Universal Holidays Pty Limited v Tseng

Federal Court of Australia|2008-07-03|Before: Lander J

Andrew Morton Garrett's application to be joined as a party to this action in his capacity as the sole trustee of the Garrett Family Trust be dismissed.
Paragraphs 3, 6 and 7 of the notice of motion of 11 February 2008 be dismissed.
Andrew Morton Garrett pay the cross-claimants' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

EVAJADE PTY LIMITED AND ANDREW MORTON GARRETT IN THEIR CAPACITIES AS TRUSTEES OF THE ANDREW GARRETT FAMILY TRUST NO 2

STEPHEN DUNCAN IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF AVERIL GAY GARRETT

PETER IVAN MACKS IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW MORTON GARRETT

ANDREW MORTON GARRETT AND JOSEPH NICOLAZZO IN THEIR CAPACITIES AS TRUSTEES OF THE ANDREW GARRETT FAMILY TRUST NO 3

ANDREW MORTON GARRETT IN HIS CAPACITY AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST

REASONS FOR JUDGMENT 1 This is an application by Mr Andrew Garrett to be joined in the cross-claim in this proceeding as the sole trustee of the Garrett Family Trust. He also seeks an order that he be given leave to file a cross-claim in the action. 2 The claim in this proceeding has been disposed of. However, the trustee of the bankrupt estate of Mr Andrew Garrett and the trustee of the bankrupt estate of Mr Garrett's wife, Averil Garrett, have brought cross-claims seeking orders against a number of parties. 3 This application is opposed by the cross-claimants on the ground that the Garrett Family Trust does not exist and has never existed at any relevant time as a separate trust. 4 Order 6 rule 8 of the Federal Court Rules 1979 (Cth) (the Rules) provides the Court with a discretion to add a party where a person who is not a party ought to have been joined as a party, or whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon. 5 It is not clear from the notice of motion in what capacity Mr Garrett seeks to be joined but it may be assumed, I think, that by reference to the second order which is sought, that he seeks to be joined as a cross-respondent. That seems to follow from the notice of motion itself which seeks that Mr Garrett be joined in his capacity as sole trustee of the Garrett Family Trust and that he be granted leave to file a cross-claim in the action. 6 Mr Garrett is already a cross-respondent to the proceeding as a trustee of the Andrew Garrett Family Trust No 2. On 10 June 2008 an order was made that he also be joined as a cross-respondent in his capacity as trustee of the Andrew Garrett Family Trust. 7 The notice of motion seeking the orders mentioned above was filed on 11 February 2008. The matter came before me on 12 February 2008 where I made orders that Mr Garrett file and serve within 14 days the evidence upon which he relied in support of his application. 8 The matter came before me again on 27 March 2008 when I made further orders directing all parties to complete the filing of evidence by Thursday, 20 May 2008. At that stage I listed this matter for hearing on 10 June 2008. 9 Mr Garrett swore an affidavit on 27 February 2008 to which he exhibited two volumes of a book of documents. His solicitors have sworn three affidavits on 28 May 2008, 30 May 2008 and 11 June 2008 in support of this application. The affidavits were not sworn or filed within the time prescribed in the orders made on 27 March 2008. 10 On this application Mr Garrett's counsel sought to read Mr Garrett's affidavit sworn on 27 February 2008. Objection was taken by counsel for the cross-claimants on the ground that notice had been given by the cross-claimants that they wished to cross-examine Mr Garrett on his affidavit (O 14 r 9 of the Rules) and that he had not presented himself for cross-examination. 11 It was made clear at the hearings on 12 February and 27 March 2008 that if Mr Garrett intended to read any affidavit sworn by him in support of this notice of motion he would need to make himself available for cross-examination if the cross-claimants required his attendance for that purpose. 12 I was advised that Mr Garrett was not available for cross-examination. He was in Western Australia. I was told that he did not have the funds to travel to South Australia for the purpose of his cross-examination. I was told that Mr Garrett would be available for cross-examination by telephone. 13 There is a serious factual issue to be determined in this matter, whether, in fact, the Garrett Family Trust, of which Mr Garrett claims he is trustee, has ever existed. It was not appropriate to allow cross-examination of Mr Garrett through the medium of the telephone because I would not have been able to observe him whilst he was giving evidence. 14 I would have been prepared to allow his cross-examination to take place by way of video, but I was told he did not have the funds to pay for the cost of the video-link. 15 Mr Garrett had been on notice for a significant period of time that if he wished to read his affidavit he ought to be present in court. Because he was not present, he would have needed leave to use the affidavit: O 14 r 9(3). 16 Mr Garrett's counsel did not press the tender of Mr Garrett's evidence. Instead, he tendered, without objection, the exhibits to which Mr Garrett referred in his affidavit, namely, the book of documents. The exhibits were admitted. 17 Mr Garrett also relied upon the affidavits of his solicitors to which I have referred. The cross-claimants did not wish to cross-examine the solicitors. I allowed the three affidavits to be read and the tender of an exhibit (SM2) to an earlier affidavit. 18 The cross-claimants relied upon the affidavits of cross-claimant Mr Peter Macks, who is the trustee of the bankrupt estate of Mr Garrett and the affidavits of his solicitor, Emma Trebilcock sworn on 20 May 2008 and 10 June 2008. That last affidavit was also not filed in accordance with my directions. Objection was taken to Ms Trebilcock's affidavits because she referred to communications between Mr Garrett and his former solicitors, which Mr Garrett claimed to be protected by legal professional privilege. I deferred making a ruling on the admissibility of those affidavits and their exhibits. For reasons which will follow, I reject the tender of the second of those affidavits sworn by the cross-claimant Mr Macks' solicitor. I admit the affidavit sworn on 20 May 2008 and its exhibit save for the documents contained in the exhibit which disclose information which is protected by legal professional privilege; particularly the majority of those documents contained in BD87 of that exhibit. 19 Messrs Finlaysons, solicitors acted for Mr and Mrs Garrett as trustees for "The Garrett Family Trust" in proceedings brought in the Supreme Court of South Australia in Action No 2244 of 1996. It will be necessary to say something more of those proceedings in due course. 20 On 2 May 2008 Mr Macks' solicitors wrote to Messrs Finlaysons requesting a copy of the List of Documents which was filed in Supreme Court Action No 2244 of 1996 which was supplied to them by those solicitors. Part of that List of Documents was exhibited to Ms Trebilcock's affidavit sworn on 20 May 2008. It has been tendered for the purpose of establishing, with other evidence, that in those proceedings no trust deed evidencing the existence of the Garrett Family Trust was ever discovered. Instead, the deed which was discovered evidenced the existence of the Andrew Garrett Family Trust. 21 The List of Documents does not contain any communications from Mr and Mrs Garrett as trustees of any trust to Finlaysons and may be admitted. 22 Ms Trebilcock also exhibits correspondence from Messrs Finlaysons to Mr Garrett's present solicitors. It is not clear from her affidavit how it is that she obtained that correspondence. Clearly, the correspondence from Finlaysons to Mr Garrett's present solicitors was in response to enquiries made by those solicitors relating to the proceedings in Supreme Court Action No 2244 of 1996. Those communications were, I would have thought, privileged, being contained in documents which were brought into existence for the purpose of these proceedings. 23 I would suppose that the documents could only be obtained from two sources; either Mr Garrett's present solicitors, which they were not; or, Mr Garrett's former solicitors, Messrs Finlaysons. I make no observation as to the propriety of the release of those documents to Mr Macks' solicitors. However, I will not admit them as evidence in these proceedings because I think they are documents which ought not to have come into the possession of Mr Macks' solicitors. 24 It was put in support of the tender of those documents that any legal professional privilege of those documents has been waived. I reject that contention. 25 On Tuesday, 20 May 2008 Mr Garrett's solicitors wrote in response to a letter written by Ms Trebilcock of 14 May 2008 in which she disclosed that those documents were in her possession saying, inter alia: The correspondence you have obtained is protected by legal professional privilege and as such, our client has no obligation to disclose it. Furthermore, we are very concerned about what we regard as a serious breach of legal professional privilege by Mr. Shortt-Smith and Finlaysons in providing you with the correspondence attached to your letter. 26 There can be no suggestion that Mr Garrett ever waived a privilege in respect of those communications. Ms Trebilcock's affidavit was sworn on 20 May 2008, which was the same date as Mr Garrett's solicitor's letter and so she might not have known that Mr Garrett's solicitor took objection to the use of that information. 27 However, that was known to Mr Macks when he applied to tender for the affidavit and the exhibits. In my opinion, Mr Macks should not have sought to tender those documents. 28 The second affidavit was sworn on 10 June 2008. In that affidavit, the deponent says: 3. In July 2007, I wrote to John Shortt-Smith of Finlaysons and requested a copy of the folder of documents he had previously indicated he had sent to Andrew Garrett. Mr Shortt-Smith provided me with a folder as requested soon after. Now produced to as a bundle marked with the letters "BD88" are true copies of two documents which were provided in the book of documents. 3.1 The first of these documents was a statement of Andrew Morton Garrett which appeared to be produced in March 2000. 3.2 The second was a company structure diagram, which appeared to have been received by Finlaysons in 1997. 4. On Thursday 5 June 2008, I sent an email to John Shortt-Smith of Finlaysons requesting copies of certain documents which were purportedly exhibits to the statement of Andrew Morton Garrett (exhibited above). The deponent then exhibits her correspondence with Messrs Finlaysons. 29 In my opinion, the information which Messrs Finlaysons have provided Mr Macks' solicitors discloses the contents of communications between Mr Garrett and Messrs Finlaysons who were then his solicitors. The information should not have been provided because it discloses confidential information for which Mr Garrett was entitled to claim legal professional privilege. 30 I reject the claim by Mr Macks' counsel that Mr Garrett has waived any privilege in these documents. 31 The contents of his statement which were to be used in the proceeding in the Supreme Court should never have been disclosed by his former solicitors. No authority was ever given by Mr Garrett to his former solicitors to disclose this information to his opponents in a later proceeding. There is no evidence whatsoever that he ever waived the legal professional privilege which clearly attaches to the documents which have been supplied by Messrs Finlaysons. The tender of that affidavit is rejected. 32 It was accepted by the cross-claimants that if I find as a matter of fact that the Garrett Family Trust was created and that Mr Garrett is the trustee of that trust, then it would be appropriate to make an order in the terms of the notice of motion. 33 The sole question for determination is whether or not the Garrett Family Trust has ever existed. Mr Garrett has made different claims as to when the Trust was settled but his case on this application is that it exists as a separate trust. Mr Garrett has sought to establish the existence of the Garrett Family Trust by reference to a number of documents in which there is a reference to the Garrett Family Trust. The cross-claimants contend that any reference to the Garrett Family Trust in any document was in fact a reference to the Andrew Garrett Family Trust and that there was only ever one trust at the relevant time. 34 On 24 September 2004 a sequestration order was made against the estate of Mr Andrew Garrett and Mr Peter Macks was appointed his trustee in bankruptcy. Mr Garrett remains a bankrupt. His trustee objected to his discharge in October 2007 and, on 18 December 2007, the period of his bankruptcy was confirmed as being until 23 November 2012, being eight years from the date on which Mr Garrett filed his Statement of Affairs. 35 As the proceeding already shows, Mr Garrett's affairs have been conducted through a number of trusts. 36 On 31 May 1993 the Andrew Garrett Family Trust was settled by Anastasia Bolkus and Mr Garrett and his wife were made trustees. Mr Garrett's brother, Michael was made the appointor of the Trust. The Trust Deed by which the Trust was settled has been tendered. The solicitors who drew the Deed were McDonald & Co, solicitors of Adelaide. Mr and Mrs Garrett remained trustees of the Trust until 4 June 2004 when Evajade Pty Ltd was appointed in their stead. 37 Mr Garrett claims that the Garrett Family Trust has been a party to a number of transactions with third parties. Mr Garrett's case is that the Garrett Family Trust was created by a Deed at some time prior to 1994 and he and his wife were appointed trustees. His case is that he is the current trustee. As I will later explain, if it ever existed it must have been settled on the same day as the Andrew Garrett Family Trust, namely 31 May 1993. 38 The Trust Deed establishing the Garrett Family Trust has not been produced. No evidence has been led from any settlor of the circumstances giving rise to settlement of the Trust; from any appointor of their appointment; from Mrs Garrett in relation to her appointment or the discharge of her duties; or from any legal or accounting firms of the establishment of the Trust or of the drafting and execution of the Deed of Trust. There is no evidence of any taxation return ever having been filed on behalf of the Trust. Nor is there any evidence of any financial record or any other record of the Trust. No evidence has been adduced from the third parties with whom it is said that the trustee contracted on behalf of the Trust as to the entity with which they dealt. In particular, no third party or their adviser has produced a copy of the Trust Deed by which the Trust was established and settled. 39 There are three transactions and a reference in proceedings in the Supreme Court of South Australia upon which Mr Garrett relies for asserting that the Garrett Family Trust was created and is still in existence.

The Tatachilla Licence Agreement of March 1994 40 On 24 March 1994 Tatachilla Winery Pty Ltd (Tatachilla) entered into a Licence Agreement with Mr and Mrs Garrett as trustees of "The Garrett Family Trust". The "trustees" were described in the Licence Agreement as the Licensor. 41 The purpose of the Licence Agreement was to grant Tatachilla a licence to use the "Brand Name", which was defined in the License Agreement to be "Garrett Family", or "Averil", or either of them, in the conduct of Tatachilla's business of making and selling wine (Tatachilla Agreement). Tatachilla was to pay royalties in respect of sales of wine carrying the Brand Name. The Tatachilla Agreement could not be assigned without the consent of the Licensor. 42 There is no evidence that any royalties were paid pursuant to the Tatachilla Agreement and, in particular, no evidence that royalties were paid to the Garrett Family Trust. On the same day as the Tatachilla Agreement was signed, Tatachilla issued 200 shares to Andrew Morton Garrett and Averil Garrett as trustees of the "Garrett Family Trust". 43 Following upon the entry into the Tatachilla Agreement, applications were made for the registration of two trade marks, being "Garrett Family Winemakers" (application no 634077) and "Garrett Family" (application no 634078). Those applications were not made by the Garrett Family Trust but were made by the Andrew Garrett Family Trust. 44 On 19 January 1995 The Wine Company Pty Ltd and other parties entered into an agreement for the sale of the assets of a business to Mildara Blass Limited (Mildara). The recital to that Deed showed that The Wine Company Pty Ltd carried on the business under the trading name of "Andrew Garrett Wines". The assets were described in two ways in the agreement. First, by reference to particular assets and, secondly, by reference to excluded assets. The excluded assets did not form part of the assets to be transferred. The excluded assets included Registered Trade Marks owned by The Wine Company Pty Ltd. 45 The Deed identified the Garrett Family Licence as being a licence granted by Andrew and Averil Garrett to Tatachilla on 24 March 1994. That reference must be to the Tatachilla Agreement. 46 On the same day and as part of the same transaction, but via a separate "Trade Mark Assignment", The Wine Company Pty Ltd sold, transferred and assigned to Mildara all rights, title and interest to the registered trade marks. The Registered Trade Marks were the trade marks relating to the "Business registered in Australia" and the business was that business as defined in the Purchase Agreement, which was the agreement last referred to. 47 It was contended by Mr McNamara on behalf of Mr Garrett that the agreement and assignment were entered into by Mr and Mrs Garrett on behalf of the Andrew Garrett Family Trust, as distinct from the Garrett Family Trust. That is not clear from the documents. The only matter clear from the documents is that the agreement was entered into by the Wine Company Pty Ltd which was, as already noticed, the company carrying on the business of Andrew Garrett Wines.

The Deed of Assignment of 27 April 1995 48 On 27 April 1995 Tatachilla sold to Mildara the goodwill, licence, intellectual property rights, inventory and records which it had previously acquired under the Tatachilla Agreement. Those intellectual property rights included trade marks which were defined to be: (a) the Garrett Family Trade Marks; and (b) any other trade mark in which the Licensors have any right, title or interest, registered or unregistered, incorporating any of the words "Garrett", "Averil" or "Garrett Family". 49 On the same day, Tatachilla assigned to Mildara all the rights, title and interest under the licence granted pursuant to the Tatachilla Agreement. The assignment refers to Andrew Morton Garrett and Averil Gay Garrett as trustees of the "Garrett Family Trust".

The Deed of Consent and Release of 17 August 1995 50 On 17 August 1995 Tatachilla and Mr and Mrs Garrett as trustees of the "Garrett Family Trust" and other parties entered into a Deed of Consent and Release in which they consented to the assignment by Tatachilla to Mildara of the rights and benefits under the Tatachilla Agreement. 51 On the same day, Mildara entered into a separate Deed with Mr and Mrs Garrett as trustees of the "Garrett Family Trust" whereby the trustees consented to the Deed of Consent and Release entered into on the same day. 52 This Deed recognised that the Licensor and Tatachilla were parties previously to the Tatachilla Agreement and that under the Deed of Assignment of 27 April 1995, Tatachilla had assigned all its rights and benefits under that agreement to Mildara which was conditional upon "Garrett Consent" being given. 53 The parties to the agreement are as I have said and, as Mr Garrett contended, Mr and Mrs Garrett in their capacity as trustees of the Garrett Family Trust. 54 Paragraph 7.1.2 of the Deed provides that "a copy of the trust deed dated 31 May 1993 provided by the licensor to Mildara discloses all the terms of the Trust and they are not in default under the terms of the Trust." 55 Both Mr Garrett and the cross-claimants relied upon paragraph 7.1.2; Mr Garrett for the proposition that a copy of the Trust Deed relating to the Garrett Family Trust was there referred to; and the cross-claimants for the proposition that the Trust Deed there referred to clearly was the Trust Deed which settled the Andrew Garrett Family Trust. 56 If Mr Garrett's proposition is right, then both trusts must have been settled on the same day because there is no doubt that the Andrew Garrett Family Trust was settled on 31 May 1993 as evidenced in the Trust Deed for that Trust. It is, of course, possible that two trusts were settled and trust deeds entered into on the same day. If Mr Garrett's contention is right, there must be a separate trust deed which established the Garrett Family Trust executed on that day. The question which arises is where is it? 57 On the same day as the Deed was entered into, a separate agreement was entered into whereby Mr and Mrs Garrett as trustees of the "Garrett Family Trust" sold their shares in Tatachilla to a third party.

Action No 2244 of 1996 58 Mr Garrett also relied upon proceedings in the Supreme Court of South Australia in Action No 2244 of 1996. 59 On 26 November 1996 proceedings were commenced in the Supreme Court by Mr Garrett as first plaintiff and by Mr and Mrs Garrett as trustees of "The Garrett Family Trust" as second plaintiffs against Mildara and Tatachilla and the Registrar of Trade Marks. The proceedings arose out of the deeds which had been entered into by the parties. Finlaysons acted as solicitors for the plaintiffs. The amended statement of claim asserted that the second plaintiffs had at the relevant time been the trustees of "The Garrett Family Trust" and that they granted a licence to Tatachilla on 24 March 1994 in relation to the Brand Name. It was alleged that Mildara had failed to use its best endeavours to produce, promote and sell products bearing the Garrett Family Brand Name and that it had engaged in a contravention of s 52 and other sections of the Trade Practices Act 1974 (Cth).

The Deed of Settlement 60 On 26 July 2000 Mr and Mrs Garrett, and Mr and Mrs Garrett as trustees of The Garrett Family Trust and other parties associated with them, entered into a settlement deed with Mildara and Vinpac International Pty Limited (the Deed of Settlement). The Deed of Settlement brought to an end the disputes which were raised by the proceedings in Action No 2244 of 1996. Effectively, that Deed gave ownership of all the intellectual property rights owned by Mr and Mrs Garrett and associated entities to Mildara which thereafter was entitled to market and sell wine and other products bearing the Andrew Garrett Trade Mark, the Garrett Trade Mark, the Garrett Family Trade Mark and the Stylised Script Trade Mark in Australia, New Zealand and Japan. 61 On the same day there were consequential assignments of trade marks and trade mark applications. 62 The Deed of Settlement provided that all payments to be made by Mildara (later Beringer Blass Wine Estates Limited) (Beringer Blass) were to be made to the Andrew Garrett Family Trust. 63 Mr Garrett contended that the reference in the Deed of Settlement to both The Garrett Family Trust and the Andrew Garrett Family Trust was recognition of the co-existence of the two trusts.

The contentions on the application 64 There is evidence, as Mr McNamara has contended, that a number of documents recognise that the contracting party with Tatachilla and, later, Mildara and, later even, Beringer Blass (when Mildara changed its name), were the trustees of the Garrett Family Trust. It is also right, as Mr McNamara has contended, that clause 7.1.2 of the Deed between Mr and Mrs Garrett as trustees of the Garrett Family Trust and Mildara consenting to the Deed of Consent and Release referred to a Deed having been executed on 31 May 1993. It is also right, as Mr McNamara contended, that the Deed of Settlement recognises the co-existence of the two trusts by referring to Mr and Mrs Garrett as the trustees of The Garrett Family Trust and by the clause directing payment of the monies due from Mildara to the Andrew Garrett Family Trust. 65 The onus is, of course, upon the moving party to establish the existence of the party on the balance of probabilities: Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 at 174 and Saccahrin Corp v Wild (1903) 1 Ch 410 at 422. 66 The cross-claimants accepted that the Tatachilla Agreement referred to the Garrett Family Trust and not the Andrew Garrett Family Trust. However, they relied upon the applications made on 2 July 1994 (Nos. 634077 and 634078) by the Andrew Garrett Family Trust for the registration of the trade marks Garrett Family Winemakers and Garrett Family as showing, in fact, the parties to the Tatachilla Agreement intended and understood that the contracting party was the trustees for the Andrew Garrett Family Trust. 67 The applications for the trade marks were made pursuant to the Tatachilla Agreement. It was contended that the only party bound to make the applications was the correct party to the Tatachilla Agreement which, it was contended, was the Andrew Garrett Family Trust. 68 It was contended, as I have already said, that the reference to the Trust Deed dated 31 May 1993 in paragraph 7.1.2 of the Deed consenting to the Deed of Consent and Release, showed that the parties intended and understood that the contracting party to that Deed was the trustees of the Andrew Garrett Family Trust. 69 The cross-claimants accepted that the Supreme Court Action No 2244 of 1994 was brought by Mr and Mrs Garrett in their capacity as trustees of The Garrett Family Trust. So much appears from the proceedings themselves. However, it was submitted that the List of Documents which was filed on behalf of the plaintiffs (Mr Garrett and the trustees of The Garrett Family Trust) disclosed by way of discovery the Trust Deed by which the Andrew Garrett Family Trust was established. There was no discovery of any trust deed relating to the Garrett Family Trust. It was contended, therefore, that the parties recognised that in fact the true (second) plaintiffs again were the trustees of the Andrew Garrett Family Trust. 70 It was said that this showed that the transactional documents and the court proceedings used the terms Garrett Family Trust and Andrew Garrett Family Trust interchangeably. 71 The cross-claimants contended that the Deed of Settlement also showed that the parties used the expressions Garrett Family Trust and Andrew Garrett Family Trust interchangeably. The Deed of Settlement refers to the Tatachilla Agreement which, for the reasons advanced by the cross-claimants, in particular in relation to the trade mark applications, showed that the reference in that Deed to the Garrett Family Trust was in fact a reference to the Andrew Garrett Family Trust. 72 In paragraph 2.1(a) of the Deed of Settlement it is recorded that one of the purposes of that Deed was to resolve the issues in the Supreme Court proceeding by establishing that Mildara was the owner and had the exclusive rights to use the Garrett Family Trade Mark and the Stylised Script Trade Mark. The cross-claimants argued that to be a further reference back to the trade marks which were the subject of the application by the Andrew Garrett Family Trust. 73 Paragraph 5.1 of the Deed of Settlement required "the Trustees" to deliver up and assign the trade mark application 634077. The only trustees who could do that, the cross-claimants argued, would be the trustees of the Andrew Garrett Family Trust because that was the party which made the application for the trade mark. Paragraph 5.3 of the Deed of Settlement required the trustees to immediately withdraw trade mark application 634078. Again, the withdrawal of that application for a trade mark could only be done by the trustees of the Andrew Garrett Family Trust. It was said these were further instances of how the documents referred interchangeably to the Garrett Family Trust and the Andrew Garrett Family Trust. 74 Paragraph 9.1, as already noticed, required that the payment of monies be made to an account in the name of Andrew Garrett Family Trust, not the Garrett Family Trust. For reasons earlier mentioned, Mr Garrett also relied on that clause for the proposition that the Deed recognised the two trusts. 75 The cross-claimants argued that, contrary to the submission made by Mr Garrett, the documents upon which he relied were ambiguous. Whilst from time to time they did refer to the Garrett Family Trust, they did so in circumstances where the documents also recognised the existence of the Andrew Garrett Family Trust. The cross-claimants contended that there was insufficient evidence in the documents themselves, in the absence of any further evidence, for the Court to infer that the Garrett Family Trust existed independently of the Andrew Garrett Family Trust.

Absence of evidence 76 For reasons already mentioned, Mr Garrett did not give evidence on the application. He did not thereby claim on this proceeding, by way of evidence, that the Garrett Family Trust existed independently of the Andrew Garrett Family Trust. No evidence has been adduced from him or, indeed, from anyone else who might have known when the Trust was created. 77 I was asked to infer that because Mr Garrett was not called that his evidence would not have supported the application: Jones v Dunkel (1959) 101 CLR 298. 78 I am not prepared to draw that inference in relation to Mr Garrett's evidence. There is evidence before me which I accept: that Mr Garrett did not have the funds to travel to South Australia to give evidence or the funds to put in place a video-link to be cross-examined on any affidavit in support of this application. In those circumstances, there is an explanation as to why he did not give evidence. For that reason, I am not prepared to draw the type of inference that was drawn in Jones v Dunkel 101 CLR 298. 79 His solicitors have made vigorous attempts to obtain evidence in support of this application which is evidenced by two of the affidavits which were admitted in support of this application. In an affidavit sworn on 30 May 2008, Kazmer Ujvari, an employee of Mr Garrett's solicitors, has deposed to the number of enquiries he has made with the four legal firms who were involved in the transactions to which I have referred. He has also approached patent attorneys. DLA Phillips Fox, who prepared the Tatachilla Agreement, advised him that all the files prior to 2000 had been destroyed. O'Loughlins, who acted for parties apart from Mr and Mrs Garrett in relation to the Deed of Consent and Release, the Sale of Share Agreement and two Redundancy Agreements, advised Mr Ujvari that as they had not acted for either Mr or Mrs Garrett, it was doubtful they would have a copy of the Garrett Family Trust Deed, if it in fact existed. Mr Garrett's solicitors, Messrs Finlaysons, who acted in the Supreme Court proceeding Action No 2244 of 1996 advised they had not been able to locate any deed for the Garrett Family Trust. Mallesons Stephen Jacques, lawyers who acted for Mildara, said that their files had been transferred to Corrs Chambers Westgarth, an officer of which told Mr Ujvari they would not produce any document without an order of the Court requiring them to make discovery. No order was sought or obtained. 80 Mrs Garrett advised Mr Ujvari that she could not help. 81 Mr Ujvari searched Canadian and United States trade mark registers and wrote to patent attorneys in those countries seeking any deed establishing the Garrett Family Trust. He has had no replies. 82 Mr Ujvari attended the office of a local patent attorney but did not locate any deeds of trust. 83 Mr Garrett's solicitors wrote to Mr McDonald, who drew the Deed of Trust which created the Andrew Garrett Family Trust, who is now a member of McDonald Steed McGrath Lawyers, seeking a copy of the deed of trust for the Garrett Family Trust: We are instructed that the Garrett Family Trust with Andrew Morton Garrett and Averil Gay Garrett as the trustees was established at or about the same time as the Andrew Garrett Family Trust. It is hoped that your firm may have prepared the Deed and that you are able to locate a copy. Even if you are unable to locate a copy of the Deed any information evidencing that you had instructions to prepare such a Trust, and did do so would be of great assistance. 84 Mr Garrett's solicitor asked Mr McDonald to search his files to see what information was available. His evidence was that Mr McDonald had not replied to the letter. 85 I am satisfied that Mr Garrett's present legal advisers have done all that was possible to attempt to obtain a copy of any deed of trust which might have established The Garrett Family Trust. They cannot be criticised for their efforts. 86 However, the fact remains that there is no direct evidence at all before the Court that the Garrett Family Trust was ever settled or created. I have referred in [38] to the absence of evidence in regard to the Trust's existence. Having regard to the efforts made by the applicant's solicitors to locate any direct evidence to support the claim that The Garrett Family Trust ever existed and the absence of any evidence, the inference may be drawn that such a trust was never created. 87 There is no direct evidence to support Mr Garrett's claim that he and his wife were appointed the trustees of the Garrett Family Turst on 31 May 1993. 88 I have already referred to the circumstantial evidence upon which Mr Garrett relies for this application and I should now address the evidence which the cross-claimants say is inconsistent with the existence of any trust called the Garrett Family Trust.

The cross-claimants' case 89 The cross-claimants pointed to a number of dealings which occurred subsequent to the Deed of Settlement which suggest that the names of the Trusts were used interchangeably. 90 On 8 November 2001 Mr Shipley, on behalf of the Andrew Garrett Group, wrote confirming royalties paid by Beringer Blass to the Andrew Garrett Family Trust. I am not sure that much can be made of the letter because this was provided for in the Deed of Settlement. 91 On 9 September 2003 Beringer Blass issued a tax invoice to the Andrew Garrett Family Trust in respect of royalty payments for the quarter ended 30 September 2003. On 20 October 2003 Beringer Blass wrote to Mr Garrett of the Andrew Garrett Family Trust advising that the amount indicated in that tax invoice had been paid to "your nominated account". Again, this reflects the terms of the Deed of Settlement. 92 On 13 January 2004 Beringer Blass wrote again to Mr Andrew Garrett of the Andrew Garrett Family Trust advising of the payment of the royalty payment for the December 2003 quarter. Some time between January and March 2004, Andrew Garrett Family Trust (No 1) raised an invoice to Beringer Blass for the January-March 2004 royalties. 93 On the other hand, there are a number of documents of a similar kind showing that Mildara dealt with the Garrett Family Trust care of Andrew Garrett in relation to quarterly payments. Those documents, however, preceded the Deed of Settlement which, as I have said in clause 9.1, directed all further payments to be made to the Andrew Garrett Family Trust. 94 The cross-claimants relied on a number of statements made by Mr Garrett which it was contended are inconsistent with a claim that the Garrett Family Trust existed as a separate trust from the Andrew Garrett Family Trust. 95 Proceedings were commenced in the Supreme Court of South Australia by Andrew Garrett Wines Resorts Pty Limited and Mrs Averil Garrett against the National Australia Bank Limited in which Mr Garrett swore an affidavit on 26 July 2004. 96 In paragraph 3 of that affidavit he said that the Deed of Settlement of 26 July 2000 was executed by him personally and by his wife "as trustees of the Andrew Garrett Family Trust and other related entities ... in relation to proceedings instituted in the Supreme Court of South Australia (action number 2244 of 1996) by me personally and my wife and me as trustees for AGFT against MBL (the Settlement Deed)." Of course, as already noticed, the proceedings (Action No 2244 of 1996) are said to have been brought by the trustees of "The Garrett Family Trust". In paragraph 4 of the same affidavit Mr Garrett said that pursuant to the terms of the Settlement Deed "in consideration for the assignment by AGFT (the Andrew Garrett Family Trust) of certain trade mark applications and registered marks, ... MBL is to pay to AGFT ...". 97 The Settlement Deed, which I have also referred to as the Deed of Settlement, is said to be between the trustees of the Garrett Family Trust and the other parties named in the Deed. Paragraphs 3 and 4 would suggest that Mr Garrett understood the Settlement Deed to have been made on behalf of the Andrew Garrett Family Trust. His reference to the payment is a reference to clause 9.1 of that Deed. 98 In the same action in the Supreme Court, Mr Garrett swore an affidavit on 28 July 2004. He said in paragraph 39: The DOS [Deed of Settlement] encompasses the interests of a number of parties. The AMG entities [referring to entities with which he was associated] referred to in the DOS were at the time 100 per cent controlled by AGFT [the Andrew Garrett Family Trust]. Essentially the key parties were Mildara Blass (now BBWE) [Beringer Blass Wine Estates Ltd], Andrew Morton Garrett (AMG) and Andrew and Averil Garrett as trustees for Andrew Garrett Family Trust (AGFT). 99 In paragraph 48 of the same affidavit he described the royalty stream, that is, the monies payable by Beringer Blass (formerly Mildara) pursuant to the Deed of Settlement, as "clearly a personal asset I am only interested in dealing with it in the interests of my creditors." 100 In the same action he appeared before Besanko J (who was then a judge of the Supreme Court of South Australia) on 28 July 2004 and said in submissions to his Honour: Furthermore, I refer you to the transfer and the deed of assignment of the Garrett trademarks in the National Export Markets and I say that the Andrew Garrett Family Trust asset that was inherent to this deed was fully discharged and satisfied as a function of those two payments. The Andrew Garrett Family Trust is a party to the deed and I have sought to assign the deed to the Andrew Garrett Family Trust No. 2, and I would like to be able to direct you to clause No. 92 within that settlement deed wherein the payments of $75,000 each quarter are to be made to me personally. 101 As the cross-claimants contend, Mr Garrett made no mention of the Garrett Family Trust. 102 The orders which were subsequently made by Besanko J on 28 July 2004 noted an undertaking given by Mr Garrett in his personal capacity and as trustee of the Andrew Garrett Family Trust "not to remove from the jurisdiction, dispose, mortgage, assign, charge or otherwise deal with any of the assets of Andrew Garrett Family Trust and the Andrew Garrett Family Trust No 2, or with the right to receive monies from Mildara Blass Ltd or Berringer Blass Estate Wines Ltd until further order." 103 In his statement of affairs dated 16 November 2004 he completed Item 44 of the document which is headed "Trusts". He acknowledged that he has been involved with two Trusts; Andrew Garrett Family Trust No 1 and 2. Nowhere did he claim that he or his wife had ever been involved with the Garrett Family Trust. 104 The cross-claimants also took me to proceedings in this Court in which Mr Garrett had sworn affidavits. In SAD 29 of 2005, a proceeding in which the trustee of the bankrupt estate of Mrs Garrett was the applicant, Mr Garrett swore two affidavits; the first on 12 October 2005 and the second on 6 December 2005. In the first affidavit he claimed that he was the only person "with intimate knowledge as to the background of the Deed of Settlement executed between Andrew & Averil Garrett as Trustees of the Andrew Garrett Family Trust and Mildara Blass in July 2000 ...". In paragraph 75 of the second affidavit he said, referring to an affidavit of his trustee, Mr Macks: 75. Clause 18.4 of the affidavit of [Peter Ivan Macks] should read that Andrew & Averil Garrett licensed the Garrett Family Trademark to Tatachilla Winery Pty Ltd in their capacities as Trustees of AGFT. 76. ... 77. The source of the Garrett Family Licence had been existence (sic) since 1993 and the settlement of AGFT it was formally put to paper on 24th March 1994. 78. This was some 10 years before the date of sequestration of Andrew Morton Garrett or Averil Gay Garrett; clearly this cannot be an asset of either trustee in bankruptcy nor can it vest with either party. 79. It is an asset of AGFT 3. ... 86. The only party who can obtain the compliance with the Deed is the Trustee of the Andrew Garrett Family Trust No 3 to whom the Deed has been assigned. 87. The appointment of the Trustee of the Andrew Garrett Family Trust No 3 vests with Michael Cowan Garrett and may be varied but at the date of settlement was Andrew Morton Garrett. 105 It was contended by the cross-claimants, rightly I think, that in that affidavit Mr Garrett claimed that the revenue stream had been assigned by the Andrew Garrett Family Trust to the Andrew Garrett Family Trust No 2 and later to the Andrew Garrett Family Trust No 3, and it was that Trust which was now entitled to that revenue stream. It has never been asserted by Mr Garrett that the Garrett Family Trust had previously assigned the revenue stream or any other assets to the Andrew Garrett Family Trust and then subsequently to the other trusts. It has always been his case in this proceeding, and in other proceedings, that the assignments between trusts originated with an assignment by the Andrew Garrett Family Trust. 106 In the same affidavit he said: AGFT 96. The terms and conditions of the Andrew Garrett Family Trust are expressed in the Deed of Settlement dated 31st May 1993, this D\deed is intended to be read as a whole shown as "PIM5". 97. By Deed of Variation, Evajade was appointed trustee as shown in "PIM7". 98. In respect of an indemnity of Trustee the Current Trustee is in control of the assets of the Trust and ranks in front of any right of the prior Trustees. AGFT 2 99. The terms and conditions of the Andrew Garrett Family Trust No 2 are expressed in the Deed of Settlement dated the 21st August 2003, this deed of settlement is intended to be read as a whole as shown in "PIM6". 100. By Deed of variation Evajade was appointed trustee as shown in "PIM8". AGFT 3 101. The terms and conditions of the Andrew Garrett Family Trust No 3 are expressed in the Deed of Settlement dated the 7th November 2005, this deed of settlement is intended to be read as a whole as shown in "PIM9". 107 In those paragraphs, Mr Garrett purported to set out the trusts with which he is associated. He does not mention the Garrett Family Trust. 108 In a separate proceeding brought in this Court by Mr Garrett against Fosters Wine Estates, in paragraph 7 of an affidavit sworn on 25 January 2007, he said, referring to the Tatachilla Agreement: 7. The agreement was entered into without a properly convened shareholders meeting without the consent of the minority shareholders in Tatachilla (The Andrew Garrett Family Trust) (AGFT) with the sole purpose of Mildara to close the brand down in the marketplace. 8. Subsequently Tatachilla Winery commenced an action in the Supreme Court of South Australia against AGFT to assign the Garrett Family Licence to MBL. 9. AGFT was established by way of Deed of Settlement dated 1993, I refer to the exhibit annexed hereto and hereafter referred to as "AMG1" as being a true and correct copy of that Deed. 109 In paragraph 16 of the same affidavit, he said: 16. From the commencement of that agreement it was my understanding that the term of the agreement was 10 years and that at the end of that term the brand would revert to me in my capacity as Trustee of AGFT. 110 Lastly, in respect of that affidavit, he said at paragraph 18: 18. There would be a cap of $600,000 payable to AGFT per annum which has never been paid. Given the strength of MBL, this Royalty payment should have been possible in the 1st year of the agreement. 111 In that last mentioned paragraph, Mr Garrett is referring to the provisions of the Deed of Settlement. 112 The cross-claimants contended that in those separate proceedings Mr Garrett had always referred to the Andrew Garrett Family Trust as the contracting party and the party entitled to the revenue stream. 113 The cross-claimants have demonstrated that Mr Garrett has on a number of occasions asserted that the Deeds upon which Mr Garrett now relies as evidence of the existence of the Garrett Family Trust were Deeds which, in fact, were intended to bind the Andrew Garrett Family Trust. 114 The cross-claimants contended that apart from the inconsistent statements made by Mr Garrett, there have been instances of conduct by Mr Garrett inconsistent with his now assertion that it was the Garrett Family Trust which entered into the transactions up to and including the Deed of Settlement. 115 On 16 February 2004 Mr and Mrs Garrett in their own right and as trustees of the Andrew Garrett Family Trust "constituted or evidenced by a Deed of Trust dated 31/05/1993 ..." entered into a mortgage with the Bank of South Australia by which they conveyed to the Bank of South Australia all of the secured property mentioned in the mortgage. 116 On the same day they gave notice to Beringer Blass that they had assigned to St George Bank Limited all of their rights under clause 9 of the Settlement Deed dated 26 July 2000. They directed that Beringer Blass thereafter make payments pursuant to that Deed to St George Bank Limited. 117 In a further Deed made with St George Bank Limited on 24 February 2002, Mr and Mrs Garrett in their capacity as trustees of the Andrew Garrett Family Trust warranted that that Trust was entitled to the income under clause 9 of the Settlement Deed which had not been assigned, pledged, disposed of or encumbered in any way. 118 On 29 April 2004, again in their capacity as trustees of the Andrew Garrett Family Trust, in a Deed made with Shu Mu Tseng, Mr and Mrs Garrett warranted that the Settlement Deed had not been varied since the date of its execution and that the right, title and interest of the Andrew Garrett Family Trust under clause 9 of the Settlement Deed had not been assigned, pledged, disposed of or encumbered in any way. 119 As mentioned earlier, the trustees of the Andrew Garrett Family Trust purported on 15 July 2003 to assign to the trustees of the Andrew Garrett Family Trust No 2 the debt owed by Beringer Blass to the Andrew Garrett Family Trust pursuant to the Deed of Settlement dated 26 July 2000. Although neither of the cross-claimants are prepared to accept that the transaction was otherwise than a sham, they rely upon the purport of the transaction as further evidence of Mr Garrett acting inconsistently with his claim that the Garrett Family Trust was the party which entered into the transactions as contained in the documents between 1993 and 2000.

Conclusion 120 I am satisfied, as the cross-claimants contend, that Mr Garrett has made a number of representations inconsistent with the existence of the Garrett Family Trust and has conducted his affairs inconsistently with the existence of that Trust. It was not until some two years into the litigation between the cross-claimants and Mr Garrett that he first asserted, as he has now, that in fact the Garrett Family Trust was entitled to the debt owed or income stream owing by Beringer Blass pursuant to clause 9 of the Deed of Settlement of 26 July 2000. 121 In my opinion, notwithstanding the occasional reference to the Garrett Family Trust in some of the transactional documents prior to 2000, there is not, and never has been, a separate entity called the Garrett Family Trust of which Mr Garrett or Mr and Mrs Garrett was or were the trustees. 122 Where the expression the Garrett Family Trust is used in the transactional documents, in my opinion, it is a reference to the Andrew Garrett Family Trust which was then the only relevant trust in existence. 123 The application that Mr Garrett be joined as trustee of the Garrett Family Trust is dismissed. Mr Garrett must pay the cross-claimants' costs. I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 3 July 2008 Counsel for the Third Respondent/ Second Cross-Respondent: Mr D Elix

Solicitor for the Third Respondent/ Second Cross-Respondent: Cosoff Cudmore Knox

Counsel for the Fourth Respondent/ Cross-Claimant: Ms S Maharaj QC with Mr A Dal Cin

Solicitor for the Fourth Respondent/ Cross-Claimant: Lipman Karas

Counsel for the Second Respondent/ First Cross-Respondent, Fourth Cross-Respondent, Fifth Cross-Respondent and Sixth Respondent/Ninth Cross-Respondent: Mr S McNamara

Solicitor for the Second Respondent/ First Cross-Respondent, Fourth Cross-Respondent, Fifth Cross-Respondent and Sixth Respondent/Ninth Cross-Respondent: Commercial and General Law

Federal Court Rules 1979(Cth)

Trade Practices Act 1974(Cth)

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (2)

Cases Cited (1)

Cited By (4)