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[2022] VSC 625
General information, not legal advice.
Supreme Court of Victoria
2022-10-20
Moore J
Original judgment source is linked above.
TRUSTS - Original trust deed lost - Trust administered in accordance with copy of trust deed with missing page - Declaratory relief inapplicable - Judicial advice given - r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 - Sutton v NRS(J) Pty Ltd (2020) NSWSC 826; Re Cleeve Group Pty Ltd (No 2) [2022] VSC 362.
1 On 29 April 1994, a trust deed establishing the Dove Family Trust was executed by Phillip Daniel Grant as settlor and Fenning Falls Pty Ltd (Fenning Falls) as trustee. Fenning Falls was later removed as trustee and Adam John Dove appointed in its place. Later, on 4 November 2009, Adam John Dove was removed as trustee and the plaintiff, Adam John Dove Pty Ltd, was appointed in his place.
2 Graeme Dove is a director of Adam John Dove Pty Ltd. In January 2020, he became aware that copies of the trust deed for the Dove Family Trust were incomplete. After searching for the original trust deed, he was told by his accountants that they did not hold the original of the trust deed. Despite extensive searches, Graeme Dove has since been unable to find an original copy of the trust deed. Further, the copies of the trust deed which have been located are incomplete; they are missing page 5.
3 It is in these circumstances that Adam John Dove Pty Ltd, as trustee for the Dove Family Trust, has filed an originating motion for advice and directions pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005. The primary relief sought in its amended originating motion later were declarations as follows:
4 In Application by South Melbourne Continental Pty Ltd, which concerned an application for various declarations regarding the content and execution of a trust deed for a family trust where no copies of the trust deed could be found, McMillan J summarised the relevant principles as follows:[1]
Where an original document has been lost, the Court may hear secondary evidence as to proof of the lost document. Where secondary evidence is relied upon, there must be clear and convincing proof not only of the existence of the lost document, but also evidence of its contents.[2] The evidence must be sufficient to satisfy the Court that the deed is lost or destroyed and cannot be recovered.
5 More recently in Mantovani v Vanta (No 2),[3] McMillan J stated that secondary evidence about the proof of a lost document and its contents 'may be sourced from a person who has seen the document and can provide evidence of its contents, or it may take the form of another document that purports to record the contents of the unavailable document'.[4] In Re Cleeve Pty Ltd,[5] Gorton J observed that copies of a trust deed are capable of providing 'clear and convincing' evidence about the existence and contents of a trust deed.[6]
6 In order for the Court to be satisfied that a trust deed is lost, it must be established that the document is unavailable and that reasonable enquiries and searches have been made to locate it.[7] The evidence must be 'sufficient to satisfy the Court that the Deed is lost or destroyed and cannot be recovered'.[8]
Was a trust deed establishing the Dove Family Trust executed?
7 I am satisfied on the evidence before me that a trust deed establishing the Dove Family trust was executed on or about 29 April 1994. In particular:
(a) Graeme Dove has deposed to signing the trust deed on 29 April 1994 in the offices of his solicitors.
(b) There is evidence from Warren Osborne, who worked at Mr Graeme Dove's former solicitors as a legal clerk/accountant in the 1990's, that Graeme Dove gave instructions for the drafting of a trust deed, that he worked on that file and had a conversation with Graeme Dove's accountant about the executed deed.
(c) Although no original copy of the trust deed can be found, a photocopy and certified copies of the executed trust deed, without page 5, have been located and put into evidence. These copies show the date of execution of the trust deed as being 29 April 1994. They also include a signature by the settlor, the common seal of the then trustee, the signatures of its office holders, including Graeme Dove, and the signature of the witnesses. The only defect in these copies is that page 5 is missing. It is unlikely that the trust deed was executed without a page 5, given the sequential numbering of the pages and the fact that it was not discovered missing at any point in time when the original deeds were available. In the circumstances, I agree with the submission made on behalf of the plaintiff that it may reasonably be inferred that the omission of page 5 was likely the result of an error in the process of photocopying the trust deed.
(d) There are several trust documents in evidence, including for the appointment of new trustees and the appointment of another appointor, which accurately recite the relevant details of the trust deed, including the name of the trust, the settlement date, the settlement sum, the name of the settlor, the name of the trustee and the name of the appointor.
(e) The current accountant of the plaintiff has deposed to his belief that the original trust deeds were provided to him by the trust's former accountants in or around 19 May 1999. The copies of the trust deed now available to the plaintiff were made by the plaintiff's current accountant from an original trust deed that was in its possession until in or around 2004. It would appear that the original trust deed has subsequently been lost.
(f) The contemporaneous business records of Graeme Dove's solicitors show that, in the firm's manual record of matters for the period 1993-1996 under the heading 'FDB Investments Unit Trust (GJ Dove)', a particular file was described as being for the settlement of 'unit trust deed - discretionary trust deeds'. It can reasonably be inferred from this record and Graeme Dove's evidence, that the reference to 'discretionary trust deeds' in the solicitors' records included the trust deed from the Dove Family Trust.
8 There is substantial evidence before the Court which establishes that various persons and organisations who either have, or may have had, a copy of an original copy of the trust deed of the Dove Family Trust in their possession, do not now have such a copy: This includes:
(a) the successor law firm of the law firm which drafted the trust deed;
(b) two other law firms being the former solicitors of the trustee of the Dove Family Trust;
(d) the directors of the current and former trustees, being Graeme Dove, Dianne Chatterton and Adam Dove; and
(e) the National Australia Bank which was provided with a certified copies of the trust deed on 28 June 2006, 7 December 2009 and 1 November 2018.
9 On the basis of this evidence and the matters referred to in subparagraphs 7(c) and (e), I am satisfied that, after the undertaking of reasonable search and inquiry to locate the original trust deed, the original of the executed trust deed of the Dove Family Trust has been lost and is not available to the plaintiff.
10 On the basis of clear and convincing evidence as to:
(a) the contents of all pages of the trust deed except page 5; and
(b) the contents of page 5 of the trust deed,
I am satisfied that the contents of the trust deed are in the terms and form exhibited to Graeme Dove's second affidavit dated 20 April 2022.
11 The most relevant evidence relating to the contents of the trust deed, other than page 5, is as follows:
(a) The photocopy and certified copies of the trust deed (which are missing page 5) are themselves clear and convincing evidence of the contents of the trust deed save for page 5.
(b) Mr Osborne's evidence that the photocopy trust deed is in the form of the precedent used by his former firm when the Dove Family Trust was established. A comparison of the precedent exhibited to Mr Osborne's affidavit indicates that the Dove Family Trust is in identical terms to the precedent, including minor formatting errors.
(c) The contemporaneous records of the firm of solicitors involved in the preparation of the trust supports a finding that the Dove Family Trust deed was one of the trust deeds that was executed on the instructions of Graeme Dove between 1993 and 1996 as part of arrangements for the establishment of a business structure. These records are consistent with Graeme Dove's evidence regarding the establishment of various trusts at the time, including the Dove Family Trust.
(d) Graeme Dove and Mr Gregory Joseph Dwyer, who is an accountant and a director of accounting firm Lockwood Partners Pty Ltd as trustee for the Lockwoods Unit Trust, have deposed that the photocopy of the trust deed is a true copy of the original deed in circumstances where each sighted, or are likely to have sighted, the original deed at some point in time.
(e) The fact that the use of the trust structure for a business venture was based on the advice of an accountant; that the trust deed was prepared by a solicitor on Graeme Dove's instructions; and that the original deeds were retained by his two accountants over time, suggests that the copy of the executed trust deed made by his current accountant is a true copy of the Dove Family Trust deed.
12 In relation to the contents of page 5 of the trust deed, although that page is not included in the copy of the trust deed, I am satisfied of its contents because, as I have outlined above, the precedent used to create the trust deed is available and in evidence before the Court. The precent is identical to the copy of the executed trust deed, save for the fields which required filling in, such as names of the trust, trustee, settlor and beneficiaries. A comparison of pages 4 and 6 of the Dove Family Trust deed with the precedent deed indicates that the contents of page 5 align with the phrasing, content and paragraph structure of those surrounding two pages.
13 For the above reasons, I am satisfied that a trust deed establishing the Dove Family Trust was executed in or around 29 April 1994, that that trust deed has been lost and that the form of the executed trust deed, including page 5, was in the form of that exhibited to the second affidavit of Graeme John Dove made 20 April 2022. It remains to determine the appropriate form of relief.
14 In the circumstances of this proceeding, I do not consider that it is appropriate to grant declaratory relief for two reasons.
15 First, paragraphs 1 and 2 of the declarations sought by the plaintiff concern pure matters of fact and do not purport to formally determine a legal state of affairs. Although there are instances when such declarations have been made in analogous circumstances,[9] there is more recent authority that a declaration should not be made in such circumstances.[10]
16 Secondly, although the Court has a broad discretion in determining whether or not to make a declaration, there are limitations on the exercise of the discretion consistent with principles relating to a court acting judicially.[11] One such principle is that a party seeking a declaration should secure a contradictor. As stated by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd,[12] approved by Gibbs J (as his Honour then was) in Forster v Jododex Australia Pty Ltd:[13]
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.
17 Although the requirement for the existence of a contradictor may be met where there is a party with a genuine interest in opposing the declaratory relief sought, whether or not that party in fact chooses to oppose the granting of that relief,[14] that precondition is not satisfied in this case. Not only is there no contradictor to the plaintiff's application, it is not apparent that there is any party who may have a genuine interest in opposing the declaratory relief sought by the plaintiff. An essential precondition to the exercise of the Court's discretion in relation to the making of declaratory relief is therefore absent. The Court will not grant the principal relief sought by the plaintiff.
18 In the event that the Court was unwilling to grant declaratory relief, the plaintiff sought the following order in the alternative:
Pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff is justified in managing and administering the Dove Family Trust according to the terms of the trust deed exhibited as exhibit "GJD-2" to the second affidavit of Graeme John Dove affirmed 20 April 2022 in this proceeding ... a copy of which is annexed to these orders.
19 Relief in these terms is consistent with the nature of the Court's jurisdiction under r 54.02 to give judicial advice and, for the reasons I have outlined, is properly justified in the circumstances of this case. An order to this effect was made in Sutton v NRS(J) Pty Ltd under the equivalent jurisdiction in New South Wales in circumstances where the Court was unwilling to grant declaratory relief.[15] I will grant the alternative relief sought by the plaintiff.
[1] [2018] VSC 398, [5], omitting citations.
[2] Maks v Maks (1986) 6 NSWLR 34, 36 (McLelland J). See also D.R. McKendry Nominees Pty Ltd [2015] VSC 560 (22 September 2015) [7], [10].
[7] Evidence Act 2008, Dictionary, pt 2, cl 5; Mantovani (n 3), [54].
[8] Mantovani (n 3), [55] citing D.R. McKendry Nominees Pty Ltd [2015] VSC 560, [22] (Digby J); Payten v Perpetual Trustee Company [2005] NSWSC 345, [97] (Austin J).
[9] See D.R. McKendry Nominees Pty Ltd [2015] VSC 560; Mantovani (n 3).
[10] See Sutton v NRS(J) Pty Ltd (2020) NSWSC 826, [21]; Re Cleeve Group Pty Ltd (No 2) [2022] VSC 362, [5].
[11] See Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482, [37].
[12] (1921) 2 AC 438, 448.
[13] [1972] HCA 61; (1972) 127 CLR 421, 437-438.
[14] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378, [14], [30].
TRUSTS - Original trust deed lost - Trust administered in accordance with copy of trust deed with missing page - Declaratory relief inapplicable - Judicial advice given - r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 - Sutton
NRS(J) Pty Ltd
(1986) 6 NSWLR 34
(1972) 127 CLR 421
(2012) 201 FCR 378