Supreme Court of WA|2000-04-14|Before: Kechnie J

Newton v The Public Trustee [2000] WASC 118 (14 April 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEWTON -v- THE PUBLIC TRUSTEE [2000] WASC 118

Trust created by court - Beneficiary wanting to take trust property - Test for competence

1 In Newton v The Public Trustee [1999] WASC 179, I set out the powers of the Court to make the orders sought by the plaintiff. In Saunders v Vautier [1841] EngR 629; (1841) 4 BEAV 115; 49 ER 282 the test of competence propounded was whether a person was competent to give a valid discharge. While that is a convenient expression of the test, translated into modern times I consider that this Court is required to be satisfied that the plaintiff is generally competent to understand the nature and effect of the application to vest the trust property in him or her.

2 Where, as in this case, the trust was ordered by the Court, there is an additional obligation to ensure that the plaintiff is generally competent to manage his or her affairs. By that, I mean that a plaintiff's personal circumstances, which may of course change, must be examined together with current medical opinion and an assessment of the plaintiff by the Court if possible.

3 Although the District Court originally ordered the moneys to be placed in trust, I have not, for reason expressed in Newton (supra) earlier, gone behind that order. Rather, I have approached this matter afresh without any particular presumption.

4 Dr Jonathon Silberstein, a paediatric neurologist with considerable experience in the assessment of adults and children for the Disability Services Commission, did not see the plaintiff at the time of his accident. Following a referral, he has seen him on three occasions in the last two years. In his latest report dated 29 March 2000 he says in the final paragraph:

"My consultation with Mr Newton today confirmed my earlier impressions that he does have sufficient mental capacity to own a house in his own right and to manage the balance of his trust funds on his own account."

5 In cross-examination he was of opinion that, provided it was explained to him by a solicitor, Mr Newton would be competent to give a valid discharge to the trustee.

6 Dr Silberstein does not consider the plaintiff is eligible for the disability pension. He also believes that the plaintiff is quite capable of maintaining a house with all that involves.

7 I accept Dr Silberstein's evidence and opinions. Both Mr Newton's parents have filed affidavits. Mr Rupert Newton, the plaintiff's father, deposes in an affidavit of 5 October 1999:

"18. For the past 5 years or thereabout Paul has by and large lived in rented accommodation and for the majority of that period of time he has been living on his own and during such period of time he has been, to the best of my knowledge information and belief, self sufficient.

19. When Paul left my home as aforesaid there was a distinct change in his behaviour. I immediately noticed that he matured, became more responsible and self sufficient and that has not changed.

20. From my observations and experience, Paul is able to manage and handle the trust fund held for him by the defendant without the defendant's further assistance. Paul has indicated to me that he wishes to utilise the trust fund to purchase a house in which he proposes to reside. Paul has indicated to me that he will seek professional assistance from a financial adviser or the like when determining how to invest or otherwise manage the balance of the trust fund.

21. Paul and I have a strong relationship and are in contact with each other on a weekly basis. Paul has a strong relationship with his mother and often seeks my advice and his mother's advice in relation to matters where he lacks experience or knowledge as you would expect any person of his age to do."

8 Mrs Carole Margaret Brinkman, the plaintiff's mother, deposes in an affidavit of 4 October 1999:

"13. ... When Paul started living on his own I immediately noticed that he became more responsible more mature and more self sufficient.

14. Paul has a strong and ongoing relationship with my husband and I, and I have contact with Paul on approximately three occasions per week. He discusses matters with me and he seeks advice on matters which are beyond his knowledge and expertise.

15. To the best of my knowledge information and belief Paul has a strong and ongoing relationship with his father and consults his father in the same way that he consults me.

16. Paul has indicated to me that he wishes to utilise the trust funds to purchase a house in which he proposes to live and to give him a secure place of address. Paul has indicated to me that he will seek independent professional financial advice as to how to invest and manage the balance of the trust funds not utilised to purchase a house.

17. I have no doubt that Paul can own a house and maintain a house without any assistance or guidance whatsoever and that he will seek independent professional financial advice as to what to do with the balance or the whole of his trust funds. I furthermore have no doubt that Paul will seek the advice of myself and his father as to the investment of the trust fund should the Court grant the orders that Paul seeks."

9 The plaintiff, Paul Newton, has sworn affidavits and has also given oral evidence before me today. From his answers, both in examination-in-chief and in cross-examination, I have formed the clear impression that he is quite capable of managing his affairs with the assistance from time to time of his parents or professional advisers.

10 His answers demonstrated that he had clearly thought through issues about the management of his money and had reasonable views as to how and why it should be invested. He says there is about $185,000 remaining. He wishes to invest $100,000 in a house, $30,000 in superannuation and the balance in blue chip shares. He demonstrated a reasonable appreciation of what blue chip shares means by way of examples.

11 I agree with counsel for the Public Trustee, who appeared principally in the role of amicus curiae, that the purchase of a house is not determinative because the trust could always purchase a house and, in the case of disagreement, directions from the Court could be sought. However, the plaintiff's reasons for purchasing a three-bedroom house are sensible and demonstrate a competence in decision-making. That is the real issue.

12 A portion of the material available in 1990 was put to him in the course of cross-examination concerning, what I might describe as, his spendthrift ways. He agreed with the description as applicable when he was 17 but, in his words: "There is a big difference now. When you get older, you wake up." The plaintiff is now 27. Those who know him have, as I have indicated, commented on his increasing maturity over time.

13 Having regard to all the evidence, and particularly my impression of the plaintiff in the witness box, and the answers he gave, I am more than satisfied that he has the mental capacity to give a valid discharge to the trustee, understanding exactly what that means. Further, I am also more than satisfied that he has sufficient mental competence to manage his own affairs.

14 Of course, the funds are safer with the Public Trustee and the order I propose is attendant with some risk. However, risk is not part of the test. If the plaintiff has demonstrated competence, he has a right to call for the delivery of the funds into his own hands. His use of the funds thereafter is a matter for him. His plans for their use are an indicator of competence, not a test as to whether the trust should be terminated. This is why I have remarked previously that the rule in Saunders v Vautier (supra), if not having direct application to court-ordered trusts, is strongly persuasive of the course to be followed.

15 I propose to order that the trust constituted in favour of the plaintiff by order of the District Court of Western Australia made 28 May 1990 be terminated.

Newton v The Public Trustee [2000] WASC 118

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Judgment (29 paragraphs)

Newton v The Public Trustee [2000] WASC 118 (14 April 2000)

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