MITCHELL -v- ANNE MEAGHER AS TRUSTEE IN BANKRUPTCY OF JUSTIN GRAEME NOTLEY [2025] WASC 537 (16 December 2025)

1. The application was commenced by originating summons on 17 May 2023. The First and Second Plaintiffs sought to have the court make orders under s 126 of the Property Law Act 1969 (WA) permitting the sale of four strata titled offices, being units 1-4, 28‑30 Mayfair Street West Perth (the Mayfair Street Properties), and, so as to facilitate the sale, requiring the Third Defendant to vacate caveats on the properties and associated orders including as to how the sale was to be conducted, and by whom, and as to the distribution of the sale proceeds. Orders were also sought in relation to the distribution of 'the proceeds of sale of 20 Sunderland Street, Port Hedland and any other income of [the Mayfair Street Properties] held by the plaintiffs at the date of the sale of [the Mayfair Street Properties]'.
2. On 2 June 2023 an identical originating summons was filed by the First and Second Plaintiffs on the eCourts Portal as an amended originating summons.
3. On 15 December 2023, the First and Second Plaintiffs filed a minute seeking orders removing the First Defendant as a party to the proceeding and requiring the Plaintiffs to file a notice of appointment to hear the originating summons.
4. After a hearing before me on 28 March 2024, the Plaintiffs were given leave to amend their application to address certain issues which I had raised with them.
5. On 10 April 2024 an amended originating summons was filed. In that originating summons the First and Second Plaintiffs sought leave to:
   1. add as Third and Fourth Plaintiffs respectively, their spouses, Veronica Lesley Winterbourn and Karen Suzanne Hyde (AKA Mitchell);
   2. remove as the First Defendant Justin Graeme Notley as Trustee of the Notley Family Trust;
   3. bring the application under s 7, s 89 and s 182 of the Trustees Act and s 182 of the Transfer of Land Act 1893 (WA) (TLA); and
   4. amend the relief sought.
6. On 22 August 2024, the Plaintiffs filed a draft re-amended originating summons by which they sought to further amend their application:
   1. so that it is also brought under s 78, s 79 and 87 of the Trustees Act;
   2. to delete reference to the application being brought pursuant to s 182 of the of the Trustees Act;
   3. to delete reference to the application being concerned with Order 53 of the Rules of the Supreme Court 1971 (WA) (SC Rules);
   4. to amend the orders sought; and
   5. to delete any reference to the sale of and proceeds from the sale of the property at 20 Sunderland Street Port Hedland.
7. Leave to amend as provided for in the application was granted on 5 September 2024.
8. On 5 September 2024, I also made orders pursuant to s 87 of the Trustees Act, which were intended to permit Mr Mitchell to do all things necessary to sell the Mayfair Street Properties on behalf of the Trustees. The orders also dealt with the way in which the proceeds of the sale were to be dealt with.
9. On 8 October 2024 the Plaintiffs' solicitors advised the court that a contract for the sale of the Mayfair Street Properties had been executed but that Landgate had advised that it would not accept transfer documents unless the court order specifically stated that Mr Mitchell is allowed to sign the transfer documents. The letter from Landgate to Ms Rowley which was provided to the court recommended that Landgate form SIG-17 be used. The Plaintiffs' solicitors requested that the orders be amended under the slip rule to meet Landgate's requirements.
10. I declined to make an order under the slip rule because the orders of 5 September 2024 had been made in the terms sought by the Plaintiffs in their minute of proposed orders dated 22 August 2024 and the problem now identified was not something that had been accidentally omitted or erroneously recorded in the orders such that might be cured under the slip rule (O 21 r 10 of the SC Rules).
11. Accordingly, on 14 October 2024, the Plaintiffs filed a chamber summons seeking to vary order 2 of the orders made on 5 September 2024 and to waive the requirements of O 59 r 9 of the SC Rules - the order requiring conferral of the parties before any application is made.
12. In the circumstances of this case, which were supported by the affidavit of the Plaintiffs' solicitor, Ms Rowley, sworn 14 October 2024, I determined that it was appropriate to exercise my power to make ancillary orders to give effect to the intent of the orders which I had made on 5 September 2024. Accordingly, on 28 October 2024 I made orders:
    1. waiving compliance with O 59 r 1 of the SC Rules - on the basis that no other party had taken any part in the proceedings and no parties' interests were affected any further than they would have been on 5 September 2024.
    2. varying order 2 of the orders of 5 September 2024 so that the transfer could be given effect to as was intended by the orders made on 5 September 2024.
    3. adjourning the remainder of the application sine die.
13. On 22 August 2024 the Plaintiffs also amended their application to seek that the court deal with the funds in two bank accounts which had been frozen by the ANZ Bank (Bank Accounts). Those Bank Accounts are:
    1. account 016498 [REDACTED]64, which is held in the name JGN Holdings P/L ATF Notley Superfund and BM Winterbourn, JG Notley and HC Mitchell ATF Mayfair Unit Trust; and
    2. account 016498 [REDACTED]43 JGN Holdings P/L ATF Notley Superfund and BM Winterbourn, JG Notley and HC Mitchell ATF Mayfair Unit Trust.
14. In support of the application the Plaintiffs relied upon submissions filed on 22 August 2024.
15. On 5 September 2024, I declined to make the orders sought in relation to the funds in the Bank Accounts on the basis that the Bank Accounts were not solely in the name of the Mayfair Unit Trust and I was not satisfied on the balance of probabilities, based on the material then before me, that the funds in the Bank Accounts were only funds connected with the rental of the Mayfair Street Properties.
16. On 17 October 2024 and 20 January 2025 Plaintiffs filed the following affidavits which they say addressed my concerns:
    1. affidavit of Ms Linda Rowley sworn 17 October 2024. It attached 791 pages of bank statements relating to the accounts and rental summaries from JLL, the managing agent for the Mayfair Street Properties which show rental amounts received from tenants of the Mayfair Street Properties from 2014 to 2024.
    2. the affidavit of Veronica Lesley Winterbourn sworn 20 January 2025.
17. On 20 March 2025, the matter was listed for a further hearing of the application in so far as it related to the Bank Accounts, following which I reserved my decision in relation to that issue.

1. Mr Justin Notley himself is bankrupt. The First Defendant was originally Mr Notley as trustee of the Notley Family Trust. The First Defendant did not take any part in the proceeding before he was removed as a defendant pursuant to an order made on 5 September 2024 permitting the amendment of the originating summons.
2. The Second Defendant was originally JGN Holdings Pty Ltd (ACN 142 856 291). It is a company associated with Mr Notley. It was removed as a party to the proceeding by order of Registrar Whitbread on 19 December 2023.
3. The Third Defendant was originally Mr Notley's trustee in bankruptcy. She was appointed to that position on 11 July 2018. She has taken no position in the proceedings. The Third Defendant was also the caveator of the Mayfair Street Properties. The caveats were only as to Mr Notley's interest in the Mayfair Street Properties. On 3 August 2023, the Third Defendant filed a notice of intention to abide save as to costs. The court was notified on 22 August 2024 that the caveats which the Third Defendant had placed on the Mayfair Street Properties had been removed and the Plaintiffs no longer sought orders concerning the removal of the caveats. Following removal of the First and Second Defendants from the proceeding, the Third Defendant has become the sole Defendant.
4. The Plaintiffs also applied to further amend the originating summons to add, as a fourth defendant, the ANZ Bank. It was said that the ANZ Bank needed to be joined to enable the release of funds held in the two bank accounts to be disbursed. Ultimately, the Plaintiffs did not seek the order joining the ANZ Bank to the proceeding as the court was informed that the Plaintiffs had been informed that the ANZ Bank had agreed that it would comply with any orders made by the court and did not need to take part in the proceeding.

1. In determining the application, I had regard to the following materials:
   1. Affidavit of Howard Charles Mitchell sworn 17 May 2023;
   2. Affidavit of Howard Charles Mitchell sworn 15 December 2023;
   3. Affidavit of service of Jeneen Ann Penniment sworn 23 June 2023;
   4. Affidavit Linda Elizabeth Rowley sworn 16 April 2024;
   5. Affidavit of Howard Charles Mitchell sworn 18 July 2024;
   6. Affidavit of Linda Elizabeth Rowley sworn 14 October 2024;
   7. Affidavit of Linda Elizabeth Rowley sworn 17 October 2024;
   8. Affidavit of Veronica Lesley Winterbourn sworn 20 January 2025;
   9. Written submissions dated 20 March 2024;
   10. Supplementary Submissions in Support of Originating Summons filed 16 April 2024;
   11. Amended Supplementary Submissions in Support of Originating Summons and Orders Sought filed 18 July 2024; and
   12. Oral submissions made at each hearing.

Issue 1 - Sale of the Mayfair Street property Factual findings

1. From the materials before me I was satisfied on the balance of probabilities and found that, together with Justin Graeme Notley, the First and Second Plaintiffs were the registered proprietors of the Mayfair Street Properties as joint tenants.
2. I was also satisfied and found that the Mayfair Street Properties were trust property vested in a unit trust of which the First and Second Plaintiffs and Mr Notley were the trustees (the Mayfair Unit Trust) until Mr Notley ceased to be a trustee and, in April 2024, the Third and Fourth Plaintiffs became trustees, apparently in accordance with the terms of the Mayfair Unit Trust Deed.

Application of s 87 of the Trustees Act

1. Section 87 of the Trustees Act provides:

Person may be appointed to convey instead of vesting order

Where a vesting order can be made under any of the foregoing provisions, the Court may, if it is more convenient, appoint a person to convey the property or release any right, and a conveyance or release by that person in conformity with the order has the same effect as an order under the appropriate provision.

1. A vesting order may be made in the circumstances set out in s 78 of the Trustees Act. That section provides:

Vesting orders, when Court may make

(1) The Court may make an order, in this Act called a vesting order, that has effect as provided in section 85.

(2) A vesting order may be made in any of the following cases, namely -

(a) where the Court appoints or has appointed a new trustee; or

(b) where a new trustee has been appointed out of Court under any statutory or express power; or

(c) where a trustee retires or has retired; or

(d) where a trustee is under a disability; or

(e) where a trustee is out of the jurisdiction of the Court; or

(f) where a trustee cannot be found; or

(g) where a trustee, being a corporation, has ceased to carry on business or is in liquidation or has been dissolved; or

(h) where a trustee neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property according to the direction of the person absolutely entitled to the same for 28 days next after a request in writing has been made to him by that person; or

(i) where it is uncertain who was the survivor of 2 or more trustees jointly entitled to or possessed of any property; or

(j) where it is uncertain whether the last trustee known to have been entitled to or possessed of any property is alive or dead; or

(k) where there is no personal representative of the last trustee who was entitled to or possessed of any property or where it is uncertain who is the personal representative of that trustee or where the personal representative of that trustee cannot be found; or

(l) where any person neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property in accordance with the terms of an order of the Court; or

(m) where a deceased person was entitled to or possessed of any property and his personal representative is under a disability; or

(n) where property is vested in a trustee and it appears to the Court to be expedient to make a vesting order.

(3) Where the provisions of subsection (2) are applicable, they extend to a trustee entitled to, or possessed of, any property either solely or jointly with any other person and whether by way of mortgage or otherwise.

1. In this case the Mayfair Street Properties are vested in the legal owners of the properties regardless of the fact that the properties may also be vested in the trustees of the Mayfair Unit Trust.
2. I was satisfied that Mr Notley was refusing to convey the property to any purchaser of the property and that he had been asked to do so more than 28 days prior to the order being made. Accordingly, I was satisfied that the circumstances set out in s 78(h) existed and therefore that it was open to me to make a vesting order under s 78 of the Trustees Act by which Mr Notley's interest in the Mayfair Street Properties would vest in either Mr Mitchell, Mr Winterbourn or both.
3. However, I was of the view that it was more convenient to appoint Mr Mitchell to convey the property under s 87 of the Trustees Act, having regard to the definition of conveyance and to convey as set out in s 3 of the Trustees Act.
4. Accordingly, on 5 September 2024, I made the following orders:

1. Leave be granted to amend the originating summons filed on 10 April 2024 in accordance with the draft filed on 22 August 2024 and the draft shall stand as the amended originating summons without the need for further service. 2. Pursuant to s 87 of the Trustees Act 1962 (WA) Howard Charles Mitchell be appointed to convey Units 1, 2, 3 and 4 of 28-30 Mayfair Street, West Perth, Western Australia 6005 on Strata Plan 6741 contained respectively in Certificates of Title 1535/818, 1535/819, 3515/820 and 3535/821 (Mayfair Street), and, to give any required instructions and to give any receipt of sale monies to a purchaser of Mayfair Street. 3. The net proceeds of sale of Mayfair Street are to be distributed as follows:

(a) the Plaintiffs' costs and fees arising from or caused by the sale of Mayfair Street, including the costs arising from this application; and
>
> (b) the balance to be divided and paid in accordance with the unit entitlements under the Mayfair Street Unit Trust deed dated 20 January 2013.

1. The balance share of the net proceeds of sale from Mayfair Street due to the trustees and members of the Notley Superannuation Fund are to be paid into Court pending any application for claim. 2. A copy of these orders be served upon the Registrar of Titles.
2. On 28 October 2024, I amended the orders made in order to give effect to their intent after the Plaintiff's solicitors informed the me that Landgate would not allow the transaction to proceed if the orders were not so amended.
3. Because I was satisfied that it was appropriate to make the orders under s 87 of the Trustees Act, it was not necessary to consider any of the other bases upon which the Plaintiff submitted that orders authorising the sale of the Mayfair Street Properties and the distribution of the sale proceeds might have been made.

Issue 2 - Funds in the bank accounts Factual findings

1. In the absence of any contradictory evidence, I accept the evidence of the Plaintiffs set out in the affidavits filed in support of the application. On that basis, I am satisfied of and make findings in respect of the following matters which are additional to those set out above which are also relevant to the resolution of this issue:
   1. The Bank Accounts were established with the ANZ Bank in November 2014.
   2. At all relevant times JLL has been the managing agent for the Mayfair Street Properties.
   3. The Bank Accounts are held in the name 'JGN Holdings P/L ATF Notley Superfund and BM Winterbourn, JG Notley and HC Mitchell ATF Mayfair Unit Trust'.
   4. The statements for the Bank Accounts are addressed solely to 'the Mayfair Unit Trust'.
   5. The Bank would not release the funds held in the Bank Accounts because it formed the belief that the Bank Accounts were established as a partnership.
   6. Despite being asked to do so, the Bank has provided no material to the Plaintiffs to establish the basis for the belief that the Bank Accounts were established as a partnership.[2]
   7. Mrs Winterbourn has been responsible for the day-to-day operation of the Bank Accounts since they were opened in 2014. No other person has operated the Bank Accounts.
   8. Mrs Winterbourn stated in her affidavit of 20 January 2025 that the Bank Accounts were used solely to receive rents paid by tenants of the Mayfair Street Properties and to disburse funds for outgoings associated with the Mayfair Street Properties. She said they have not been used for any other purpose and no payments in or out of them represented partnership funds between the Mayfair Unit Trust and the Notley Superannuation Fund because no such partnership ever existed.
   9. Mr Mitchell states in his affidavit of 18 July 2024 that the Bank Accounts were set up solely to receive the rents from the Mayfair Street Properties and to disburse outgoings associated with the Mayfair Street Properties. He denies that the Bank Accounts were established as partnership between the Mayfair Unit Trust and Mr Notley's superannuation fund.
   10. In the absence of any evidence to the contrary I accept the evidence of Mr Mitchell and Mrs Winterbourn as to the purpose for which the Bank Accounts were established and I make findings in accordance with that evidence.
   11. Mrs Winterbourn deposed in her affidavit of 20 January 2025 that the funds in the Bank Accounts are the rental income which was derived from the Mayfair Street Property after payment of outgoings connected with the rental of the Mayfair Street Property. She explained:
       1. that, on occasions, money was moved out of the Bank Accounts and directed to matters that were unconnected with the payment of outgoings related to the Mayfair Street Properties in error by her. However, those payments were reversed, or an equivalent sum was transferred back into the relevant Bank Account when any such errors were identified.
       2. on occasions money was paid out of one of the Bank Accounts in error and repaid to the Account after the error was identified;
       3. some funds transferred to one of the Bank Accounts was the repayment to the Bank Accounts of the Mayfair Unit Trust of money which had been previously transferred to a term deposit which was being repaid with interest; and
       4. on one occasion money was transferred into one of the Bank Accounts as a loan to the Mayfair Unit Trust to bridge a cash flow problem which the Unit Trust was experiencing.
2. Having examined all of the transactions in the Bank Accounts, and the documents from the managing agents JLL as to the income derived from the Mayfair Street Properties over the relevant time, I am satisfied that Mrs Winterbourn has given an account of all of the transactions which were not simply transfers of rental income from the Mayfair Street Properties to the Accounts and the payment of expenses associated with the those properties which adequately explains, in summary, that they were errors which were rectified or were in fact transactions associated with management of the Mayfair Street Properties and the funds associated with their rental.
3. I accept that evidence of Mrs Winterbourn and I am satisfied on the balance of probabilities and find that the monies standing to the credit of each of the Bank Accounts are funds derived from the rental of the Mayfair Street Properties and are funds of the trustees of the Mayfair Unit Trust.

Application of s 89 of the Trustees Act

1. Section 89 of the Trustees Act provides:

Where, in the opinion of the court any sale, lease...or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interest of the person, or majority of persons, beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the disposition or transaction without the assistance of the court, or it or they cannot be effected by reason of the absence of any power for the purpose vested in the trustees by the trust instrument (if any) or by law, the Court may by order confer upon the Trustee, either generally or in any particular instance the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the Court may think fit and may direct in what manner any money authorised to be expended and the costs of any transaction are to be paid or borne and as to the incidence thereof between capital and income.

1. The power in s 89 of the Trustees Act can only be exercised where the court is satisfied that the Plaintiffs' proposal is either:
   1. 'expedient in the management or administration of any property vested' in the trust; or
   2. would be in the best interest of the persons, or majority of the persons, beneficially interested in the trust.
2. In Cornell v Cornell [2015] WASC 43, Jenkins J, at [41] - [45], considered s 89 of the Trustees Act. In the course of doing so her Honour observed that there were only a few Western Australian cases which discuss s 89(1) of that Act. There are not many more now. Her Honour also identified that cases dealing with similar provisions in other jurisdictions provided some general principles of assistance, but that care needed to be taken because of the different wording of interstate provisions and the different facts of the case.
3. Jenkins J did, however, endorse the definition given to the word 'expedient' by Williams J in Riddle v Riddle [1952] HCA 12; (1952) 85 CLR 202 in which the High Court considered the New South Wales counterpart to the Trustees Act. Williams J said that the ordinary natural grammatical meaning of 'expedient' is 'advantageous', 'desirable', 'suitable to the circumstances of the case'.
4. In this case I am satisfied that the money in the Bank Accounts is vested in the trustees of the Mayfair Unit Trust despite the Bank Account also being in the name of JGN Holdings Pty Ltd as trustee for the Notley Superfund.
5. I am also satisfied and find that the proposed transaction, the distribution of the moneys in credit in the Bank Accounts in accordance with the unit entitlements under the Mayfair Unit Trust Deed, is part of the administration of the Mayfair Unit Trust.
6. Accordingly, I am satisfied that transfer of the money from the Bank Accounts into Ms Rowley's trust account in order that it can be distributed in accordance with the unit entitlements provided for in the Mayfair Unit Trust Deed is both expedient in the management or administration of the property and in the interest of the majority of persons beneficially interested in the Mayfair Unit Trust. While no evidence was given or submissions were made about that issue I am satisfied that it is in the interests of the majority of the persons interested in the Mayfair Unit Trust that they have access to the funds derived from the Trust as they desire, that they are able to bring the Mayfair Unit Trust to an end should they wish to do so, and that they are able to manage their finances as they think fit.
7. I am also satisfied that it is difficult to give effect to the proposed transaction without the assistance of the court. This is because:
   1. the Plaintiffs wish to bring the Mayfair Unit Trust to an end and to dispose of its assets and distribute the proceeds in accordance with the unit entitlements as set out in the Mayfair Unit Trust Deed;
   2. as a result of the Bank Accounts being in the name of the Mr Notley, Mr Mitchell and Mr Winterbourn as trustees of the Mayfair Unit Trust and the Notley Superannuation Fund, the ANZ Bank will not allow the Bank Accounts to be transacted upon;
   3. the fact that Mr Notley is either unable or unwilling to do anything to assist to bring about the wishes of the majority of the persons with entitlements under the Mayfair Unit Trust Deed means that the Plaintiffs have been unable to bring the Mayfair Unit Trust to an end and distribute the funds in the Bank Accounts in accordance with the entitlements under the Unit Trust Deed; and
   4. the issue may be made more difficult given Mr Notley is no longer a trustee of the Mayfair Unit Trust, but he is still named as an account holder, as a trustee of that trust.
8. I am also satisfied that the orders should be made to enable the funds to be distributed in accordance with the terms of the Unit Trust Deed. Mr Notley's portion of the funds (by which I mean the portion which is to be paid to him or an entity associated with him) will be preserved by an order that his entitlement (by which I mean the entitlement of Mr Notley or any entity associated with him) is paid into court until the issue of how they are to be paid out is resolved.
9. In those circumstances I find that it is appropriate to make the orders generally sought by the Plaintiffs in the minute of orders sought dated 24 March 2025 pursuant to s 89(1) Trustees Act. Accordingly, I will make the following orders:
   1. Pursuant to s 89(1) of the Trustees Act 1962 (WA), for the purposes of distributing the funds in the following bank accounts in accordance with orders 2 and 3 the Plaintiffs, as Trustees of the Mayfair Unit Trust, are conferred with the power to withdraw the balances in those accounts and to deposit them into the Rowley Legal trust account BSB No 066-103 Account No. [REDACTED]39 (Rowley Legal Trust Account):
      1. BSB No.: 016 498

Account Name: JGN Holdings P/L ATF Notley Superfund and BM Winterbourn, JG Notley and HC Mitchell ATF Mayfair Unit Trust

Account Name: JGN Holdings P/L ATF Notley Superfund and BM Winterbourn, JG Notley and HC Mitchell ATF Mayfair Unit Trust

1. The credit balances placed in the Rowley Legal Trust Account are to be distributed in accordance with the unit entitlements under the Mayfair Unit Trust Deed dated 20 January 1997 as amended by deed dated 19 September 2013.
2. The portion of money in the Rowley Legal Trust Account due to the trustees and members of the Notley Family Trust and the trustees and members of the Notley Superannuation Fund are to be paid into court pending any application for claim.
3. Service of these orders upon the ANZ Bank may be effected by email to [REDACTED] and [REDACTED].
4. Given I was satisfied that it was appropriate to make orders pursuant to s 89(1) of the Trustees Act, it has not been necessary to consider the other bases upon which it was submitted that orders giving effect to the distribution of the funds in the Bank Accounts in accordance with the wishes of the Plaintiffs could be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] While I make that finding, I do not do so in any way to criticise the Bank. One might expect the Plaintiffs to have records relating to the establishment of the Bank Accounts or knowledge of how they came to be established in that way. One might also have expected that in the nearly 10 years the Bank Accounts were operating, the Plaintiffs might have noticed they were incorrectly named and taken steps to change them.