Plaintiff v First Defendant

(1) The AMPB Trust No.1, or simply the AMPB Trust, which was established by Roland as settlor, trustee and appointor by a deed of settlement executed on 23 July 2013. This trust is the focus of the present application.

(2) The AMPB Trust No.2 was created by a deed of settlement executed by Roland as settlor, trustee and appointor, dated 2 February 2015. The current trustee of that trust is the first defendant, Pless Nominees Pty Ltd, the director of which is Mr Peter Pless, the second defendant.

(3) The AMPB Property Trust is the third trust. It was settled by deed of settlement dated 11 February 2015. Again, Roland was the settlor and sole trustee and appointor of that trust.

1. Peter is Roland's son. He became the trustee of the AMPB Trust on his father's death.[3]
2. Ms Manuela Rathey, also known as Manuela Pless Bennett, is Roland's daughter and Anton's mother. She is the third party in the proceeding, and has not taken a substantive position on the matters the subject of this application.

1. The AMPB Trust was created by a deed of settlement dated 23 July 2013, with an initial settlement sum of $1 million. It included provisions that the plaintiff, Anton will be the trustee upon attaining the age of 23 years, and that he was the sole named beneficiary. The deed also provided for general beneficiaries, which were defined broadly by reference to relationships to the primary beneficiary, Anton. Those beneficiary classes are set out in cl 9 of the Schedule to that deed of settlement.
2. On 7 August 2017, Roland executed a deed of appointment appointing Peter and Manuela as beneficiaries of the AMPB Trust in addition to Anton.
3. On 21 February 2019, Roland executed two further deeds in relation to the AMPB Trust. The first was a deed of removal, which provided a change to cl 6 of the Schedule to the AMPB Trust Deed. That clause related to the appointor, who was, in the original deed, the trustee from time to time. That clause was amended in relation to the removal and appointment of the appointor so that it read as follows:

6. Appointor. Firstly, Roland Pless of 7B Robertson Street, Toorak VIC 3142; and

Secondly, upon the death of Roland Pless, Peter Maximilian Pless of 7A Robertson Street, Toorak VIC 3142 such appointment to become operative on the death of Roland, to be held by Peter Maximilian Pless only until Anton Maximilian Pless Bennett, grandson of Roland, attains the age of 23 years old upon which the subsequent Appointor of the Trust shall become Anton Maximilian Pless Bennett.

1. A deed of exclusion of beneficiaries was also executed on 21 February 2019 by Roland pursuant to cl 25 of the AMPB Trust Deed. That Deed of Exclusion of Beneficiaries provided substantively as follows:

1 Exclusion of Beneficiaries

Roland declares that Manuela Susan Pless Bennett and Peter Maximilian Pless shall be excluded as Beneficiaries as to both capital and income of the trust.

2 Renunciation of Powers

Roland confirms that:

(a) it is his intention that Anton Maximilian Pless Bennett, his grandson remains the Primary Beneficiary of the Trust and

(b) upon Peter Maximilian Pless attaining the position of Appointor of the Trust on the death of Roland, he may not make any subsequent appointments, nominations or amendments to the Trust Deed that are inconsistent with clause 2(a) above (except with the written consent of Anton Maximilian Pless Bennett) and any power to do so is specifically renounced.

1. The Deed of Exclusion of Beneficiaries also provides, in cl 3, that that deed prevails over any prior inconsistent document.
2. On 15 July 2019, Roland executed a further deed of exclusion, which confirmed that Anton remained the primary beneficiary of the AMPB Trust, but there was nothing to prevent a person named Ashlee Acquarola being nominated a general beneficiary if proven to be Roland's granddaughter.
3. It was not controversial as at the time of this proceeding commencing in 2020, and on the evidence at the time of this application, that Anton remained the only named primary beneficiary of the AMPB Trust.

Application for discharge of restraint on operation of Trust Deed

1. In the course of a series of interlocutory hearings in this matter, there was a hearing before Quigley J on 11 June 2024, at which Peter appeared for himself and for the first defendant, Pless Nominees.
2. Mr Giulio Marra, who was the solicitor on record for both Anton and Manuela, appeared at the hearing. Three applications had been listed to be heard before the court on that day, and they were described by her Honour in that hearing, as transcribed in the transcript on that day, as follows:

[There are] three matters which I need to determine, one being the application to restrain the solicitor acting for ... the plaintiff and the third party. The application made under order 117 for Mr Pless to act on behalf of the company - trustee company. The third is the summons - the May summons - the first May summons, which requested a restraint of the operation of the deed, which was, on 9 July, that the plaintiff would become the appointor.[4]

1. At that hearing, Mr Marra explained that he did not have instructions from Anton and had not heard from him since 27 May, some two weeks prior to the hearing, which Mr Marra described as 'cast[ing] some pretty serious doubts on our role in the proceeding generally'.[5]
2. Much of the hearing addressed an application to restrain Mr Marra from acting for Anton and Manuela on the basis of a conflict. Quigley J gave a ruling on that issue on 11 June 2024, refusing to restrain Mr Marra from acting.[6]
3. At the hearing, her Honour also considered the application for an order dispensing from the requirement that the first defendant, Pless Nominees, appear by a solicitor. Her Honour decided that that application would be granted.[7]
4. Her Honour also considered the question of the defendant's application to restrain the operation of the provision of the AMPB Trust deed by which Anton would become appointor and trustee on turning 23, on 9 July 2024. On that issue, her Honour said as follows:

... [H]aving looked at the matter overall, it does seem to me that the maintenance of the status quo, in terms of the position of the various trusts, is the most appropriate course. If the restraint of the operation of the deed were not enlivened, that would make this proceeding more complex and more likely to create further delay ...

So I am prepared to make the order restraining the operation of the deed, and extend the time for that to the hearing and determination of the matter. I am mindful that that may be into early next year, but given the length of time that this litigation has been on foot, in my mind, there is no good reason why the operation - the status quo - should not be maintained. I will give liberty to apply and what I mean by that is if the plaintiff and third party wish to come back to the court and seek a variation of that order on proper material, then of course the court will deal with it. But I am inclined to make the order to prevent the change to the deed automatically occurring on 9 July.

And it does seem to me that the maintenance of the status quo overrides other considerations which, given the length of time that this has been in litigation, I am concerned to have created this situation by the passage of time. So all I can do is encourage both - all - of the parties to get on with bringing this matter to trial ... I understand, Mr Marra, you do not have instructions in relation to it, that is why I have decided that - and I think you can understand where I am coming from in terms of the maintaining the status quo for the time being, but providing liberty to apply.[8]

1. In response to the final stamen of that ruling, Mr Marra said, 'I do, Your Honour.'[9]
2. On 12 June 2024, Quigley J made orders giving effect to her ruling, relevantly, in Orders 3 and 4:

The operation and effect of that part of paragraph 1(b) of the Anton Maximilian Bennett Trust Deed of Removal and Appointment of Appointer executed on 21 February 2019 which appoints Anton Maximilian Pless Bennett as the Appointer of said trust upon attaining the age of 23 years old, is restrained until the hearing and determination of this proceeding, or further order of the Court.

For the avoidance of doubt, the effect of Order 3 is that Peter Maximilian Pless remains the Appointer of the AMPB Trust until the hearing and determination of this proceeding or further order of the Court.

1. Her Honour identified in paragraph (E) of 'Other Matters' an observation relevant to the making of those orders:

The Court was satisfied that it was appropriate in all the circumstances that the status quo be maintained in respect of the AMPB Trust which is part of the subject matter of this proceeding and it was prepared to make an order in respect of the May Summons to restrain the operation of that part of paragraph 1(b) of the AMPB Trust which would appoint the plaintiff as Appointer of the AMPB Trust from 9 July 2024, being the date on which he will achieve 23 years of age, and make additional orders to preserve the assets of that Trust until the hearing and determination of this proceeding or a further order the Court, with liberty to apply being maintained in respect of this issue.

1. It is this order, restraining the clause of the AMPB Trust providing for Anton to become appointer on his 23rd birthday, that Anton now seeks to have discharged. The basis for the application to discharge or discontinue the order was put in the original submissions made in support of this summons dated 5 August 2025 as being threefold:

Circumstances have changed. Instructions have been obtained. The plaintiff-

(a) Has now obtained the age of 23 years, which occurred on 9 July 2024.

(b) Wishes to actively and diligently proceed with the case which is listed for trial on 10 March 2026 with an estimate of 7 - 10 days.

(c) Has incurred $150,000 in Outstanding Fees associated with this proceeding which remains indebted for and will reasonably require a further $150,000 for future legal costs to be incurred from now until the end of the trial of the proceeding.[10]

1. These submissions also referred to paragraphs 55 to 57 of the affidavit of Mr Marra affirmed on 24 June 2025.[11]
2. The date listed for trial at the time of her Honour's orders, 10 March 2026, was yesterday. That order was vacated by orders of Lorenz JR on 20 October 2025, and the date of 10 March 2026 was instead identified as the date on which paragraphs 1 and 3 of the summons of 17 July 2025 would be heard.
3. In Anton's written reply submissions on this issue of the discharge of the restraint, he also noted, as a reason for the discharge of the order, his concerns about a risk of dissipation of trust assets. That concern was said to be based on given evidence of Peter's legal expenses having been paid for by the trust at Peter's direction, and broader concerns as to the management of the trust exacerbated by the absence of trust accounts.[12]
4. The defendants opposed the application to remove the restraint order or have it discharged, primarily on the basis that it still remained desirable to maintain the status quo in the proceeding, which had been one of the main reasons for which Quigley J had granted the order. The defendants submitted that:

... there is no relevant change of circumstances that would justify the removal of the restraint. First, it is not alleged that Mr Pless has removed or dissipated any AMPB Trust assets since the Restraint Order. On the contrary, he has considered himself restrained from using or spending trust assets by reasons of the Court's order to preserve the assets of the AMPB trust. Indeed, the defendants propose that the Court explicitly orders such preservation of trust assets (see Defendant's Proposed Order 3), which should address the plaintiff's concern in that regard. Second, the AMPB Trust assets part of the subject matter of the dispute should not be accessed and dissipated to fund the plaintiff's cause, especially in circumstances when the trustee is restrained from doing so. It should also be noted that the plaintiff's suit in this proceeding concerns matters beyond just the assets of the AMPB Trust and extends to allegations and claims in respect of two other trusts. It would not be appropriate for the plaintiff to be permitted to access the AMPB Trust funds now for the purpose of litigating claims in respect of other trust funds of which he is not a beneficiary.[13]

1. The defendants also contended, in earlier written submissions dated 12 August 2025, and an affidavit sworn by Peter filed in support of the defendants' position, that Peter should not be removed as trustee, as there may be taxation liabilities for which he should be indemnified as trustee. These may be defeated if he was replaced by Anton as trustee and appointor and had control of the trust assets.[14]
2. Peter also gave evidence in an affidavit sworn on 6 March 2026 that Peter had executed a deed on 7 February 2026 to confirm his continuing appointment as trustee of the AMPB Trust. Paragraph 12 of that affidavit said:

Because of the plaintiff's continued representations [that is, that Anton was now the trustee of the AMPB Trust on 7 February 2026] 'I executed a deed titled 'Deed of Confirmation and Continuing Appointment of Trustee' ... The deed is exhibited at page 53 [scil 58-59] of exhibit GM-6 of the [affidavit of Giulio Marra affirmed 26 February 2026].[15]

1. That deed relevantly provided that there would be a removal of automatic trustee succession. Further, the Deed confirmed Peter's continuing appointment as trustee of the AMPB Trust, which was said to have been done in light of the orders made by Quigley J on 12 June.[16]
2. It was elaborated in the defendants' submissions that the deed confirming Peter's continuation as trustee was executed because Quigley J's orders made on 12 June 2024 dealt only with the position of appointor, not the position of trustee, and were intended to maintain the 'status quo'.[17] The defendants also sought in this proceeding an order in the terms of proposed Order 4 attached to their submissions dated 6 March 2026.[18] That proposed order was to the effect that the operation and effect of part 3 of cl 3 of sch 1 of the AMPB Trust which appoints Anton as the trustee of said trust upon attaining the age of 23 years old is restrained nunc pro tunc as at 12 June 2024 until the hearing and determination of this proceeding or further order of the Court.

1. Having considered all of the submissions made yesterday, and the written submissions and the affidavits of the parties in support of those submissions, I have decided that it is appropriate to order, further to the liberty to apply granted by Quigley J, that the restraint on Anton becoming appointer be discharged. My reasons for this determination are as follows.
2. First, I do not accept that the considerations Quigley J identified with respect to the status quo remain applicable. Her Honour, in the hearing on 11 June 2024, was faced with a solicitor who did not have instructions from the plaintiff, notwithstanding that matters were listed for hearing on that day. Mr Marra disclosed that he had not heard from his client for some weeks. This put her Honour in a position of understanding there to be some material uncertainty as to the plaintiff's representation in the proceeding.
3. A further matter that had a bearing on the outcome of that hearing and her Honour's desire to preserve the status quo was that at that point in time there was a trial listed for 10 March 2026. That trial date has now been vacated, and the hearing of the proceeding adjourned to a date in August 2026, and the proceeding appears to be far from close to resolution. The situation of Anton's representation has now been resolved, with the his solicitors being instructed and putting clear positions on his behalf, both in this hearing through counsel, and in correspondence.
4. Secondly, a material matter is that the deeds - both the deed of settlement and all subsequent deeds - made quite clear that it was the settlor's intention that Anton was to become appointer and trustee upon age 23. It is not said in the evidence, and it was not said in submissions, that Anton was unfit in any way or incapable of taking up the intended appointment, and I do not regard it as appropriate to interfere with the terms of the trust in that respect without good reason. That good reason existed at the time of Quigley J's orders but, as I have said, the situation has subsequently changed.
5. Thirdly, I do not think that Peter's approach to his role as trustee indicates that he is a more appropriate person to discharge that role pending the hearing and determination of the proceeding. His evidence, and the submissions, made clear that he had not been preparing financial statements for the trust until very recently, when an interim statement was prepared. He has also never filed a tax return, which has created some uncertainty about the tax affairs of the trust at this date.
6. I also regard Peter's execution of the deed of 7 February 2026 to remove Anton's right to be appointed as trustee as inappropriate. The appropriate course, if there was any doubt as to whether Quigley J's intentions had been achieved by the terms of her Honour's orders on 12 June 2024, was to approach the Court pursuant to the liberty to apply.
7. Fourthly, a matter that was emphasised yesterday in the defendants' submissions as to why the restraint should not be discharged was Peter's concern that he, as the trustee, had a potential liability to taxation, for which he had an entitlement to be indemnified. He submitted that this was a reason to restrain the clause providing for Anton's appointment, in part because there was a risk that that the indemnity might not be honoured.[19]
8. On that issue, there was very limited evidence as to what, if any, tax liability the trust had. Peter had provided, by affidavit dated 8 September 2025, an interim statement of account for the trust, which was prepared by accountants Lowe Lippmann.[20] That interim statement of account was a fairly basic statement, which did not identify the source of assumptions or calculations for entries in the accounts, other than to say in a cover letter that they were based on documentation provided by Peter.[21] The interim account referred not to any fixed liabilities of the trust as at the relevant date, but to a 'Potential Tax Liability, as at 30 June 2025, of $157,758.
9. In submissions yesterday, it was submitted that this was referable to income tax liability which was likely to arise as a consequence of the operation of s 98 of the Income Tax Assessment Act 1936 (Cth). That section provides, in sub‑s(1):

Where a beneficiary of a trust estate who is under a legal disability is presently entitled to a share of the income of the trust estate, the trustee of the trust estate shall be assessed and liable to pay tax in respect of:

(a) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and

(b) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia;

as if it were the income of an individual and were not subject to any deduction.

1. Also relevant to the defendants' submissions on this issue was cl 5 of the deed of settlement of the AMPB Trust, which made provision for dealing with the income of the trust, including distribution to the beneficiaries. Clause 5(c) stated that:

... the Trustee may on paying and applying income for the benefit of any infant Beneficiary set aside and retain from the income of the Trust Fund an amount which it estimates will be sufficient to meet its obligations to pay income tax pursuant to Section 98 of the Income Tax Assessment Act 1936 (as amended) ...

1. There were no written declarations of distributions within the meaning of cl 5 in evidence, but it was pointed out that the cl 5(c) also provided that:

... if in respect of any income of the Trust Fund derived during a Financial Year no such declaration shall have been made by the Trustee prior to the end of such Financial Year then the beneficiaries living or in existence at the end of such Financial Year shall be and be deemed to be presently entitled to the whole of such income as tenants in common in equal shares and the Trustee shall pay apply or set aside the whole of such income to or for the benefit of the Beneficiaries respectively so entitled ...

1. There was also no evidence of any setting aside or application of amounts to be distributed to beneficiaries made by the trustee of the AMPB Trust at any time, and it appeared to be the force of the submission that I should assume, notwithstanding that absence of documentation or other evidence of amounts having been set aside or applied, that there was potentially a tax liability to the trustee attributable to amounts deemed to have been set aside.[22]
2. Overnight, a further affidavit was filed on behalf of the defendants. The affidavit was sworn by Joseph Kalb, a partner in the firm Lowe Lippmann, on 10 March 2026. That firm had prepared the interim statement of account for the AMPB Trust.[23] He said at paragraph 2 of his affidavit:

I have prepared calculations and estimates of the tax payable by Peter Maximillian [sic] Pless in his capacity as trustee of the AMPB Trust. These estimates and calculations apply both in circumstances where the income of the AMPB Trust was distributed to Anton Maximillian [sic] Pless Bennet [sic] as a minor and non-resident, or whether the income was retained by the Trust.

Based on the income [of the] AMPB Trust from its outset to the period ended 31 August 2025 ... I have made a provision in the trust accounts for the sum of $157,758.00 being the maximum tax liability calculated at the rate of forty‑seven per cent (47%) being the potential applicable tax rate on the basis of Anton being a minor and a non‑resident and/or the trust accumulating that income.

1. Mr Kalb exhibited a working paper for that calculation which identified assets and income from 13 March 2014 to 14 March 2024. I have allowed that affidavit to be tendered in this application. However I find it of limited assistance in circumstances, first, where the precise assumptions adopted by Mr Kalb are not explained, and second, where the calculations appear to be taking into account Anton being a minor up until the date at the end of the calculations in 2024.
2. It is common ground that it was not the case that he was a minor for all of that time, having turned 18 in 2021. If that fact was taken into account by Mr Kalb, it is not apparent on the face of the affidavit or on the exhibit. It is not clear to me how he has calculated the maximum tax liability at $157,758. No source of tax liability on the trustee, other than s 98 of the Income Tax Assessment Act,[24] if the income was 'retained by the Trust'[25] was identified.
3. It was also submitted for the defendants that it would be relevant to take into account the matters referred to in Mr Kalb's affidavit in determining whether any trust funds should be the subject of restrictions upon the removal of the restraint and I will hear counsel further on that matter.
4. I do not find the concerns expressed in the defendants' submissions as to potential tax liabilities particularly compelling in the circumstances where the evidence was that Peter had failed to prepare any statements which would enable, at an earlier stage, identification of any tax liability of the trust or of him as the trustee, and that he had not filed tax returns. The explanation he gave at various junctures[26] was that he wanted to wait until the end of trial to file tax returns because there may be some alteration of a tax position of a trust, pursuant to the Court's disposition of the proceeding, which should be taken into account. That is not, in my view, a good reason to have delayed compliance with the obligation to prepare accounts and file tax returns.
5. In those circumstances, I will discharge the restraint ordered by Quigley J in Order 3 of her Honour's orders of 12 June 2024.
6. Once the restraint is no longer operative and the deed takes effect to make Anton the appointor, it is clear from the submissions that Anton intends to appoint himself trustee. In anticipation of that likelihood, I will hear the parties further as to whether any orders are necessary to ensure that the transfer of control of the trust bank accounts to Anton as trustee and appointor occurs without any difficulty.

Application that the removal of the restraint operate nunc pro tunc

1. Anton also sought an order that the order discharging the restraint be given effect nunc pro tunc as at 9 July 2024, being the date upon which he attained the age of 23 years. Anton submitted that this is appropriate to restore him to the position he would have been in had the appointment clause in the deed taken effect, and it would enable him to take action as trustee for events that had occurred during that time.
2. I do not propose to make the order effective nunc pro tunc.
3. First, it would not, in my view, be appropriate to give the order retrospective effect when Anton has not in fact been acting as appointor during that time, nor as trustee, and Peter had been in both roles. This application is not a situation of appealing against Quigley J's original order, which is plainly not possible for a trial judge alone, but an application that the restraint be discontinued. It is appropriate that the order have only prospective effect.
4. Secondly, I am not persuaded that there is any basis to interfere with the restraint order as from July 2024. At the time Quigley J made the orders, her Honour had an entirely justified concern that the proceedings were not being satisfactorily progressed by either of the parties and was faced with a situation where Anton was not giving his solicitor on record instructions with respect to applications before the Court.
5. It was in these circumstances that her Honour regarded it as appropriate to restrain the appointment clause from taking effect until trial, to preserve the status quo. That situation has now been rectified and I am not satisfied that the evidence establishes that the removal of the restraint order at any earlier date would have been appropriate.

Amendment of names of parties in the proceedings

1. There was also an application made in paragraph 1A of the amended summons that, pursuant to r 36.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), the names of the parties to the proceedings be amended as follows. First, that the plaintiff, Anton Maximilian Pless Bennett, be described as Appointor and Trustee of the Anton Maximilian Pless Bennett Trust and second, that the name of the second defendant, currently described as Peter Maximilian Pless as trustee of the Anton Maximilian Pless Bennett Trust, be amended to remove reference to that trustee role.
2. It was submitted for Anton that it was appropriate that the title of the proceeding be amended to reflect the fact that he is suing in his capacity as trustee because he may wish to take action or make claims in that capacity, which is not possible in his capacity as beneficiary.[27]
3. I also will not grant that order as I consider that the basis on which it is currently sought is misconceived.
4. Rule 36.01 provides for the amendment of pleadings for the purpose of determining the real question in controversy between the parties to any proceeding, for the correction of any error or defect in any proceeding or for avoiding a multiplicity of proceedings. It may extend to the amendment of a name of a party. However, it is appropriate only to amend the title of the proceeding to reflect the correct legal capacity in which party makes a claim or is sued.
5. The Second Further Amended Statement of Claim reflects the fact that Anton has brought his claims from the outset as beneficiary of the three trusts.[28] Those claims remain. The fact that he will, from the time of removal of the restraint order, be appointor with the potential to appoint himself trustee, does not alter the nature of the claims made in the Second Further Amended Statement of Claim.
6. Anton has not, at this time, made any claims in the capacity of trustee. He is not yet trustee. There is no claim in that legal capacity which should be appropriately reflected in the formal title to the proceeding. If such claims are sought to be made in this proceeding, an application to amend the title and capacity in which Anton sues could be made, with the application for leave to make any new claims. I emphasise that I am not inviting the making of any new claims in this proceeding now, given the very lengthy history of the proceeding, but I make that observation to emphasise that any change to the title would only be made if it was necessary to reflect the subject matter of the particular pleading.

Application for transfer of trust assets to plaintiff in personal capacity

1. An application was also made in the summons by paragraph 3 that:

By [14 days after the date of the Court Order], the defendants cause a transfer of any and all assets of the AMPB Trust, including monies that are considered assets of the AMPB Trust, held by:

(a) the second defendant in his personal capacity;

(b) any entity controlled by the second defendant; and

(c) any financial institution which the second defendant, as trustee of the AMPB Trust has invested said moneys into,

to be transferred to the plaintiff, or the plaintiff's solicitor on record.

1. This application thus relates to assets of the AMPB Trust being transferred to Anton in his personal capacity, or to his solicitors. There is no real basis identified as to why this broad order should be made at this stage of the proceeding. It was not explained why orders of the Court would be appropriate in circumstances where Anton would, following removal of the restraint, be able to appoint himself the trustee and could take appropriate action, subject to consideration of any obligations to past and general beneficiaries or for liabilities such as taxation.
2. The only issue really explored with respect to the transfer of trust assets related to assets of the AMPB No.2 Trust, based on admissions made in the defence. The Second Further Amended Statement of Claim (and earlier iterations of the statement of claim) pleaded at paragraphs 92 to 95 that certain resolutions had been made by Pless Nominees as trustee for the AMPB No.2 Trust, that distributions would be made to Anton. Paragraph 97 pleads that no distribution had in fact been made.
3. At paragraph 98, it is pleaded that as at 30 June 2019, Anton's unpaid present entitlements as beneficiary of the AMPB No.2 Trust was at least $44,650. In paragraph 99, it is pleaded that 'In the premises, Pless Nominees is indebted to Anton in the sum of at least $44,650.'
4. In the Defence to the Amended Statement of Claim filed by the defendants[29] and maintained in the present Defence to the Second Further Amended Statement of Claim,[30] these allegations are admitted by Peter and Pless Nominees without qualification. In these circumstances, there is a current debt owed by Pless Nominees as trustee of the AMPB No.2 Trust.
5. Peter submitted that Pless Nominees or Roland had paid that amount to AMPB Trust No.1 so that any moneys owed should be repaid from that account. I do not consider that that is the proper effect of the admissions. The admissions are to the effect that the debt is one of Pless Nominees, which I accept, read in context in the pleadings, is Pless Nominees as trustee for the AMPB No.2 Trust.
6. It was said by the defendants that Pless Nominees has no assets to pay that debt and would be insolvent if the order was made;[31] it was also said in submissions on behalf of Anton that the AMPB No.2 Trust also may not have those assets.[32] In the circumstances of the potential insolvency of Pless Nominees which is a party to the proceedings, and noting the overall complexity of the proceedings involving the three trusts, I will not make an order in relation to this admitted debt. However, I do emphasise that the sum of $44,650 referred to in the pleadings is an admitted entitlement of Anton, which has apparently been owing to him since the resolutions referred to in the pleadings were made.
7. Pless Nominees has not given an explanation for not paying the entitlements. While it was contended for the defendants that repayment should wait for the resolution of the matters at trial, as there may be some set‑off, I do not accept that this is correct. It is an entitlement from the AMPB No.2 Trust which should have been paid, with no excuse identified in the pleadings as to why it had not been. The legal position is that it is payable now, in accordance with the trustee's duties, and a failure to do so may have consequences at trial, particularly in light of this issue having been raised for some time and considered in some detail in the hearing yesterday.

1. Finally, a matter was raised relating to the defendants having, in the Defence to the Second Further Amended Statement of Claim, withdrawn admissions made earlier in the defences. Anton raised this issue in the Amended Summons.[33] The matter was the subject of correspondence between the parties, and was addressed by the defendants in their written submissions and in Peter's affidavit of 6 March 2026. I therefore agreed yesterday to determine the question of whether leave should be granted for the withdrawal of the admissions.
2. On 5 August 2025, Goulden AsJ granted leave to Anton to file a further amended statement of claim. The Second Further Amended Statement of Claim was filed on 8 August 2025.
3. On 30 October 2025, Lorenz JR made orders extending the date for the defendants to file a defence to the Second Further Amended Statement of Claim until 19 December 2025. The defendants filed a defence on that date. In addition to amendments which are responsive to amendments in the Second Further Amended Statement of Claim, the defendants made amendments which had the effect of withdrawing admissions which had been made in the pleadings. No leave or consent was sought for the withdrawal of the admissions.
4. The relevant admissions were in paragraphs 89 and 91 of the defence to the further amended statement of claim.[34] The pleadings to which they had responded had been present in the pleadings since at least the original Statement of Claim dated 23 August 2021 and the Defence to the Amended Statement of Claim.[35]
5. The Statement of Claim provided at paragraphs [89]-[91]:
   1. The following sums were paid or transferred from the Challenger Annuity, trust property of the AMPB Trust, to an account held by Pless Nominees:

a. $37,620.00 on 13 March 2015;

b. $37,620.00 on 11 March 2016;

c. $37,620.00 on 13 March 2017;

d. $37,620.00 on 13 March 2018;

e. $37,620.00 on 13 March 2019;

f. $200,000.00 on 5 August 2019;

g. $26,023.15 on 13 March 2020;

Each of the sums, save for the $200,000 sums at 40(f), was a payment of interest by the Challenger Annuity which was deposited into a Westpac account (account number 437‑692) held by Pless Nominees as trustee for the No 2 Trust. The $200,000 sum was an early withdrawal of part of the capital of the Challenger Annuity. The amount of $188,100 (5 * $37,620) is recorded in the financial statements of the No 2 Trust for the year ended 30 June 2019 as a loan from the AMPB Trust.

90. The transfers did not constitute a gift or a distribution of trust assets.

91. In the premises, Pless Nominees is indebted to the AMPB Trust.[36]

1. The original statement of claim was amended on 21 October 2021, but not with respect to those paragraphs. The Defence to the Amended Statement of Claim filed 21 November 2021 provided in [89]-[91] as follows:
   1. Pless Nominees admits the facts set out in paragraph 89... Peter Pless does not plead to paragraphs 89 to 103 inclusive which raise no allegations against him.
   2. Pless Nominees admits the allegations set out in paragraph 90 in respect of paragraphs 89(a) to (e) inclusive and 89(g). As to paragraph 89(f) the sum of $200,000 was loaned by the AMPB Trust to Roland Pless and recorded in the inventory of assets for the deceased estate of Roland Pless.
   3. As to paragraph 91 they admit the allegation as to paragraphs 89(a) to 89(e) inclusive and 89(g) and do not admit the allegation in respect of paragraph 89(f) for the reason set out in paragraph 90.
2. The admissions in the defence remained in place until the pleading of the defence to the second further amended statement of claim filed in December 2025.
3. Rule 25.02, sub‑r 4(b) of the Rules permits a defendant to withdraw the defence, or any part of it, at any time in a proceeding, subject to the restriction imposed by r 25.02(5), that withdrawal of an admission, or any other matter operating for the benefit of any other party, requires the consent of that other party or the leave of the court.
4. The defendants conceded in their written submissions dated 6 March 2026 that the admissions were withdrawn without leave or consent, as required by Order 25.02 of the Rules.[37] They sought leave to withdraw the admissions on the basis that new counsel had been briefed to draw the defence in December 2025 and the defendants had provided updated instructions to the matters in paragraph 89 of the defence.[38]
5. It was also submitted that, as a result, the previous admission at paragraph 91 was no longer appropriate, having regard to the updated instructions. The evidence relied on for those submissions was in Peter's affidavit of 6 March 2026, at paragraphs 17 and 18:

[17] I instructed my solicitors and counsel about further information that I believe was relevant to paragraphs 89 to 91 of the Defence. I instructed to the following effect, which is substantively recorded at paragraph 6 of Douros Jackson's 4 February 2026 letter to SGM Legal at page 50 of exhibit GM‑6 to the Marra Affidavit:

a. During Roland Pless's lifetime, Challenger annuity payments derived from AMPB Trust assets were directed into the No. 2 Trust bank account. The accountants who prepared the No. 2 Trust accounts were not aware at that time that those payments originated from the AMPB Trust. After Roland Pless's death, I informed the accountants of the existence of the AMPB Trust and the source of those payments.

b. In the financial statements of the Anton Maximilian Pless Bennett Trust No. 2 (No 2 Trust) for the year ended 30 June 2019, the amounts referred to at paragraphs 89(a) to (e) of the 2FASOC were, for the first time, recorded as loans from the AMPB Trust. I refer to paragraphs 43 and 44 of my affidavit sworn on 11 September 2020.

c. That treatment reflected an accounting assumption based on the form of the transactions, namely that the funds passed through the No 2 Trust bank account. No transaction‑level analysis was undertaken as to the origin of the funds, their purpose, or their ultimate application.

d. While the accounting treatment recognised that the relevant funds originated from AMPB Trust assets, no transaction‑level analysis was undertaken as to the purpose of those transfers, the basis on which the funds passed through the No 2 Trust, their ultimate use, or whether the No 2 Trust derived any benefit from them.

e. Previous versions of the Defence adopted that accounting treatment, notwithstanding that it did not reflect any substantive analysis of the underlying transactions.

f. Upon my further consideration of the underlying facts, including the source of the funds, their ultimate use, and the manner in which Roland Pless customarily accessed trust funds for his personal purposes, I instructed my solicitors and counsel that I believed that the No 2 Trust acted merely as a conduit, and that each of the amounts referred to at paragraph 89 of the 2FASOC are properly characterised in substance as loans from the AMPB Trust to Roland Pless. To that extent, the characterisation of the amounts referred to at paragraphs 89(a)‑(e) and (g) is now consistent with the defendants' characterisation of the amount referred to at paragraph 89(f).

[18] When I first became involved in this proceeding, I relied on my solicitors and counsel and I accepted that the accounts prepared by Lowe Lippmann and the defences filed on my behalf accurately reflected the substance of the transactions. I did not independently review the underlying transactions until I became self‑represented in the proceeding. From February 2024 to August 2025, while I represented myself in this proceeding, I personally reviewed the trust documents, bank statements and correspondence in detail. That process enabled me to better understand the plaintiff's allegations about how the transactions were said to have occurred, and to compare those allegations with the underlying documents. In doing so I came to understand that the entries recorded in the No. 2 Trust accounts as 'loans from the AMPB Trust' were not based on any transaction‑level analysis of the underlying transfers

1. The defendants submitted that although the authorities required that good cause be shown for the withdrawal of admissions, they do not require that the admissions were made inadvertently or in error, citing Burkett v Bendigo and Adelaide Bank Ltd (No 3).[39] The defendants have also submitted that Anton suffered no prejudice by reason of the withdrawal.[40]
2. The authorities establish that the power to grant leave to withdraw an admission is to be exercised, having regard to the question of where justice lies, and also involve questions of modern case management considerations, including the effect of adjournments on court resources and the competing claims of other litigants.[41] Case management considerations were referred to in Burkett, and have recently been emphasised in the judgments of Nichols J in Gregorich v Khouri[42] and Gobbo AsJ in Ma v Qin (No 2).[43]
3. A party seeking leave should establish good cause for doing so.[44] Prejudice to the other party is highly relevant, but not essential, as a basis for refusing leave.[45]
4. Peter's explanation for the amendments is not, in my view, satisfactory. The admissions have been made since December 2021. Peter gave evidence of having relied on the accounts of Lowe Lippmann, which reflected the admitted payments and not having independently reviewed the underlying transactions.
5. Peter said he reviewed trust documents, bank statements and correspondence in detail from February 2024 to August 2025 to form an understanding of how the transactions were said to have occurred. He said he 'came to understand that the entries recorded in the [AMPB] No.2 Trust accounts as "loans from the AMPB Trust" were not based on any transaction-level analysis of the underlying transfers.'[46] He did not, however, clearly identify in his evidence what he concluded as to the nature of the transfers after that analysis other than to now assert that they were loans to Roland. Nor did he dispute the fact that the transfers had in fact been made, as admitted in paragraph 89 of the defence.
6. Peter and Pless Nominees now seek to raise a factually new issue in this long-running proceeding which will, if leave is granted to withdraw the admissions, potentially cause delay and further expense. There is no good reason why the factual matters were not considered and, if necessary, further analysed when the defence was first pleaded. Analysis was done with respect to the status of the $200,000 amount referred to in paragraph 89(f) at the time of pleading in the general defence. That sort of analysis should have been done with respect to the other amounts.
7. Allowing the withdrawal of the admissions at this time as to those facts may prejudice Anton by reopening a factual issue which has been admitted since December 2021 in a proceeding which has already been on foot for many years. More importantly, the evidence does not now establish that the factual allegations which were admitted in paragraph 89 were incorrect in any way. Peter's evidence does not establish that the transfers pleaded in paragraph 89 did not occur. He appears now simply to want to re-characterise the purpose of those transfers.
8. I accept that it is not necessary to establish an error in order to withdraw admissions, but where there is no suggestion that the original admission did not reflect the factual situation, there is no good reason to grant leave to withdraw it. In circumstances where there is no error disclosed by the evidence in the allegation as to the transfers pleaded in paragraph 89 of the Second Further Amended Statement of Claim, and admitted in the earlier defences,[47] I will not grant leave to withdraw the admissions with respect to that paragraph.
9. The admissions in paragraph 91 are of a slightly different character. The first, in paragraph 91(a), seeks to deny the factual allegations as to the transfers which were made in paragraph 89 of the Second Amended Statement of Claim. I will not grant leave to withdraw that admission.
10. The second, in paragraph 91(b), is a pleading as to a legal conclusion, that Pless Nominees is indebted to the AMPB Trust. I assume, in the broader context of that pleading, that it is a pleading that Pless Nominees, in its capacity as trustee, is so indebted. The defendants' evidence and submissions do not establish that there is an error in that admission. Rather they instead seek to raise a question as to who is indebted for that amount, saying it is the estate of Roland Pless which is indebted. In circumstances where this dispute relates to the legal characterisation of the transfers, I will grant leave only to withdraw the admission in paragraph 91(b) and to make the proposed repleading in that paragraph.
11. The resolution of the matters pleaded there will turn on legal argument and I think it desirable, having regard to the authorities, particularly to the observations of Gillard J in Jeanes v Commonwealth, as to the importance of enabling the real matters in controversy to be decided,[48] to permit the resolution of the legal question now identified in paragraph 91(b) of the defence.
12. Anton may need leave to amend his reply and I will make orders to that effect if necessary.

1. Paragraph 4B of the amended summons sought relief in relation to access to trust documents. The parties informed me yesterday during the hearing that they were seeking to agree on that issue between counsel. There was some exploration in oral submissions of the inadequacy of the interim statement of account and documents provided pursuant to orders of Quigley J made on 18 August 2025, as that statement of account was relevant to the issue of potential taxation liability. I accepted that the accounts provided in the 8 September 2025 affidavit of Mr Pless were not adequate in that they did not properly identify the source or calculation of various entries in the statement provided.
2. However, given the observations of counsel that they may be able to agree an outcome on this issue I will not make any further order. I will leave it to the parties to seek to resolve this issue and urge them to do so, having regard to their obligations under the Civil Procedure Act 2010 (Vic).
3. The defendants' written submissions of 6 March 2026 also raised a matter relating to a request on the defendants' behalf for consent to further particularise allegations at paragraphs 96 and 97 of the defence.[49] Submissions were not made on that issue and I have not made determination on it. It should be possible to resolve that issue between the parties, relating, as it does, to particulars. Should the defendants ultimately want to make an application with respect to that matter, they should do so on summons.
4. I will hear both parties as to whether there is still an appropriate basis for some sort of limited restraint on disposition of trust assets now that Anton will, once I make the final orders for removal of the restraint, be appointor and it is anticipated that he will appoint himself trustee.
5. I will also hear the parties on costs and the appropriate orders to give effect to my ruling.

[1] The summons was dated 17 July 2025, and orders had been made that the applications in paragraphs 1 and 3 of that summons be heard on 10 March 2026. An amended summons dated 26 February 2026 was proposed by the plaintiff and served on the defendant, and it was not opposed that I hear aspects of that summons, as they were related to the issues raised in the original summons.

[2] As the proceeding involves family members with the same surname, I have used their first names in this Ruling, and do not intend any disrespect to them by doing so.

[3] Affidavit of Giulio Marra affirmed 24 June 2025, [32].

[6] Bennett v Pless Nominees Pty Ltd [2024] VSC 312.

[7] Transcript 11 June 2024, T28.23-T29.09.

[8] Transcript 11 June 2024, T29.18-T30.21.

[10] Plaintiff's Outline of Submissions (In support of 'July Summons' returnable on 18 August 2025) dated 5 August 2025, [16].

[11] Affidavit of Giulio Marra affirmed 24 June 2025, [55]-[57].

[12] Plaintiff's Reply Submissions (In support of the 'July Summons' Returnable on 18 August 2025) dated 15 August 2025, [17]-[21]; [31].

[13] Defendants' Submissions for Summons Listed for 10 March 2026 dated 6 March 2026, [10].

[14] Defendants' Reply Submissions dated 12 August 2025; Affidavit of Peter Maximilian Pless sworn 12 August 2025 [6]-[7].

[15] Affidavit of Peter Maximilian Pless sworn 6 March 2026, [12].

[16] Affidavit of Peter Maximilian Pless sworn 6 March 2026, [16] quoting Recital E of the Deed of Confirmation and Continuing Appointment of Trustee of the AMPB Trust dated 7 February 2026: 'The Appointer considers it necessary and appropriate, for the proper administration of the Trust and to preserve the status quo required by the Court, to remove and neutralise any automatic succession to the office and to confirm the continuing appointment of the current trustee.'

[17] Defendants' Submissions for Summons Listed for 10 March 2026 dated 6 March 2026, [12]-[13]. See also Transcript 10/03/26 T87.31-T88.15.

[18] Order 4 of Defendants' Proposed Orders for Summons Listed for 10 March 2026, attached to Defendants' Submissions for Summons Listed for 10 March 2026 dated 6 March 2026.

[19] Transcript 10 March 2026, T58.15-T62.07.

[20] Affidavit of Peter Maximilian Pless sworn 8 September 2025, 91-92.

[21] Letter dated 5 September 2025, exhibited to Affidavit of Peter Maximilian Pless sworn 8 September 2025, 90.

[22] Transcript 10/03/26, T60.17-TT62.07.

[23] Affidavit of Joseph Kalb sworn 10 March 2026.

[24] Which, as set out above, relates to liability of the Trustee for tax where a beneficiary of a trust is under a legal disability.

[25] The alternative scenario referred to in Mr Kalb's Affidavit at [2].

[26] Including in the hearing before Quigley J on 11 June 2024: See Transcript at T33.14-16: 'I don't actually want to do the tax returns. I think they should wait because the tax rate, if the funds aren't distributed each year, is very high.'

[27] Plaintiff's Submissions (In support of the amended "July Summons" returnable on 10 March 2026) dated 6 March 2026, [8].

[28] Second Further Amended Statement of Claim, filed 8 August 2025.

[29] Defence to Amended Statement of Claim dated 12 November 2021, [98].

[30] Defence to the Second Further Amended Statement of Claim dated 19 December 2025, [99].

[32] Transcript 10/03/26, T125.25-T126-16.

[33] Proposed Amended Summons dated 26 February 2026, [4A].

[34] Defence to Amended Statement of Claim dated 12 November 2021.

[35] Defence to Amended Statement of Claim dated 12 November 2021.

[36] Amended Statement of Claim dated 21 October 2021, [89]-[91].

[37] Defendants' Submissions for Summons Listed for 10 March 2026, [21].

[38] Defendants' Submissions for Summons Listed for 10 March 2026, [22].

[39] Defendants' Submissions for Summons Listed for 10 March 2026, [23] citing Burkett v Bendigo and Adelaide Bank Ltd (No 3) [2019] VSC 45, [11]-[14] (Croft J) and Jeanes v Commonwealth [2005] VSC 488, [19] (Gillard J).

[40] Defendants' Submissions for Summons Listed for 10 March 2026, [23].

[41] Burkett, [14] and the authorities cited therein.

[42] [2020] VSC 5.

[43] [2024] VSC 444.

[45] Collie v Merlaw Nominees Pty Ltd [2001] VSC 39 [97] (Warren J).

[46] Affidavit of Peter Maximilian Pless sworn 6 March 2026, [18].

[47] Defence to Amended Statement of Claim, 21 November 2021, and Defence to Further Amended Statement of Claim, 3 February 2023.

[49] Defendants' Submissions for Summons Listed for 10 March 2026, [25].