Dennison v Public Trustee of Qld [2001] QSC 368

4~755" State Reporting e ' 5(.01. 3f8 ( Queensland Government Bureau ~ DepartmentoifustlceandAtt~y-G.ner:il Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority oi the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No S8699 of 2000 MICHELLE ANGELIQUE DENNISON REVISED COPIES ISSUED State Reporting Bureau Date ,10 C/ I O I (by her litigation guardian Cyril Dennison) Plaintiff and THE PUBLIC TRUSTEE OF THE OFFICE OF THE PUBLIC TRUSTEE OF QUEENSLAND BRISBANE .. DATE 17/09/2001 JUDGMENT Floor, The Law Courts, George Street, Brisbane, a. 4000 1 Defendant Telephone: (07) 3247 436-0 Fax: (07) 3247 5532 -- 1 of 5 -- 17092001 T4/BC5 M/T 1/2001 (Mackenzie J) HIS HONOUR: I order that the Public Trustee deliver within 14 days any request for further and better particulars of the claim and that within 14 days of receipt of the request for further and better particulars the plaintiff provide the further and better particulars requested. HIS HONOUR: When settlement of this action on behalf of Michelle Dennison was sanctioned on 3 March 2000, the Public Trustee was appointed as manager of the moneys which after disbursement exceeded $2,000,000. It is apparent that from an early stage of the management, relations between Mr Dennison and perhaps others have been somewhat strained. Mr Dennison is litigation guardian for Michelle and has Power of Attorney. Action has been commenced to remove the Public Trustee. At a time when the law had not been settled, the issue was sent to the Guardianship Tribunal but subsequently by order of the Court of Appeal was remitted to the Trial Division for determination. The present application seeks an injunction to prevent the implementation of an investment plan proposed by the Public Trustee. That plan involves components of capital growth, superannuation and allocated pensions and is said to be in that form because it is more tax effective than holding the money in bills or cash on deposit. 2 JUDGMENT 1 10 30 40 50 60 -- 2 of 5 -- 17092001 T4/BC5 M/T 1/2001 (Mackenzie J) The money is presently held in an investment in the short term money market, but the Public Trustee and its financial advisers are of opinion that the prudent management course requires that the investment in that form should cease and a structured plan be put in place. The action, it seems to me, has progressed quite slowly having regard to the nature of it. On one view, it would be easy to simply take refuge in a conclusion that the Public Trustee could not be criticised nor would it be exposed to an action if it were a consequence of an order made today that moneys were invested in a way which resulted in a lesser return to the person entitled to the money. I have not discussed with Mr Dennison the principles relating to giving undertakings to make good losses if that occurs, in view of what I have concluded. Some regard, notwithstanding what might have been an easy way out, must be had to principle. The first point to make is that in a case of this sort there must be a serious question to be tried if an injunction is to be granted. It seems to me that mere dissatisfaction with the Public Trustee on the part of a person or persons is not of itself a ground for removing a trustee. This is particularly the case when there is no alternative clearly suggested except, as it seemed to me from argument, that Mr Dennison manage the funds himself with advice from other sources. 3 JUDGMENT 1 10 20 30 40 SC 6( -- 3 of 5 -- 17092001 T4/BC5 M/T 1/2001 (Mackenzie J) It seemed to be implicit in what he said at one stage that he was not attracted to the notion that any of the funds should take the form of a superannuation component. That may not be fatal to the application and indeed I do not think it would be. It just illustrates however that the need to have some alternative well formulated proposal will have to be put forward if the action is to have any prospects of success. It seems that it has very limited prospects of success unless the focus changes from what has been put forward so far. The funds into which the money would be paid if the Public Trustee were to invest them are on the face of it reputable. I have been provided with an affidavit that swears that under the current law relating to superannuation there would be no impediment to removal from superannuation-type investments at a later stage. There are no exit fees attached to the funds and for that reason there would be no financially adverse consequences in that regard. It is not a case where the course proposed would cause irreparable difficulties about dismantling any arrangements in the event that an order were made to remove the Public Trustee. I should add that despite certain directions having been given today I have some misgivings about the speed at which the matter will reach a hearing. I think that is inherent, without any disrespect to Mr Dennison, in the fact that he has a background in the commercial world of leasing and no 4 JUDGMENT 1 10 30 40 50 60 -- 4 of 5 -- 17092001 T8/SJ3 M/T 1/2001 (Mackenzie J) doubt does not have day-to-day contact with the Supreme Court Rules which govern the progress of a trial from this stage to an actual hearing. In other words, I rather think that the matter may take longer rather than sooner to come to a hearing. Balancing all of the matters that I have referred to it seems to me that a case is not made out for an injunction and I therefore refuse the application. HIS HONOUR: I order costs on a standard basis. 5 JUDGMENT 1 10 20 30 40 SC 6( -- 5 of 5 --