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[2016] QCA 194
General information, not legal advice.
Court of Appeal (Qld)
2016-08-02
Holmes CJ and Fraser JA and Boddice J, Separate, reasons for judgment of each member of the Court, Holmes CJ and Fraser JA, concurring as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Re Tracey [2016] QCA 194
PARTIES: IN THE MATTER OF AN APPLICATION BY THE PUBLIC TRUSTEE OF QUEENSLAND AS TRUSTEE FOR LISA MARIE TRACEY AND AS FINANCIAL ADMINISTRATOR OF LISA MARIE TRACEY FOR ADVICE AND DIRECTION PURSUANT TO SECTION 134 PUBLIC TRUSTEE ACT 1978 (QLD) AND/OR SECTION 96 TRUSTS ACT 1973 (QLD)
FILE NO/S: Appeal No 9262 of 2014 / SC No 5240 of 2013
DIVISION: Court of Appeal
PROCEEDING: Case Stated
ORIGINATING COURT: Supreme Court of Queensland at Brisbane
DELIVERED ON: 2 August 2016
DELIVERED AT: Brisbane
HEARING DATE: 9 November 2015
JUDGES: Holmes CJ and Fraser JA and Boddice J / Separate reasons for judgment of each member of the Court, Holmes CJ and Fraser JA concurring as to the orders made, Boddice J dissenting
ORDERS: The questions in the Case Stated are answered as follows: / No / No / Yes / Yes / Yes / Yes
CATCHWORDS: EQUITY – TRUSTS AND TRUSTEES – PUBLIC TRUSTEES AND TRUSTEE COMPANIES – PUBLIC TRUSTEES – QUEENSLAND – where the Public Trustee does, and may, hold assets on trust for adults under a legal disability – where the Public Trustee holds those assets on trust pursuant to the following types of trusts: a trust established by Court order, expressed to operate until further order; a trust established by Court order, not expressed to operate until further order; a trust established under s 43(6), s 44 or s 59 of the Public Trustee Act 1978 (Qld); a trust established by settlement or agreement, including private settlements and agreements – where the Public Trustee will often also manage other assets for the same adult as his/her financial administrator pursuant to an order made under the Guardianship and Administration Act 2000 (Qld) – where it is usually beneficial for the Public Trustee to manage all the adult’s assets as administrator – where the Public Trustee believes that in such cases it would be for the adult’s benefit if the Public Trustee could terminate the adult’s trust pursuant to the rule in Saunders v Vautier and hold the adult’s assets as administrator – where the Public Trustee would not be required to approach the Court for orders terminating the adult’s trust – whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established: by Court order (whether or not expressed to operate until a further Order); under ss 43(6), 44 or 59 of the Public Trustee Act 1978 (Qld); or by settlement or agreement / Guardianship and Administration Act 2000 (Qld), s 33 / Public Trustee Act 1978 (Qld), s 43, s 44, s 59 / Ban v The Public Trustee of Queensland [2015] QCA 18, cited / Beck v Henley [2014] NSWCA 201, cited / Bergmann v DAW [2010] QCA 143, cited / Cadwallender v Public Trustee [2003] WASC 72, cited / CTP Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98; [2005] HCA 53, cited / Dickson v Australian Associated Motor Insurers Limited [2011] 1 Qd R 214; [2010] QSC 69, cited / Drescher v Drescher Estate [2007] NSJ No 524 (QL); [2007] NSSC 352, cited / Goulding v James [1997] 2 All ER 239, cited / Guardianship and Administration Tribunal v Perpetual Trustees Queensland Ltd [2008] 2 Qd R 323; [2008] QSC 49, cited / Harbin v Masterman [1894] 2 Ch 184, cited / Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28, cited / Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2009] NSWSC 502, cited / LN v Public Trustee for the Australian Capital Territory [2014] ACTC 190, cited / Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42, cited / Newton v The Public Trustee [1999] WASC 179, cited / Perpetual Trustees (WA) Ltd v Naso (1999) 21 WAR 191; [1999] WASCA 80, cited / Saunders v Vautier (1841) 4 Beav 115 [49 ER 282]; [1841] EngR 629, applied / Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60, cited / Trustees of the Estate Mortgage Fighting Fund Trust v Commissioner of Taxation (2000) 102 FCR 15; [2000] FCA 981, cited / Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, cited / Wharton v Masterman [1895] AC 186, cited / Willett v Futcher (2005) 221 CLR 627; [2005] HCA 47, cited
COUNSEL: R T Whiteford for the Public Trustee of Queensland / R M Derrington QC for the Attorney-General for the State of Queensland
SOLICITORS: Official Solicitor to the Public Trustee for the Public Trustee of Queensland / Crown Law for the Attorney-General for the State of Queensland
HOLMES CJ: At issue in this case stated is whether s 33(2) of the Guardianship and Administration Act 2000 confers power on a financial administrator for an adult beneficiary under a disability to terminate a trust where the adult has an absolute entitlement to trust property and but for his or her legal disability could have exercised that power in accordance with the ruling in Saunders v Vautier.1 There is a further issue as to whether any such power extends to a trust established by court order.
The principal question is a difficult one, with compelling arguments on either side; as the judgments of Fraser JA and Boddice J illustrate. However, I have reached the conclusion, for the reasons given by Fraser JA, that, such circumstances being properly described as a “financial matter”,2 the better construction of s 33(2) is that it does give the administrator the same power as the beneficiary would have had, but for his or her legal disability, to terminate the trust.
I agree also, for the reasons both Fraser JA and Boddice J have given, that neither the beneficiary (whether or not legal capacity has been regained), nor, it follows, the administrator would possess that power while there remains in place a court order establishing the trust in question.
Accordingly, I would answer questions one and two in the case stated in the negative and questions three, four, five and six in the affirmative.
FRASER JA: I have had the advantage of reading the judgment of Boddice J. I gratefully adopt his honour’s statements of the case and summaries of the legislative scheme and submissions made by the Public Trustee and the Attorney-General.3
For the following reasons I would answer the questions in the case stated as follows:
Question 1
Whether The Public Trustee of Queensland, administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established by Court Order:
Which, by its terms is expressed to operate until further Order; and
Pursuant to which the Public Trustee holds assets on trust for that adult; and
Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: No
Question 2
Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trustee established by Court Order:
Which, by its terms is not expressed to operate until further Order; and
Pursuant to which the Public Trustee holds assets on trust for that adult; and under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Under the terms of which the adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: No
Question 3
Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established under s 43(6) of the Public Trustee Act 1978 (Qld):
Pursuant to the terms of which the Public Trustee holds assets on trust for that adult; and
Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: Yes
Question 4
Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court terminate a trust established under s 44 of the Public Trustee Act 1978 (Qld):
Pursuant to the terms of which he holds assets on trust on behalf of that adult;
Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: Yes
Question 5
Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court, terminate a trust established under s 59 of the Public Trustee Act 1978 (Qld):
Pursuant to the terms of which he holds assets on trust on behalf of that adult;
Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: Yes
Question 6
Whether the Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an order of the Court, terminate a trust established by settlement or agreement:
Pursuant to the terms of which he holds assets on trust on behalf of that adult;
Under the terms of which the adult would, but for the adult’s legal disability have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
Answer: Yes
A common issue
The issue in each of the six questions in the case stated is whether upon the proper construction of s 33(2) of the Guardianship and Administration Act 2000 (Qld) the Public Trustee, acting in his capacity as the administrator for all financial matters of an adult under a legal disability, may without a court order terminate the trust described in the questions, of which the adult is the sole beneficiary where, but for the legal disability, the beneficiary would have an absolute, vested and indefeasible interest in the trust property and could invoke “the rule in Saunders v Vautier”.
Saunders v Vautier,4 or, more accurately, cases which preceded and followed that decision, established the rule that a beneficiary who is sui juris and absolutely entitled to the whole of the trust property is entitled to exercise that beneficiary’s “proprietary rights to overbear and defeat the intention of a testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument”,5 thereby terminating the trust and rendering the former trustee liable to transfer the trust property to the beneficiary.6
In CPT Custodian Pty Ltd v Commission of State Revenue of the State of Victoria7 the High Court referred with approval to the modern formulation of the rule stated in Thomas on Powers:8
“Under the rule in Saunders v Vautier an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.”9
The context of that reference makes it clear that the rule may be invoked only by a beneficiary who is sui juris. The expression sui juris connotes in law “a person who can validly contract and bind himself by legal obligation uncontrolled by another person”.10 It is unnecessary to discuss its precise meaning in the context of the rule in Saunders v Vautier. It is a premise of each question in the stated case that the adult beneficiary lacks the necessary legal capacity to invoke that rule.
Procedure
An affidavit filed by the Public Trustee reveals that the Public Trustee holds assets on trust for an adult under a disability on trusts established by court order, on trusts established without court order under s 43(6), s 44, or s 59 of the Public Trustee Act 1978, and on private trusts established by settlement or agreement. The affidavit evidence is reflected in the facts set out in the case stated. The case was stated in an application by which the Public Trustee sought the court’s advice pursuant to s 134 of the Public Trustee Act 1978 or s 96 of the Trusts Act 1973 as to whether, as financial administrator, he might invoke the rule in Saunders v Vautier to terminate the trust and hold the adult’s assets as administrator. The history and effect of those and similar provisions were discussed in Ban v The Public Trustee of Queensland.11
It is sufficient to refer to s 134(1) of the Public Trustee Act which provides:
“(1) The public trustee may, without instituting formal proceedings, take the opinion or obtain the direction of the court upon any question, whether of law or of fact, arising under this Act or in the course of the public trustee’s duties.”
In Ban12 Morrison JA concluded that s 134 “permits the Public Trustee to approach the Supreme Court in order to ‘take the opinion or obtain the direction of the court’ but subject to the one jurisdictional bar identified in relation to the sections in the Trusts Act, by the High Court in Macedonian Church13 that… [t]he trustee must point to a ‘question, whether of law or of fact arising under this Act or in the course of the Public Trustee’s duties’”, and that such a question which involved contingencies and which in inter-parties litigation would probably be classed as hypothetical nevertheless would be sufficient.
In conformity with s 134(3) the questions were submitted to a judge of the court accompanied by a statement of facts together with affidavits. An affidavit states that the Public Trustee not infrequently holds some assets for an adult on trust and manages other assets for the adult as administrator, that in most cases it is in the interests of the adult for the Public Trustee to hold all of the assets as administrator (because that will result in a saving of fees and because in such a case the Public Trustee will not be subject to the investment restrictions contained in the Trusts Act 1973), and the Public Trustee wishes to avoid the costs of applying to the court for orders terminating individual trusts and for payment of the adult’s money to him as administrator. The suggested advantage in avoiding investment restrictions in the Trusts Act 1973 is amplified in other affidavits, which refer to financial benefits attached to certain recommended superannuation contributions. The merits of the Public Trustee’s preferred approach are not in issue in the present proceeding.
The evidence demonstrates that each of the questions in the stated case arises in the course of the Public Trustee’s duties. Most of the relevant facts are common to each question: the Public Trustee acts as administrator for all financial matters of an adult under a legal disability, pursuant to the terms of the trust the Public Trustee holds assets on trust for that adult, and under the terms of that trust the adult would, but for the adult’s legal disability, have an absolute vested and indefeasible interest as sole beneficiary in the assets of the trust.
The Attorney-General raised a preliminary point concerning trusts established by court orders that the full terms of each such order might affect the answer to the questions and those terms were not established for all of the relevant trusts. I will discuss that point in the course of answering questions 1 and 2. It is sufficient here to state my conclusions that the jurisdictional requirements of s 134(1) are fulfilled in relation to each of the questions and it is appropriate to exercise the discretion to answer each of those questions.
Question 6
Question 6 concerns private trusts established by settlement or agreement. An affidavit filed by the Public Trustee establishes that he has become trustee of money by settlements or agreements following payments to him from consolidated revenue of ex gratia payments under the Criminal Offence Victims Act 1995 (Qld). A ‘form’ letter from an officer of Victim Assist Queensland to the Public Trustee is exhibited to the affidavit. The letter refers to an enclosed cheque payable to the Public Trustee on behalf of an applicant for criminal injury compensation and records that the amount of the cheque was awarded to that applicant, “on the condition that it is paid from the consolidated fund to the Public Trustee to be administered on her behalf, on the basis that she is currently unable to manage her own affairs and make free and informed choices about how the payment is spent.”
The argument for the Attorney-General emphasised the requirement of the rule in Saunders v Vautier that the beneficiary must be “sui juris”. The Attorney-General argued that the rule applied only when the beneficiary “is” sui juris. That was submitted to be a substantive aspect of the rule. The mere fact that the Public Trustee was authorised to exercise powers which the beneficiary might have exercised if not for the beneficiary’s lack of capacity was irrelevant.
This argument cannot be reconciled with the terms of s 33(2) of the Guardianship and Administration Act 2000. That provision does not draw any distinction between substantive or other rules concerning lack of capacity. It simply provides that an “administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.” Reference to matters that the adult “could have done if the adult had capacity” is apt to describe the power conferred upon such a trust beneficiary by the rule in Saunders v Vautier. In CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic),14 the High Court approved the proposition that the rule in Saunders v Vautier “gives the beneficiaries a Hohfeldian ‘power’ which correlates to a ‘liability’ on the part of the trustees, rather than a ‘right’ correlative to a ‘duty’ … because, in the words of Professor J W Harris: ‘[b]y breaking up the trust, the beneficiaries do not compel the trustees to carry out any part of their office as active trustees; on the contrary, they bring that office to an end.’”15
The term “financial matter” is defined in the Guardianship and Administration Act to mean “a matter relating to the adult’s financial or property matters” and to include “a matter relating to” any one or more of 16 examples. The most relevant example is paragraph (c) (“receiving and recovering money payable to the adult”). Understood in the context of s 33(2), this example seems apt to refer to the exercise of a power by an administrator to receive trust moneys beneficially owned by an adult who is under such a disability as precludes the adult from giving a valid discharge to the trustee.
There is a long history of legislation conferring powers upon persons appointed to manage the estate of persons with legal incapacities. For example, in relation to a person who by reason of mental infirmity (amongst other causes) was unable to manage his or her affairs, s 65 of the Public Trustee Act 1978 empowers the Supreme Court to make a protection order appointing the Public Trustee manager of the person’s estate. The power to make a protection order is also given to the Supreme Court and the District Court by s 67 where there is an action for personal injury damages by a plaintiff for whom a protection order might be made under s 65. For present purposes, the most relevant provision is s 80(2)(c). It gives as an example of the powers of the Public Trustee as manager, generally expressed in s 80(1)(c) of that Act in terms similar to s 33(2), “demanding, receiving and recovering property held on trust for the incapacitated person and requiring any person holding or entitled to deal with property, in respect of which the incapacitated person is beneficially interested, to deal with such property, to the same extent as the incapacitated person could have required if the incapacitated person were not under a legal disability”. Those provisions were in force when the Guardianship and Administration Act was enacted. The differences between paragraph (c) of the definition of “financial matter” and s 80(2)(c) appear to be attributable to changes in drafting styles. The modern style generally favours simpler, and more succinct provisions. It is most unlikely that s 33(2) of the Guardianship and Administration Act was intended to confer a less ample power upon a financial administrator.
Even if it were thought that none of the examples in the definition of “financial matter” described the power to invoke the rule in Saunders v Vautier that would not influence the proper construction of the general expression in the definition “a matter relating to the adult’s financial or property matters.” The Guardianship and Administration Act does not evince any intention to displace the application of the provision in s 14D of the Acts Interpretation Act 1954 (Qld) that examples of the operation of a provision are not exhaustive and do not limit the meaning of the provision. It is not open to doubt that the definition of “financial matter” as “a matter relating to the adult’s financial or property matters” comprehends an adult’s absolute entitlement to property held upon trust solely for that adult. The exercise of the power to require the transfer of the trust property to the adult beneficiary necessarily must occur “in relation” to that trust property. That the rule in Saunders v Vautier applies only in relation to a beneficiary who is not under a relevant legal disability is not a ground for denying the application of s 33(2). That provision operates upon the very premise that the adult does lack legal capacity for the relevant matter, and it confers authority upon the administrator to do in relation to that matter anything the adult could have done if the adult had legal capacity for the matter.
Each question in the present case assumes that, but for the lack of the necessary legal capacity the adult beneficiary could exercise the power to bring the trust to an end. Under the rule, that power is exercisable notwithstanding that it would “overbear and defeat the intention of a testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument.”16 Accordingly the literal meaning of s 33(2) is that the authority to exercise that power is conferred upon an administrator for all financial matters of an adult under a legal disability. The express terms of the provision seem deliberately designed to confer upon such an administrator powers which are precisely co-extensive with the powers in financial and property matters of an adult who does not have any impairment of legal capacity.
The provision for this apparently plenary grant of power in financial and property matters is accompanied by a series of measures which are designed to protect the interests of the adult under a legal disability. Under s 12, the tribunal may appoint an administrator for a financial matter for an adult only if the tribunal is satisfied that “the adult has impaired capacity for the matter”, “there is a need for a decision in relation to the matter where the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property,” and “without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected”. Section 11(1) obliges a person who performs a function or exercises a power under the Act in relation to an adult with impaired capacity to apply the “general principles”. In deciding whether a person is appropriate for appointment, s 15 requires the tribunal to consider a variety of matters, including whether the person to be appointed is likely to apply the ‘general principles’.
The ‘general principles’ are set out in Schedule 1. They include:
“2 Same human rights
The right of all adults to the same basic human rights regardless of a particular adult’s capacity must be recognised and taken into account.
The importance of empowering an adult to exercise the adult’s basic human rights must also be recognised and taken into account.
3 Individual value
An adult’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.
4 Valued role as member of society
An adult’s right to be a valued member of society must be recognised and taken into account.
Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.
5 Participation in community life
The importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.
6 Encouragement of self-reliance
The importance of encouraging and supporting an adult to achieve the adult’s maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.”
The Act contains provisions designed to assist the tribunal in obtaining information about the appropriateness and competence of a proposed appointee, including the provision in s 18 for the tribunal or the registrar to make inquiries. A person who agrees to a proposed appointment as administrator must give the tribunal a financial management plan for its approval unless the tribunal orders otherwise.17 Section 28 provides that the tribunal must review an appointment of an administrator, other than the Public Trustee or a trustee company under the Trustee Companies Act 1968 (Qld) at least every five years, or otherwise in accordance with the order of the tribunal where the tribunal does not consider that the impaired capacity of the adult is permanent.18 The tribunal is also empowered to review an appointment of an administrator for an adult at any time on its own initiative.19 There are also provisions which require administrators to act honestly and with reasonable diligence to protect the adult’s interests,20 avoid “conflict transactions”,21 keep records22 and keep the administrator’s property separate from the adult’s property.23
In summary, an administrator should only be appointed in a carefully defined set of circumstances and where the tribunal is satisfied that the administrator is appropriate for appointment after the tribunal has had sufficient opportunity to inform itself about those matters outlined in the Act. The extent of the power conferred upon the administrator is decided by the tribunal, there are provisions for reviewing the appointment regularly and as required by the circumstances, the administrator is obliged to apply specified general principles, and the administrator is obliged to act in the interests of the adult under a disability.
The termination of a trust by a financial administrator with reference to the rule in Saunders v Vautier would not deprive the beneficiary of the benefit of the trust property. It would result only in the trust fund being administered for the benefit of the beneficiary by a different person (or the same person acting in a different capacity) in accordance with principles prescribed by the legislature rather than in accordance with any different terms of the trust. Parties interested in any subsisting trust, such as a settlor who wish the trust to continue for as long as the beneficiary’s disability subsisted, could be heard upon an application to appoint an administrator or to review such an appointment, with a view to opposing the conferral of power upon the administrator to terminate the trust. Any conflicting views upon the question would be resolved by the tribunal, upon whom the relevant jurisdiction is conferred.
The statutory context thus strongly suggests that the construction of s 33(2) should reflect its literal meaning.
Because, as is premised in the questions, an administrator might take advantage of the rule in Saunders v Vautier only where, the beneficiary has an absolute, vested and indefeasible interest in the trust property and, but for the absence of the requisite legal capacity, might himself or herself take advantage of that rule, the literal construction of s 33(2) would not defeat vested property rights of the settlor of a trust or of a testator. It is not necessary to resort to the principle that remedial legislation of this nature should be construed liberally,24 but s 33(2) was designed to effect an extensive reform of the pre-existing law. In that context, whilst in some cases the literal construction of s 33(2) might defeat the expectations of settlors of trusts and others, considerations of that kind are insufficient to justify departure from the plain words of the provision.
The Attorney-General argued that it is most unlikely that the legislative intention was that the Public Trustee would be able to exercise the power to call for the assets of a protected trust for a mentally incapacitated person. As the Public Trustee pointed out, under s 64(1) of the Trusts Act 1973 (Qld), it would not be anticipated that a protected beneficiary acting alone would have an absolute and indefeasible vested interest in the trust property during the trust period. That is so because, under s 64(1)(b), if the trust fails or determines during the trust period, the trust income thereafter will be held during that period upon trust to be applied for the benefit of a broad class of persons which includes the protected beneficiary. It is only when all of the beneficiaries of a protected trust are sui juris that they may join together to terminate the trust, but they then might do so even though that would defeat the settlor’s intention.25 There seems nothing particularly surprising in the Public Trustee’s contention that s 33 confers the same power upon him in his capacity as administrator for a beneficiary who lacks the necessary legal capacity.
The Attorney General argued that the absence of any authority or suggestion that the Public Trustee would be able to provide the necessary capacity for an infant beneficiary to invoke the rule in Saunders v Vautier suggested that it could not be invoked by the Public Trustee in the case of an adult lacking capacity. Since the Guardianship and Administration Act provides for the appointment of an administrator only in relation to an adult with impaired capacity, the position in relation to infants is irrelevant. The Attorney-General also referred to the absence of authority upon the point in relation to the powers of an administrator under s 33(2) to rely upon the rule in Saunders v Vautier. That absence of authority indicates only that the point has not been decided.
The Attorney-General argued that s 31(2) of the Trusts Act 1973 (Qld) supported the proposition that the rule in Saunders v Vautier was capable of operation only when the beneficiary was not under a disability. It was submitted that the section suggests that a person acting for the beneficiary is not able to alter that fact. Section 31(2) provides:
“The powers conferred on a trustee by this part are exercisable by the trustee notwithstanding any lapse of time, or that all the beneficiaries are absolutely entitled to the trust property and are not under a disability, except so far as such powers are expressly revoked by all such beneficiaries by notice in writing to the trustee.”
Under the general law, upon the termination of a trust the trustee’s active powers and duties of management come to an end and the role of the trustee is limited to conveying the trust property to the beneficiaries. The purpose of s 31(2) seems to have been to overcome the possible difficulties created by that aspect of the law in relation to incomplete dispositions of trust property at the time of termination.26 In so far as the drafting assumes that only beneficiaries who are both absolutely entitled to the trust property and not under a disability may join together to revoke the powers conferred on the trustee by Part 4 of the Trusts Act 1973 (Qld) where all the beneficiaries are absolutely entitled to the trust property, that is not inconsistent with s 33(2) of the Guardianship and Administration Act. In the circumstances identified in question 6, s 33(2) would appear to empower an administrator appointed for all financial matters to exercise the power of revocation conferred by s 31(2), but it is not necessary to decide that question. Upon no reasonable construction of s 31(2) does it qualify the power of a sui juris beneficiary who is absolutely entitled to the trust property to terminate the trust under the rule in Saunders v Vautier.
The Attorney-General argued that the rule was subject to qualification in a case where there were “special circumstances” and, that a court would not order a transfer of the trust property to the beneficiaries if there were good reason to the contrary. A number of decisions were cited for this proposition. The only Australian decision cited by the Attorney-General, Trustees of the Estate Mortgage Fighting Fund Trust v Commissioner of Taxation,27 makes it clear that the qualifications now relied upon by the Attorney-General apply only in certain cases where one of a number of beneficiaries of a trust fund seeks a transfer of that beneficiary’s share which would be prejudicial to a non-consenting beneficiary.28 Justice Hill regarded it as “elementary trust law that a sole beneficiary of a trust entitled to an absolute and indefeasible interest may call for the trust assets and thus put an end to a trust for accumulation in the trust deed, notwithstanding that to do so may be contrary to the intentions of the settlor as found in the trust deed: Saunders v Vautier.”29 So much also appears from the decision of the New South Wales Court of Appeal in Beck v Henley.30 It is a premise of each of the questions in the case stated that the adult subject to a legal disability is the sole trust beneficiary.
The Attorney-General argued that it was implicit in the scheme of the Public Trustee Act that when the Public Trustee received money on behalf of an incapacitated person it did so as trustee, and if the legislature intended that the Public Trustee might determine the trust upon being appointed as a financial administrator, that would have been made clear in the Public Trustee Act. This argument did not include reference to any statutory provision inconsistent with the application to the private trusts the subject of question 6 of the equitable principles generally applicable to such trusts, including the rule in Saunders v Vautier. That the equitable principles are applicable to such trusts is necessarily implied, since otherwise no substantive effect could be given to these trusts.
The Attorney-General argued that if it were held that the Public Trustee as administrator might exercise the power under s 33(2) to terminate a trust with reference to the rule in Saunders v Vautier, the same necessarily must apply to others who are entitled to exercise the same powers, including a person holding an enduring power of attorney under the Powers of Attorney Act 1998 (Qld). The Public Trustee brought the court’s attention to a decision of the Nova Scotia Supreme Court, Dresscher v Drescher Estate,31 in which Wright J held that the court’s approval would be required for the exercise of power by an attorney with full powers under a continuing power of attorney to terminate a trust with reference to the rule in Saunders v Vautier. The power of attorney in that case authorised the attorney, “to do, on my behalf, any and all acts which I could do if capable” Wright J held:
“Although [the attorney’s] argument has some logical appeal, the fact remains that the courts have long exercised a supervisory role over the financial affairs of incompetent persons. From guardianship and sale of property applications to the approval of settlements for the disabled, the courts have always played a steadfast role in safeguarding their interests, even though there is no reason to suspect that the guardian may not be acting in the best interests of the person under disability or not adhering to their fiduciary duty. Because of that overriding concern, and the traditional role of the courts in safeguarding such interests, even if I were to accede to this argument, I would go no further than to consider the narrow formulation … which would still require the approval of the court.32
Wright J’s reasons for rejecting the attorney’s argument are not applicable here in light of the different statutory context of s 33(2) of in the Guardianship and Administration Act, particularly the examples in the definition of “financial matter”, and the provisions concerning the role of the tribunal in the appointment, the extent of the administrator’s powers, and the review of the appointment of administrators. I note also that Drescher may not reflect the law in the United Kingdom. The editors of Lewin on Trusts,33 state that:
“...in principle a trustee would be both entitled and bound to act on an appropriate consent given on behalf of the beneficiary lacking capacity. Such consent can be given by the donee of a lasting power of attorney given under the Mental Capacity Act 200534 or by the donee of an enduring power of attorney granted under the previous legislation.”
Although the terms of s 33(2) of the Guardianship and Administration Act and the definition of “financial matter” are substantially replicated in the Powers of Attorney Act (Qld), their legal meaning is not necessarily the same because the statutory context differs.35 It is not necessary here to examine those differences. Whether or not an attorney acting under an enduring power of attorney has the same power as an administrator does not fall for decision in this case.
For these reasons I would answer Question 6 “yes.”
Questions 1 and 2
In relation to questions 1 and 2 the Attorney-General raised a preliminary point that not all the facts pertaining to each trust are before the court and it would be necessary to examine the individual circumstances of each case in order to determine whether the rule in Saunders v Vautier applied. The Attorney-General did not identify what additional circumstances concerning the orders might influence the answer to these questions, save by reference to a possibility that an order might be construed as one requiring a trustee to hold a fund for the life of the beneficiary. If that argument implied that there might be another beneficiary or that the sole beneficiary’s interest might not be absolute, vested and indefeasible but for his or her legal incapacity, the contemplated possibility would be excluded by the terms of the questions. I have been unable to identify how the circumstances postulated in the argument for the Attorney-General could bear upon answers to questions which assume that, regardless of other terms of the order, the adult beneficiary would, but for the legal disability, have an absolute vested and indefeasible interest as sole beneficiary in the assets of the trust.
The Public Trustee and Attorney-General both submitted that Question 1 should be answered “no” because it was held in Perpetual Trustees WA Ltd v Naso36 that the order in that case, which required the trustee to hold the amount of a judgment upon a compromise “on trust for the first plaintiff until further order”, was an order of a court of record having effect according to its terms until it was revoked or varied.37 Justice Parker, with whose reasons White J agreed, pointed out that no case had been cited in which the rule in Saunders v Vautier had been applied to a trust constituted by an order of the court. Justice Parker considered that there was no basis on which the rule could be extended to allow a beneficiary of the trust to terminate the trust notwithstanding the order of the court, and observed that whilst upon an application to the court to terminate the trusts the rule in Saunders v Vautier might guide the court’s decision, that was a different issue.38
Naso was applied in Newton v The Public Trustee39 and Cadwallender v The Public Trustee.40 In each of those cases there was a similar order, but it was not expressed to operate “until further order.” Nevertheless the Public Trustee argued that Question 2 should be answered “yes.” The Public Trustee argued that the explanation given by Heenan J in Cadwallender for the necessity for a further order (“that the court retained the responsibility of determining whether or not the disabling condition had ended, or had reduced sufficiently for the beneficiary to have control of the corpus”41) applied only where the adult sought to persuade a court that the adult had recovered from the disability which necessitated the court ordered trust, whereas Question 2 assumes that the disability of the adult continues. The Public Trustee argued that the protection of the adult is secured by the revocation of the trust occurring only at the request of the Public Trustee as the beneficiary’s financial administrator (rather than by the beneficiary) and that the Public Trustee as the beneficiary’s financial administrator would manage the trust money after termination of the trust.
No reasonable basis appears for drawing a distinction in the present context between orders expressed to operate “until further order” and orders without that expressed qualification. The presence of that qualification was not the basis of the decision in Perpetual Trustees WA Ltd v Naso. Questions 1 and 2 each concern cases in which a court has made an order in the exercise of its parens patriae jurisdiction which would be circumvented by the transfer of the trust property to the beneficiary.42 Since a beneficiary who had recovered the relevant legal capacity could not invoke the rule in Saunders v Vautier without the order establishing the trust being discharged, the same qualification attaches to the administrator’s power under s 33(2).
Section 240 of the Guardianship and Administration Act expressly provides that the Act does not affect the Supreme Court’s “inherent jurisdiction, including its parens patriae jurisdiction”. In addition, in a case in which the Supreme Court or the District Court sanctions a settlement between another person and an adult the court considers has impaired capacity for a matter, or orders an amount to be paid by another person to such an adult, s 245 of the Guardianship and Administration Act empowers the court to “exercise all the powers of the tribunal under chapter 3” of that Act – this chapter applies to the court in its exercise of those powers “as if the court were the tribunal.”43 Those provisions do not impose any general qualification upon the powers of duly appointed administrators conferred by s 33. Unless and until the inherent jurisdiction confirmed by s 240 or the statutory jurisdiction conferred by s 245 is exercised in a way which is inimical to those powers, a duly appointed administrator is authorised to exercise the powers conferred upon that administrator. It does not follow, however, that in the cases postulated in questions 1 and 2, s 33(2) confers power upon the administrator to terminate a trust with reference to the rule in Saunders v Vautier whilst the original order establishing the trust remains extant. As I have sought to explain, that provision does not confer a larger power upon the administrator than the power the beneficiary would possess but for the beneficiary’s legal disability.
In a case in which the order of the kind described in questions 1 and 2 was made by the Supreme Court or the District Court, s 245 would authorise the court to review the administrator’s appointment, including the extent of the powers conferred upon the administrator.44 Section 245 does not limit this jurisdiction to the particular occasion upon which the order is made. Section 245(2) confers the jurisdiction in unqualified terms, and s 245(1) provides that s 245 applies, “if, in a civil proceeding … the court sanctions a settlement … or orders an amount to be paid …” It is “wholly inappropriate”45 to confine a jurisdiction conferred upon a court by implying limits which are not found in the statutory text. That, at any time after the court sanctions a settlement or orders payment to an adult with impaired capacity, the court retains jurisdiction to review the appointment of an administrator is consistent with my conclusion that s 33(2) does not extend to empowering an administrator to invoke the rule in Saunders v Vautier to terminate a trust created by an order of a court without a further order of the court.
Contrary to one aspect of the decision in Naso, it was held in Cadwallender v Public Trustee46 that there was no discretion to exercise once the recovery of sufficient legal capacity to invoke the rule in Saunders v Vautier is established to the court’s satisfaction. Upon the footing that the recovery was sufficient to remove the foundation for the jurisdiction which justified the order in the first place,47 I would respectfully observe that this view has much to commend it, but whichever is the correct view upon that issue I would apply the appellate court’s conclusion in Naso that the order establishing the trust must be discharged before a beneficiary who has regained legal capacity is entitled to terminate the trust. Upon that view, for so long as the order establishing the trust remains in effect, s 33(2) of the Guardianship and Administration Act does not confer power upon an administrator to terminate the trust with reference to the rule in Saunders v Vautier.
For these reasons, I would give negative answers to questions 1 and 2.
It is appropriate to note in this respect that the expression “without an order of the Court” comprehends an order of the Court which authorises an administrator to terminate the trust, whether that order is made at or after the time when the trust was established by court order. It is possible to conceive of cases in which the addition of such an order at the time when the trust is created by order might be seen as appropriate although the exercise of the power, or even the appointment of an administrator with the necessary extent of power, might not be practicable or appropriate at that time. If such an order is found to be appropriate in such a case it would save the costs of a second hearing, the incurring of which seems to have been a motivation for the present proceedings.
Questions 3, 4 and 5
Questions 3, 4 and 5 raise the questions whether the Public Trustee as administrator for all financial matters of an adult under a legal disability may, without a Court Order, bring about the termination of a trust under s 43(6), s 44, and s 59 of the Public Trustee Act which, but for the adult beneficiary’s legal disability, the adult could terminate under the rule in Saunders v Vautier.
The Public Trustee Act provides:
“43 Legacies or shares of person under a disability etc. may be paid to public trustee
A trustee may, with the consent of the public trustee, pay any moneys or transfer any investment held by the trustee on trust for any infant, whether the interest of the infant therein be vested or contingent, to the public trustee and by writing direct the public trustee to hold such moneys or investments and account therefor according to law.
A trustee who is holding any moneys or investment, not exceeding in the aggregate, in the opinion of the public trustee, $75,000 in value, for any person (other than an infant) who, in the opinion of the public trustee, on evidence produced to the public trustee by such trustee or otherwise, is incapable of giving a discharge therefor or whose whereabouts or whether the person is alive or dead are unknown to such trustee may, with the consent of the public trustee, pay such moneys or transfer such investment to the public trustee and furnish such writing as is referred to in subsection (1).
The trustee shall furnish the public trustee with a copy of any relevant trust instrument.
The writing shall declare whether the moneys or investment is the whole amount or the whole remaining amount or part only of the amount to which such infant or other person is entitled, and how much of the amount is capital and how much is income and, in the case of moneys or investment to which an infant is contingently entitled, the person or persons who will become solely entitled thereto, or so much thereof as remains, in the event of the infant failing to attain a vested interest therein, and the shares and interests of these persons; and such other matters as the public trustee may require.
The writing shall be certified correct by the trustee and the public trustee shall not be under any obligation to inquire into the accuracy of the certificate nor shall the public trustee incur any liability through acting upon any statement contained in the writing.
Upon subsections (1) to (5) being complied with, the writing shall vest in the public trustee all the powers of the trustee in respect of the moneys or investment, whether conferred by the trust instrument or by statute or in any other manner, in addition to the powers conferred upon the public trustee by this Act (including, in a case to which it is applicable, the provisions of section 19).
…
44 Public trustee may receive and hold moneys of person under a disability
If any amount of money becomes payable to any person under a legal disability (whether such person is entitled thereto absolutely or is a beneficiary under a discretionary trust for the person’s benefit or the benefit of a number of persons) by the Crown or any person or instrumentality representing the Crown or out of any fund or money, including any provident, superannuation, or benefit fund, by any person or body who or which has control of such fund or moneys, such amount may be paid to the public trustee.
The receipt of the public trustee for such amount of money shall be a full discharge as to the amount paid, and such person, instrumentality or body so paying shall not thereafter be accountable therefor or be concerned to see to the application thereof.
The public trustee shall hold such amount of money on trust for the person under a legal disability.
…
59 Compromise of actions by or on behalf of persons under a legal disability claiming moneys or damages valid only with sanction of court or public trustee
(1A) In this section –
appropriate person, for a person under a legal disability, means–
an administrator for the person under the Guardianship and Administration Act 2000; or
if the person does not have an administrator – an attorney for a financial matter for the person under an enduring power of attorney under the Powers of Attorney Act 1998; or
if the person does not have an administrator or an attorney mentioned in paragraph (b) – the public trustee.
court means a court within whose jurisdiction an amount or damages are claimed by or for a person under a legal disability suing either alone or with others, and includes a judge or magistrate of the court.
person under a disability means–
a child; or
a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000.
taxing officer of a court means an officer of the court whose duties include the taxation or other assessment of costs in the court.
In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiff’s solicitor or to any person other than the public trustee unless the court otherwise directs.
Any claim for money or damages by or on behalf of a person under a legal disability claiming either alone or in conjunction with other parties may be settled or compromised out of court before action brought, with the sanction of a court or the public trustee, but no money or damages agreed to be paid in respect of the claim of any such person, whether by settlement or compromise, shall be paid to any person other than the appropriate person for the person under a legal disability unless by direction of a court upon application made in that behalf.
…
All money or damages paid to the public trustee under this section shall, subject to any general or special direction of a court upon application made in that behalf, be held and applied by the public trustee on trust for the person under a legal disability.
…
The public trustee in any case in which the public trustee is trustee under this section or any person on behalf of whom the public trustee is holding moneys hereunder may from time to time apply to the court for directions which have already been given in regard thereto, or to determine any question arising therein, and such directions or determination may be given accordingly.
The argument for the Public Trustee made it clear that questions 3, 4 and 5 were intended to concern only trusts under those provisions which were established otherwise than by court order. I do not construe question 5 as being referable to the case in which a court not only sanctions a compromise of an action in that court but also makes a direction concerning the terms upon which the money or damages are held on trust under s 59(4). Similarly, I do not construe questions 3, 4 and 5 as comprehending a case in which the Supreme Court, exercising its parens patriae jurisdiction for example, makes a direction which is consistent only with the existence of the trust. Upon that footing, questions 3, 4 and 5 differ from question 6 only insofar as the relevant sections expressly provide for the relevant property to be held by the Public Trustee as trustee for the person under a legal disability.
The Public Trustee Act does not contain any indication that such a trust does not carry with it the general equitable doctrines concerning trusts. In relation to s 59, there is the additional consideration that, where there is an administrator for the person under a legal disability who becomes the beneficiary of the trust, money or damages in respect of a claim before any action is brought must be paid to the administrator unless the Court directs otherwise (s 59(2)). Furthermore under s 59(1), which applies where an action has been brought in a court, the Court is empowered to direct that the money or damages be paid to the Public Trustee (or other person) who has been appointed as administrator, rather than to the Public Trustee in a different capacity.
In all of these cases the Supreme Court retains its parens patriae jurisdiction, but that is not a reason for denying effect to s 33(2). In these cases there is no order establishing the trust or confirming its existence such as must be discharged before an adult beneficiary who regains the necessary legal capacity could validly invoke the rule in Saunders v Vautier. It follows that under s 33(2) of the Guardianship and Administration Act, the Public Trustee as administrator for all financial matters of the adult under legal disability is empowered to terminate the trust with reference to that rule.
The fact that the statute creates the trust does not require a different conclusion. The Attorney-General endorsed the submission for the Public Trustee that nothing in the Public Trustee Act excluded the operation of the rule in Saunders v Vautier but the Attorney General argued that, having created a trust, if the legislature intended that the Public Trustee might determine the trust upon being appointed as a financial administrator it was likely that this would have been made clear. That argument overlooks the significance of s 33(2) of the Guardianship and Administration Act. Under s 43(1) of The Public Trustee Act, for example the Public Trustee may become a trustee of property for an infant in whom the trust property is vested. Subsection 43(6) vests in the Public Trustee all the powers of the original trustee in respect of the trust property. Nothing in s 43 suggests that, upon the infant becoming an adult with full legal capacity, the trustee could resist a requirement to transfer the vested trust property to that beneficiary in accordance with the rule in Saunders v Vautier. No reason appears why any different consequence would follow where an administrator sought to exercise the power under s 33(2) where the infant had become an adult but lacked the necessary legal capacity to invoke the rule.
For these reasons I would answer “yes” to questions 3, 4, and 5.
BODDICE J: On 1 August 2013, the primary Judge stated a case to this Court in relation to the power of the Public Trustee, when acting as administrator for the financial affairs of an adult under a legal disability, to terminate a trust under the terms of which that adult would, but for the adult’s legal disability, have an absolute, vested and indefeasible interest as sole beneficiary in the assets of the trust.
At issue is whether the Public Trustee, as administrator, could use the rule in Saunders v Vautier48 to call on itself, as trustee, to pay the trust funds to the adult legally incapacitated beneficiary.
Case Stated
The Case Stated set out the following facts.
The Public Trustee holds, or may in the future hold, assets on trust for adults under a legal disability pursuant to:
a trust established by Court order which, by its terms:
is expressed to operate until further order; or
is not expressed to operate until further order.
The Court Orders creating trusts on behalf of Lisa Marie Tracey were of this type. The Orders are Exhibits CJM-3 and CJM-4 to the affidavit of Clinton James Miles filed on 11 June 2013;
a trust established without Court order under s 43(6), s 44 or s 59 of the Public Trustee Act 1978 (Qld); or
a trust established by settlement or agreement. This includes trusts established by private settlements and agreements as usually understood and as the result of ex gratia payments made by the Attorney-General pursuant to sections 36 and 37 of the Criminal Offence Victims Act 1995 (Qld) to the Public Trustee on behalf of victims of crime who are, or who later suffer, a legal disability. A typical letter from the Attorney-General to the Public Trustee making such a payment is Exhibit CJM-1 to the affidavit of Clinton James Miles filed on 26 July 2013.
Often, the Public Trustee manages other assets for the same adult as his/her financial administrator pursuant to an order made under the Guardianship and Administration Act 2000 (Qld).
Usually, it is beneficial for the adult if all of his/her assets are managed by the Public Trustee as administrator, because, inter alia:
only one set of fees to manage the adult’s financial affairs would be payable, as opposed to two sets of fees. This reduction in fees occurs, inter alia, because duplication of work is avoided. For example, only one income tax return is required for the adult. In the case of Ms Tracey, as appears from paragraphs 6, 7 and 8 of the affidavit of Clinton James Miles, filed 26 July 2013, the Public Trustee holds $2,179,004.00 on trust for her and manages $87,821.00 as her administrator. At present, the Public Trustee’s annual fees for acting as Ms Tracey’s trustee and administrator are $14,186.05. If he was to manage all of Ms Tracey’s assets as administrator, his fees are estimated at $12,790.00; and
as administrator, the Public Trustee is not subject to the investment restrictions contained in the Trusts Act 1973 (Qld), as deposed to in paragraph 6(b) of the affidavit of Clinton James Miles, filed 26 July 2013.
The Public Trustee believes that in such cases, it would be for the adult’s benefit if, rather instead of approaching the Court for Orders terminating the adult’s trust, the Public Trustee, as financial administrator for the adult, could use the rule in Saunders v Vautier to terminate the trust and hold the adult’s assets as administrator. Accordingly, the Public Trustee seeks the Court’s advice as to whether he may do so in the circumstances set out in this Case Stated.
The case stated posed the following questions to be decided:
Whether The Public Trustee of Queensland, as administrator for all financial matters of an adult under a legal disability may, without an Order of the Court, terminate a trust established by Court Order:
(1841) 4 Beav 115 [49 ER 282]. ↩
As defined in Schedule 2 of the Act. ↩
Reasons of Boddice J at [57] – [73]. ↩
(1841) 4 Beav 115 [49 ER 282]; affirmed (1841) Cr & Ph 240 [41 ER 482]. ↩
Goulding v James [1997] 2 All ER 239 at 247 (Mummery LJ), quoted with approval by the High Court in CTP Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 224 CLR 98 at 118 [43]. ↩
CTP Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 224 CLR 98 at 119 [44] (citing Professor J W Harris, “Trust, power and duty”, Law Quarterly Review, vol 87 (1971) 31, at p 63). ↩
(2005) 224 CLR 98 at 119 [47]. ↩
(1998) p176. ↩
This rule has not been generally adopted in the United States of America, see for example, De Ladson v Crawford 93 Conn. 402 at 405-411. ↩
Bird, Osborn’s Concise Law Dictionary, Sweet & Maxwell, 7th ed., 1983, quoted in LN v Public Trustee for the ACT [2014] ACTSC 190 at para 16. ↩
[2015] QCA 18. ↩
(2005) 224 CLR 98
(1992) 174 CLR 178
(2008) 237 CLR 66
(1999) 21 WAR 191
(1994) 181 CLR 338
(2000) 102 FCR 15
(2002) 213 CLR 1
(2005) 221 CLR 627
[2015] QCA 18 at [59], [60]. ↩
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66. ↩
(2005) 224 CLR 98 at 119. ↩
I have omitted footnotes. ↩
Goulding v James [1997] 2 All ER 239 at 247. ↩
Guardianship and Administration Act 2000 (Qld), s 20. ↩
Ibid, s 28. ↩
Ibid, s 29. ↩
Ibid, s 35. ↩
Ibid, s 37. ↩
Ibid, s 49. ↩
Ibid, s 50. ↩
See Bergmann v DAW [2010] QCA 143 at [42]. ↩
Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2009] NSWSC 502 at [36]. ↩
Law Reform Commission Report 71, “A Review of the Trusts Act 1973”, [5.173]. ↩
(2000) 102 FCR 15. ↩
[2000] FCA 981 at [36] – [46]. ↩
[2000] FCA 981 at [35]. ↩
[2014] NSWCA 201 at [36]-[43] (Leeming JA, with whose reasons Beazley P and Sackville AJA agreed). ↩
[2007] NSSC 352. ↩
[2007] NSSC 352 at [25]. ↩
19th ed, at [24-019]. ↩
Under that UK Act, the donee of an enduring power of attorney is authorised to do on behalf of the donor anything which the donor lawfully could do by an attorney at the time when the donor executed the instrument: Schedule 4, Part 1, [3]. ↩
Cf. Western Australia v Ward (2002) 213 CLR 1 at 216 [480] (McHugh J). ↩
(1999) 21 WAR 191. ↩
(1999) 21 WAR 191 at [24] – [26]. ↩
(1999) 21 WAR 191 at [25]. ↩
[1999] WASC 179 at [24] (McKechnie J). ↩
[2003] WASC 72 (Heenan J). ↩
[2003] WASC 72 at [46]. ↩
That jurisdiction subsists notwithstanding that it is supplemented by the statutory provisions which authorise orders of the kind described in Questions 1 and 2: Guardianship and Administration Tribunal v Perpetual Trustees Queensland Ltd [2008] 2 Qd R 323 at [41] and Dickson v Australian Associated Motor Insurers Limited [2011] 1 Qd R 214 at 217 – 222 [13] - [28], 223 – 224 [38] - [43]. ↩
That regulates an aspect of the parens patriae jurisdiction of the Supreme Court: Willett v Futcher (2005) 221 CLR 627 at [28]. ↩
See Pt 3, s 31(3)(b)(i). ↩
See Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205 (Gaudron J). ↩
See Cadwallender v The Public Trustee [2003] WASC 72 at [45] (Heenan J). ↩
The possible differences between the capacity required by the rule and the capacity relevant for the exercise of the parens patriae jurisdiction or various statutory jurisdictions are discussed in LN v Public Trustee for the Australian Capital Territory [2014] ACTC 190. ↩
(1841) 4 Beav 115 [49 ER 282]; affirmed (1841) Cr & Ph 240 [41 ER 482]. ↩