Douglas v James [2015] NSWSC 1403

Douglas v James [2015] NSWSC 1403

Mr James had no power under the will to remove original trustees; applicants remained validly appointed and had standing; James's conduct in propounding the 6 May Deed without reasonable cause justified 80% costs order against him, denied indemnity from trust; Ms Kik acted reasonably and parties bear own costs; third and fourth respondents acted reasonably and applicants to pay their costs, but may indemnify from CPT; NMMT acted reasonably as bare trustee and entitled to indemnity from CPT for its costs.

Parties
First Applicant: Zeta Kathleen Douglas; Second Applicant: Marea Gilbert; First Respondent: David Anthony James; Second Respondent: Janina Kik; Third Respondent: Darron Mink; Fourth Respondent: Pinnacle Financial and Investment Services Pty Ltd ACN 003811890; Fifth Respondent: NMMT Limited ACN 058835573
Jurisdiction
Australia
Judgment Date
28 September 2015
Procedural Posture
Motion for Consequential Orders and Costs in Testamentary Trust Litigation / Post Principal Judgment; Costs and Implementation Orders
Outcome
Orders made for costs and consequential relief; applicants' motion largely granted as to accounts and invalidity of Deed; costs apportioned as per contribution to contest.
Legal Topics
Testamentary Trusts, Appointment and Removal of Trustees, Costs, Indemnity From Trust, Court Orders for Access to Trust Accounts, Case Management, Rectification of Wills
Equity Trusts and Estates Civil Procedure Testamentary Trusts Appointment and Removal of Trustees Costs Indemnity From Trust Court Orders for Access to Trust Accounts +2 more

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Parties

Zeta Kathleen Douglas

First Applicant

Marea Gilbert

Second Applicant

David Anthony James

First Respondent

Janina Kik

Second Respondent

Darron Mink

Third Respondent

Pinnacle Financial and Investment Services Pty Ltd ACN 003811890

Fourth Respondent

NMMT Limited ACN 058835573

Fifth Respondent

Procedural Posture

Motion for Consequential Orders and Costs in Testamentary Trust Litigation / Post Principal Judgment; Costs and Implementation Orders

Legal Issues

  1. 1 Whether the first respondent had power to remove original trustees and appoint others under the will
  2. 2 Whether applicants were validly removed as trustees and had standing to seek relief
  3. 3 Entitlement of trustees to indemnity for costs from trust

Ratio Decidendi

Mr James had no power under the will to remove original trustees; applicants remained validly appointed and had standing; James's conduct in propounding the 6 May Deed without reasonable cause justified 80% costs order against him, denied indemnity from trust; Ms Kik acted reasonably and parties bear own costs; third and fourth respondents acted reasonably and applicants to pay their costs, but may indemnify from CPT; NMMT acted reasonably as bare trustee and entitled to indemnity from CPT for its costs.

Court Disposition

Orders made for costs and consequential relief; applicants' motion largely granted as to accounts and invalidity of Deed; costs apportioned as per contribution to contest.

Orders

  • First respondent to motion, Mr James, to pay 80% of applicants' costs of the motion
  • First respondent not permitted to have recourse to CPT for payment of own costs or costs orders against him