Plaintiffs v Defendants [2025] VSC 693 | Case summary

Supreme Court of Victoria|2025-11-12|Before: Barrett AsJ

FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.

Frank Cassar died on 14 October 2011. He was survived by his partner, Sandra Cassar ('Sandra'), and their four children, Michael, Paul, Francis and Teresa.
On 3 February 2012, the first defendant in this proceeding, Michael Cassar ('Michael'), obtained probate of a will dated 24 September 2009 by which he was named sole executor and beneficiary. The estate was comprised of numerous properties. Between 13 September 2012 and 4 December 2015, Michael transferred many of the estate properties to himself. The will was a forgery. Proceedings have already concluded in which declarations as to forgery, and in relation to various property transactions, were made.[1] Essentially, the validity of Michael's actions as executor and beneficiary have been successfully challenged by reason of Michael being appointed by a forged will.
The current proceeding concerns Michael's involvement in the Cassar Family Trust ('Trust'). The Trust was established by undated deed ('Trust Deed'). A property at 371 Fitzroy Street was transferred to the trustee on 31 May 2002, so it seems the Trust was settled by then, at the latest. By the terms of the Trust Deed, Raymond Cassar ('Raymond'), Frank's brother, was named trustee and Frank was named appointor. Clause 16.1 of the Trust Deed provides:

16.1 The Appointor and on the death or resignation of the last surviving Appointor such other person as the Appointor shall have appointed to act as Appointor and on default of such appointment his or her legal personal representatives shall be entitled by instrument in writing at any time and from time to time:

16.1.1 To remove any Trustee hereof

16.1.2 To appoint any additional Trustee or Trustees

16.1.3 To appoint a new Trustee or Trustees in the place of any Trustee who resigns abandons the appointment or ceases to be a trustee by operation of law.

16.1.4 If and so long as the Appointor is a General Beneficiary the Appointor shall not be eligible to be appointed as a Trustee

16.1.5 If there is no Appointor named in the Schedule or if at any time there is no one entitled to exercise the power of removal and appointment, the statutory and other rights of removing and appointing Trustees may be exercised by the Trustee or by the legal personal representatives of the last surviving Trustee or (if the Trustee be a Corporation) the Administrator or the liquidator of the Trustee and in the event that a Trustee shall be removed or cease to act by reason of any of the matters set out in Clause 16.3 the power to appoint a new Trustee shall be exercised by majority vote of the Specified Beneficiaries and if there be a deadlock that cannot be resolved by mediation by the Settlor or the Legal Personal Representative of the Settlor as the case shall require.

The plaintiffs submit that on 13 September 2012, Raymond purported to retire as trustee and appoint Michael as trustee, but no instrument in writing has been produced. The Trust Deed does not grant the trustee the power to appoint a replacement trustee save in circumstances described in cl 16.5. Since his appointment as trustee, Michael has exercised various powers in relation to the Trust which give rise to the relief sought in this proceeding.

On 9 September 2019, McMillan J made orders restraining Michael from dealing with the estate or trust property. The orders relevantly include the following:

OTHER MATTERS:

...

The inventory also states that at the time of his death, the property known as 371 Fitzroy Street, Fitzroy ... was held on trust for the deceased by Raymond Cassar.

On 13 September 2012, the property know as 371 Fitzroy Street was transferred to [Michael] in his capacity as the trustee of the Cassar Family Trust and the said property remains registered as such.

...

THE COURT ORDERS THAT:

...

[Michael] in his capacity as trustee of the Cassar Family Trust (or in any other capacity) and his servants and agents be restrained form selling or further encumbering or further dealing with any proprietary interest in the property known as 371 Fitzroy Street ... other than by agreement with the defendant or until further order.

On 18 March 2022 in Re Cassar, Moore J found that the will dated 24 September 2009 was a forgery, that probate should be revoked, and that letters of administration on intestacy should be granted to Sandra.[2] Orders were made accordingly. On 15 July 2022, Moore J declared that the will was a forgery.
On 11 November 2022, Sandra issued proceeding (S ECI 2022 04625) seeking orders setting aside transfers of properties and shares made by Michael in purported exercise of his powers as executor and trustee under the forged will. On 26 August 2024, Gorton J delivered reasons for the return of the properties and shares to the estate.[3] On 5 September 2024, Gorton J declared various transactions void, and made consequential orders for the return of property and shares to the estate.

On 19 August 2022, Michael executed a Deed of Variation of the Trust ('Deed of Variation') in his purported capacity 'as trustee of the trust' pursuant to the variation power in clause 19 of the Trust Deed. The operative provision of the Deed of Variation is as follows:
1. With effect from the date of this Deed the Trustee amends the Deed by inserting the following clause after clause 16.1.5

16.1.6 If the Appointor named in the Schedule has died, the Trustee shall have the power to appoint an Appointor in substitution of the legal personal representative of the Appointor named in the Schedule by instrument in writing at any time and from time to time.

On 19 August 2022, Michael also executed a document headed 'Exercise of Power of Appointment of New Appointor' by which he purported to exercise the power of appointment under cl. 16.1.6 to appoint his wife, being second defendant in this proceeding, Samantha Jade Barber ('Samantha'), as appointor of the Trust.
On 12 July 2024, Sandra, in her capacity as Frank's legal personal representative, and by operation of clause 16.1 as appointor, executed a Deed of Appointment and Removal. The recitals record the history of the matter including that Sandra is legal personal representative and therefore the appointor of the Trust by the terms of the Trust Deed. The Deed of Appointment and Removal relevantly provides:

With effect from the date of execution of this Deed, pursuant to clause 16.1 of the Trust Deed, Sandra Cassar, as the legal personal representative of the deceased, hereby:

(a) removes Michael Cassar as the trustee of the Cassar Family Trust; > > (b) appoints ACN 663 642 046 Pty Ltd as trustee of the Cassar Family trust.

By originating motion filed on 10 April 2025, the plaintiffs seek the following declarations from the Court:

(a) that Michael's appointment as trustee of the Trust by Raymond is void;

(b) that Michael's Deed of Variation and Deed of Appointment are void and of no effect;

(c) that Samantha's appointment as appointor of the Trust is void and of no effect;

(d) that Sandra is appointor;

(e) that the appointment of ACN 663 642 046 Pty Ltd as trustee of the Trust is valid, and that it is the trustee;

(f) the transfer of 371 Fitzroy Street from Raymond to Michael on or about 13 September 2012 is void and of no effect; and

(g) 371 Fitzroy Street is held on trust for ACN 663 642 046 as trustee of the Trust.

(a) pursuant to s 51 of the Trustee Act 1958 (Vic), vesting assets of the Trust in the new trustee;

(b) pursuant to s 103(1) of the Transfer of Land Act 1958 (Vic), directing the Registrar of Titles to correct the register regarding 371 Fitzroy Street;

(c) that Michael file and serve a true and just account of his administration of the Trust;

(d) that Michael deliver up all documents and records in his possession, custody or control relating to the assets and affairs of the Trust; and

(e) that Michael pay the costs of the proceeding.

The plaintiffs rely on the affidavit of Nicholas Simon Hughes sworn on 30 May 2025 and 5 November 2025 and written submissions filed on 17 October 2025 and 5 November 2025.
Michael did not appear at the hearing. Samantha appeared by her legal representative and indicated that she did not resist the orders sought. The plaintiffs indicated that they would not seek costs from her without giving her notice. On that basis, Samanatha was excused from further attending the hearing.

Clause 16.1 of the Trust Deed grants the power of appointment to:

(a) the appointor named in the schedule, being Frank; or

(b) such person as the appointor appointed during his lifetime; or

(c) if the named appointor has died, then to the appointor's personal legal representative; or

(d) if there is no one entitled to exercise the power of appointment, the trustee or the legal personal representatives of the last trustee (cl 16.5).

Clause 16.1 also requires that the power of appointment be exercised 'by instrument in writing'.
In Mr Hughes' affidavit sworn on 30 May 2025, he deposes that on 13 September 2012, Raymond 'purportedly retired as trustee ... and appointed Michael as trustee...'[4] The plaintiffs' submissions contain a similar statement. It is unclear what this is based on, but as discussed below, it does not appear there is any written evidence of such retirement and appointment. Michael has not appeared nor adduced any such evidence in this proceeding.
Pursuant to the Trust Deed's terms, Raymond can only have had the power to appoint Michael as trustee if Frank appointed Raymond as appointor during his lifetime, or if there was no one else entitled to exercise the power of appointment at the time of the exercise of that power. In this case, there is no evidence that Frank appointed Raymond as appointor during his lifetime, so there is no basis to conclude that he had such a power for that reason.
If Michael's appointment as executor was based on a forged will, and was therefore invalid, then on 13 September 2012, there was no one entitled to exercise the power of appointment because: Frank was deceased; he had not appointed anyone else during his lifetime; and there was no validly appointed legal personal representative. In those circumstances, by operation of cl 16.1.5, Raymond, as trustee, held the power of appointment at 13 September 2012. However, by the terms of the Trust Deed, that power had to be exercised by instrument in writing. In this case, there is no evidence that he did so. On 5 November 2025, Sandra, as Frank's legal personal representative, executed a Deed of Removal in which it is recited that Raymond purportedly resigned and appointed Michael as trustee of the Trust on 13 September 2022. However, the Deed of Removal goes on to say that the trustee has not been able to find any written instrument to that effect. In those circumstances, I am not satisfied that Michael was validly appointed as trustee of the Trust.
If that is correct, then Michael did not become trustee of the settlement, and so was not entitled to exercise any powers granted to the trustee of the settlement. However, by his de facto control of trust property, he was trustee de son tort of that property. In that role, he was subject to the liabilities of a trustee, that is, he was 'obliged to hold the property for, and to account to, the beneficiaries.'[5]

Did Michael Validly Vary the Deed and Appoint Samantha as Appointor?

As he was not validly appointed as trustee, Michael could not validly exercise any power to execute the Deed of Variation, and accordingly, Michael's actions in purporting to do so were void and of no effect. Consequently, Michael had no power to appoint Samantha as appointor as the exercise of that power was based on the invalid execution of the Deed of Variation to the Trust Deed.

Was 371 Fitzroy Street Validly Transferred to Michael?

As Michael was not validly appointed as trustee, the property at 371 Fitzroy Street was not validly transferred to him in that capacity. In Cassar v Cassar, Gorton J discussed the fraud exception to indefeasibility in the context of the property transfers Michael effected as executor and found that all the transfers were fraudulent because they were 'effected under the auspices of a grant known to have been obtained by fraud and were purporting to give effect to a will that was known to be fraudulent ... Fraud existed at every level'.[6] Justice Gorton declared that such transactions were void in circumstances where the purported power to make such transfers was based on a forged will, and ordered the Registrar of Titles to correct the register. I consider that the same rationale applies in relation to 371 Fitzroy Street in this case, and that the plaintiffs are entitled to similar orders and declarations. At the least, Michael could not receive the property in the capacity of trustee of the Trust, as he purported to, having regard to the invalidity of his appointment as trustee. Even if 371 Fitzroy Street was validly transferred to Michael, in the circumstances, and having regard to the revocation of probate and change of trustee, Michael would in no sense be entitled to retain that title.
The plaintiffs should confirm that the final form of order is acceptable to the Registrar of Titles.

Is Sandra the Appointor and has she Validly Appointed ACN 663 642 046 as Trustee?

As discussed above, the terms of the Trust Deed provide that Frank is the appointor, and in the event of his death, his legal personal representative becomes appointor. Upon Sandra's appointment as legal personal representative by orders made on 18 March 2022, she then became appointor of the Trust by operation of clause 16.1. In that role, Sandra validly exercised her power of appointment to appoint ACN 663 642 046 as trustee of the Trust.

For those reasons, the plaintiffs are entitled to the declarations and orders sought. I will hear the plaintiffs as to the precise form of order including as to costs. If costs are sought against any of the defendants, they will have an opportunity to be heard.

ACN 663 642 046 PTY LTD (ACN 663 642 046) in its capacity as trustee of the Cassar Family Trust

MICHAEL ANTHONY CASSAR (in both his personal capacity and in his capacity of the purposed trustee of the Cassar Family Trust)

[1] Re Cassar [2022] VSC 126; Cassar v Cassar (Preliminary Questions) [2024] VSC 502 ('Cassar v Cassar').

[4] Affidavit of Nicholas Simon Hughes sworn on 30 May 2025, [22].

[5] Jasmine Ltd v Wells & Hind [2007] EWHC 38 (Ch); [2008] Ch 194. [42].

Plaintiffs v Defendants

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