragraph 1 of the plaintiff's affidavit sworn 13 November 2012. 6The plaintiff, for whom Mr P. Finch appears as counsel, claims that the Trust, and not Mrs Lewis, is the beneficial owner of the Property and that the Property does not fall into the bankrupt estate of Mrs Lewis. The plaintiff seeks an order that Robana be registered as the legal owner of the property. Robana has filed a submitting appearance and has taken no active role in the proceedings. 7The claim that the Trust, and not Mrs Lewis, is the beneficial owner and that Robana as Trustee of the Trust should be registered as the owner of the Property is based upon a chain of documents and events which I outline below: (1)A trust deed creating the Trust dated 27 August 2001 where Mr Fraser, an accountant, is the settlor, Mrs Lewis is the appointor, Appinville Pty Ltd ("Appinville") (a company controlled by Mr Fraser) is the trustee and Mrs Lewis, the plaintiff and other family members were named as the beneficiaries; (2)a contract of sale entered into by Appinville whereby Appinville purchased the property for $1.7M; (3)a deed of 26 August 2005 whereby Mrs Lewis disclaims any interest in the trust; (4)a deed of 1 November 2005 whereby Mrs Lewis retired as appointor and was replaced by the plaintiff and a further deed of the same date whereby Appinville retired as trustee and Mrs Lewis was appointed as the trustee; (5)an order on 14 July 2006 by which Brereton J ordered that Appinville transfer the Property to Mrs Lewis as trustee for "the discretionary trust"; (6)a transfer lodged by Appinville in November 2009 from itself to Mrs Lewis; (7)a deed dated 29 June 2011 between the plaintiff as appointor and Mrs Lewis as trustee of the Trust and Robana. The deed appoints Robana as new trustee in place of Mrs Lewis; (8)a transfer of the Property dated 29 June 2011 from Mrs Lewis to Robana. 8The plaintiff also relies on the orders made by Brereton J in this Court on 30 November 2006. The orders were made in proceedings 2564/05 ("the 2005 proceedings"): see p 71 -75 Exhibit A. The 2005 proceedings were brought by Paris King Investments Pty Ltd and Ms Lewis against Mr Michael Norman Rayhill (Mrs Lewis' then husband by a second marriage), Syfern Pty Ltd and Mrs Lewis. A copy of the Statement of Claim in the proceedings is Annexure "D" to the affidavit of the plaintiff sworn 10 January 2012. The Statement of Claim does not mention the Property or the Trust. I was informed by the parties that the orders were made by Brereton J after there had been a mediation at which a resolution of the 2005 proceedings and family law proceedings had been achieved and his Honour made orders giving effect to the agreement of the parties. The only relevant part of the orders are: (1)That within 30 days from the date of these Orders the parties do all things and execute all documents necessary to transfer the property known as 9 Robson Road Kenthurst ("hereinafter called the "Kenthurst Property") described in Folio Identifier 1/613606 from Appinville Pty ltd to the wife. (2)As from the date of these Orders: (a)The parties acknowledge that the Kenthurst property will be held by the wife as trustee of a discretionary trust. 9The first defendant, for whom Mr Grieve QC and Mr J Dupree appear, asserts that: (1)The trust deed of 27 August 2001 was a sham and should be disregarded; (2)that in reality Appinville acquired the property with funds wholly provided by Mrs Lewis so that the property was held on resulting trust for Mrs Lewis; (3)the declaration made by Nicholas J on 26 October 2012 is a determination which constitutes an issue estoppel or res judicata precluding any claim to the effect now made by the present plaintiff. 10In the course of submissions the "sham" allegation was widened to a more general attack on the arrangements rather than only the deed. In para 7 of the first defendant's submissions are set out what are said to be the facts that should lead the Court to conclude that there was no genuine trust: (a)that Mr Fraser did not in fact pay the settlement sum of $20 to Appinville: paragraph 13 of his affidavit; (b)that Appinville did not establish a bank account prior to or at the time of its acquisition of the property have 9 Robson Road Kenthurst; (c)that no minute book recording any of the resolutions by the trustee was maintained; (d)that no accounting records (i.e. cash books, ledgers, journals or the like) were maintained by the trustee; (e)that no tax returns were lodged by the trustee; (f)that the undisputed conversation set out in paragraph 7 of Mr Fraser's affidavit took place; (g)that Mr Fraser had the actual intentions expressed in paragraph 12 of his affidavit; (h)that Mrs Rayhill ensured that, as the appointor named in clause 3 of the "trust deed", had the powers stipulated in clause 14 and, in consequence, an unfettered capacity to control the appointment and activity of the trustee and, particularly, any determination made by it under clause 5; (i)that Appinville made no monetary contribution to the purchase price paid for the Kenthurst property: see paragraph 15 of Mr Fraser's affidavit; (j)that Mrs Rayhill undertook sole responsibility for payment of all mortgage and other charges payable in relation to the Kenthurst property: see paragraphs 11, 18, 19, 21, 22, 23, 24, 25, 26 and 29 of Mr Fraser's affidavit; and (k)that, following Appinville's acquisition of the Kenthurst property, Mrs Rayhill enjoyed the full use and benefit of that property as its sole occupant but paid no rental to Appinville; (l)that on 1 November 2005 Appinville purportedly retired as trustee and that Mrs Rayhill was purportedly appointed as successor trustee; (m)that following its supposed replacement as trustee Appinville purported granted a lease of the Kenthurst property to Mrs Rayhill on 30 November 2006; (n)the "lease" was from term of 3 years but was never registered; (o)no rent was ever paid under the "lease"; (p)the "agreement" being annexure Ia to the affidavit of the plaintiff sworn on 13 November 2012 was supposedly made; and (q)last, but by no means least, none of the successive mortgagees of the Kenthurst property (Challenger Managed Investments Ltd, Daniel Kalisher and the ANZ Banking Group Ltd) was informed of the existence of the so-called Kenthurst Investment Trust. Indeed each was, in one way or another, positively informed that the proprietor of the property (Appinville as the mortgagor to Challenger and Mrs Rayhill as the mortgagor to Kalisher and the ANZ) was its beneficial owner: see the first defendant's tender bundle at [now Exhibit 1] pages 34 (clause 14) (Challenger), 272.3, 273.1, 281.9 (Kalisher) and 240 (clause 3 (b)) (ANZ). 11The conversations between Mr Fraser and Mrs Lewis on which the first defendant relies are first (see paragraph 7 of the Mr Fraser's affidavit of 20 December 2012): "I met Colleen Rayhill, who is also known as Colleen Lewis, in about 2001. I was introduced to her by a mutual contact. After being introduced to her, I met with Ms. Rayhill several times in 2001, and during one of those meetings we had a conversation in words in or to the following effect: She said: 'I'm in a complicated Court case. I've found a property which I want to buy, but I want to keep it away from my own name in the short term because of the Court case. I want to put it in a trust. I will be a beneficiary. The case might be over by Christmas, so it will be a short term thing, and then the property will be transferred back into my name. I will be accountable for all expenses.' I said: 'My company, Appinville, could go on the title to the property. But there will be no income coming in so the expenses will have to be your responsibility. There will be land tax and capital gains tax.'" 12And second (paragraph 29 of Mr Fraser's affidavit): "In about 2005 I had a number of conversations with Colleen Rayhill in which the subject of land tax on the Robson Road property was discussed. In one such conversation, words in or to the effect of the following were spoken: She said: 'There are big land tax bills on Kenthurst. I can avoid land tax if I can show the land tax office that Kenthurst is my principal place of residence and that the trust is a bare trust.' I said: 'If you don't want Appinville to be the trustee any more, I would be happy to oblige. I don't want to be involved.'" 13Mr Fraser said (paragraph 12 of his affidavit) that he regarded the Trust as a device to help Mrs Lewis to give the appearance that the property was held in trust was not an asset to which she was a beneficially entitled. 14There is a tax invoice dated 19 October 2001 issued by Miller Noyce a firm of solicitors who acted on the purchase of the Property. It is addressed to "Mrs C Lewis Appinville Pty Ltd P.O. Box 447 Spit Junction NSW 2088": see p 54 Exhibit 1. It has the heading "Re Appinville Pty Ltd Purchase from St George Bank Limited Property 9 Robson Road Kenthurst". It refers to an amount received from Permanent Trustee Limited on settlement of $1.06M and "[b]alance required to complete and received from you $482, 576.08". The only evidence of where the $482, 576 came from is in fact a document prepared by Mr Fraser based, he says, on information provided by Mrs Lewis which shows Paris King Investment Pty Ltd contributed $652, 577: see p 20 Exhibit A. Paris King Investments Pty Ltd was a company deregistered in February 2010 (see Exhibit B) and in which it appears Mrs Lewis had an interest at least prior to 2006 when Mrs Lewis was joined as a defendant to a claim by Paris King Investments Pty Ltd. 15In further support of the contention that the arrangements were a sham, Mr Grieve claimed that the deed of trust makes Mrs Lewis the appointor (and if she is not capable of acting Mellissa Rayhill) (p 2 Exhibit A), and that there is no power given under the deed to the appointor to appoint some other person as appointor, yet the plaintiff did purport to appoint the plaintiff as appointor. Mr Grieve pointed out that clause 1 of the deed precluded the appointor appointing herself as a trustee and by the technique of appointing the plaintiff as appointor that is what Mrs Lewis did. Mr Grieve submitted that accordingly the appointment of Robana as trustee could not have been effective. He also drew attention to the fact that the minutes of the meeting of June 2011, by which Robana purports to accept the appointment as trustee, purports to be signed by its sole director Mr Neville Ayrouth but whose signature cannot be that on the document - having regard to the signature on an affidavit sworn by Mr Ayrouth which was filed in other proceedings and a copy of which is annexed to the affidavit of Mr Russo of 7 January 2013 filed in these proceedings on behalf of the first defendant. 16Appinville did not establish a bank account and no minute book recording resolutions of the trustee are in evidence, and it appears that no accounting records have been maintained by the trustee from 2001 to 2005. No records of the Trust for the period 2005 to 2012 have been put before the Court either. Whilst Mr Fraser, the settlor, said that he had not paid $20 to the Trust, Appinville, through him, had acknowledged receipt of that amount: see the deed p 2 and the statutory declaration p 9 Exhibit A. 17Mr Grieve asserts that Appinville made no monetary contribution to the purchase price for the Property but whilst that is in one sense correct, Appinville did borrow $1, 085, 000 from Challenger Managed Investments Ltd ("Challenger") (see p 51 Exhibit A) and was liable to Challenger for its repayment. It was also liable in contract to pay the purchase price of the Property. 18It is clear that Mrs Lewis arranged for payment of the mortgage repayments and other charges in respect of the Property and that she leased the Property by a lease dated 30 November 2006 entered into with Appinville as the lessor. I shall assume that she did not in fact pay rent to Appinville since, not only is there no evidence that she did, but the lease was entered into at a time when Appinville, according to the deed of 1 November 2005, had been replaced by Mrs Lewis herself as trustee. It was clear that Challenger who loaned funds to Appinville and the ANZ who loaned funds to Mrs Lewis, with the Property as security, were informed that Appinville, and then Mrs Lewis, held the Property in their own right - false representations if the plaintiff's claim is correct. 19Appinville was not the beneficial owner of the land according to the contract of sale that it entered into (see p 15 Exhibit A) and confirmed by Mr Fraser. 20The conversations to which Mr Fraser deposes, which I accept were held by him with Mrs Lewis, and the manner in which the Trust both under Appinville and Mrs Lewis are indicative of first an attempt to keep any assets acquired out of consideration in Family Law Court proceedings, and later consideration of an attempt to avoid taxation. However, until the contract for purchase of the Property was entered into by Appinville, and the money borrowed from the lender by Appinville to fund the purchase, the Property did not form part of the assets of Mrs Lewis or Appinville. There is no evidence that Mrs Lewis paid any of her own funds to purchase the Property and there is evidence from Mr Fraser that he believed that the purchase by Appinville was as trustee for the Trust. He says he intended to assist Mrs Lewis by a "device", but the "device" involved his company incurring a real liability and borrowing real funds, and he does not contend that Appinville really owned the assets of the trust in its own right. There is no evidence that the terms of the trust deed were altered to reflect what Mrs Lewis told Mr Fraser in 2005 was her intention, and her disclaimer of any interest in the Trust by the deed of 16 August 2005 is inconsistent with that stated intention, since the plaintiff and other family members were, in addition to Mrs Lewis named beneficiaries in the Trust Deed. 21Mr Grieve's contention that Mrs Lewis provided all of the funds for the purchase of the Property is factually inaccurate. Appinville borrowed most of the purchase price from Challenger and Paris King Investments Pty Ltd appears to have provided the balance, albeit, it can be assumed, under the direction of Mrs Lewis. Mrs Lewis was not at the inception of the trust the beneficial owner and although she asserted in her application to the bank from whom she sought refinancing that she was the beneficial owner of the Property, it is not clear how she became such or could have become such. 22Assuming that attention can be given to conduct at a time subsequent to the creation of the Trust: see Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation (2008) 238 CLR 516 at 561-562 per Kirby J; (2008) 246 ALR 406; (2008) 82 ALJR 934; 2008 ATC ¶20-029; (2008) 68 ATR 170; [2008] HCA 21, as Mr Grieve contends, it would also be necessary to take into account Mrs Lewis' entry into the deed of 26 August 2005 by which she disclaimed an interest in the Trust and its property and also her acknowledgment recorded in the orders of Brereton J made on 30 November 2006. Those matters contradict the representations made by Mrs Lewis to the Bank and might support a conclusion that Mrs Lewis, breached duties she owed to the Trust as trustee, if she was validly so appointed, although there is the further complication of a document purporting to be an agreement made by Jason Lewis and Kris Lewis on the one hand with Mrs Lewis on the other, in which Jason and Kris purport to represent beneficiaries to the Trust and to authorise Mrs Lewis to obtain finance: see Ia of the affidavit of the plaintiff of 13 November 2012. Yet another piece of the confusing puzzle is the direction by Mrs Lewis to Appinville in 2009 to transfer the Property into her name (acted on by Appinville) but Mrs Lewis had purportedly been appointed as trustee of the Trust so the demand made on Appinville to transfer is not of itself conclusive. 23Having regard to the source of funds for the purchase of the Property and Appinville's involvement in the purchase, to the deed of 26 August 2005 and to the acknowledgement from Mrs Lewis in the proceedings before Brereton J, and the need for caution in concluding that a transaction is in fact fraudulent: see Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation [2008] HCA 21 per Gleeson CJ, Gummow and Crennan JJ at [36]; I am unable to conclude that the parties to the 2001 deed "did not intend it to have the apparent or any legal consequence": see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471; (2004) 211 ALR 101; (2004) 79 ALJR 206; (2004) 57 ATR 556 per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ; City Sharrment Pty Ltd v Officer Trustee in Bankruptcy (1988) 18 FCR 449; (1988) 82 ALR 530; and Snook v London and West Riding Investments Ltd [1967] 2 QB 786 per Diplock LJ at 809; [1967] 1 All ER 518; [1967] 2 WLR 1020. Even assuming Mrs Lewis' conduct was improper that is not sufficient to make the transaction a sham: see Chase Manhattan Equities Ltd v Goodman [1991] BCLC 897 per Knox J; [1991] BCC 308; Miles v Bull [1969] 1 QB 258; [1968] 3 All ER 632 per Megarry J; and see the article by Justice Pagone, Sham Trusts, delivered to the Trusts Symposium, Society of Trust and Estate Practitioners on 9 March 2012. As Megarry J noted in Miles v Bull a "device" may be a perfectly genuine transaction: see Miles v Bull [1969] 1 QB 258 at 265. Mrs Lewis wanted to create a trust so that the asset she wished to acquire would not be treated as her own, she did not transfer or purport to transfer an existing asset of her own into a trust as Mr Goodman, for example, did in the Chase Manhattan case. 24I turn now to the question of res judicata a topic on which no authorities were cited by counsel. It was agreed that although the proceedings against Robana were commenced at the time when the Bankruptcy Application had not been acted upon by the Registrar General, the Registrar General did register the first defendant as a trustee of the Bankrupt Estate of Mrs Lewis before 26 October 2011. 25The transcript of the proceedings on 26 October 2012 is in evidence (pp 206-212 of Exhibit 1) and the reasons for judgment of his Honour are on the file. 26Mr Dennis the solicitor for Robana in earlier proceedings deposed to having had a conversation with Mr Dupree in which Mr Dupree (junior counsel for the first defendant in these current proceedings and the earlier proceedings) said to him: see Affidavit of Bruce Dennis sworn on 17 December 2012): "You should allow Mr Condon to become registered proprietor. It is only then that there would be a competent defendant for any application your clients wish to make concerning Kenthurst Trust" 27The transcript of 26 October 2012 reveals that there was no appearance on that date on behalf of Robana when the matter cam on before Nicholas J to the Trust as trustee. I set out T1.28-T2.14 (p 206-207 Exhibit 1): HIS HONOUR: Should the matter be called? What is the position about it? DUPREE: Might it be called, your Honour. When it was referred shortly after 9 o'clock, there was no appearance. Mr Dennis, who is the solicitor for the defendant, spoke with me yesterday and I told him that I would be seeking the orders set out in the document. He said that he was going to have a Mr Hockey here, or there at the Registrar's court. No-one was there and that is really the state of play. HIS HONOUR: Officer, would you call the defendant in the matter please. In any event, you tell me that Mr Dennis is the solicitor for the defendant? DUPREE: That is so, your Honour. HIS HONOUR: You have spoken with him and he is aware that this matter is on today? DUPREE: Indeed, your Honour. We spoke at length about it yesterday afternoon and he indicated that he would consider the suggested orders that I put to him, which are in terms of the proposed orders, and those that instruct me have received a letter from Mr Dennis on 25 October and in that letter, it is indicated that he says that, "In the circumstances our notice of motion returnable tomorrow has no effect and we will not be proceeding with it". (The defendant was called outside the Court three times; no appearance.) HIS HONOUR: So it is the defendant's notice of motion that we are dealing with? DUPREE: No, your Honour, it is the summons and the defendant's notice of motion. Your Honour will see the defendant's notice of motion sought an injunction from the registration of the trustee's transfer and I will be seeking in my orders to have that dismissed. 28The fact that Mr Dupree described the declaration sought as "otiose" and said that there was no real utility for the declaration "other than as to costs" (see T.2 29-41 on p 207 Exhibit 1) (which costs were sought on an indemnity basis) and the terms of the judgment delivered which deals with only the claim for indemnity costs rather suggests that his Honour understood Robana was not resisting the making of the declaration sought. That is further supported by the terms of the conversation with Mr Dupree to which Mr Dennis has deposed and which was not challenged. 29Mr Finch contended that registration of the first defendant was not necessarily inconsistent with a claim by Robana since the Property was registered in Mrs Lewis' name at the time of bankruptcy and the trustee was entitled to protect the interests of the estate. Robana lodged a caveat and resisted the first defendant's claim to be registered. If the Property was owned by Robana as trustee for the Trust then the Property was not property of Mrs Lewis and it did not fall into her bankrupt estate: see Bankruptcy Act 1966 (Cth) s 116; Re Clifton (1923) 26 WALR 41; and H.A.J Ford and W.A. Lee, Principles of the Law and Trusts (Thomson Lawbook Co) at [1330]. It would follow, on that assumption, that the first defendant as trustee of Mrs Lewis' bankrupt estate would have had no right to registration as legal owner of the Property and that registration by him could have been successfully challenged, even if registration had been obtained whilst the 2012 proceedings were on foot. 30The position of Robana, purporting to act as trustee of the Trust, in seeking to have itself registered as owner and in placing a caveat on title and in resisting the first defendant's claim in the 2012 proceedings was clearly seeking to protect the property of the trust. If it was validly appointed, and the Property was trust property, Robana was entitled to take those steps. 31A declaratory judgment which disposes of the proceedings creates a res judicata: see International General Electric Co Of New York v Commissioners of Customs and Excise [1962] Ch 784 at 789 CA; [1962] 2 ALL ER 398; [1962] 3 WLR 20; [1962] RPC 235; Spencer, Bower, Turner and Handley, Res Judicata (Butterworths, 3rd ed, 1996). 32In my view the declaratory judgment given by Nicholas J was inconsistent with the claims which Robana had previously made and a conclusion adverse to Robana and inimical to any claim which Robana might wish to bring that as trustee of the Trust it is entitled to be registered as owner of the Property. Robana has not sought to bring any subsequent claim itself, or in conjunction with the plaintiff, and it has filed a submitting appearance in these proceedings. 33Mr Finch asserts that not only were the orders made by Brereton J relevant to the question of sham but they themselves give rise to a res judicata binding on Mrs Lewis which her trustee in bankruptcy cannot gainsay. There are three problems with that contention. The first is that the Court in the 2005 proceedings does not appear to have been declaring or making orders in respect of the Property but rather is noting the acknowledgment of the parties. Secondly, the acknowledgement is that the property "will" be held by the trustee of "a discretionary trust" and Kenthurst Investments Trust is not named. Thirdly, even if there was a res judicata binding on Mrs Lewis and the Trust it was not a matter ventilated before Nicholas J in the 2012 proceedings. It is not necessary to consider Mr Grieve's further argument which was to the effect that even if Mrs Lewis was bound by the orders made by Brereton J, her trustee in bankruptcy was not affected by such orders made five years before her bankruptcy but it is very difficult to see how that proposition could be made good. 34The absence of any active role by Robana in these proceedings gives rise to the question of whether the plaintiff has any standing to bring these proceedings and whether, if she does can she be in any different position to Robana were it to have brought the proceedings. I raised the question of the plaintiff's standing to bring proceedings with Mr Finch either as appointor or beneficiary under a discretionary trust and he could not point to any authority and nor did he, at the hearing, seek an opportunity to provide an authority. Mr Grieve contended that the plaintiff did not have standing either as appointor or as beneficiary bring proceedings against a third party. 35I referred earlier to Robana "purporting" to act as trustee, which links to a further potentially significant aspect of this matter. Mr Finch did not advance any argument against the submissions made by Mr Grieve that Robana was not validly appointed, although he did assert that the logic of Mr Grieve's argument was that Appinville would still be the trustee. If Robana was not validly appointed it would also mean that the plaintiff's appointment of her mother as trustee was invalid. Mr Grieve also drew attention to the evidence of Mr Russo (affidavit of 7 January 2013) which raises doubts as to whether documents purporting to record decisions of Robana and action taken by Robana were, in fact, taken by it: see also p 70 Exhibit A. The material also raises questions about Robana's commitment to conduct itself as trustee of the Trust even if validly appointed. I accept Mr Grieve's submission that Robana was not validly appointed. The consequence is that Robana never had authority to act on behalf of the trust or to seek transfer of the Property to it and its involvement in the proceedings before Nicholas J was irregular. 36The conclusion that Robana was not validly appointed has, at least, the potential consequence that a finding or declaration binding against Robana does not have the effect of precluding any action by the beneficiaries. It also throws into focus the question of whether there is currently any person or entity, other than the beneficiaries, who can bring the present proceedings which is linked to the question of the plaintiff's standing. The plaintiff's joinder of her mother in the 2001 proceedings and the outcome of those proceedings rather suggest that the interests of the plaintiff and Mrs Lewis are not necessarily mutual, although the plaintiff's involvement in accepting the role of appointor and appointing her mother and then Robana as trustee point in the opposite direction. 37In the circumstances I do think that it is appropriate to reach a final determination on the question of whether the principles of either res judicata and issue estoppel apply here and whether the plaintiff has standing to bring these proceedings. I propose to make orders dealing with the filing of further evidence and submissions on the following matters: (1)The question of the plaintiff's standing; (2)The question of whether the plaintiff is bound by the declaration made in the 2012 proceedings in favour of the first defendant as trustee for the bankrupt estate of Mrs Lewis against Robana; (3)Whether, in light of the answer to (2) above res judicata or issue estoppel is available as a defence against the plaintiff if she does have standing to bring the proceedings. 38I will hear the parties on the precise orders that should be made for further conduct of this matter including the question of the enforcement of the Bank's writ of possession.