Cameron v Public Trustee of Queensland [2000] QSC 205

r State Reporting ol ()O{ Jf) 6 Bureau --r·------------------------------------- TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 13 of 2000 LEANNE PATRICIA CAMERON and THE PUBLIC TRUSTEE OF QUEENSLAND CAIRNS .. DATE 17/04/2000 JUDGMENT 1 l FIEVJS•::0>:-7011::-r., i,,~:"u~:o.J[ s1:::1:"- - -.:. -'-~---~;·-•,-~ ,_ ~ I G"~:;-~-~.,,--~-,~- -~~,._.,,......... Applicant Respondent -Ith I l<111r, The I.aw Courts, (;rnrgc Stred, llrishaue, Q. ,WOO Tclephom•: (07) JZ.t7 .tJ(10 F:ix: (07) J2.t7 55J2 -- 1 of 5 -- 17042000 D.l T6-7/JFG M/T CNS303/2000 (Jones J) HIS HONOUR: This is an application for the Public Trustee of Queensland to be removed as executor and trustee of the will of James Victor Attree. The application is made by his daughter Leanne Cameron, who is a beneficiary of his estate with other relatives. Mrs Cameron, the applicant, is in dispute with the Public Trustee over its administration of the estate of Frances Attree who was the mother of William Attree. By her will, Frances Attree left her estate to her two sons, William Attree, deceased, Royan Attree and a nephew, Allan Attree. The Public Trustee was the appointed executor under the will of Frances Attree. ""' In the course of the administration of her estate, the Public Trustee called a meeting of those three beneficiaries. This meeting occurred on 12 March 1999. The purpose of that meeting was to obtain from those three beneficiaries, a discharge to the Public Trustee, based on the agreed value of the Frances Attree's undistributed property to be less than $500. The property in question was largely furniture and personal effects. It is alleged by the applicant that at the time of this meeting, William Attree did not have the mental capacity to sign this discharge. He was at the time, affected by a number of illnesses. He was unable to speak because of surgery following throat cancer. He was in a poor state of health and according to the applicant, suffering from Alzheimer's disease ) 10 20( 30 40 50 which rendered him illucid for much of the time. 60 2 JUDGMENT -- 2 of 5 -- 17042000 D.l T6-7/JFG M/T CNS303/2000 (Jones J) ' In April of 1999, William Attree appointed Mrs Cameron his power of attorney. In July of 1999 he was transferred to Brisbane where he died on 14 September 1999. Mrs Cameron contends that the value of the furniture and personal effects was significantly greater than the $500 that was mentioned at the signing of the discharge. She also alleges that certain items of property were removed by the other two beneficiaries, Royan Attree and Allan Attree. She says this is a consequence of the Public Trustee not performing its duty as executor and there is a suggestion that there may be legal proceedings taken by her to right this perceived wrong. By his will, William Attree appointed the Public Trustee of Queensland executor of his estate. In a sense, the property and value of his estate is affected by his entitlement from the estate of Frances Attree. Mrs Cameron has lost the confidence and trust in the Public Trustee of Queensland as an organisation. She bases this on the inadequate procedures that were followed in respect of its administration of Frances Attree's estate and probably, more particularly, on the personal behaviour of the particular officer of the Public Trustee's office who was charged with the responsibility. That is one basis for this application. The other is that there will inevitably be a conflict of interest between the Public Trustee as perhaps a defendant in proposed proceedings relating to its administration of the estate of Frances Attree and its role of gathering in the estate of William Attree which includes the proceeds of Frances Attree's estate. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 5 -- 17042000 D.1 T6-7/JFG M/T CNS303/2000 (Jones J) What I have to balance here is the fact that William Attree himself appointed the Public Trustee as his Executor. There is no doubting the capacity of the Court to remove a trustee, but obviously the Court would only do so where there is good cause shown for so doing. It is clear on the material that the estate of William Attree is being handled by a different officer. It is clear that the Public Trustee is well aware of the nature of the dispute and of the effect the outcome of the dispute relative to Frances Attree's estate has on the value of the estate of William Attree. I am not satisfied on the material before me that there is any conflict which would embarrass the Public Trustee in continuing its two roles of being the trustee of the estate of Frances Attree and the trustee of the estate of William Attree. The Public Trustee is a very large organisation and it is, in my experience, very conscious of its obligation to act with absolute propriety and neutrality. I have been referred to section 137 of the Public Trustee Act which allows the Public Trustee to sue and be sued in the one action, itself acting in different capacities. I accept that Mrs Cameron honestly believes that there is a difficulty in the Public Trustee's office, that she is genuine in her complaint about the processes that were followed, but that by itself is not sufficient for me to re~ove the Public 4 JUDGMENT 10 30 40 50 60 -- 4 of 5 -- 17042000 D.1 T6-7/JFG M/T CNS303/2000 (Jones J) Trustee as executor, given my understanding of the nature of that organisation and its capacity to act with neutrality. I am further concerned that the other beneficiaries of the estate of William Attree, Mrs Cameron's sisters, have not expressed a view except by reason of a hearsay comment set out in Mrs Cameron's affidavit. In all the circumstances and based on the material before me at present, I am not prepared to order that the Public Trustee of Queensland be removed as executor and trustee of the will of William James Victor Attree. I dismiss the application. HIS HONOUR: With the consent of the parties I order that the costs of and incidental to this application be paid from the estate of William Attree. 5 JUDGMENT IO 20 30 40 50 60 -- 5 of 5 --