Plaintiff v Defendant

Rohan Wales and Persephone Wales (as the representative of the estate of Murray Wright Wales, deceased)

1 The plaintiff is the executrix of the estate of Beverley Hutchison, deceased, who died on 3 September 2010. The plaintiff's daughters, Roslyn Matear and Suzanne Case, are the beneficiaries of the estate of Beverley Hutchison.

2 Until their removal by orders made on 27 November 2013,[1] the plaintiff and her daughters were trustees ('the former trustees') of four trusts: the HN Wales 1954 Trust, the HN Wales 1963 Trust, the BMR Hutchison Trust and the MEM Wales Trust ('the trusts'). The defendant, Mr Petr Vrsecky of the firm, Lawler Draper Dillon, was appointed the trustee of the trusts in place of the former trustees.

3 Beverley Hutchison was the income beneficiary of the trusts. Upon her death, the remainder interests of the capital beneficiaries in the trusts vested in possession. The capital beneficiaries of the trusts are the plaintiff's daughters, the estate of Murray Wright Wales, and his children, Rohan Wales, Julian Wales and Ashley Wales, with differing shares between the plaintiff's daughters and the other capital beneficiaries.[2]

4 As will become apparent, the capital beneficiaries hold different views concerning certain aspects of the administration of the trusts. In order to differentiate between the different views of the capital beneficiaries, I shall refer to the estate of Murray Wright Wales, and his children, Rohan Wales, Julian Wales and Ashley Wales as 'the Wales Capital beneficiaries' and the remaining two capital beneficiaries as 'the plaintiff's daughters'.

5 After the death of Beverley Hutchison, the former trustees of the trusts intended to wind up the trusts as soon as practicable and distribute the funds of the trusts to the capital beneficiaries.

6 Various issues and differences emerged between the former trustees of the trusts and the Wales capital beneficiaries over the provision of the financial documentation of the trusts with the result that, in March 2012, the former trustees issued a proceeding seeking directions for the winding up of the trusts, settlement of the accounts of the trusts and an order discharging them as the trustees of the trusts ('the winding up proceeding').[3]

7 In about September 2012, the former trustees retained new accountants for the settling of the accounts for the trusts for the period 2004 to 2012. These accountants raised an issue of unpaid present entitlements ('the unpaid present entitlements') to Beverley Hutchison during her lifetime. The unpaid present entitlements were conceded by the former trustees to have been in breach of trust with payments to Beverley Hutchison having been regularly underpaid and mixed with the capital of the trusts, probably since the inception of each of the trusts. It was only with the retainer of the new accountants and during the course of their preparation of accounts for the trusts that this discrepancy was discovered. It was thought by the former trustees that this discrepancy might give rise to a liability to the estate of Beverley Hutchison.

8 In October 2012, the former trustees amended the winding up proceeding by restricting the number of years for which the accounts of the trusts were to be settled by the Court and sought directions for the basis of the preparation of the accounts. The amendment restricted the number of financial years from between 30 June 2004 to 30 June 2012 or any later financial year. The directions sought made reference to the unpaid present entitlements to Beverley Hutchison. This issue became an important issue in the winding up proceeding, particularly when it was discovered that the unpaid present entitlements to Beverley Hutchison over the unspecified period meant that it was difficult or impossible to ascertain the amount that had been unpaid over the lifetime of the trusts with any precision.

9 As a consequence of the issue of unpaid present entitlements, in November 2012, Murray Wright Wales and Rohan Wales made application for the removal of the former trustees as the trustees of the trusts on the grounds of conflict of interest and duty of the former trustees.[4]

10 In this proceeding, the plaintiff in her capacity as the executrix of the estate of Beverley Hutchison, seeks relief against the defendant in respect of the unpaid present entitlements to estate of Beverley Hutchison. In essence, her claim against the defendant seeks to determine the quantum of the unpaid present entitlements to the estate of Beverley Hutchison over a period of time and, when that quantum has been determined, payment to the estate of Beverley Hutchison.

11 On 17 November 2014, the applicants, Rohan Wales and Persephone Wales[5] filed a summons seeking to be joined to this proceeding. The defendant neither consents nor opposes the application but reserves his right to make submissions about the further hearing of the proceeding. The plaintiff opposes the application for joinder.

12 On 21 November 2014, Almond J sat on the first directions hearing in this proceeding. His Honour made orders, inter alia, that the defendant file and serve a defence by 19 December 2014 and that the plaintiff file and serve a reply by 27 January 2015. The further hearing of the proceeding was adjourned to 6 February 2015 and then again to 20 February 2015 when his Honour referred the management of the proceeding to the Probate List.

All beneficiaries ought be involved in the unpaid present entitlements litigation, if they so choose

13 The applicants submit that the effect of the plaintiff's opposition to the joinder is to exclude other substantial beneficiaries of the trusts to be directly involved in the litigation and determination of the unpaid present entitlements claim.

14 They submit that prior to the removal of the former trustees, the applicants had sought to have the issue determined and had positively asserted that it was appropriate to do so, as all interested parties in the trusts were a party to that proceeding.

15 It appears that the plaintiff now seeks to rely upon the removal of the former trustees and the appointment of the defendant as providing justification for the exclusion of the applicants in this proceeding concerning the unpaid present entitlements claim.

16 It is correct that submissions were made by the applicants in the removal application that the unpaid present entitlements issue ought properly be determined by demand being made by the estate of Beverley Hutchison upon the defendant rather than by way of the determination of a question or issues in the winding up proceeding but it was never submitted or conceded that in those circumstances the Wales capital beneficiaries would not be entitled to be joined in such a proceeding.

17 Whilst it is conceded that the defendant is a necessary and proper party to the unpaid present entitlements claim made by the plaintiff against the defendant as trustee of the trusts, the applicants submit that the Wales capital beneficiaries of the trusts are persons who may be permitted to be joined to the proceeding as they clearly have an interest in the proceeding, holding beneficial interests in the trusts equating to around 40-50 per cent of the capital of the trusts.

Joinder ought be allowed to avoid further litigation

18 The applicants submit there are defences they may wish to make in relation to the plaintiff's claim in this proceeding, not all of which have been made in the defence filed by the defendant.

19 Additionally, there may be a defence available to the applicants that is not available to the defendant arising from the following matters:

(a) In his lifetime, Murray Wright Wales objected to a grant of probate of the will of Beverley Hutchison on the grounds that she lacked testamentary capacity ('the capacity proceeding');

(b) That capacity proceeding was settled on the basis of the sworn value of the estate of Beverley Hutchison and did not include the amount now sought to be recovered on behalf of that estate for the unpaid present entitlements;

(c) It was conceded by counsel for the plaintiff in the application for removal of the former trustees that a consequence of the unpaid present entitlements claim being successful, it would necessarily re-open the settlement of the capacity proceeding;

(d) The capacity proceeding relied heavily upon the evidence of the late Murray Wright Wales;

(e) As Murray Wright Wales is now deceased, the representatives of his estate in the capacity proceeding are now irreparably prejudiced in their conduct of that claim;

(f) In those circumstances, an equitable estoppel ought arise against the plaintiff in this proceeding, on the basis that she maintains the unpaid present entitlements claim where the prejudice from the settlement of the capacity proceeding cannot now be overcome by re-opening that proceeding.

20 The applicants submit that their joinder will avoid the prospect of further proceedings, in the form of a likely claim by the Wales capital beneficiaries against the defendant, in the event that the unpaid present entitlements claim should succeed where all defences had not been taken. This is because the dispute is and always has been in substance a dispute between the two groups within the capital beneficiaries of the trusts: the plaintiff's daughters on the one hand and the Wales capital beneficiaries on the other hand.

21 The plaintiff has her own legal representation to prosecute the unpaid present entitlements claim for the benefit of the beneficiaries of the estate of Beverley Hutchison. Thus, she and her daughters as the beneficiaries of the estate of Beverley Hutchison, can seek and receive advice from their legal representatives, with whom they have a relationship that is subject to legal professional privilege and they may make forensic decisions as to the most advantageous way of prosecuting the plaintiff's claim for the unpaid present entitlements.

22 The defendant is not and cannot be the legal representative for the Wales capital beneficiaries.

23 It would, therefore, be inequitable and unjust and prejudicial to the Wales capital beneficiaries if they are not given the same rights to defend the unpaid present entitlements claim through their own separate legal representation.

24 No prejudice is caused by the joinder that cannot ultimately be cured by orders for costs if the Court should ultimately form the view that such joinder caused an existing party to incur unnecessary additional costs.

25 The applicants rely on r 9.06(b)(i) of the Supreme Court (General Civil Procedure) Rules 2005 in support of their joinder application, stating that they are '[persons] who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon'.[6] This provision relates to the permissive joinder of parties at the Court's discretion. The applicants submit that they ought be joined to ensure that all questions be determined, thus avoiding a multiplicity of proceedings relating to the unpaid present entitlements claim, which would run contrary to the objectives of the Civil Procedure Act 2010 to ensure that proceedings are just, timely, efficient and cost-effective.[7]

26 In opposing the joinder application, the plaintiff submits that the basis on which the applicants make the joinder application, being to 'ensure that the unpaid present entitlements claim is properly ventilated', is not a proper basis on which to be joined as parties to the proceeding. Further, she submits that the application is brought prematurely, as the trustee has not filed a defence.[8]

27 The proceeding is a debt claim against the defendant as trustee of the trusts. It is not a claim against the beneficiaries, and it misunderstands the nature of a trust to contend otherwise. A beneficiary of the trusts cannot be a 'necessary' party to the proceeding against the trustee.

28 The defendant was appointed on the application of Murray Wright Wales and Rohan Wales, and supported by Julian Wales, as an independent person best placed to conduct a balanced assessment of the evidence and issues arising in relation to the unpaid present entitlements claim.[9] It would erode the function and purpose of his appointment for the applicants to be added as defendants to this proceeding in order to duplicate that exercise. To seek joinder also runs contrary to the contentions made in the removal application to for the appointment of the defendant as the new trustee of the trusts.

29 The defendant is able, and may be expected, to obtain evidence from any capital beneficiary of the trusts who may be a witness in the proceeding. The defendant is also able to conduct any defence that a capital beneficiary may think desirable to advance.

Beneficiary's concerns about the defendant as the trustee of the trusts

30 In his affidavit supporting the joinder application, Rohan Wales noted his concerns about the level of commitment of the defendant to the defence. A beneficiary's concerns about performance by a trustee of his duties are properly addressed to the trustee. The solution is not to interpose and join in a trustee's performance in a proceeding brought against a trustee.

31 If a beneficiary has grounds for contending that a trustee is absent or failing in the performance of his or her duties, then exceptional steps may be taken for a beneficiary to represent the trust in substitution for the trustee.[10] But the defendant is defending this proceeding and has obtained judicial advice of the Court that he is justified in doing so. There is no justification for a beneficiary to become a supplement to the parties to a claim.

32 The plaintiff submits that any defences to a proceeding where the defendant as trustee is sued should be a matter for the discretion of the defendant alone, and that the defendant, in doing so, will take the interests of the capital beneficiaries as a whole into account. She contends that in doing this, the defendant will be able to avoid making the proceedings unnecessarily complex, thus avoiding further costs. The plaintiff submits this is in line with the objectives of the Civil Procedure Act 2010 and that joining the applicants to the proceeding would erode the function and purpose of appointing an independent trustee, thereby adding significant costs in that it would duplicate the process. She also submits this application for joinder runs counter to the submissions made by the applicants in the removal application to appoint a new trustee given the importance of the trustee exercising its independence discretion.

33 An additional party to the proceeding would certainly and unnecessarily significantly increase the costs and complexity of the proceeding. If one beneficiary were added to the proceeding, there might be no reason to refuse joinder of each of the other beneficiaries.

34 Adding beneficiaries to a proceeding being defended by a trustee, in circumstances where the trustee has been appointed principally to deal with the issue, could not enhance the overarching purpose of cost-effective and timely determination of proceedings required by the Civil Procedure Act 2010.

35 The Supreme Court (General Civil Procedure) Rules 2005 provide for the permissive joinder of parties as follows:

9.06 Addition, removal, substitution of party

At any stage of a proceeding the Court may order that -

(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b) any of the following persons be added as a party, namely -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.

36 In News Ltd v Australian Rugby Football League Ltd, the Court held that Federal Court joinder provisions should be applied flexibly when the applicant's 'legal interests will be affected by the judgment'.[11] In the same decision, the Court held that it should query whether:

[the party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action...[12]

in making a decision whether or not the party should be joined to the proceeding. These same principles would apply in respect of the Victorian joinder rules.

37 In respect of joining beneficiaries to a proceeding, the authorities state that the trustee is not required to join them to a proceeding for a breach of trust except where their interests may not be properly represented.[13] Proceedings where it would be appropriate to join the beneficiaries include:

The proceedings which the trustee brings may be such as to raise, or be capable of raising, questions between one beneficiary and another or questions between the beneficiary and himself. In such a case the trustee does not sufficiently represent the interests of the beneficiaries for the purpose of the proceedings... On the other hand, in proceedings for the execution or administration of the trust the interests of the beneficiaries may conflict among themselves and there may in addition be a conflict of interest between the trustee and the beneficiaries with regard to the accounting by the trustee required for the purposes of the general distribution of the trust estate which is asked for in the proceedings. So a distinction is drawn between proceedings which seek merely to get back the trust fund and proceedings for the execution or administration of the trust. The former can be maintained by the trustee without joining the beneficiaries; the latter are or may be incapable of being so maintained.[14]

38 In exercising its powers, the Court must give effect to and further the overarching purpose of the Civil Procedure Act 2010.[15] The overarching purpose of the act is:

7 Overarching purpose

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by -

(a) the determination of the proceeding by the court;

(b) agreement between the parties;

(c) any appropriate dispute resolution process -

(i) agreed to by the parties; or

(ii) ordered by the court.[16]

39 The plaintiff in this proceeding relied on submissions made by counsel for the estate of Murray Wright Wales and Rohan Wales in their removal application within the winding up proceeding whereby it was noted that an independent trustee would be the proper defendant to any proceeding brought to determine the unpaid present entitlements claim. The applicants concede that the trustee is the proper and necessary defendant in this proceeding; however, such a concession does not lead to the conclusion that the applicants, in their capacity as some of the Wales capital beneficiaries, should be excluded from the proceeding. The reason for this is because the applicants are seeking to be joined under permissive provisions; they do not claim to be the 'necessary defendant' to the proceeding. Thus, while a conflict remains between the capital beneficiaries of the trusts such that 'questions between one beneficiary and another'[17] may arise in this proceeding, the applicants submit it is appropriate that they should be permitted to be joined to the proceeding to ensure that all issues are ventilated and adjudicated.

40 The plaintiff relied on authorities relating to the standing of beneficiaries to sue in submitting that the trustee is the proper defendant and submits that impropriety on the part of a trustee must generally be proved before a beneficiary can sue a third party, and by inference be joined to a proceeding where the trustee is the proper defendant, referring to Sharpe v San Paulo Railway Co[18] where Sir James LJ stated:

But other considerations seem to me quite conclusive upon the demurrer to this bill. I am of opinion that the Plaintiffs are not the persons entitled to sue. The case is that there was an equitable demand made by the Plaintiffs. That equitable demand they have assigned to the Baron de Maua and Mr Howard upon trust for the Baron principally, and then as to the rest upon trust for the Plaintiffs... Is it to be permitted that every one of the persons who has an interest in a thing assigned to a trustee for the benefit of a great number of persons should file a distinct bill in a distinct branch of this Court against the debtors to the estate?[19]

41 The San Paulo case continues and states that the proper remedy where a trustee will not take steps to enforce the claim is to file a claim against the trustee to realise the trust fund or bring an action on behalf of the whole estate.[20]

42 The plaintiff's submissions, however, misconstrue the nature of this joinder application - the applicants do not seek to sue a third party in the place of the trustee, they seek to be joined as a party whose interests may be affected by a decision on the unpaid present entitlements claim in order that they may be heard. The cases cited by counsel for the plaintiff deal with situations where the beneficiaries sought to replace the trustee to bring proceedings; that is, the proceedings were concerned with the ability of beneficiaries to sue in the shoes of the trust and the trustee. The circumstances of this application are fundamentally different. Some of the capital beneficiaries of the trusts seek to be joined to the proceeding, which is brought by the executrix and trustee of the estate of Beverly Hutchison, for the ultimate benefit of the beneficiaries of her estate, who are also capital beneficiaries of the trusts. The interests of the two groups of capital beneficiaries will necessarily be affected by the outcome of this proceeding.

43 The applicants indicated that they may seek to bring certain defences that are not available to the defendant as trustee. These defences may arise out of the settlement of the capacity proceeding in the estate of Beverly Hutchison, whereby the quantum of the estate made no reference to the unpaid present entitlements claim. The capacity proceeding could be re-opened and may spark further conflict between the capital beneficiaries of the trusts. If the applicants are joined and do bring the claimed defences, the trustee remains the proper defendant and its ability to assess the merit of any of the defences is not undermined. The applicants do not seek to make submissions in terrorem and force the trustees to exercise their discretion in a certain way, as submitted by the plaintiff.[21] However, as the defendant cannot pursue any potential defences the applicants may have on this point, it is possible that the defendant will not be able to represent properly the interests of one or more of the capital beneficiaries of the trusts, including the applicants.

44 In seeking judicial advice on the unpaid present entitlements claim, a matter of administration necessary to finalise the trusts, a conflict remains between the capital beneficiaries. In light of this conflict, it would be incredibly difficult for the defendant to represent the interests of all capital beneficiaries, notwithstanding the fact that the trustee remains the proper defendant. In my view, this favours the joinder of the applicants to ensure that all questions in the proceeding are effectually and completely determined.

Beneficiary's concerns about the defendant as trustee of the trusts

45 The plaintiff submits that the applicants should not have any concerns about the defendant as trustee as he was appointed by the Court and is independent of the capital beneficiaries. It was also submitted that there is, in reality, no conflicting interests of the capital beneficiaries. In my view, this certainly is not the case given the history of litigation between them. It would be just and fair that the applicants be represented in this proceeding to ensure that all issues are ventilated and that the disputes between them can be finally determined.

46 Further, the plaintiff, being a former trustee of the trusts, relies on her own breach of trust and that of her daughters as the other former trustees, to bring this claim. This would be a reason not to oppose the joinder application on the basis that it is in the interests of all capital beneficiaries that any and all grievances are aired and determined.

47 The Court must give effect to the overarching purpose of the Civil Procedure Act 2010 in relation to powers that 'arise from or are derived from the common law or any procedural rules of practice of the Court'.[22] Adopting a flexible approach to the permissive joinder provisions under the Rules, as adopted in News Ltd v Australian Rugby Football Club, ensures the just, timely and cost-effective resolution of the issues in dispute. This is so because it is evident that the interests of the capital beneficiaries conflict on the unpaid present entitlements claim such that their presence before the Court may well be necessary to ensure that all questions in the proceedings are determined. While it is arguable that this could be achieved by the trustee calling on the relevant parties, for example, to give evidence in the proceeding, non-parties do not have the same rights or roles in litigation as parties. Further, there is clear authority that allows for the joinder of beneficiaries to proceedings on specific matters: in Young v Murphy,[23] Brooking J made a distinction between joining beneficiaries to proceedings relating to the getting in of the assets of the trust and proceedings related to the administration of the trusts. Determination of the unpaid present entitlements claim will give 'final administration of the trusts' and, as such, the proper conduct of the proceedings should involve all parties to the issue at hand, should they so wish to be involved.

All beneficiaries ought be involved in the unpaid present entitlements litigation, if they so choose

48 Brooking J held that beneficiaries can be joined where the proceedings involving the trustee 'raise, or are capable of raising questions between one beneficiary and another.'[24] In this proceeding, the dispute is effectively inter partes between the capital beneficiaries: on the one hand, the Wales capital beneficiaries and, on the other hand, the plaintiff's daughters. Effectively, the plaintiff brings this claim for the benefit of her daughters as beneficiaries of the estate of Beverley Hutchison.

49 The plaintiff submits the applicants are seeking to be put in the same position as they were before the application for removal proceeding. In my view, this submission mischaracterises the situation as it stands following the Court's appointment of an independent trustee: the plaintiff is no longer a trustee of the trusts as she was in the application for removal proceeding. However, the fact that the plaintiff is one of the former trustees of the trusts means that any person who has been a party to previous disputes should be entitled to be joined should they so wish as questions between the capital beneficiaries not only remain but also, if they are not joined, it is possible that further questions could arise, which may become the subject of further litigation, as has occurred with the unpaid present entitlement issue.

50 In my view, the applicants ought be involved in this proceeding if they so choose to enable the complete adjudication of questions and issues between the capital beneficiaries of the trusts so that the administration of the trusts can proceed and be completed.

Joinder ought be allowed to avoid further litigation

51 If the applicants are not joined, it is possible that further disputes and litigation will arise, which in the long run, will be more costly for all parties concerned and will further deplete the funds available to distribute to the capital beneficiaries of the trusts. Consistent with the overarching purpose of the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in the dispute, the joinder of the applicants will assist the Court in considering all relevant issues and avoid any further potential claims by the Wales capital beneficiaries against the defendant trustee in relation to the unpaid present entitlements claim.

52 As articulated in Young v Murphy, if it is possible that the interests of one or more beneficiaries will not properly be represented by the trustee and/or there is a real conflict between the beneficiaries, beneficiaries are entitled to be joined to a proceeding. This general law rule, read in conjunction with the permissive joinder rule under r 9.06(b)(i) and the overarching purpose of the Civil Procedure Act 2010 to ensure just, efficient, timely and cost-effective resolution of disputes, confirms that it is appropriate to allow the application by the applicants to be joined to the proceeding.

53 Accordingly, I will order that the applicants, Rohan Wales and Persephone Wales, as the representative of the estate of Murray Wright Wales, deceased, be joined as defendants to this proceeding.

54 Subject to any submissions of the parties as to costs, the costs of this application be reserved.

[1] Wales v Wales [2013] VSC 569 (24 October 2013).

[2] Pursuant to the HN Wales 1954 Trust the distribution was, in fact, to be divided between the estate of Murray Wright Wales as to half and the plaintiff's daughters, being the children of his brother, Geoffrey Wales, as to the remaining half. With the death of Murray Wright Wales on 2 April 2013, his children being Rohan Wales, Julian Wales and Ashley Wales, became entitled to his half share of the HN Wales 1954 Trust. As to the other three trusts, the capital is to be distributed in equal shares between the plaintiff's daughters and Rohan Wales, Julian Wales and Ashley Wales. Further details of the trusts are outlined in Wales v Wales [2013] VSC 569 (24 October 2013) 2-3.

[4] Wales v Wales [2013] VSC 569 (24 October 2013).

[5] Murray Wales died on 2 April 2013. His will dated 8 April 2011 appoints Rohan Wales and Julian Wales and the daughter of Rohan Wales, Persephone Wales, as his executors and trustees of his estate. On 7 May 2013 at the commencement of the hearing in proceeding number S CI 2012 01849, Persephone Wales consented to being appointed as the person to represent the estate of Murray Wright Wales pursuant to r 16.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 and being substituted as first defendant in that proceeding on behalf of the estate of Murray Wright Wales: Wales v Wales [2013] VSC 569 (24 October 2013).

[6] Supreme Court (General Civil Procedure) Rules 2005, r 9.06(b)(i).

[7] Civil Procedure Act 2010, s 7(1).

[8] A defence was filed on 19 December 2014. The summons seeking joinder of the applicants was filed on 17 November 2014, prior to the time that the defence was filed. The plaintiff's submissions relating to the joinder application were filed on 21 November 2014. In oral submissions, counsel for the plaintiff conceded this submission was now redundant.

[9] Wales v Wales [2013] VSC 569 [113], [117].

[10] In oral submissions, counsel for the plaintiffs relied on the legal proposition that it is only in exceptional circumstances such as where a trustee commits a breach of trust that a beneficiary may be allowed to sue a third party in the place of a trustee: Hayim & v Citibank [1987] 1 AC 730, 747 at [C].

[11] The Federal Court of Australia held that there should be a 'flexibility of approach' when looking at the Federal Court rules on joinder: News Ltd v Australian Rugby Football League Ltd ('News Ltd v Australian Rugby Football League Ltd') [1996] FCA 870; (1996) 139 ALR 193, 298 at [55]-[56] following Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (Lord Diplock), which looked at the pre-cursor joinder rules.

[13] Young v Murphy ('Young v Murphy') [1996] 1 VR 279, 283 (Brooking J). See also, Hayim & Anor v Citibank NA & Anor [1987] 1 AC 730, 747-8 (Lord Templeman).

[15] Civil Procedure Act 2010, ss 8-9.

[16] Civil Procedure Act 2010, s 7.

[17] Young v Murphy [1996] 1 VR 279, 283.

[18] [1873] 3 LR 597 ('San Paulo').

[21] The case relied on by the plaintiff relates to a situation whereby the beneficiaries sought to influence the discretionary powers held by a trustee in relation to the appointment of another trustee: In re Brockbank; Ward v Bates [1948] 1 Ch. D 206, 209-10.

[22] Ibid, s 8(c).

[23] Young v Murphy [1996] 1 VR 279, 283 at [46].