Plaintiff v Defendant

2 The substantive proceeding relates to an application by the plaintiffs for an order removing Memart Nominees Pty Ltd ('Memart') as trustee of the David Mandie Family Trust ('the trust') and appointing a replacement trustee, as well as an application for declarations that the trustee has acted in breach of its duties, with consequent orders that the actions undertaken in breach were invalid and of no legal effect.

3 David Mandie ('David'), who died on 17 August 2011, and Maureen Minnie Mandie ('Minnie'), who died on 26 April 1999, had three children: Ian Robert Mandie ('Ian'), Stephen Wayne Mandie ('Stephen'), and Evelyn Danos ('Evelyn').

4 Probate of David's will dated 14 October 2004 was granted on 18 April 2012 to Evelyn, Mark Cerché and Garry Stock ('Mr Stock'), the executors named in the deceased's will.

5 The second plaintiff, Jane Mandie ('Jane'), is Ian's spouse. The first plaintiff, Edward Mandie ('Edward') and the third plaintiff, Isabella Mandie ('Isabella') are the children of Ian and Jane.

6 The fourth plaintiff, Amanda Mandie ('Mandy') is Stephen's spouse. The fifth and sixth plaintiffs, Nicholas Mandie ('Nicholas') and Daniella Mandie ('Daniella') are the children of Mandy and Stephen. Daniella is a minor and is represented by her mother as litigation guardian.

7 The current directors of Memart are Evelyn, Milton Lasnitzki ('Mr Lasnitzki') and Mr Stock. Previous directors were David and Minnie until their deaths, and Ian and Stephen until 18 August 1994.

8 Memart has two full-paid ordinary shares on issue, the registered holder of which was David and which, upon his death, vested in the executors of his will, whereupon they were to be held on trust for the beneficiaries of the estate. Evelyn is the residuary beneficiary of the estate.

9 The trust is a discretionary trust, established by deed on 24 April 1978. Memart was then, and continues to be, the trustee of the trust. The trust deed ('the deed') includes, inter alia, terms to the effect that:

(a) the 'specified beneficiaries' are the children of David and Minnie (clause 1(1) of the deed);

(b) the category of 'general beneficiaries' includes the specified beneficiaries, as well as, relevantly, spouses, children and grandchildren of the specified beneficiaries, and corporations in which any general beneficiary owns more than ten per cent of its issued shares (clause 1(2) of the deed); and

(c) the trustee can at any time exclude, in writing, any general beneficiary (clause 1(2) of the deed).

10 At all relevant times, each of the plaintiffs was a member of the class of general beneficiaries of the trust and was, consequently, a discretionary object of the trust.

11 At the time of his death, David possessed real and personal assets of significant value, both in his own name and in the trust, as well as other trusts established for the benefit of himself and Minnie. Most of this wealth was generated by businesses conducted by entities known, collectively, as the James Richardson Group ('James Richardson Group'), which is a furniture, hospitality, real estate, duty free and retail corporation.

12 Upon David's death, Evelyn was appointed executive chairman of the James Richardson Group, a position that she still holds. Mr Lasnitzki is the chief executive officer of the James Richardson Group, and Mr Stock is the duty free chairman of the group.

13 According to the original statement of claim, the claims that Memart has breached its duties as trustee which give rise to the substantive application are based, in brief, upon allegations that it has made discretionary distributions from the trust since at least 2006 without a proper exercise of the power and/or discretion to make such distributions and without a proper consideration of whether those distributions ought to be made. Additionally, the plaintiffs claim that Memart made a purported declaration on or about 18 September 2014 excluding certain parties from the class of general beneficiaries of the trust, those parties being:

(a) the spouses, children and grandchildren of Ian and Stephen, and the spouses, widows or widowers of such children and grandchildren; and

(b) any corporation of which Ian, Stephen, or any of the persons specified in the paragraph above held more than ten per cent of the issued shares.

14 The plaintiffs allege that the purported declaration, having been made 'in bad faith, arbitrarily, capriciously and without any real or genuine consideration', provides a basis for the removal of Memart as trustee and the appointment of a replacement trustee. The basis for this allegation forms part of the subject matter of the application for leave to amend the statement of claim in that the plaintiffs now seek to plead that Mr Lasnitzki and Mr Stock were subject to a conflict of interest between their duties to act impartially in the administration of the trust, and in the interests of all the general beneficiaries and, on the other hand, their interests as employees of the James Richardson Group, reporting directly to Evelyn. As a result of this conflict, it is alleged that Mr Lasnitzki and Mr Stock administered the trust in accordance with Evelyn's wishes so as to favour herself and her family. Previously, the declaration was impugned on the basis that Mr Lasnitzki and Mr Stock were subject to undue influence from Evelyn in exercising their duties in administering the trust.

15 The defendant notes that unless the declaration in question is indeed found to be invalid, there is no basis for the removal and replacement of Memart as trustee of the trust.

16 At the first directions hearing on 18 February 2015, orders were made that included discovery between the parties. At the next directions hearing on 17 April 2015, submissions were filed by the parties concerning certain disputes as to discovery. At that time, the plaintiffs then indicated that they sought to amend their statement of claim. Directions were made that the plaintiffs file a proposed amended statement of claim and submissions in support of the amendments and discovery, if the amendments were allowed, by 1 May 2015. Memart was to file submissions a fortnight later. The application for leave to amend and the discovery dispute were to be resolved on the papers unless the parties requested a hearing, with the further directions hearing fixed for 22 May 2015.

17 Although an affidavit annexing a proposed amended statement of claim was filed in accordance with the directions, followed by submissions from both parties shortly before the directions hearing on 22 May 2015, the plaintiffs indicated that they wished to make further amendments to the proposed amended statement of claim, in response to 'new issues' raised in Memart's submissions. Memart opposed that course and, as it transpired that counsel for the plaintiffs was not available on the previously agreed upon directions date, that hearing was instead fixed for 12 June 2015. On 9 June 2015, the plaintiffs then filed and served an affidavit annexing yet a further proposed amended statement of claim.[1] No further submissions in support were filed.

The plaintiffs' proposed amendments to the statement of claim

18 In substance, the amendments that the plaintiffs now seek leave to make to their claim are as follows:

(a) The deletion of certain paragraphs, in which allegations were made regarding the acrimonious and/or controlling nature of the relationships between some of the parties. Memart had pleaded that these allegations were irrelevant and does not oppose the amendment;

(b) The addition of new allegations concerning the position of Ian and Stephen as 'specified beneficiaries' of the trust (the 'specified beneficiaries allegations'). Memart opposes the grant of leave in relation to that proposed amendment; and

(c) The addition of certain allegations concerning a 'conflict of interest' affecting Memart's directors, and relating to the decision to exclude the plaintiffs as 'general beneficiaries' (the 'conflict of interest allegations'). Memart opposes the grant of leave in relation to that proposed amendment.

19 The original statement of claim included an allegation to the effect that the defendant made a declaration of 18 September 2014 which was invalid. The plaintiffs now seek leave to add an allegation that another declaration, made on or around 27 May 2014 by Memart, by its directors Mr Lasnitzki and Mr Stock, to the effect that both Ian and Stephen were to be excluded as specified beneficiaries under the trust, was invalid. The plaintiffs submit that Memart was not in fact empowered by the deed to made such a declaration, referring to clause 1 of the deed, which provides, inter alia, that:

(1) the 'Specified Beneficiary' and the 'Specified Beneficiaries' shall mean the person or persons (if any) named and described as such in the Schedule;

(2) the 'General Beneficiaries' shall mean and include -

(a) the Specified Beneficiary or the Specified Beneficiaries (as the case may be);

...

AND PROVIDED FURTHER that the Trustee at any time and from time to time may (subject to [illegible] hereof) declare in writing that any person shall thereafter be excluded from the class of General Beneficiaries...

20 The plaintiffs submit that the power granted to the trustee by the deed extends only to the removal of general beneficiaries and that there is no power to remove a specified beneficiary, nor any amendment to the deed deleting the section of the schedule that nominates the children of David and Minnie as specified beneficiaries.

21 Memart submits that the claim made in the plaintiffs' allegations regarding the position of Ian and Stephen as specified beneficiaries has no real prospect of success and ought to be summarily dismissed.[2] It relies, inter alia, upon a written settlement agreement dated 19 December 1995 (the 'settlement agreement') that was entered into between David, Minnie, Ian, Memart, Mandie Investments Pty Ltd and each of the entities then within the James Richardson Group, in relation to claims made by Ian and Stephen in respect of the assets of companies, trusts and other entities owned or controlled by David and Minnie. Clause 9.2 of the settlement agreement provides, relevantly, as follows:

Ian and Stephen acknowledge that on the payment of the amounts referred to in Clause 3 and the satisfaction by David and Minnie and other parties controlled by them of the respective obligations imposed on them or any of them under this Agreement that neither Ian nor Stephen have any further rights against David or Minnie or their respective estates or any company in the James Richardson Group or any other company trusts or entity owned or controlled by them or any of them and save as set out in this Agreement, Ian and Stephen, for themselves, their legal personal representatives and issue agree to release:

(b) the Trustee of the David Mandie Family Trust and any other trustee of a trust which is controlled directly or indirectly by David or Minnie Mandie from any Claim that they or any of them may have against such trustee or the assets of any such trust and agree irrevocably to disclaim any entitlement in relation to any such trust and not to assert any rights as beneficiaries of any such trust...

22 Memart submits that, by reason of the settlement agreement, Ian and Stephen had effectively disclaimed their interest as beneficiaries of the trust,[3] and that the question of the validity of the 27 May 2014 declaration is, therefore, irrelevant. Memart makes the further point that there was a release as well by Ian and Stephen under the settlement agreement. Thus, any dispute about the validity of the declaration is entirely moot because, irrespective of its validity, Ian and Stephen ceased to be specified beneficiaries by reason of the settlement agreement. The Court will not give a declaration on an entirely moot question.[4]

23 Memart also submits that the persons and entities whose rights were purportedly excluded by the 18 September 2014 declaration were, owing to the fact that those rights were derivative and dependent upon Ian and Stephen being specified beneficiaries, necessarily excluded them by default from being potential takers under the trust owing to the operation of the settlement agreement.

24 Memart also contends that the declaration of 27 May 2014 did not purport to exclude Ian and Stephen as specified beneficiaries. That declaration provided that:

In pursuance of the power vested in the Trustee by the proviso in sub-clause (iv) to Clause 1(2) of [the Deed] and of all other powers enabling it to do so, the Trustee declares that Ian Mandie and Stephen Mandie, being two of the children of David and Minnie Mandie, are excluded for all purposes from the class of General Beneficiaries from the date of this Declaration and neither Ian Mandie nor Stephen Mandie shall have any interest whether as General Beneficiary, Specified Beneficiary or otherwise under [the Deed].[5]

25 It submits that the italicised portion of the declaration is the only section that operates as a substantive exclusion, with the remainder of the clause merely recording, as a fact, that Ian and Stephen will have no interest in the trust in any capacity due to them having given up their rights as beneficiaries under the terms of the settlement agreement. It further submits that the minutes of the board meeting at which the declaration was made appear to confirm the contention that this was the intended effect of the document. Memart submits that should the Court find there to be any ambiguity in the terms of the declaration, it should be construed on the footing that a valid declaration was sought to be made, in accordance with well-established principles of interpretation.[6]

26 Finally, Memart refers to the 'taking in default' clause of the deed itself (clause 9(2)), which provides that, should the vesting day arrive and funds remain undisposed of, the children of specified beneficiaries could only ever receive the entitlement that their parents would have received had they been alive. It submits that, in light of this clause, even if Stephen and Ian did somehow remain 'titular beneficiaries' under the terms of the deed itself, the general beneficiaries to whom their claims were connected could not receive funds from the trust.

27 The plaintiffs submit that, according to the ordinary rules of English grammar, the extracted section of the 27 May 2014 declaration does appear to be a declaration attempting to have some effect upon Ian and Stephen; that is, it attempts to exclude Ian and Stephen as specified as well as general beneficiaries. Further, they submit that the settlement agreement did not, contrary to Memart's submission, cause Ian and Stephen to cease to be specified beneficiaries as that would have required that the deed itself be amended. They submit that the effect of the relevant segment of the settlement agreement was, rather, to cause Ian and Stephen to release any entitlement to a benefit under the trust; and that, as a consequence, the rights of those purportedly excluded by the 18 September 2014 declaration (Stephen and Ian's spouses, children, grandchildren and so on) cannot have been affected by the settlement agreement. They also submit that the minutes called in aid of Memart's construction of the settlement agreement are not a legitimate aid to construction, and that the instrument has to be able to speak for itself.

28 As to the conflict of interest allegations, Memart submits that the allegation of invalidity based upon the purported conflict is pleaded in unsatisfactorily elliptical terms, and that it does not refer to any actual improper behaviour but rather to a 'structural conflict' associated with the positions of Mr Lasnitzki and Mr Stock as directors of Memart. It submits that this pleading is defective, in that it strikes at the appointment of executive directors and nominee directors, which have never been impugned as infected by conflicts. Further, Memart refers to the plaintiffs' failure to allege that Mr Lasnitzki and Mr Stock were under a duty to avoid the type of conflict alleged and a failure to avoid such a conflict would render any resolution in which they participated invalid, and liable to be declared so at the suit of the plaintiffs.

29 Memart also refers to clause 11 of the deed, which provides as follows:

The Trustee may exercise or concur in exercising all powers and discretions hereby or by law given notwithstanding that it or any person being a Trustee or any person being a Director or Shareholder of the Trustee has or may have a direct or personal interest in the mode or result of exercising such power or discretion or may benefit either directly or indirectly as a result of the exercise of any such power or discretion and notwithstanding that the Trustee for the time being is the sole Trustee.

30 Memart submits that such a clause is not only effective in accordance with its terms, but is also commonplace within typical family trusts where the trustees or the directors of a corporate trustee will often be either beneficiaries themselves, or associated with beneficiaries.[7] As such, it is argued, even if Mr Lasnitzki and Mr Stock did have the conflict of interest asserted by the plaintiffs, it was, at least, a personal interest in the result of exercising the power of exclusion of general beneficiaries, and would therefore have fallen within the operation of clause 11. Memart submits that the plaintiffs therefore have no basis for the assertion that the alleged conflict could impugn the validity of the resolution taken to exclude either the plaintiffs as general beneficiaries, or Stephen and Ian as specified beneficiaries.

31 The procedural history of this proceeding to date has been, to say the least, unsatisfactory. The proposed amended statement of claim now before the Court represents the plaintiffs' third attempt to frame their pleadings in such a form that the real issues in dispute can be identified. The most recent version of the document was only provided to the defendant, and to the Court, three days before the hearing. Further, the alterations that were proposed following the plaintiffs' receipt of Memart's submissions in defence - which the plaintiffs claim were in response to 'new issues' raised in those submissions - refer to material and to matters of which the plaintiffs ought already have been aware, for example, the amendment concerning the contents and effect of the settlement agreement.

32 Memart asserts that the plaintiffs' conduct, in repeatedly foreshadowing amendments to the statement of claim, creates the impression that they seek not to identify the real issues in dispute, but rather to cast as wide a net as possible in a fishing exercise conducted through discovery. Whilst I make no finding as to whether such an assertion is justified, it is certainly the case that the plaintiffs' conduct thus far in regard to the proposed amendments to the statement of claim has not been conducive to the clear identification of the issues in dispute between the parties.

33 As to the content of the plaintiffs' present application, Memart submits that it ought to be struck out on the grounds that it has no real prospect of success, in accordance with s 63 of the Civil Procedure Act 2010.

34 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[8] Warren CJ and Nettle JA (as his Honour then was) explained the of the meaning of the phrase 'no real prospect of success' as follows:

... the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[9]

35 In this application, one does not have to descend too far into the content of the substantive proceeding to notice that the pleadings in their current form do not identify the issues adequately, giving some force to Memart's submission that the application is driven in order to justify 'a broad discovery inquiry'. The specified beneficiary allegations are couched in terms that fail to take into account, not only the clear statement in the settlement agreement that Ian and Stephen disclaim all rights as beneficiaries under the trust, with the obvious intent and consequence that they cease to be beneficiaries at all, but also the terms of the 'taking in default' clause of the deed itself. The latter issue has obvious implications for those general beneficiaries whose status as beneficiary was tied to or derived from that of Ian and Stephen as specified beneficiaries. In my view, leave should not be granted to the plaintiffs to amend the statement of in relation to the specified beneficiary allegations as pleaded as it has no real prospect of succeeding, in its current form, if it were to proceed to trial.

36 As to the conflict of interest allegations, the decision of McNulty v McNulty[10] relied on by Memart also related to a similar clause to clause 11 in a strike out application and it was held effective to preclude the viability of a claim based on a conflict of interest. In his reasons, Osborne AsJ referred to the duty to avoid conflicts of interests that remain subject to the express provisions of the trust instrument, referring to a judgment of Lord Herchell in a passage cited in Mowbray and others in Lewin on Trusts.[11] His Honour concluded that the clause similar to clause 11 in that case operated so as to render the cause of action untenable on the evidence.[12] The pleading for the conflict of interest allegations is unsatisfactory for its lack of detail. As Memart correctly identifies, the mere fact that Mr Lasnitzki and Mr Stock occupied dual roles in relation to the Mandie family and their business does not, of itself, raise any prima facie presumption of a conflict of interest. In the absence of pleadings directed to the existence and content of a specific duty on their part, and of particulars regarding specific allegations of breach, the proposed amendment is too vague to provide the basis for a substantive claim and, therefore, has no real prospect of succeeding, in its current form, if it were to proceed to trial.

37 Other further matters arose from the hearing of the application. The first is Memart's application for confidentiality orders in respect of confidential annexures referred to in its outline of submissions. The application is supported by an affidavit of Susannah Mary Stone, solicitor, sworn 15 May 2015. The orders sought by Memart do not seek to keep the relevant documents confidential from the plaintiffs, but rather from third parties on the basis that they contain confidential information concerning private and personal affairs of the Mandie family. Confidentiality orders were made in previous proceedings brought against Memart by two of the plaintiffs in this proceeding.

38 On the basis of the matters deposed to by Ms Stone, I am satisfied that orders as to confidentiality of the relevant annexures to Memart's submissions should be made.

39 The second matter relates to the order for costs made on 17 May 2015 wherein paragraph 6 of the authenticated orders provides that the plaintiffs pay Memart's costs of the day and the costs be otherwise reserved.

40 Counsel for Memart brought the Court's attention to the transcript for that day to the effect that the costs order should have been that the costs be reserved. Accordingly, I will amend paragraph 6 of the orders made on 15 May 2015 to reflect the transcript.

41 The third matter relates to the parties' competing orders for discovery. There are now three sets of discovery submissions, each referring to different categories of documents depending on which version of the plaintiffs' statement of claim was relevant at the time. At the hearing of the plaintiffs' application for leave to amend, I determined that the discovery issues should be heard after the application for leave to amend was determined. In that way, any outstanding issues can be finalised. If that is the position, the hearing of the discovery issues can now be fixed for hearing at a mutually convenient date.

42 The final matter is the costs of the plaintiffs' application for leave to amend the statement of claim. Costs submissions were filed by the parties. I will hear the parties as to whether they wish to make any further submissions. Otherwise, I will determine them on the papers.

43 Subject to any further submissions as to the final orders to be made, I will order as follows:

(a) Leave be granted to the plaintiffs to amend their further proposed amended statement of claim, being exhibit 'JAM-2' to the affidavit of Jan Annette Moffat sworn 9 June 2015, by deleting:

(i) the reference to '7 May 2001' in paragraph 7(c)(b) and substituting 18 August 2011';

(ii) paragraphs 15 to 18, 22 to 24 and the references to paragraph 22 to 24 in paragraph 28; and

(iii) the declarations BA and BB sought in the prayer for relief.

(b) Otherwise the plaintiffs' application for leave to amend be dismissed;

(c) The plaintiffs file and serve their amended statement of claim by 4 September 2015;

(d) The defendant file and serve its defence to the amended statement of claim by 11 September 2015;

(e) On or before 25 September 2015, the defendant file and serve particulars of paragraphs 26 and 27 of its defence, insofar as it remains relevant to the plaintiffs' amended statement of claim;

(f) Annexures A, B and C to the defendant's outline of submissions on the plaintiffs' application for leave to amend dated 15 May 2015 be marked as confidential ('confidential annexures') and kept within a sealed envelope on the Court file.

(g) Pursuant to r 28.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2005, the confidential annexures be kept confidential and no person other than a party to this proceeding may, without leave of the Court constituted by a Judge, inspect of obtain a copy of said documents.

DANIELLA MANDIE (a person under a disability being a minor by her litigation guardian AMANDA MANDIE)

[1] Affidavit of Jan Annette Moffat sworn 9 June 2015, [5]; Exhibit 'JAM-2'.

[2] Civil Procedure Act 2010 s 63; also citing Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [29] (Warren CJ, Nettle JA).

[3] Citing Federal Commissioner of Taxation v Cornell [1946] HCA 32; (1946) 73 CLR 394, 401-2 (Latham CJ); JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VicRp 88; [1985] VR 891, 930-1 (McGarvie J); Commissioner of Taxation (Cth) v Ramsden [2005] FCAFC 39; (2005) 58 ATR 485, [26], in support of the contention that a disclaimer by a person of their interest as a beneficiary of a trust is effective.

[4] Citing, for example, ASC V Ampolex Ltd (1995) 38 NSWLR 504 (CA), [507-508] (per Kirby P; Bayston v Scotch College [2002] VSC 516, [24]-[25] (per Byrne J).

[6] Citing as examples Upper Hunter DC v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, 437 (Barwick CJ); Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 (Gibbs J).

[7] Citing, by way of example, McNulty v McNulty (2010) 14 ITELR 3 361, [42], [60].

[8] [2013] VSCA 158 (24 June 2013).