Plaintiffs v Defendants

2 The plaintiffs are trustees of a trust entitled the Bacchus Marsh Land Trust (the Trust). The defendants in this proceeding are the beneficiaries of the Trust, and also include the plaintiffs in their personal capacity as two of the beneficiaries of the Trust.

3 The trial of the plaintiffs' originating motion has been fixed for 5 September 2016. On 6 May 2016 certain interlocutory orders were made by this Court including orders granting leave to the first defendant, Charles Augustine Sweeney (Charles Sweeney), to file and serve an affidavit in support of his case objecting to the orders sought by the trustees.

4 In accordance with those orders Charles Sweeney filed and served his affidavit sworn 3 July 2016. The plaintiffs assert that much of the contents of the affidavit of Charles Sweeney, sworn 3 July 2016 is irrelevant, further or alternatively is scandalous, and accordingly should be struck out pursuant to r 27.07(a) of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules), further or alternatively pursuant to the Court's inherent jurisdiction to so order in appropriate circumstances.

5 A conditional contract of sale dated 30 October 2015[1] has been entered into between the trustees and Bacchus Marsh Developments Pty Ltd (BMD) in relation to the Land. The contract of sale is rendered conditional by operation of special condition [3] which expressly requires the trustee vendors to either obtain an order of the Court, or the consent of the beneficiaries, establishing that the vendors thereunder have full and exclusive legal authority to enter into the contract of sale of the Land.

6 The plaintiffs' underlying proceedings by Originating Motion concern the proposed conditional sale of the Land. The Land is the sole asset of the Bacchus Marsh Land Trust.

7 All defendants in this proceeding, except for the first defendant Charles Sweeney, consent to the orders sought by the plaintiffs in this proceeding.

8 Further, there appears to be no dispute, including by Charles Sweeney, in relation to the plaintiffs' claim herein for declaratory orders as to the parts, or shares, of the land held on trust for the first, second, third and fourth defendants, as alleged in the Originating Motion.

9 Each of the defendants to this proceeding are siblings. The plaintiffs, William Joseph Sweeney and Catherine Mary Walter, who are also defendants in this proceeding, are the legal representatives of the estate of their late father the Honourable Charles Augustine Sweeney (the Hon. Charles Sweeney) and are also the Executors of the will and codicil of Elizabeth Coral Sweeney (Mrs Sweeney), their mother, the wife of the Hon. Charles Sweeney.

10 The title history of the Land is complicated. It suffices for present purposes to record that the Land was originally general law title land. In 1951, the Hon. Charles Sweeney acquired a quarter share of the Land as a tenant in common. That interest was subsequently conveyed and thereby transferred to a company (C.A.S. Pty Ltd) which was voluntarily liquidated in 1974, and that interest in the Land was conveyed back to the Hon. Charles Sweeney in 1977. More recently that part of the Land which had been transferred and conveyed to Mr Sweeney in 1977 was, by application, brought under the Victorian Torrens title system and the three quarters of the Land which had not been acquired by the Hon. Charles Sweeney in 1951, was acquired by adverse possession.

11 In March 2015, William Sweeney and Catherine Walter were registered as joint proprietors of the whole of the Land.

12 In 2014 the Trust was approached by persons interested in purchasing the Land. Following negotiations, BMD entered into the earlier mentioned conditional contract of sale dated 30 October 2015 to purchase the Land.

The issues raised by the underlying proceedings

13 The plaintiffs' Originating Motion is for declaratory relief and related orders as follows:

1. A declaration that the land described in paragraph 5 of the First Plaintiff's affidavit filed herein ('the Land') is held on trust for:

(a) The First Defendant as to 8/42 undivided parts or shares;

(b) The Second Defendant as to 8/42 undivided parts or shares;

(c) The Third Defendant as to 8/42 undivided parts or shares;

(d) The Fourth Defendant as to 8/42 undivided parts or shares;

(e) The Third and Fourth Defendants (in their capacity as Executors of the Will and Codicil of Elizabeth Coral Sweeney) as to 10/42 undivided parts or shares.

1. An order conferring upon the Plaintiffs the power to enter a contract dated 30 October 2015 for the sale of the Land, such contract being exhibited as Exhibit "WJS-3" to the First Plaintiff's affidavit filed herein.
2. An order that the Plaintiffs are entitled to pay or retain out of the trust fund, and have recourse to the proceeds of sale of the Land, to pay their costs of this application and their costs of perfecting title to the Land on an indemnity basis.

14 The plaintiffs move for declarations of the type referred to above because the subject trust is somewhat atypical in that it has not been established in writing or by deed. That is, no written deed or other document has been located enabling a relatively comprehensive, clear and uncomplicated identification of the trustees' powers and the beneficiaries' entitlements.

15 Further, relevantly, it does not appear to be disputed that the Land was held by the Hon. Charles Sweeney pursuant to an inter vivos trust, nor is it disputed that the beneficiaries of that trust are the defendants.

16 The Sweeney family shareholding in C.A.S. Pty Ltd, the company created by the Hon. Charles Sweeney and which initially held an interest in the Land, was a company in which the four Sweeney children held 8/42nds of the shares, with the interest held by Mrs Elizabeth Coral Sweeney as to a 10/42nds part. The declarations sought by the plaintiffs reflect claimed beneficial interests in the Land in the same proportions as the family shareholdings in C.A.S. Pty Ltd, save that the third and the fourth defendants claim both individual 8/42 undivided parts or shares, and also claim an entitlement to a 10/42 undivided part of share in their capacity as Executors of the Will and Codicil of Mrs Elizabeth Coral Sweeney.

17 The plaintiffs also rely upon a letter written to the Hon. Charles Sweeney on 20 December 1985 by his then solicitors, Darvall McCutcheon, which refers to the children of the Hon. Charles Sweeney and Mrs Sweeney as beneficiaries in relation to the Bacchus Marsh Land.[2]

18 In light of the matters outlined above and particularly those concerning the undocumented nature of the Trust, and the conditional nature of the said contract of sale[3] to BMD, the trustees now approach the Court seeking the declarations outlined above, including declarations in effect authorising and sanctioning their intention to complete the sale of the Land to BMD and to distribute the proceeds of sale between persons with claims on the Trust, namely the first to fourth defendants.

Plaintiffs' submissions on their application by summons dated 22 July 2016

19 The plaintiffs' present application by Summons is directed to obtaining orders for the rejection of the above mentioned affidavit of the first defendant, Charles Sweeney, sworn 3 July 2016.

20 No dispute appears to exist in respect of the declarations sought by the plaintiffs in paragraph [2] of the originating motion, namely the declarations as to the shares or parts of the Land held on trust for the respective defendants.

21 The plaintiffs by their Summons dated 22 July 2016 seek to have paragraphs [3]-[18], [22]-[29], [32]-[47] and [49]-[53] of Charles Sweeney's affidavit sworn 3 July 2016 struck out as irrelevant, and paragraphs [4]-[7], [10]-[12], [41]-[44] and [49] of that same affidavit struck out as scandalous.

22 I note that paragraphs [1], [2], [19], [20], [21], [30], [31], [48] and [54] of the first defendant's affidavit of 3 July 2016 are not sought to be struck out by plaintiffs. These unimpugned paragraphs arguably address factual matters of relevance to the underlying issues raised by the plaintiffs by Originating Motion and the first defendant's responses to those issues.

23 The plaintiffs bring their application both pursuant to r 27.07(a) of the Rules, further or alternatively, pursuant to the Court's inherent jurisdiction to strike out material sought to be relied upon by parties if that material is irrelevant or scandalous.

24 Rule 27.07 of the Rules provides as follows:

27.07 Scandalous matter

Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order -

(a) that the matter be struck out; or

(b) if the document has been filed, that it be taken off the file.

25 No issue arose on the current application in relation to the Court's jurisdiction and powers to strike out on the bases relied on by the plaintiffs, including the Court's inherent jurisdiction.

26 The plaintiffs' submissions rely upon HRF Nominees Pty Ltd (in liq) v Man Civil Constructions Pty Ltd.[4] In that matter Derham AsJ described the operation of r 23.02 and r 27.07 as follows:

In relation to the power under Rule 23.02 to strike out pleadings that are scandalous, frivolous or vexatious, it has been found that allegations made for the purpose only of abusing or injuring the opposite party, and allegations which are indecent or offensive, are scandalous within the meaning of the rule, and liable to be struck out. It may be that the matter is defamatory or grossly disgraceful and irrelevant to the claim or defence. Similarly, in relation to applications to strike matters out of affidavits under Rule 27.07, and its predecessors, matters will be struck out where it is both scandalous, in a sense used above, and irrelevant or it may be unnecessarily indecent or libellous, and irrelevant. (citations omitted)

27 The plaintiffs also submit that their claim that the 3 July 2016 affidavit sworn by Charles Sweeney contains scandalous material is supported by the statement by Hasluck J in Cavill Business Solutions Pty Ltd v Jackson[5] where his Honour said:

Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary ... allegation bearing purely upon the moral character of an individual is also scandalous.

28 Further, the plaintiffs submit that on this application the relevance of the first defendant's affidavit of 3 July 2016 should be tested by reference to:

(a) the orders sought in the originating motion;

(b) the matters raised in the affidavit in support; and

(c) the nature of the objections foreshadowed by the first defendant at the hearing before Justice Judd.

29 As to the scope of paragraph 28(a) above, the orders sought in the plaintiffs' originating motion are extracted above.

30 As to paragraph 28(b) above, the matters raised in the plaintiffs' affidavit in support of its application are summarised below by reference to the affidavits of William Joseph Sweeney sworn 19 March 2016 and Peter George Weller, sworn 18 July 2016. In essence the affidavit of William Sweeney sworn 19 March 2016 deposes to the history of the Land which I have briefly outlined above. However, in so far as that affidavit says more it is summarised below.

31 William Joseph Sweeney's affidavit of 19 March 2016 also deals with the factual circumstances in which the trust arose. He also states, in summary, that:

(a) Prior to entering into the contract of sale dated 30 October 2015, the trustees obtained a valuation of the Land, which accorded with the existing offer of $5m the trustees had for the Land.[6]

(b) The trustees intend to distribute the proceeds of the sale of the Land to the beneficiaries.

(c) The third defendant and the fourth defendant consent to the proposed sale, as beneficiaries.

(d) Francis John Sweeney, the second defendant's position is reflected in the letter dated 7 April 2015 from his solicitors, Rennick & Gaynor, confirming that the second defendant would accept the offer represented by the conditional contract of sale, in respect of his eight forty second part or share.[7]

(e) The first defendant Charles Sweeney has not consented to the proposed sale of the land, thus necessitating the plaintiffs' originating motion.

32 The plaintiffs also rely in this proceeding on an affidavit of Peter George Weller, sworn 18 July 2016. In paragraphs 3-5 of his affidavit he states that:

[3] The proceeding was commenced on 16 March 2016 by Originating Process - Redcrest. The circumstances in which the Trustees have come to Court are set out in some detail in the affidavit of William Joseph Sweeney sworn 19 March 2016.

[4] In general terms, by the proceeding the plaintiffs ("Trustees") - who are trustees of certain trusts known as the Bacchus Marsh Land Trust ("Trust") - seek:

1. declarations as to the extent of the interest of the various beneficiaries;
2. an order conferring the Trustees with power to enter into and complete a contract for the sale of certain real property at Bacchus Marsh ("Land") which is Trust property; and

[5] Those orders are sought in circumstances where is no trust deed, no trust instrument and statutory or general law power in the Trustees to sell the Land absent an order from the Court. By those orders, the Trustees seek full power to sell the sole asset of the Trust and to distribute the proceeds of sale to the identified beneficiaries.

33 As to paragraph 28(c) above, on 6 May 2016 at an interlocutory hearing before Judd J the first defendant, in essence, described his case in this proceeding, as one in which he would assert that:

(a) the sale of the Land occurred in circumstances where there was no advance notice or consultation with all beneficiaries;

(b) the conditional contract of sale, in particular clause 16 of the special conditions, was unfair and prejudiced to the first defendant; and

(c) there were issues relating to whether the sale price obtained by the plaintiffs for the Land was the best price, given the way the plaintiffs went about the sale.

34 Accordingly, the plaintiffs argue that the issues raised for determination in this proceeding relate essentially, and only, to:

(a) the plaintiffs' power to enter into the contract of sale and execute that contract of sale; and

(b) perhaps, the appropriate distribution of the proceeds of sale amongst the beneficiaries.

Potential issues related to matter (b) above are however, as noted above, apparently not in dispute.

35 The plaintiffs submit that the impugned paragraphs of Charles Sweeney's affidavit, seek to agitate a range of grievances raised in, and arising from, previous proceedings concerned with different issues and seeking different relief or related solely to aspects of Sweeney family history. The plaintiffs submit that these topics are wholly irrelevant to the issues and the orders sought by the plaintiffs in this proceeding.

36 Further, the plaintiffs submit that certain parts of Charles Sweeney's affidavit of 3 July 2016 contain suggested inferences, observations and conclusions of a gratuitously abusive or injurious or offensive nature, and allegations which are indecent or offensive and for that reason improper and impermissible concerning the first defendant's family members.

37 The plaintiffs submit that when considered in the context of the relief sought by the plaintiffs' affidavits in this proceeding, and the foreshadowed objections by the first defendant at the earlier hearing before Justice Judd, the paragraphs of Charles Sweeney's affidavit under attack by the plaintiffs should be struck out as having no relevance and/or as scandalous. The plaintiffs argue in this regard that the paragraphs of the impugned affidavit they identify as irrelevant could not rationally affect the assessment of the probability of the evidence of a fact, or properly inform the exercise of the Court's discretion at the hearing of the plaintiffs' originating motion.

38 The plaintiffs' submissions then deals in some detail with what they assert are five broad categories of objectionable material to be found in Charles Sweeney affidavit of 3 July 2016.[8] These heads of objection are categorised as: irrelevant family history, matters concerning the estates of the Hon. Charles Sweeney and Mrs Sweeney, evidence previously given by William Sweeney, material describing grievances in relation to Catherine Walter, and unsupported and grave assertions in relation to Mr John Walter.

39 The plaintiffs submit that when considered in light of the plaintiffs' supporting affidavits, the relief sought in the Originating Motion, and the first defendant's case as described before Justice Judd in May 2016, the first defendant's affidavit of 3 July 2016 demonstrates that, rather than seeking to engage with the plaintiffs' case on the originating motion in any substantive way, Charles Sweeney has taken the opportunity in his affidavit of 3 July 2016 to attempt to rehash long held personal grievances and recount episodes of highly charged Sweeney family history which asserted facts, circumstances, inferences and conclusions are of no relevance to the trustees' application or any legitimate case the first defendant might raise in response.

40 The first defendant, Charles Sweeney, in response to the plaintiffs' above contentions submits that an adjudication on the plaintiffs' strike out summons requires an evaluation of the overall position of the first defendant in relation to the Originating Motion seeking orders conferring retrospective approval in relation to the contract to sell the Land.

41 Charles Sweeney describes the vice and injustice which would arise if the orders sought by the plaintiffs in their Originating Motion were granted, as follows:

If orders were to be made to the effect sought by the plaintiffs, those orders would have the effect of sanctioning a sale by trustees of land of which they were bare trustees without any notice to a beneficiary, contrary to his wishes and on contractual terms deliberately designed to disadvantage him by stripping from his ownership interests and right to bargain with the proposed purchaser for a fairer or higher price.

... the evidence to be led at the hearing will be capable of establishing that, far from being a compelling case of any quality, the application of the trustees for orders will be capable of being shown by the evidence to be an application made by persons who, by reason of their animus for the first defendant and their previous conduct towards him, should not have exercised a power of appointment to appoint themselves to a position of power over him and to a position in which they were able to act contrary to his interests and give effect to their animus against him.

43 Charles Sweeney submits that the key issue arising in relation to the plaintiffs' interlocutory summons dated 22 July 2016 is:

... whether the plaintiffs are able to satisfy the court that, on no view of the case which the first defendant is entitled to present to the court on the hearing in opposing the claim for sanctioning orders, could the affidavit material be relevant.

The first defendant submits that the evidence will also show that the plaintiffs in negotiating and entering into the contract have given effect to their animus against the first defendant and have acted improperly as trustees.

44 Further, the first defendant's submissions then seek to describe, comment on, and draw conclusions in respect of, the evidence contained in the affidavits of William Sweeney, Francis Sweeney and the conduct of Catherine Walter and John Walter.

First defendant's submissions concerning the contract of sale

45 In summary, Charles Sweeney makes the following submissions concerning the conditional contract of sale:

(a) the documents produced by the plaintiffs do not record any real negotiations over price or terms or any meaningful deliberations of the plaintiffs over such elements;

(b) there is not the 'usual' solicitor's file for such a 'significant property transaction';

(c) there does not appear to have been any assessment of the likely value to the purchaser of the land in light of its other adjacent land purchases and the additional benefits of scale which the land would deliver;

(d) the terms of the contract of sale, for which approval is sought, have been drafted by the second, third and fourth defendants and John Walter, to include a provision (in clause 16) of the special conditions which is calculated to diminish the value of the interest of Charles Sweeney and to increase the value of the interest held by the second to the fourth defendants, by precluding Charles Sweeney from negotiating a separate purchase price for his interest;

(e) the trustees harbour such animus to the first defendant that they are not appropriate persons to be trustees of the Trust.

The first defendant's submissions concerning the present application

46 The first defendant, in essence, submits as follows in relation to the plaintiffs' strike out application, that:

(a) The plaintiffs' summons of 22 July 2016 requires an overall evaluation of the first defendant's position in relation to the plaintiffs' originating summons.

(b) The effect of upholding the plaintiffs' summons would be to sanction the trustees' planned sale of the land.

(c) The sale of the land is contrary to the first defendant's wishes and proposed to be on terms deliberately designed to disadvantage the first defendant by 'stripping him' of his ownership interests and rights to bargain with the proposed purchasers for a fairer or higher price.

(d) Only a very compelling case will be likely to persuade a Court to accede to the strike out orders sought by the plaintiffs.

(e) The evidence sought to be impugned by the plaintiffs is evidence that is capable of establishing the plaintiffs' application is one brought by persons who, by reasons of their animus for the first defendant, and their previous conduct towards the first defendant, should not have exercised a power of appointment to appoint themselves to positions of power over the first defendant and have acted improperly as trustees.[9]

(f) The plaintiffs must establish that on no view of the case which the first defendant is entitled to present, could the affidavit material sought to be impugned by the plaintiffs be relevant.

47 The first defendant's submissions also allude to the court's power to remove trustees where the conduct of impugned trustees justify such an order. However, the first defendant submits that:

[41] In the present case, the "evidentiary purpose" of the evidence concerning the conduct of the plaintiffs as trustees of the estate is to inform an assessment of their conduct as trustees of the Bacchus Marsh land in conducting such negotiations as they did and entering into the contract of sale without the knowledge of at least one of the beneficiaries.

[42] As trustees of that beneficiary's interest in the land, their duty was to preserve the land for the benefit of that beneficiary. No other right or duty arose. It was not open to the plaintiffs as trustees to conclude as to a beneficiary who had an absolute entitlement and who was not under a disability that they knew better than the beneficiary what was in his interests.

[43] The plaintiffs have made an important threshold error in relation to the Bacchus Marsh land. They have purported to appoint themselves as trustee of a single trust with several beneficiaries. This was incorrect. In fact, in relation to the beneficial interests of the four siblings, there were several different trusts, each with a separate beneficiary and a separate, although similar, interest in the land. No sibling beneficiary had an interest in the beneficial interest of another sibling beneficiary.

...

[45] The effect of this error is that there is no basis upon which the trustees could lawfully have entered into the contract to sell the whole of the land without the informed consent of the beneficiaries of all of the trusts.

[46] The clandestine entry into a contract of sale in the form of this particular contract may, at trial, be found to have been misconduct by the plaintiffs.

48 The first defendant's present defence of the impugned paragraphs of his affidavit of 3 July 2016 is in part predicated on his intention at trial to adduce the following evidence which has been earlier filed in other proceedings:

(a) Parts of an affidavit, sworn 17 March 2014, in other proceedings, by William Joseph Sweeney, which the first defendant argues are in the nature of admissions and thereby able to be tendered.

(b) Affidavits of Francis John Sweeney, sworn 8 July 2013, 8 October 2013 and 2 July 2014, in other proceedings, which the first defendant will seek to introduce by calling that deponent at the forthcoming trial.

(c) An affidavit of Robert Paterson sworn 6 September 2013 in another proceeding, which the first defendant will submit is the nature of admission, and thereby able to be tendered.

(d) The affidavit of Charles Augustine Sweeney sworn 3 July 2016, filed in this proceeding.

49 I note at this juncture that the determination of the plaintiffs' summons of 22 July 2016 is not determinative of the admissibility of other evidence which the first defendant may seek to adduce and tender in trial, including in relation to the above affidavit material deposed to by persons other than the first defendant. However, this decision and my reasons for this decision on the plaintiffs' present application may be relevant to the admissibility, and if admitted, the weight to be given to evidence of this type which the first defendant may seek to adduce at trial.

The first defendant's arguments as to the nature, relevance and admissibility of the impugned parts of the affidavit of 3 July 2016

50 The first defendant argues that the impugned parts of his affidavit are relevant to the issues in these proceedings and further argues that he should be entitled to refer in his affidavit of 3 July 2016 to evidence, which he proposes to tender at trial, including evidence in the nature of parts of the affidavits of William Sweeney filed some time ago and filed in other proceedings.

51 The substance of the evidence of William Sweeney said to be relevant is to do with Mrs Sweeney's capacity and levels of acuity.

52 So as to minimise the prospect of the purpose of the plaintiffs' current application being frustrated, and because in the circumstances I consider that it is just and appropriate to do so, I have refrained from setting out, or otherwise detailing the specific content of the impugned parts of the first defendant's affidavit of 3 July 2016.

53 The first defendant refers to extracts of sworn statements by Francis Sweeney which puts forward conclusions as to his mother's capacity and acuity. The first defendant submits that this evidence has the potential to displace William Sweeney's affidavit evidence and provides a basis for the court in this proceeding to conclude that William Sweeney's affidavit took the form it did as a result of the plaintiffs' wish to injure and disadvantage the first defendant, and submits that evidence is also capable of establishing that the plaintiffs harbour strong animosity for the first defendant.

54 The first defendant also outlines his submissions based on inferences which the first defendant contends can be drawn from certain affidavit evidence filed some time ago in other proceedings by William Sweeney when contrasted with certain affidavit evidence filed in other proceedings by Francis Sweeney. This affidavit evidence is said to be capable of supporting inferences and conclusions as to the reasons why the first defendant's mother excluded him from her will. Again the first defendant contends that such evidence also has the potential to establish that what William Sweeney deposes to in earlier affidavits in other proceedings was "driven by" the plaintiffs' animus for the first defendant.

55 The first defendant submits by reference to the earlier affidavits of Francis Sweeney and William Sweeney that there is evidence which is capable of founding an inference that certain documents written by Mrs Sweeney were not in reality of her authorship. The first defendant contends that this inference, if established, could in turn support a further inference that the plaintiffs harboured animus against the first defendant.

56 The first defendant submits that certain passages of an earlier affidavit sworn by Francis Sweeney in other proceedings are capable of establishing a prima facie case that "the second plaintiff used her position of trust to pretend to give the second defendant legal advice for his benefit when in fact she was attempting to induce him to act to his financial detriment for her financial benefit". The first defendant then contends that this evidence is capable of establishing that the plaintiffs cannot be relied upon to discharge the trust with objectivity, impartiality, without conflict of interest and in the interests of all the beneficiaries, rather than just themselves.

57 The first defendant notes that in his affidavit of 3 July 2016 he is expressing his fears and beliefs and apprehensions concerning the trustees. He submits that such evidence is admissible in any proceedings involving the question of whether the Court should sanction particular acts of trustees.

58 The first defendant contends that the evidence in the affidavits of others parties filed in other proceedings dealing with the matters outlined above, in the first defendants' own submission, provide a substantial factual basis for the first defendant's fears and apprehensions, and therefore the affidavit evidence referred to should be admitted into evidence at the trial of these proceedings.

59 I depart from the first defendant's submissions to again note that the current application is concerned with the relevance and appropriateness of the first defendant's affidavit dated 3 July 2016. Save in respect of the first defendant's affidavit sworn 3 July 2016, this application by the plaintiffs does not extend to deal with the admissibility of the evidence which the first defendant may seek to tender at the trial of this proceeding, although this decision and the considerations referred to in these reasons may ultimately also be relevant to the determination of what evidence should be admitted at trial.

60 Charles Sweeney's affidavit in response to the plaintiffs' Originating Motion raises issues by way of his assertions that:

(a) The trustees have not and will not have any proper regard for Charles Sweeney's interests and are disqualified from acting as trustees for his interests because of the way they have conducted themselves toward him in the past and because of their animus towards him which their past conduct reflects.

(b) William Sweeney has made statements which were false and misleading and he and Catherine Walter knew that such statements were false and misleading, and must have intended that those statements would mislead the Court in order to damage Charles Sweeney.

(c) Catherine Walter harbours a deep malice towards the first defendant and will not act impartially as a trustee in the best interests of any beneficiary other than herself.

(d) Prior to May 2004 all four defendants were treated with equal favour by their parents.

(e) There are numerous suggested facts and assertions which relate to historical family communications and relationships, relevant to other proceedings, and asserted occurrences and conclusions and theories of the first defendant including in relation to family discord, and the asserted lack of bona fides, motives and trustworthiness of families and conduct of a trustee in the practice of that person's profession, all said to be relevant to the animus the trustees have against the first defendant.

61 In paragraphs 48 and 54 of his affidavit, which are not objected to by the plaintiffs, Charles Sweeney states:

I am concerned about the following aspects concerning the contract for which court approval has been sought. First, the documents produced by the plaintiffs do not record any real negotiations over price or terms or any meaningful deliberations of the plaintiffs over these elements. Secondly, there is nothing resembling the usual contents of a solicitor's file when a significant property transaction is in process. Thirdly there does not appear to have been any assessment of the likely value to the purchaser of this land in light of its other adjacent land purchases and the additional benefits of scale which this land would deliver. John Walter, who conducted the dealings with the purchaser must have, I believe, deliberately elected to conduct a near trail less transaction.

I believe that the terms of the contract for which the court's approval have been drafted by the defendants and John Walter to include a provision calculated to diminish the value of my interest and to increase the value of the interests held by the defendants by precluding me from negotiating a separate purchase price for my interest.

62 In my view the matters I have referred to above, in particular:

(a) the terms of the originating process in this proceeding and the relief sought by the plaintiffs;

(b) the issues raised by the plaintiffs' affidavit materials;

(c) the first defendant's articulation of his case on 6 May 2016;

(d) the parts of the first defendant's affidavit and submission which address the relevant issues,

establish that the real and legitimate issues in this proceeding are:

(i) the plaintiffs' power to enter into the contract of sale for the Land dated 30 October 2015;

(ii) the manner in which the proceeds of sale should be distributed, although there appears to be no real dispute between the parties in this area;

(iii) the appropriateness of sale price for the Land and the process of sale in that regard, including in relation to the terms of the conditional contract of sale.

63 I consider that the contents of each of the paragraphs of the first defendant's affidavit of 3 July 2016 which are referred to in the plaintiffs' summons of 22 July 2016 are irrelevant to the real and legitimate issues to which I have referred. The historical events concerning the unhappy history of family relationships and dealings and the suggested inferences and conclusions in relation thereto which the first defendant seeks to advance, the nature of which I have referred to above and summarised in paragraphs [50], [51], [53]-[58], cannot, reasonably considered, be capable of advancing or supporting any legitimate response or case by the first defendant in relation to the real issues in respect of the plaintiffs' Originating Motion. In my view, all the impugned paragraphs of the first defendant's affidavit of 3 July 2016 are irrelevant to the real and legitimate issues in this proceeding and should be struck out for that reason.

64 Furthermore, many of the matters complained of by the first defendant are in the nature of statements deposed to in affidavits filed in other court proceedings which are apparently directed to issues distinct and separate from the real and legitimate issues in this proceeding. The affidavits in those other proceedings are directed to obtaining different and distinct relief to that which is sought by the plaintiffs in this proceeding. For example, the first defendant states on at least one occasion that certain of the matters deposed to in William Sweeney's affidavit, on the first defendants contention, were made in other proceedings so as to make it impossible for the first defendant to peruse a claim which he might otherwise have brought in other proceedings.

65 I also consider that each of the paragraphs of the first defendant's affidavit of 3 July 2016, referred to in paragraph 2 of the plaintiffs' summons of 22 July 2016, are scandalous in nature because they are each, considered in the context of this proceeding, unnecessarily and unjustifiably injurious to the personal character, integrity and standing of the persons the subject of such evidence, and because they are also irrelevant in this proceeding and bear purely upon the moral character of the individuals concerned and are therefore unjustifiably offensive. Further, I consider that these parts of the first defendant's affidavit are, in the context of this proceeding, made only for the purpose of abusing or injuring the subject members of the first defendant's family, and for no other legitimate forensic purpose.

66 For the reasons I have summarised above I consider that each of the paragraphs specified below should be struck out on the bases I have indicated. In each instance I have concluded, as noted below, that the specific paragraph is irrelevant and/or scandalous. I am satisfied that in each case the paragraph is irrelevant to the issues in this proceeding or is scandalous and should not be permitted to be relied upon by the first defendant.

67 Because the impugned affidavit has been shown to contain such a high proportion of irrelevant and scandalous material, I consider that is appropriate in this case to further order that the affidavit of Charles Augustine Sweeney sworn 3 July 2016 be placed in a sealed envelope on the Court file. That envelope is not to be opened unless a further order of this Court is obtained permitting that to occur. I shall grant leave to the first defendant to file and serve a further affidavit which includes those paragraphs of his affidavit of 3 July 2016 which have not now been struck out.

68 I grant the relief sought by the plaintiffs' summons dated 22 July 2016, and strike out paragraphs 3-18 and 22-29 and 32-47 and 49-53 (all inclusive) of the first defendant's affidavit sworn 3 July 2016.

69 The first defendant's affidavit sworn 3 July 2016 filed in this proceeding be kept in a sealed envelope until further order.

70 I grant leave to the first defendant to file and serve an affidavit which includes those paragraphs of his affidavit of 3 July 2016, which have not been struck out, by 4.00 pm on 16 August 2016.

71 I shall, when convenient, hear the parties as to the final form of orders on the plaintiffs' applications and, if necessary as to costs.

WILLIAM JOSEPH SWEENEY and CATHERINE MARY WALTER (who apply in their capacity as Trustees of the Bacchus Marsh Land Trust)

CATHERINE MARY WALTER (in her own capacity and in her capacity as Executor of the Will of Elizabeth Coral Sweeney)

WILLIAM JOSEPH SWEENEY (in his own capacity and in his capacity as Executor of the Will of Elizabeth Coral Sweeney)

[1] William Joseph Sweeney Affidavit sworn 19 March 2016, exhibit "WJS-3".

[2] Exhibit "WJS-11". Darvall McCutcheon's letter of 20 December 1985 encloses a Statement of Adjustments in relation to the settlement of Crown Allotments 42 and 42A at O'Connells Road, Bacchus Marsh in respect of which, E.C. Sweeney, C.A. Sweeney, W.J. Sweeney, F.J. Sweeney and C.M. Walter received portions of the deposit paid in respect of the sale of that land in the same proportions as those portions sought to be declared as the respective entitlement of the defendants in this proceeding.

[4] [2014] VSC 93 at [57].

[5] [2005] WASC 138 at [25].

[8] Plaintiffs' written submissions dated 1 August 2016, [27(a)-(e)].

[9] Fay v Moramba Services Pty Ltd [2010] NSWSC 725.