Campbell v Campbell [2022] NSWSC 554 (9 May 2022)

Last Updated: 28 June 2022

Supreme Court New South Wales

Case Name:	Campbell v Campbell
Medium Neutral Citation:	[2022] NSWSC 554
Hearing Date(s):	10, 22-26, 29-30 March 2021, 15 July 2021, and 10 August 2021
Date of Orders:	6 May 2022
Decision Date:	9 May 2022
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Declaration made that the property is held beneficially upon the terms of the discretionary trust. Trustee Act, s 86A orders made.
Catchwords:	TRUSTS – trusts and trustees – estate planning in rural family property – as part of the estate planning transactions were entered into purporting to transfer a grazing property into a family discretionary trust – whether the grazing property was successfully beneficially transferred to the discretionary trust or whether it remained with the transferor – whether the vesting of the discretionary trust should be brought forward from 2035 by an application of Trustee Act 1925 s 86A
Legislation Cited:	Conveyancing Act 1919, ss 23C, 54A Limitation Act 1969, ss 27, 36 Succession Act 2006, Chapter 3 Trustee Act 1925, ss 81, 86A
Cases Cited:	Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286; (2018) 98 NSWLR 747 Francis v Francis [1951] VicLawRp 48; [1952] VLR 321 Golden Mile Property Investments Pty Ltd v Cudgewong Australia Pty Ltd [2015] NSWCA 100; (2015) 89 NSWLR 237 In Re Plator Nominees [2012] VSC 284 Manks v Golden Mile Property Investments Pty Ltd (In liq) v Cudgegong Australia Pty Ltd (2016) 18 BPR 36 Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 Noack v Noack [1959] VicRp 22; [1959] VR 137, 140 Orr v Ford [1989] HCA 4; (1988) 167 CLR 316 Phung v Phung [2019] NSWSC 117 Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522 Re Dion Investments Pty Ltd [2014] NSWCA 367; (2014) 87 NSWLR 753 Yard v Yardoo Pty Ltd [2007] VSCA
Texts Cited:	RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters)
Category:	Principal judgment
Parties:	2018/00184327 Plaintiff: Richard Birrell Campbell First Defendant: Beth Campbell Second Defendant: Carolyn Luise Campbell Alwyn Ian Tonking 2018/00188534 Plaintiff: John Bruce Campbell First Defendant: Beth Frances Campbell Second Defendant: Carolyn Luise Campbell 2019/374756 First Plaintiff: Beth Frances Julian Campbell Second Plaintiff: Carolyn Luise Campbell First Defendant: John Bruce Campbell Second Defendant: Bruce Campbell Nominees Pty Ltd Third Defendant: Richard Birrell Campbell Fourth Defendant: Alwyn Ian Tonking Fifth Defendant: John Campbell Nominees Pty Ltd ACN 646545282
Representation:	Counsel: Beth Frances Campbell/Carolyn Luise Campbell: Mr C Wood SC, Mr C Birtles John Bruce Campbell/JCN Nominees: Mr T O’Brien Richard Campbell: Ms M Pringle Solicitors: Beth Frances Campbell/Carolyn Luise Campbell: Ms Anthea Kennedy, Bridges Lawyers Richard Birrell Campbell: Mr Michael Daniel, Resolve Litigation Lawyers Mr John Campbell: Mr John Stinson, Diamond Conway Lawyers Alwyn Ian Tonking: Mr J Townsend
File Number(s):	2018/00184327; 2018/00188534; 2019/374756
Publication Restriction:	No

JUDGMENT

1. The Campbell family have farmed “Mundooie” via Warren for nearly 100 years. Over three generations the Campbell family enterprise formed a substantial cattle, wheat, and irrigated cotton property. When 43-year-old Bruce Campbell was near death in February 1976, he and his wife Julian feared that State and Federal death duties would compel its sale and disadvantage Julian and their four children.
2. Following a then-familiar path, this rural family restructured, attempting to convey Mundooie into a discretionary trust (“the Discretionary Trust”), appointing to it a corporate trustee, Bruce Campbell Nominees Pty Ltd (“Nominees”). Bruce Campbell died in March 1976 and Julian Campbell survived her husband for over 40 years. She died in June 2017.
3. In these proceedings Bruce and Julian Campbell’s four children, Carolyn, Beth, Richard, and John contest whether their parents’ estate planning objectives were achieved. But after three failed mediations and prior probate proceedings the four siblings have generated substantial legal costs. As a result, they must now sell Mundooie.
4. During the proceedings each of the four Campbell siblings referred to one another by their first names and the Court will do the same, without intending any disrespect to any party. Their parents will be referred to as Bruce Campbell and Julian Campbell.
5. In prior probate proceedings, John applied for a declaration and a grant of letters administration with an alleged informal testamentary document dated 13 March 2017 annexed. In January 2020 those probate proceedings were finally resolved. The Court granted probate of Julian Campbell’s will of 4 July 2016 (“the July 2016 will”) to her two daughters Beth and Carolyn (referred to in these reasons in that role as either “the executors”, or “the plaintiffs”).
6. These proceedings comprise three actions being heard together. The executors, as plaintiffs, bring proceedings (2019/374756) on behalf of Julian Campbell’s estate. They seek declaratory and other relief as to whether certain real estate being part of Mundooie is held by Nominees on bare trust for Julian Campbell’s estate, or whether it is held on the trusts constituted by the Discretionary Trust (“the Equity/Trust proceedings”). John is the first defendant in the Equity/Trust proceedings, Nominees the second defendant, Richard the third defendant, and the executor of Bruce Campbell’s estate, Mr Alwyn Ian Tonking SC is the fourth defendant.
7. The executors contend in their Amended Statement of Claim in the Equity/Trust proceedings that the contested portion of the real estate of Mundooie is held on bare trust for Julian Campbell’s estate. Through their First and Second Cross Claims, John, and a family company he controls, John Campbell Nominees Pty Ltd (‘JCN’), contend for the contrary position: that the contested portion of Mundooie is held on the trusts comprising the Discretionary Trust constituted by the Trust Deed. The resolution of this issue requires examination of documents in events at the time of the creation of the Discretionary Trust.
8. The Equity/Trust proceedings raised other issues that are not determined by this judgment. These included the question of the construction of the July 2016 will, or its possible rectification in relation to the gift of a property in the Sydney suburb of Manly, and whether certain water access licenses associated with Mundooie and transferred to John were held by him on trust for Julian Campbell’s estate and consequential relief transferring them to her estate.
9. Richard (in proceedings 2018/00184327) and John (in proceedings 2018/00188534) also bring claims against the executors for further provision under Succession Act 2006, Chapter 3 out of Julian Campbell’s estate (respectively “Richard’s proceedings” and “John’s proceedings”).
10. Mr Wood SC and Mr C. Birtles of counsel appeared for the executors. Mr T. O’Brien of counsel appeared for John. And Ms M. Pringle of counsel appeared for Richard. And Mr Townsend, solicitor, appeared for Mr Tonking SC.
11. The initial hearing in the proceedings took place between 24 and 29 March 2021. In submissions on 29 March at the conclusion of that part of the hearing a consensus began to develop between the parties about a process for resolving parts of the Equity/Trust proceedings. As a result, all the proceedings were adjourned for a period to enable the parties to attempt to make their consensus more concrete.
12. That led to the executors filing a motion on 9 August 2021 seeking relief under the Trustee Act 1925, s 86A (“the section 86A motion”) to bring forward the vesting date of the discretionary trust. All parties supported the bringing forward of the vesting date but the outstanding question is whether the Court should in the circumstances in its discretion make the s 86A order which is sought.
13. This resulted in the parties inviting the Court, if it considered it appropriate, to consider first giving judgment in respect of two issues: (a) the central issue in the Equity/Trust proceedings, namely whether substantial parts of Mundooie were beneficially held by the discretionary trust or remained with Bruce Campbell as result of various conveyancing and other transactions in early 1976; and (b) whether the relief sought on the section 86A motion should be granted.
14. The Court has decided to give judgment in respect of both these issues. Other issues arising in the Equity/Trust proceedings, such as the issues concerning the unit in Manly or the water licenses, do not presently have to be considered. And Richard’s proceedings and John’s proceedings will be deferred for later consideration. The parties are hopeful that they may be able to be resolved by agreement after the Court’s decision on the two present issues and the publication of these reasons for decision.
15. The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected. The narrative of findings deals as concisely as possible with the specific facts that are relevant to the issues the subject of this judgment, and not the facts that are relevant to the wider issues first canvassed among these parties. It may be necessary to make findings of fact in relation to those wider issues at a later date.

Credibility of the Parties

16. Although the questions which the Court is presently deciding in the proceedings do not call for much assessment of the credibility of the parties, four witnesses gave evidence and some comments upon their credibility are nevertheless apposite at this stage before the factual narrative commences.
17. John Campbell and his brother, Richard, came across to the Court as quite different people. Those differences, and their different personal histories, go some way towards explaining why the contest in these proceedings has been so protracted.
18. Both John and Richard were capable in business and had a good sense of the main springs of agricultural commerce. Both were essentially credible and honest witnesses, although each had his own biases and tended, in a mild way, to distort the perspectives of his evidence, especially in relation to the conduct of the other.
19. Richard Campbell. Richard appeared to the Court to be very heavily burdened by the difficult experience of this legal contest and by the loss of the family property, which has become the inevitable outcome of the proceedings. He presented with a degree of resentment and resignation at the relentless and exhausting cost and detail of these proceedings. The sheer size of this contest had financially and emotionally overborne him. Upon completing his evidence, he left the Courtroom, wanting to get space between himself and this regrettable family conflict.
20. A degree of resentment on his part is understandable as the contest between him, and John has essentially destroyed his life choice of being on the family property. The sadness and resentment at what had happened was not overtly blamed upon others except to the extent that he said that both he and his mother had trusted that all would be well. He stayed close to his mother, worked the property, and felt that he should have some consideration for that.
21. John Campbell. John is an astute businessman who takes pride in his commercial acumen in building businesses. He is strongly motivated by achieving financial success in business and is self-conscious of having achieved some success. He has a natural intuitive appreciation of the strategic opportunities that arise for him in any commercial context.
22. But John’s evidence was distorted at times by his focus on attaining his own financial advantage. He carefully listened to questions and scrutinised them to ensure his answers did not disadvantage him in the proceedings. He was capable of carefully qualifying and crafting his answers to occasion himself the least prejudice in his answers. His evidence needed to be approached cautiously at times.

Carolyn Campbell

23. Carolyn Campbell was an excellent witness. Her recollection was good, her testimony reliable and her outlook on the litigation and estate issues was wholly focused upon giving a faithful account of family history as best she recalled it. Her overall motivation in this litigation was serving the best interests of the family. And in a family as divided as this one her perspective was remarkably free of distortion, and it became an important platform of clarity for the Court in several areas.

Alwyn Ian Tonking

24. Alwyn Ian Tonking was an excellent and most reliable witness. He had gone out of his way over many years as a solicitor and family friend generously to the benefit of his expertise to assist the Campbell family, especially when Bruce Campbell was ailing and near death. He kept meticulously detailed file notes and entries of his relevant dealings with family members. The manner and method of his recording those notes bespeaks their rigour and the Court wholly accepts them as a concisely accurate record of the events they describe. All his oral testimony is accepted.

The Campbell Family, Mundooie, and their Family Trusts

Mundooie

25. Alexander Campbell originally purchased a subdivision of grazing land from Buttabone Station, north-west of Warren, in 1924. In the late 1930s Bruce Campbell’s father, Norman John Campbell, acquired most of that subdivision from Alexander Campbell and named it “Mundooie”. Bruce Campbell inherited Mundooie from his father in the late 1950s and set about building it into a larger farming and grazing enterprise. He soon acquired adjacent land known as “Grahway”. Parts of these lands were the subject of the November 1975 transactions.
26. After Bruce’s death in 1975 the Campbell family added parcels to Mundooie yet again, in parcels that are not involved in these proceedings. In 1983 they acquired land known as “Back Mackenzies” and in the mid-2000s the land known as “Paddo’s” and made them part of Mundooie.
27. Mundooie was initially a livestock grazing property. But the family developed it to take advantage of its soil and position to include dryland farming and irrigated cotton farming. By all accounts received by the Court, Bruce Campbell was a master of agricultural practices and had a farsighted and enterprising vision for the future of Mundooie, when he died early at the early age of 42.
28. The 4,894 hectares of land comprising Mundooie are owned by different persons and entities. Most of the land in Mundooie (3978.19 hectares) is legally owned by Nominees. That is the land the subject of the present contest between nominees and the estate of Julian Campbell. For convenience in these reasons that original contested part of Mundooie is referred to as “the Mundooie lands” or “the contested Mundooie lands”. Other land comprising Mundooie is owned by Mundooie Pty Ltd (290.9 hectares). The remainder of the Mundooie was owned by Julian Campbell (441.5 hectares), or by Richard (193.6 hectares). The land comprising Paddo’s was acquired in Richard’s name.
29. Various partnerships have conducted farming and grazing enterprises on Mundooie over the years. The details of these partnerships are not material to the issues to be determined in these reasons. But after Bruce’s death the two principal partnerships conducting operations on Mundooie were Cardenu Pty Ltd trading as the Campbell partnership until about the time John left Mundooie. After that Julian Campbell and Richard formed another Campbell Partnership which took over the operations at Mundooie from Cardenu Pty Ltd. The partnership accounts and obligations were contested in the proceedings and may need to be examined later in John’s and Richard’s deferred family provision proceedings.

A Concise Family History

30. An account of the family history of John Campbell and Julian Campbell prior to the 24 November 1975 transactions is relatively uncontentious. Greater differences arise in the evidence of John, Carolyn, Beth and Richard arise after 1975. Other than is relevant to the November 1975 transactions, it is not necessary for the Court to make findings in relation to contentious factual disputes after 1975. Resolving those disputes can await the hearing of John’s and Richard’s proceedings. But a brief overview follows.
31. Bruce and Julian Campbell’s four children were born between 1961 in 1966, John (1961), Carolyn (1962), Beth (1964) and Richard (1966). All the children grew up on Mundooie. Most of them were homeschooled by Julian Campbell under distance education schemes. John went to boarding school in Sydney between 1973 and 1978. All the children worked in varying degrees from a young age on Mundooie to assist their parents either on the weekend or during the week. They contributed as children to mustering, yardwork, moving equipment and general outside work as well as work within the household.
32. After Bruce Campbell died in February 1976 the family continued to live at Mundooie. John stayed on at boarding school. Julian Campbell was assisted by local families and the local stock and station agent with advice about operating Mundooie. A full-time employee was taken on to assist, Mr Jack Beatson. An insurance policy had been taken out on Bruce Campbell’s life and Julian Campbell received a life insurance payout from which she purchased two investment properties, apartments in Sydney. Despite the difficulties of a widow operating a farming enterprise the size of Mundooie, Julian Campbell seems to have valued the continuity, predictability, and strong personal associations with Mundooie for herself and her children after their lives had suffered such upheaval.
33. The children all pitched in to assist their mother. There are disputes among them about their relative contributions to assist her, which can await another time. The local people of the district were immensely supportive in upskilling the children in all aspects of farming and grazing life.
34. In 1978 and 1979 Carolyn Beth and Richard all went to boarding school in Sydney for varying periods. Like John had done between 1973 and 1978, they came home on school holidays. Much of the major work on Mundooie that the children could do was planned to coincide with school holidays. They worked long days, from about 7:30 am until 5 pm. But the affidavit evidence about this early period speaks with one voice: all the children either say or imply they had a uniquely rich and fulfilling childhood on Mundooie with their mother and one another.
35. And they affirmed the truth of that with their subsequent vocational choices. Each of them chose a career related to farming. Beth completed year 12 and studied and obtained a veterinary science degree in 1986. On university holidays and by phone she gave the benefit of her veterinary skills to assist her mother and siblings back on Mundooie. The property Mundooie is about a nine-hour drive from Sydney and visiting regularly in person was not easy. Beth left Australia in 1997, married her husband Timothy and lives in New Zealand. At the time of these proceedings due to Covid 19 travel restrictions she was unable to travel to Australia from New Zealand and she listened to the proceedings by audio link.
36. Carolyn studied agricultural economics in Sydney in 1981 and in 1982, returned full-time helping the family at Mundooie in 1983 and 1984 and then went back to university in 1985. She ultimately gained a degree in arts with a graduate diploma in marketing. She took a special interest in the care of Mundooie’s farm horses. She also worked as a marketing manager in Melbourne in the early 1990s and for local politician during the mid-1990s. She moved away from Mundooie to Dubbo at the end of 1998 and married her husband Bruce in 1999.
37. Richard finished school in 1984 and returned to Mundooie to pursue a career as a farmer. Throughout the 1980s and early 1990s family tensions arose generated by several points of conflict. Mundooie was generating insufficient income to support all the family members, who wanted to stay in the property. John married and issues arose as to where family members would live on Mundooie. Resentments arose about the relative contribution of different family members to the enterprise at Mundooie and the accounting for benefits derived from using its assets.
38. John and his wife, Kerry, left Mundooie in 1992. Richard married his wife Alison the same year. John has pursued business interests away from Mundooie ever since. This left Julian Campbell and Richard back on Mundooie in the longer term.
39. Julian Campbell became a community leader in Warren district, serving on the Warren Shire Council, Women in Agriculture, the local Country Women’s Association and the Floodplains Committee. She chaired the Warren Racecourse Showground committee as well as many other rural health, educational and recreational clubs, and activities in the Warren district and across New South Wales.
40. But at home the difficult conundrums of succession planning within the Campbell family bedeviled family discussions for the following decades. Julian Campbell attempted to convene meetings over the years to resolve this issue. But her attempts were unsuccessful, and the discussions remained inconclusive. In part because of the structure of the assets of Mundooie, seasonal variations in its income, its debt levels, contributed to in part by non-family members, and the expectations of some of the siblings.
41. Following Julian Campbell’s death on 19 June 2017 the lack of family consensus led to the asset-destroying contest that is now before the Court. But all four children remained close to their mother until her death and visited her or stayed in telephone contact with her as much as circumstances permitted.
42. In her July 2016 will Julian Campbell left the Lane Cove property to her daughter-in-law, Richard’s wife, Kerry Louise Henville Campbell. She also left her interest in the estate of her late mother Gladys Lilian Brewer, all her jewellery and personal effects and a legacy of $350,000 each to her daughters, the executors. She also left a legacy of $350,000 to John. She left the residue of her estate to Richard.
43. Julian Campbell’s estate is estimated to total approximately $12.5 million. That depends in part on the Mundooie land contested in these proceedings being owned beneficially by her estate rather than the Discretionary Trust. In addition to Mundooie its other most valuable assets were (a) a rental property in the Sydney suburb of Lane Cove valued at approximately $775,000, and (b) a 50 per cent share in the estate of the Julian Campbell’s late mother, Gladys Lillian Brewer, which includes a property in Manly, valued at approximately $1,525,000.

Mr Tonking Keeps a Diary

44. The Court has a detailed contemporaneous diary of events leading up to and including Bruce Campbell’s execution of the transaction documents on 24 November 1975. The diary is that of Mr Tonking, then a young solicitor at a city law firm, Allen Allen and Hemsley. Mr Tonking went to the Bar in 1995, was appointed senior counsel in 2007. He retired from the bar in 2013 and now undertakes farming activity at Robertson in the Southern Highlands.
45. Mr Tonking provides illuminating real-time context to the November 1975 transactions from the perspective of a family member. Mr Tonking’s mother was a first cousin of Bruce Campbell. As Bruce Campbell and Julian Campbell are now deceased and their four children were too young at the time to appreciate the transactions that were occurring, Mr Tonking’s perspective becomes more significant.
46. The Court has found his account of those November 1975 transactions within the Campbell family household especially valuable for three main reasons. The high quality, detail, and reliability of his daily diary record of the period speaks for itself. His professional legal training gave him heightened understanding into the transactions. And though independent of the family and objective, he was clearly very familiar with the nuances of Campbell family relationships, being an oft visiting cousin of Bruce Campbell. The Court’s findings about this period are based heavily on upon his account events together with such inferences as may be drawn from other contemporaneous documents.

Mr Tonking’s Account of the November 1974 Transactions

47. Bruce Campbell was aware by early July 1974 that he was seriously ill with a potentially terminal illness. Having trouble with his eyesight he was referred to Royal Prince Alfred Hospital for tests, which show that he had a large cyst or tumour situated in his cranium near the optic nerve. Bruce Campbell told Mr Tonking that month that he had commenced to undertake “some estate planning”, as Mr Tonking described it, in case anything went wrong with his treatment.
48. Bruce Campbell’s last will is dated 20 July 1974. Mr Tonking is one of Bruce Campbell’s executors and one of the witnesses to that will. Bruce Campbell underwent a major operation to remove the cyst on 23 July 1974.
49. By August – September 1974 Bruce Campbell had been discharged from hospital and had undergone radiation treatment after his operation. He stayed with Mr Tonking’s mother’s household where Mr Tonking observed that his sight was still blurred, and he did not know whether it would improve. It was later confirmed to Mr Tonking that Bruce Campbell had a brain tumour.
50. In the first half of 1975 Bruce Campbell told Mr Tonking, without going into detail, that he had been referred to the legal firm Simons & Baffsky for estate planning advice. Bruce Campbell had decided to consult the legal expertise of Simons & Baffsky for estate planning advice rather than to go to his long-standing legal advisers in Dubbo.
51. The mid-1970s was an era of high State death duties and when applicable, Commonwealth estate duties. At this time rural families commonly faced death and estate duties at confiscatory levels upon the transmission of property from one generation to the next. These duties far exceeded equivalent levels of stamp duty on such transactions, and not uncommonly resulted in the sale of rural grazing and farming properties, until their abolition in about 1983. In this environment seeking and securing the best legal advice was clearly important to Bruce Campbell.
52. Various schemes were advised upon to avoid death and estate duties. A mechanism to achieve such schemes involves the transfer of beneficial ownership and land from a rural property owner to a trustee or trustee company. But that attracted the incidence of ad valorem stamp duty. Some more sophisticated schemes were designed not only to avoid death and estate duties but also to avoid or reduce the incurring of stamp duty.
53. By September 1975 Mr Tonking and the family knew that Bruce Campbell’s condition was terminal and on 15 November 1975 Julian Campbell informed Mr Tonking that Bruce Campbell had little hope of recovery. MR Tonking visited Bruce Campbell at Royal Prince Alfred Hospital on 16 November 1975. By then Bruce Campbell was virtually blind and was not conversant with current events. He returned to Warren Hospital in December that year.
54. Mr Tonking was not present when the transaction documents were executed on 24 November 1975. But given Mr Tonking does not believe that Bruce Campbell’s state of health would have allowed him capacity to execute the transaction documents himself. Julian Campbell signed the documents on his behalf.
55. Bruce Campbell died on 20 February 1976, two days after his 45th birthday.
56. Mr Tonking, Julian Campbell and Mr Richard Rutledge were Bruce Campbell’s executors. Mr Tonking is the sole survivor of these three executors. Bruce Campbell’s estate was administered by Ms Joan Richardson, a partner in the firm of solicitors in Dubbo that Bruce Campbell had consulted throughout his life, Booth, Brown Samuels & Olney. Mr Tonking met Ms Richardson in June 1976 in the course of executing his duties as executor of Bruce Campbell’s estate and made the following note in his diary on 11 June 1976:

“As a result of a last-minute estate plan that Julian had arranged, it looks as though, provided the scheme goes unchallenged, she will avoid death duty.”

57. Mr Tonking signed the affidavit of assets for Bruce Campbell’s estate, known at that time as an “Affidavit D” on 21 September 1976. He recalls that the affidavit of assets was consistent with what Bruce Campbell had told him about his estate planning intentions and what Julian Campbell had told him in June of that year. None of the real estate of Mundooie was included in Mr Tonking’s Affidavit D for Bruce Campbell’s estate. Mr Tonking has always believed that the 24 November 1975 transactions were effective to transfer both the legal and beneficial title to Mundooie away from Bruce Campbell and he swore the Affidavit D on that basis.
58. Probate of Bruce Campbell’s will was granted on 15 November 1976. Mr Tonking does not recall any challenge to the Affidavit D he had executed to achieve the grant of probate. Thereafter Mr Tonking did not see any of the 24 November 1975 transaction documents until after Julian Campbell’s death in 2017.
59. Mr Tonking showed surprise at the contention that the 24 November 1975 transactions were ineffective and that the contested Mundooie lands were still part of Bruce Campbell’s estate and therefore should have been included in his Affidavit D. He deposed to it never having been suggested to him in the over 40 years since Bruce Campbell’s death that the 24 November 1975 transactions were ineffective in that his Affidavit D was incorrect. And he was not cross-examined to suggest that his understanding was incorrect at the time of his execution of his Affidavit D. And it was not put to him in cross-examination that he had ever been asked to recover the contested Mundooie lands that are now claimed to form part of Bruce Campbell’s estate.
60. The central instrument created on 24 November 1975 was the trust deed setting up the Discretionary Trust. It is discussed first in these reasons followed by the minutes, deeds and other documents executed the same day. Then these reasons analyse several documents in events postdating November 1975.

The Trust Deed and the Discretionary Trust

61. The Discretionary Trust was created by a deed made on 24 November 1975 (“the Trust Deed”) between David Zalmon Baffsky, as settlor and Keita No 83 Pty Ltd as the Trustee of the various trusts constituted by the Trust Deed. Shortly after execution of the Trust Deed, Keita No 83 Pty Ltd changed its name to become Nominees. These reasons use the expression “the Trustee” to refer to Nominees in its role as the original trustee of the Trust Deed.
62. Some later amendments to the Trust Deed are to be noted. On 10 November 1988 the Trust Deed was amended in respects that are not material to these proceedings. And by deed made on 14 December 2020 John Campbell Nominees Pty Ltd (“John Campbell Nominees”) was appointed as a co-trustee of the Discretionary Trust with Nominees. In respect of events and matters after 14 December 2020 the expression “the Trustee” should also be taken in these reasons to refer to both Nominees and John Campbell Nominees.
63. In most respects it is not necessary to set out the provisions of the Trust Deed in detail. It is mostly sufficient for the purposes of these reasons to set out the effect of those provisions, by which it is apparent that Bruce Campbell sought to create trusts for the benefit of various classes of family members.
64. Clause 1 of the Trust Deed defined various terms used within the deed. Bruce Campbell was described in the Trust Deed as “the Parent”. By clause 1(b) the “Eligible Beneficiaries” were Julian Campbell, the spouse of Bruce Campbell (who was defined as “the Parent”), the children of Bruce Campbell and Julian Campbell, the children's spouses, the grandchildren and great-grandchildren of Bruce and Julian Campbell, any future spouse of the Parent, any spouse of any child of the Parent and any other persons or entities appointed by the Parent or his legal personal representative. No other persons or entities were appointed by Bruce Campbell or his legal personal representative to be members of this extended class.
65. By clause 1(d) the “Scheduled Property” was defined as the sum of $20 paid by the Settlor to the Trustee and by clause 1(e) the “Trust Fund” was defined as follows:

(e) “The Trust Fund” means

(i) the Scheduled Property;

(ii) and further or additional property which any person or company may donate to or vest or cause to be vested in the Trustee to be held upon the trusts and with and subject to the powers and provisions thereof;

(iii) any accumulations of income other than those held upon trust by the Trustee under the provisions of Clause 4 (2) (b) hereof –

and

(iv) the property for the time being and from time to time representing the Schedule Property the further or additional property (if any) aforesaid and the accumulations covered by paragraph (iii) above.

66. The Trust Deed, clause 1(f) defines the “Perpetuity Date” as follows:

(f) “The Perpetuity Date” means the date being sixty years from the date of execution of this Deed or the date of death of the last survivor of all the lineal descendants male and female of His late Majesty King George the Sixth of England living at the date hereof (whichever shall first occur) or such earlier date as the Trustee shall in his absolute discretion appoint to be the Perpetuity Date for the purpose of this Deed;

67. The Trust Deed, clause 2 provided as follows:

2. (a) The Settlor hereby declares and directs that the Trustee shall and the Trustee hereby declares that he will hold the Scheduled Property upon the trusts and with and subject to the powers and provisions hereinafter contained.

(b) The Trustee shall have the right in his absolute discretion at any time during the continuance of the Trust hereby created to accept such additional property as may be donated to the Trust hereby constituted by any person either personally or by testamentary act or disposition or by any company.

68. The Trust Deed, clause 3 provides that the Trustee has the power up until the Perpetuity Date to appoint one or more of the Eligible Beneficiaries as the beneficiary or beneficiaries for whose benefit to the exclusion of other Eligible Beneficiaries the capital and income of the Discretionary Trust is held. The trustee has not made an appointment of any of the Eligible Beneficiaries under clause 3 to date.
69. By Trust Deed, clause 4(1)(a) the Trustee has the power up until the Perpetuity Date in its “absolute discretion” in any year the power to do the following:

“to pay or apply the whole or such part as the trustee shall think fit of the income of the trust fund for that year to or for the advancement maintenance education or benefit of all or such one or more of to the exclusion of the others or other of the eligible beneficiaries and in such proportions or manner as the trustee shall in his absolute discretion from time to time think fit...”

70. No distributions of income from the Discretionary Trust have been made under clause 4 to any eligible beneficiary.
71. By Trust Deed clause 6 the Trustee has the power in its discretion to pay or apply the whole or any part of the capital of the Discretionary Trust to or for the advancement, maintenance, education or benefit of any one or more of the Eligible Beneficiaries as follows:

6. The Trustee shall have and may exercise in his absolute discretion at any time or times and from time-to-tme power to pay or apply the whole or any part or parts of the Trust Fund to or for the advancement maintenance education or benefit of all or such one or more exclusively of the others or other of the Eligible Beneficiaries and in such proportion or manner as the Trustee shall in his absolute discretion from time to time think fit. The Trustee shall not be bound as such trustee to see to the application of any moneys paid or applied pursuant to this clause.

72. No distributions of capital have been made from the Discretionary Trust to any Eligible Beneficiary.
73. The Trust Deed, clause 5, subject to any appointment under clause 3, or any payment or application of income or capital under clauses 4 or 6, provides that on the Perpetuity Date as defined under the Trust Deed, the whole of the capital and income of the Discretionary Trust is to be held upon trust “for the children of the Parent who attain or have attained the age of 21 years in equal shares”. Clause 6 then provides cascading provisions for the disposition of the share of any of the children who die before the Perpetuity Date, including provisions for the benefit of the children or grandchildren of the deceased child. And other relatives and their spouses are provided for in clause 5 in provisions which are not material to the issues in these proceedings. Each of the children, Beth, Carolyn, John and Richard, the children of the Parent, has attained the age of 21 years.
74. As will be seen, the section 86A motion seeks an order of this Court to bring forward the Perpetuity Date. It is clear from Trust Deed, clause 1(f) that the trustee has that power in any event. The executors submit that their section 86A motion is being advanced for more abundant caution.
75. The effect of clauses 2(b), 3, 4, 5 and 6 of the Trust Deed is that if the Perpetuity Date is brought forward the whole of the capital and income of the Discretionary Trust will be held upon trust for the children of the Parent who are living on that date in equal shares. And if any of the children die before the date the amended Perpetuity Date then the share of that child will pass to his/her children who are living then and who attain or have attained the age of 21 years in equal shares.
76. Bruce Campbell did not create any separate document recording his wishes as the Parent in relation to the Trustees, the administration of the Discretionary Trust, and the ultimate distribution of its assets. But the terms of the Trust Deed, clause 5 at least indicate that upon the Discretionary Trust vesting that the benefit of its assets would pass to the children, and to the descendants of any child who had died in equal shares.

Overview of the Effect of the November 1975 Transactions

77. In addition to the Trust Deed, the parties executed a series of other documents which, considering the parties’ careful submissions, the Court discusses here with commentary in relation to the significance of each document as the Court has analysed it. The Court has concluded that the transactions were effective, and it accepts John’s and Mr Tonking’s submissions in relation to them. The executors’ submissions to the contrary are dealt with later in these reasons. Given the complexity of the transactions it is simpler for the reader to see the discussion of their significance while the transactions are identified.
78. Based on Mr Tonking’s evidence and the objective circumstances there cannot be any doubt that Bruce Campbell’s objective in entering these transactions was primarily to avoid death or estate duty. Successful estate planning for Bruce Campbell at least meant transferring beneficial ownership of the Mundooie lands out of his name and into a company such as Nominees before his death. This was a recognised method of avoiding death and estate duty, and a precondition of avoidance was the transfer of the beneficial interest to the company: cf Yard v Yardoo Pty Ltd [2007] VSCA [43] (“Yardoo”).
79. But unlike Yardoo, a supplementary objective of the structure created on 24 November 1975 for Bruce Campbell was also to avoid stamp duty. Stamp duty could be avoided if no instrument of transfer to Nominees which would attract ad valorem stamp duty was brought into existence. To achieve this objective the structure needed to be effective without any instrument being required to give effect to the transfer of the equitable interest.
80. So, a method needed to be devised for oral agreement for the transfer of the equitable interest, for funds to be made available by an entity to Nominees for the purchase and for that entity then to receive those funds back. The means used to achieve that appear to have been the creation of an option to acquire shares which was exercisable only by Bruce Campbell. Such an exercise was unlikely after the option fee was paid. Moreover, the parties knew the funds were available because a bank had agreed to make an overdraft facility available to Nominees.
81. With this structural overview in mind the company resolutions and documents executed to constitute the transactions can be approached.

The 24 November 1975 Transactions

82. Preliminary Transactions. On 18 June 1975 Simons & Baffsky caused the registration of the two new companies that would participate in the transactions. The first was Kieta No 83 Pty Ltd, which, as earlier indicated, changed its name to that of Nominees and will generally be referred to by that name in these reasons. The other company was then known as Kieta No 82 Pty Ltd but its name subsequently changed to Bruce Campbell Holdings Pty Ltd and to distinguish it from “Nominees” it is referred to in these reasons as “Holdings”.
83. And on 21 November 1975, Bruce Campbell appointed the Julian Campbell Deceased as his attorney to execute the documents. The power of attorney was registered on 25 November 1975, being the day after the relevant transactions but subsequent registration is effective: Powers of Attorney Act 2003, s 52(2). The timing of her appointment is consistent with Mr Tonking’s evidence of Bruce Campbell’s deterioration in early to mid-November 1975.
84. Then on 24 November 1975, Julian Campbell participated in a series of back-to-back meetings of Nominees and Holdings and transactions at the offices of Simons & Baffsky in Macquarie Street, Sydney. In this she was assisted by her mother, Mrs Gladys Brewer. The precise order of these transactions is difficult to discern at this distance in time.
85. First meetings of Nominees and Holdings were held. Julian Campbell and Gladys Brewer were appointed directors of each of Nominees and Holdings. Each of the companies had an issued share capital of two $1.00 shares. The meetings of the two companies also approved the following share transfers. At the meeting of Holdings, the transfer of one share each in Holdings from Simons and Baffsky was approved to Julian Campbell and Mr James Edward Aitkins, who was probably the family accountant. And at the meeting of Nominees, the transfer of one share in Nominees was approved for transfer to Julian Campbell and the other share to Holdings. At this point through her nominee directors and shareholders, Julian Campbell effectively controlled Holdings, and Nominees through Holdings.
86. Nominees then held a meeting that linked it for the first time with the Discretionary Trust. In the meeting minutes Nominees, by its directors Julian Campbell and Gladys Brewer resolved: to accept an appointment as the trustee of the Discretionary Trust (to be referred to as “the Campbell Family Trust”); to affix its common seal to the Trust Deed, and as Trustee of the Discretionary Trust, to acquire certain real estate and life insurances “as detailed to the meeting” from Bruce Campbell for the sum of $252,250.
87. To fund this transaction Nominees also resolved at this meeting to acquire beneficially all the issued capital of Holdings and to borrow from it the sum of $252,250 interest free and repayable at call. The minutes of that Nominees meeting signed by Julian Campbell as chairman were following.
88. The resolutions under the heading “Trust Business”, were as follows:

RESOLVED that the Company acquire certain real estate and life insurances as detailed to the meeting from Mr B Campbell as trustee of the trust to the sum of two hundred and fifty-two thousand two hundred and fifty dollars ($252,250).

RESOLVED that the Company acquire beneficially the whole of the issued capital of Kieta No. 82 Pty Ltd [Holdings] and that the Company execute call necessary documents in respect thereto.

RESOLVED that the Company borrow from [Holdings] interest free at call the sum of two hundred and fifty-two thousand two hundred and fifty dollars ($252,250).

89. The first of these resolutions was an important fulcrum of the structure and records an oral agreement for the sale of “certain real estate and life insurances” being detailed to the meeting by Bruce Campbell (through his attorney Julian Campbell). The other contemporaneous minutes, including that in the next paragraph of these reasons identifies that land as the Mundooie lands the subject of the present contest.
90. Nominees’ directors, Julian Campbell and Gladys Brewer at a separate meeting then resolved that Nominees would as Trustee of the Discretionary Trust issue an undertaking to the Bank of New South Wales that it would execute a first mortgage in registrable form over the contested Mundooie lands in these proceedings, the title details of which are not published in these reasons. The minutes of this meeting were as follows:

“KIETA NO. 83 PTY. LIMITED

Minutes of Meeting of Directors held at the Company’s Registered Office, 139 Macquarie Street, Sydney, on 24th November, 1975.

PRESENT: Mrs. Julian L. Campbell

Mrs. Gladys Brewer

OVERDRAFT

FACILITIES

B & D CAMPBELL: Resolved that the Company as trustee for Campbell Family Trust issues an undertaking to the Bank of New South Wales, Warren, that it will execute a first mortgage in registrable form over property to be required by the Company identified as follows:-

[Certificate of Title references for the Mundooie lands not published]

This mortgage will secure overdraft facilities to be granted to the partnership known as B. & J. Campbell.

Resolved further that the Company issue this under-taking under the Common Seal of the Company in the form of the copy included with these Minutes.”

91. The directors of Holdings, Julian Campbell and Gladys Brewer then held a meeting of Holdings to assist in the funding of the oral agreement for the purchase of the Mundooie lands. They did so by resolutions to do the following: to grant an option to Bruce Campbell to take up 504,500 shares in Holdings for an option fee of $252,250 (the Option”); to lend Nominees, qua trustee, the sum of $252,250 interest free at call in its capacity as Trustee of the Discretionary Trust; and then to create the share capital to be the subject matter of the option, by increasing its share capital from $10,000 to $505,000 by the creation of 495,000 new shares, thereby providing for the capital the subject of the Option. The resolutions were in the following terms, as recorded in the minutes

“OPTION

The chairman informed the meeting that Mr B Campbell was prepared to acquire an option to take up certain shares in the capital of the company.

RESOLVED that the company adopt such option as to the terms and conditions set out in the Agreement produced to the meeting and that the seal of the company be affixed to the said Agreement.

RESOLVED that the company lend to Kieta No.83 Pty Ltd [Nominees] as trustee for the Campbell family trust to the sum of two hundred and fifty-two thousand two hundred and fifty dollars ($252,250) interest free at call.”

92. Thus, Holdings had now provided a matching resolution to lend Nominees the same sum Nominees had resolved to borrow, corresponding with the consideration payable by Nominees under the proposed oral agreement for the purchase of the Mundooie lands.
93. The resolutions having been passed, Julian Campbell as Bruce Campbell’s attorney, Holdings and Nominees executed the following further instruments.
94. First, Julian Campbell as Bruce Campbell’s attorney, Holdings and Nominees entered into a deed (“the Bare Trust Deed”) which contemplated that Nominees (described in the Bare Trust Deed as “the Trustee”) would hold the subject Mundooie lands on bare trust for Bruce Campbell (described in the Bare Trust Deed as “the Beneficiary”). The recital and operative parts of the bare trustee provided as follows:

“WHEREAS:

1. The Beneficiary is the registered proprietor and beneficial owner of the properties described in the Schedule hereto (hereinafter called “the said properties”).

2. The Beneficiary has requested the Trustee to hold the said properties upon trust for the Beneficiary absolutely which the Trustee has agreed to do.

3. All moneys paid or payable in respect of the acquisition of the said properties have been paid or will be paid and provided by the Beneficiary.

NOW THIS DEED WITNESSETH:-

1. The Trustee hereby declares that it will hold all the said properties as are vested in or transferred to the Trustee pursuant to the above recited circumstances upon trust for the Beneficiary its administrators and assigns absolutely.

2. The Trustee covenants with the Beneficiary that the Trustee will transfer pay and deal with all the said properties and all benefits in respect thereof and all proceeds of sale in respect thereof in such a manner as the Beneficiary may from time to time direct.

3. The Trustee acknowledges that it will not have any beneficial interest in respect of the said properties and covenants that it will not deal in any manner with the said properties except upon the express direction or with the consent of the Beneficiary its administrators and assigns.

4. The Trustee shall either cause the deeds or other documents of title of any of the said properties held by it on the trusts hereof to be lodged with a firm of Solicitors or a bank for safe custody or the Beneficiary shall permit the Trustee to retain the same in its possession.

5. In consideration of the Trustee entering into the provisions of this Deed the Beneficiary hereby agrees to indemnify the Trustee from all actions claims costs demands taxes duties and liabilities whatsoever in any way relating to the said properties.”

95. The properties in the Schedule of the Bare Trust Deed are the subject Mundooie lands.
96. Next on the same date, 24 November 1975, Julian Campbell as Bruce Campbell’s attorney signed a Memorandum of Transfer of the Mundooie lands in favour of Nominees (“the Transfer”). Part of the wording of the Transfer became a significant point of contention between the parties. In the standard form Memorandum of Transfer after the reference to the vendor and the land, the words “in consideration of” had been crossed out and the words “pursuant to a Deed of Trust dated the 24th day of November 1975” were added, mainly in typescript but with the date in handwriting. The words “Deed of Trust dated the 24th day of November 1975, on their face are ambiguous and could refer to either the Trust Deed or the Bare Trust Deed which were both trust deeds executed on that date. The Memorandum of Transfer was not registered until 3 July 1981. The delay was occasioned by caveats on the title which needed to be removed. Stamp duty in the nominal amount of one dollar was stamped as paid on the Memorandum of Transfer to permit registration.
97. Next, on the same day in accordance with the resolution of Nominees to enter the Trust Deed, Nominees executed the form of Trust Deed with Mr Baffsky as the settlor.
98. Next, on the same day Bruce Campbell and Holdings entered into the Option agreement pursuant to the resolution of Holdings to this effect. The Option required Bruce Campbell to pay Holdings $252,250. The recital and relevant terms of the option as follows:

BETWEEN: KIETA NO. 82 PTY. LIMITED a company duly incorporated in this State of New South Wales (hereinafter called “the Grantor”)

AND: BRUCE NORMAL JOHN CAMPBELL of “Mundooie”, Warren in the said State (hereinafter called “the Grantee”)

WHEREAS

1. The nominal capital of the company is $505,000.00 divided into 505,000 shares of $1.00 each.

2. The Grantee desires to acquire an option to take up 504,500 shares in the capital of the company and is prepared to pay the sum of $252,250.00 being at the rate of 50 [cents] per share for the said option.

NOW THIS AGREEMENT WITNESSETH: -

1. In consideration of the sum of $252,250.00 paid by the Grantee to the Grantor the receipt whereof is hereby acknowledged the Grantor does hereby grant to the Grantee an option to take up in the manner and upon the conditions set out below up to 504,500 shares of $1.00 each in the capital of the company.

99. The Option, clause 1 is evidence of the payment of the $252,250.00 by Bruce Campbell to Holdings. This is also confirmed by later documents. Some 12 years later, in a letter dated 13 January 1987 Booth Brown Samuels and Olney, Julian Campbell’s solicitors in Dubbo, gave a description of the transaction and the balance sheet of Holdings at that time. Their letter to their client first stated the source of their information, “we have had a conference with your accountant and also perused various company documents”. The solicitors then said of Holdings:

“The only asset of this company is the debt of $252,250 which was lent to Bruce Campbell Nominees Pty Ltd for the purchase of the land referred to above. Prior to his death Bruce paid $252,250 to this company for the grant of an option to purchase shares which said option was never exercised. Mrs JL Campbell has control of this company as all the shares are owned by Bruce Campbell Nominees Pty Ltd”

100. If Bruce Campbell had not paid the sum of $252,250.00 to Holdings, the sum should have been recorded as a debt owing to it in its balance sheet. The absence of a debt being recorded as such an asset in Holdings’ balance sheet is a basis to infer, consistently with Option, clause 1, that the debt was paid at the time.
101. Next, it can be inferred that in accordance with the resolutions of Holdings and Nominees, that Holdings loaned Nominees, qua trustee of the Discretionary Trust the sum of $252,250. Holdings recorded the loan in its balance sheet that day. A combination of Simons & Baffsky and Julian Campbell’s Dubbo chartered accountants, Thos. Robinson, Aikins and Co caused the balance sheet of Holdings to be prepared on 17 October 1977 recording the affairs of the company as at 24 November 1975, and as at Bruce Campbell’s death on 20 February 1976 (as the accountants explained) “from the books of account and records” of Holdings. On both dates the balance sheet records as an asset a “Loan Account – Campbell Family Trust” in the sum of $252,250. Although the financial accounts of Nominees for these dates are not available, one side of the transaction is sufficient to draw the inference of this sum was paid to Nominees.
102. The Nominees resolution of that date recorded that Nominees “would acquire certain real estate and life insurances as detailed to the meeting from Mr B Campbell”. Bruce Campbell had a life insurance policy with AMP at that time. The sum assured was $10,000 and the gross surrender value was $3,363.20. Bruce Campbell by his attorney Julian Campbell assigned this AMP policy to Nominees on 24 November 1975.
103. Finally, there is no direct evidence on the materials now available that Nominees paid Bruce Campbell $252,250 at the same time on 24 November 1975. John submits that it is to be inferred that Nominees did so as Trustee of the Discretionary Trust. The Court accepts that submission. Nominees had borrowed that exact sum from Holdings and the only purpose for Nominees borrowing the funds from Holdings was to pay it as Trustee of the Discretionary Trust to Bruce Campbell. And subsequent records do not show the debt as unpaid.

Subsequent Events Relevant to the 24 November 1975 Transactions

104. Several events in the years after the 24 November 1975 transactions are relevant to the analysis of the transactions.
105. The first of these was the Affidavit D sworn on 21 September 1976 by Bruce Campbell’s three executors, Julian Campbell, Mr Tonking and Mr Rutledge. The standard form affidavit required by the Court at that time provided for an “Inventory referred to in the preceding affidavit”. The inventory of assets includes two relevant line items. The line-item for “Real Estate possessed by the deceased at death and real estate liable to duty under section 102 of the Stamp Duties Act 1920” has an entry against that of “nil”. Within Annex D was a line item for “Debts due to Estate” and a cross reference to Schedule 8 against an amount of $13,645. Schedule 8, which appears later in the document, shows some care being taken to ascertain and describe the nature of the debts due to the estate. It provides as follows:

“SCHEDULE 8

Debts Due to the Estate

In November 1973 the Deceased lent the Sum of

$13,645 to Mundooie Pty Limited for the purchase of

a property. The loan was unsecured, interest free and

repayable on demand and was not evidenced in writing.

Amount due to the Estate $13, 645”

106. On several occasions after 1975, Julian Campbell, Nominees and Richard all executed documents for valuable consideration with financial institutions on the basis that the 24 November 1975 transactions were effective.
107. On 9 June 1984 Nominees executed a mortgage over the Mundooie lands with Westpac, as first mortgagee, expressly in its capacity as trustee of the Discretionary Trust expressly referring to the Trust Deed. In 1994 Westpac raised a concern about the capacity in which Nominees had executed the mortgage and on 24 February 1995, Nominees was required by Westpac to provide mortgages and other instruments both as Trustee of the Discretionary Trust and trustee of the Bare Trust. But this documentation seems to been executed for more abundant caution and are consistent with the original 1984 mortgage.
108. On 13 January 1987 Julian Campbell’s Dubbo solicitors advised her as follows:

“[Nominees] is the Trustee for the Campbell Family Trust. On 24th November, 1975 the company as trustee purchased the freehold land then owned by Bruce for the sum of $252,250.00. This money was borrowed from [Holdings]. The Campbell Family Trust is a discretionary trust and the income and the property of the Trust can be applied in the discretion of the Trustee.”

109. The balance sheet for the Discretionary Trust as at 30 June 1994 records the Mundooie lands by their title details as assets together with improvements to the land, which were valued at $470,640.16. This figure appears in Discretionary Trust balance sheets from 1994 to 2020.
110. Julian Campbell convened a family succession planning meeting on Sunday 16 February 1997. She prepared a document to assist in the discussion on that day. It is a well-crafted, thoughtful, and detailed letter addressed to the four children praising each of them for their unique qualities and mentions some of their individual contributions to the family and the development Mundooie. It then proposes a division of assets. It appears to be mindful of practicalities in the debt position of Mundooie. In this letter Julian Campbell says one point:

“[s]ince your father’s death, it has been my desire to give you all a happy childhood, followed by an opportunity to live your own lives. The Trust was setup to enable this to happen and distribution of its assets is not always easily possible. Requests for a share of assets in time of difficult debt is perhaps less than reasonable”.

111. This letter is another basis to infer that Julian Campbell thought that a beneficial interest in the Mundooie lands had been transferred into the Discretionary Trust. It makes little sense to speak about having “assets” without the estate planning at Bruce Campbell’s death having been successful.
112. In August 1998 it was necessary for Nominees to amend the Trust Deed in 1988, to enable Nominees as trustee of the Discretionary Trust to execute a bill facility for $490,000 with Westpac, a bank. It is to be inferred that the facility was secured by Nominees existing mortgages over the Mundooie lands.
113. In 2000 Nominees gave guarantees to support borrowings from the Primary Industries Bank of Australia (“PIBA”). In the same transaction with PIBA Julian Campbell and Richard swore statutory declarations in 2000 that Nominees is the trustee of the Discretionary Trust and no other trusts, which is not consistent with the continuing existence of the Bare Trust. Richard agreed in cross-examination that he believed the matters declared to be true when he made these declarations and had no reason to doubt them.
114. Nominees also gave commercial guarantees in 2014 supporting its borrowings from Rabobank Australia Limited, which it can be inferred would only have been advanced upon the assumption that Nominees was beneficially entitled to the Mundooie lands.
115. On 17 March 2000 when seeking advice from Victorian lawyers, Bryson Turnbull Lawyers, Julian Campbell and her Dubbo solicitors gave instructions on the basis that the Mundooie lands were transferred to Nominees as Trustee of the Discretionary Trust.
116. On 19 October 2007 Julian Campbell and Richard sought restructuring advice on the basis that the Discretionary Trust held the Mundooie lands and discussions within the family took place on the same footing.
117. The Campbell Partnership, which was Julian Campbell and Richard loaned $477,715 to Nominees as Trustee of the Discretionary Trust on the basis that Nominees owned most of the Mundooie lands in that capacity.
118. Before arguments based upon the Bare Trust Deed were advanced, in Richard’s family provision proceedings he swore an affidavit on 20 September 2018, stating, “[t]he majority of [the Mundooie land] is owned by Bruce Campbell Nominees Pty Ltd in its capacity as trustee of the Campbell Property Settlement”.
119. In November 2020, Richard signed a statutory declaration that the accounts of Nominees as Trustee of the Discretionary Trust fairly present its financial position. The Mundooie lands are included as part of the trust assets of the Discretionary Trust. Richard agreed in cross-examination that these accounts continue to give a true and fair view of the Discretionary Trust.
120. This history gives a firm basis for concluding that Julian Campbell and Richard long believed that the 24 November 1975 transactions were effective.

Legal Analysis – The Equity/Trust Proceedings

121. The executors’ statement of claim pleads the effect of the Bare Trust Deed made on 24 November 1975 and seeks a declaration that Nominees holds the Mundooie lands on bare trust for Bruce Campbell’s estate and an order that the Mundooie lands be transferred to his estate to be administered in accordance with his will and alternatively that Nominees holds the Mundooie lands on bare trust for the estate of Julian Campbell.
122. John’s defence pleads that the legal title to the Mundooie lands was transferred to Nominees as Trustee of the Discretionary Trust but that upon becoming registered proprietor of the the Mundooie lands Nominees held them on resulting or constructive trust for the Discretionary Trust. The pleading alleges that Bruce Campbell and Nominees agreed orally that Nominees in its capacity as Trustee for the Discretionary Trust would purchase the Mundooie lands and the life insurance policy from Bruce Campbell for $252,250. The pleading further alleges that consideration was actually paid, giving rise to an equitable interest in Nominees in the Mundooie lands, such that Bruce Campbell held the Mundooie lands on resulting or constructive trust for Nominees. And pursuant to the oral agreement, Bruce Campbell by his attorney Julian Campbell signed the Memorandum of Transfer transferring the Mundooie lands to Nominees. This is reflected in John’s and JCN’s Cross Claims.
123. This issue is foundational in these proceedings. If the Mundooie lands are held for the Eligible Beneficiaries of the Discretionary Trust, rather than the bare trust, that would be to John's advantage as it would increase the pool of assets held by the trust of which he is one of the Eligible Beneficiaries. But if the equitable title to the Mundooie lands remained with Bruce Campbell and passed to Julian Campbell under his will, Richard would receive the properties under Julian Campbell's will.
124. John’s and JCN’s case on their Cross Claims as to the construction of the transactions of 24 November 1975, supported by Mr Tonking is persuasive and the Court accepts it. It is legally correct and consistent with the purpose of the documents executed that day. And the execution of the Bare Trust Deed between Bruce Campbell and Nominees is not inconsistent with that conclusion. The findings made by the Court in the factual narrative above that Nominees paid valuable consideration of $252,250 in performance of an oral agreement to acquire the Mundooie lands is critical to this conclusion and displaces any other construction of the documentation signed on 24 November 1975. As in traditional equitable analysis that payment binds the conscience of Bruce Campbell, the vendor under the oral agreement to sell the Mundooie lands.
125. John’s case is consistent with the objective sought to be achieved by Bruce Campbell’s and Julian Campbell’s legal advisers at the time, Simons & Baffsky, although this alone would not be a reason to uphold the transactions. But it can be inferred the objective of the scheme reflected in the documents was to avoid both death duty, estate duty and stamp duty so the Campbell family could keep the Mundooie lands in 1975.
126. Given the intention of the parties was to minimise death duty, the Court will generally presume that the parties intended to “avoid death duty legitimately by [the transferee obtaining] beneficial title rather than there being some sham transaction of [the transferee] merely being made to appear to the revenue authorities as the owner”: Noack v Noack [1959] VicRp 22; [1959] VR 137, 140; Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 306. 33.
127. And all the transactions executed on 24 November 1975, should be construed together as part of one transaction: Manks v Golden Mile Property Investments Pty Ltd (In liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224; (2016) 18 BPR 36,121 at [68]. This is important because at one point the executor submitted that the Memorandum of Transfer could by the words on its face “pursuant to a Deed of Trust dated the 24th day of November 1975” just as readily referred to the bare trust deed as it could refer to the Trust Deed that constituted the Discretionary Trust. But when the transactions are looked at together there is no ambiguity: the Memorandum of Transfer was part of the scheme to vest beneficial title to the Mundooie lands as part of the Trust Fund created by the Trust Deed of the Discretionary Trust.
128. And the scheme was effective. The oral agreement for the sale of Bruce Campbell’s interest in the land. When the purchase price is paid under an unconditional contract for sale of land, including an oral contract, a change in the relationship between vendor and purchaser takes place, although it may change earlier in some circumstances. The change is that the subject matter of the contract vests in the purchaser and that interest will be protected by a Court of Equity. And when nothing remains to be done to define the respective rights of the parties with respect to the equitable interest, a Court of Equity will protect the rights of the provider of the purchase price and the position of the vendor in such circumstances will sometimes be characterised as a trustee under a bare trust: Golden Mile Property Investments Pty Ltd v Cudgewong Australia Pty Ltd [2015] NSWCA 100; (2015) 89 NSWLR 237 [102] – [104]. The Court has found that the consideration for the oral agreement was paid by Nominees, that probably occurred on 24 November 1975, and the oral agreement for the acquisition of the Mundooie lands was specifically performable at the suit of Nominees thereafter, which had an equitable interest in it. Other alternative ways of looking at the scheme in the suite of transactions on 24 November 1975 are possible but this is sufficient.
129. The payment of stamp duty of one dollar in 1981 on the Memorandum of Transfer is consistent with the conclusion that Bruce Campbell had already divested himself on 24 November 1975 of the beneficial interest in the Mundooie lands. There was nothing of value being transferred with the legal title upon which stamp duty needed to be paid.
130. Moreover, this conclusion is consistent with all the conduct of Julian Campbell. As the narrative above explains Julian Campbell had been closely involved as Bruce Campbell’s attorney in the 24 November 1975 transactions. The objective evidence both in the 24 November 1975 transactions and in the period for decades thereafter supports the inference that she thought that these transactions had successfully achieved their intended purpose. She was a co-signatory of the Affidavit D for Bruce Campbell’s estate with Mr Tonking and Mr Rutledge. And in addition, years later, her July 2016 will made no express reference to the Mundooie lands. It can be inferred that like Mr Tonking, Julian Campbell believed the Mundooie land was an asset of the Discretionary Trust and not held beneficially by her and able to be disposed of under her will. Indeed, any other inference is wholly inconsistent with the facts found.
131. What then was the role of the Bare Trust Deed? None of the lawyers who designed this scheme have given evidence in these proceedings. So, the purpose of the Bare Trust Deed is a matter of inference from all the circumstances. The Court infers it played a temporary and subsidiary role for two purposes.
132. First, it split the legal and equitable interest in the Mundooie lands in anticipation of Bruce Campbell in the same transaction selling that equitable interest by creating a constructive trust over in through the oral sale agreement and the receipt of the purchase money. It would also make the effecting of the transfer of the legal title to Nominees through the Memorandum of Transfer later simpler to effect on behalf of Nominees and on behalf of Bruce Campbell explain and less likely to attract stamp duty.
133. Second it would overcome the weaknesses that might arise in having to deal with external authorities, for example such as the Registrar General, when giving effect to the agreed transaction. It was necessary for someone with appropriate authority to be able to explain the position of the vendor to those external authorities if required. And if called upon to give such an explanation, a representative of Bruce Campbell would simply have said that the stamp duty payment on the Memorandum of Transfer of one dollar represented that he was transferring bare legal title to Nominees.
134. Although under the Bare Trust Deed Bruce Campbell held equitable title from Nominees, by the other transactions he had already divested himself of that same equitable title through the creation of a constructive trust as vendor because of the fully paid consideration. Seen in this sense the Bare Trust Deed is wholly consistent with the other parts of the transactions. Put simply it was necessary to have the one individual who was best entitled to claim the equitable interest to the Mundooie lands, as declared and proved by the Bare Trust Deed, to be able to say to external authorities that he had given up that equitable interest because he acknowledged it was held on constructive trust for Nominees. The real work of the Bare Trust Deed was to offer that facility when the Memorandum of Transfer was being registered. Its existence is not an answer to Bruce Campbell’s conscience being bound in equity on 24 November 1975 by receiving the full consideration of $252,250 for the oral purchase agreement.
135. And no question competing priorities arises between Bruce’s beneficial interest under the Bare Trust Deed and that of nominees under the trust deed. They are part of one composite and consistent transaction.
136. This analysis substantially answers the executors’ case. But it remains to deal with several arguments advanced on behalf of the executors.
137. The executors submit that it is doubtful that the declaration of trust in the Bare Trust Deed was effective in divesting Bruce Campbell of the legal title to the Mundooie lands and that only lodgement of the Memorandum of Transfer for registration in 1981 was sufficient to transfer legal title to the properties. The executors submit that if by signing and delivering the Memorandum of Transfer Bruce did divest himself of the legal title that the properties must still be held on bare trust to him under the provisions of the Bare Trust Deed.
138. The problem with this argument is that it is incomplete. The way that the oral agreement for the sale of the Mundooie lands worked was that once the consideration was paid whatever equitable interest that Bruce Campbell had formerly held in respect of the Mundooie lands that interest was then held on constructive trust for Nominees. The executors’ argument can be accepted that legal title did not pass until registration of the memorandum of transfer rather than upon execution of the Bare Trust Deed. But neither view denies the fundamental constructive trust arising from the payment of the purchase price. Whatever beneficial interest Bruce Campbell may have briefly held under the Bare Trust Deed, he held it on constructive trust for Nominees as soon as the purchase price for Mundooie lands was paid.
139. The executors also argue that John’s and JCN claims are either statute barred or that relief should not be granted to them by reason of the application of doctrines of laches and acquiescence. Neither of these arguments is persuasive.
140. John’s and JCN’s claims are not caught by the Limitation Act 1969 in the manner suggested by the executors. The executors submit that Limitation Act 1969, ss 27 and 36 act as a bar. Limitation Act, s 27(2) provides that an action on a cause of action to recover land is not maintainable by a person other than the Crown after the expiration of 12 years. Limitation Act, s 36 applies the same limitation period to an action on a cause of action to enforce an equitable estate or interest in land in like manner as it applies to an action on a cause of action to recover land by virtue of the legal estate or interest in land. But neither John’s nor JCN’s Cross Claims are an action to recover land. Nominees has long been in possession of the Mundooie lands as is demonstrated by its repeated mortgaging of the land over decades. John and JCN are not seeking recovery of the land, merely declaratory relief.
141. Defences of laches and acquiescence are not available to the executors. As a preliminary matter it should be said that declaratory relief is not equitable relief and the traditional equitable barriers to relief do not apply to declaratory relief, although the circumstances that may engage traditional equitable barriers to relief may be relevant to the wider discretion whether to grant or refuse declaratory orders under the Court’s statutory powers to make declarations: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) at [19-315]. The question here is whether the Court should exercise its discretion to grant declaratory relief or not.
142. Laches may be perhaps relevant to the exercise of that discretion. But John and JCN start with an advantage here. The traditional view is that the Court would be loath to act upon the discretionary defence of laches at the request of a co-trustee and a beneficiary (here a member of a class of Eligible Beneficiaries) except where gross laches was established, although that is a much-criticised concept: Orr v Ford [1989] HCA 4; (1988) 167 CLR 316 at 330 and see the discussion in PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [17.110].
143. Neither John nor JCN can justifiably be accused of laches or delay. The findings in the factual narrative show that from 1975 to 2020, when the bare trust argument was first raised, Julian Campbell, Richard Campbell (and it should be inferred other family members who had even less knowledge of the facts than Julian Campbell) all operated on the assumption that the legal and beneficial interest in the Mundooie lands had been transferred to Nominees. This is not a case where it could be said that John or JCN were aware of a claim that either of them did not pursue through lack of diligence. John’s conduct was quite reasonable in accepting the legal and equitable position of the Mundooie lands to be as Julian Campbell and Richard had treated it for decades. The laches claim fails.
144. The executors submit that there is uncertainty about the oral contract relied upon for the sale of the Mundooie lands. It is true that the 24 November 1975 resolution of Nominees to acquire the Mundooie lands merely says that the company would “acquire certain real estate and life insurances as detailed to the meeting from Mr B. Campbell” but the “certain real estate” can readily be identified as the Mundooie lands from the other documents executed simultaneously that referred to the Mundooie lands. Leaving aside the Bare Trust Deed these documents include, for example, the resolution of Nominees to borrow the money from the Bank of New South Wales by way of first mortgage on security of the Mundooie lands.
145. The executors also submit that the oral agreement for the sale of land identified in the minutes was unenforceable by reason of the Conveyancing Act 1919, ss 23C and 54A. The executors submit that there is no note or memorandum complying with this legislation to permit enforcement of the oral agreement for the sale of land. The executors accept that Julian Campbell did sign documentation on 24 November 1975 in her capacity as a director of Nominees but so that she did not do so as Bruce Campbell's attorney, so as to create a sufficient note or memorandum of the sale.
146. There are several difficulties with this submission. Firstly, Conveyancing Act, s 23C does not apply to constructive or resulting trusts: s 23C(2). The equitable interest relied upon here arises by way of constructive trust.
147. It can be accepted that the minute noting the oral agreement is not signed by Julian Campbell, as attorney for Bruce Campbell but as chairman of Nominees. The planners of this scheme were careful to avoid creating a document signed by Bruce Campbell transferring the equitable interest that could attract stamp duty. But the requirement of Conveyancing Act, s 54A of a note or memorandum in writing can be satisfied by several documents that construed together allow the inference of the agreement to be drawn. Other contemporaneous documents in performance of the agreement are signed by Julian Campbell, as Bruce Campbell's attorney that construed together demonstrate Bruce Campbell’s written participation in this agreement for the sale of the Mundooie land. A prominent example is Bruce Campbell’s assignment of the life insurance policy. The same life insurance policy is a composite part of the assets assigned all conveyed with the Mundooie land for the named total consideration in the oral agreement of $252,250. Another is the Option, all raising the funds for the payment of the consideration of $252,250 and yet another is the Memorandum of Transfer.
148. So far, the Court’s analysis has accepted the application of Conveyancing Act, s 54A. But that is doubtful here. Nominees is not seeking to specifically enforce the 24 November 1975 oral agreement for the sale of the Mundooie lands. It merely seeks a declaration that an equitable interest in those lands passed from Bruce Campbell to Nominees on 24 November 1975 and it is arguable such an interest arose whether or not the oral contract for the sale of the Mundooie lands would have been specifically performable.
149. But is not necessary to decide this question. Even if Conveyancing Act, s 54A applies, there are sufficient acts of part performance here to enforce the oral agreement notwithstanding the lack of writing. Acts of part performance are acts of the plaintiff, who seeks to enforce a contract for the sale of land, such that to plead the statute would amount to equitable fraud on the part of the defendant. The acts of part performance relied upon “must be unequivocally, and in their own nature, referrable to some such agreement as alleged”: Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522 at [43], [103]-[104] and [157]. The acts relied upon are not directed at proving unequivocal reference to the particular contract alleged: Phung v Phung [2019] NSWSC 117 at [59] – [63].
150. A key consideration is that the acts must be done on the faith and involve a change of position to bind the conscience of the defendant. Smith J’s classic description of the change of position necessary to constitute an act of part performance was stated in Francis v Francis [1951] VicLawRp 48; [1952] VLR 321, at 340:

“the act relied upon must have been done upon the faith of the agreement and must have involved on the part of the person doing it a change of position in relation to the subject matter of the contract of such a character that he would be fairly prejudiced if the other party were to take advantage of the absence of written evidence."

151. Here, there are several acts on the part of Nominees that qualify as acts of part performance of the oral contract for the sale of the Mundooie lands. Three years after it became registered proprietor of the Mundooie lands Nominees executed mortgage documents in favour of Westpac in its capacity as the Trustee of the Discretionary Trust. Such an act was an act of possession of the property the subject of the oral contract which is sufficient to constitute part performance and it was an act by which nominees changed its position to its disadvantage upon the assumption that it was able to deal with its beneficial interest in the Mundooie lands. And there were many similar transactions with financial institutions in the years thereafter.
152. Although the payment of the purchase price of $252,250 in the oral agreement for the sale of the Mundooie lands is not on its own to be classified as an act of part performance the simultaneous capital raising of Holdings and the execution of the Option and the arrangement of the facilities with the Bank of New South Wales to fund the exact amount of the purchase price, taken together, are acts of part performance.
153. Finally, Nominees’ made improvements to the Mundooie land after 24 November 1975 which are valued in its accounts in the sum of $113,830.16 representing improvements are also acts in part performance.
154. The executors also argued that notice of the assignment of Bruce Campbell’s equitable interest in the Mundooie lands was required, apparently under Conveyancing Act, s 12. But Nominees was the logical recipient of any such notice, and it already had notice. And this was not a voluntary assignment but part of the performance of an oral agreement for the sale of land.
155. The success of John’s and JCN’s contentions arguments means it is not necessary to determine two other arguments that John has advanced. John argues that the executors are estopped from denying that the Mundooie lands are held by Nominees as trustee of the Discretionary Trust and that the executors lack standing to bring their claim. The Court is prepared to grant the declaratory relief that John and JCN seek. This would result in the dismissal of this aspect the executors’ claims. So, estoppels against the bringing of those claims do not arise, nor do questions about the standing of the executors to bring their claims.
156. These reasons have not entered upon the question whether the use of the Mundooie land by Richard or other family members at an earlier time should result in compensation being payable to the Discretionary Trust, so that the Discretionary Trust would have been able to make financial provision for other Eligible Beneficiaries. Such issues will be considered, if necessary, in later parts of these proceedings, if they are not resolved by agreement.

The Future Role of Mr Tonking

157. Mr Tonking appointed JCN as a co-trustee of Nominees in December 2020 solely because of the positions taken by the executors and Richard in these proceedings. When the executors’ bare trust argument was being propounded in the second half of 2020 Richard, who at least had veto power in the affairs of Nominees, refused to permit Nominees in its role as Trustee to oppose the executors’ bare trust argument, whilst he supported that argument.
158. Faced with that situation and after correspondence with Richard’s solicitors, Mr Tonking decided to appoint an additional trustee. He did so after taking the advice of senior counsel. Mr Tonking was of the view that as Trustee of the Discretionary Trust, Nominees was the appropriate party to be advancing arguments in these proceedings on behalf of the Eligible Beneficiaries, who were entitled to have their voices heard unconstrained by doubts about their standing to contest the bare trust argument.
159. Mr Tonking’s position on this was reasonable, proper and in the best interests of all Eligible Beneficiaries of the Discretionary Trust. The contrary position would potentially have impaired the advancing of the Eligible Beneficiaries in advocating for the proper administration of the Discretionary Trust. So Mr Tonking took the view that the proper course for him as the sole surviving successor of Bruce Campbell as appointor under Trust Deed, clause 17(a) was to appoint an additional corporate trustee whose principal function would be to propound the effectiveness of the 24 November 1975 transactions.
160. As it turns out that argument has succeeded. The propriety, reasonableness and promotion of the interests of the discretionary trust by Mr Tonking’s conduct in taking this course is not solely to be measured by the success of the argument. But it is undoubtedly confirmed by that success. Moreover, the Court has been much assisted by having an argument attempting to explain the rationale of the complex 24 November 1975 transactions, rather than to attempt to unravel the at times dense concepts itself.
161. Faced with this situation Mr Tonking decided not to remove Nominees as Trustee in December 2020. But he indicated he would review the situation as regards the identity of the Trustee once the current disputes had been resolved. Mr Tonking took the view that he should not control any additional corporate trustee appointed to constitute the Trustee. But to him the logical choice was to place the new corporate co-trustee under the control of John, so there was a balancing of competing interests and views as to what assets were the subject of the Discretionary Trust. Mr Tonking envisaged that the solicitor for John, who was already acting for him in John’s family provision proceedings, could act for the new trustee. In the result he appointed JCN by deed as an additional trustee earlier indicated in these reasons.
162. Mr Tonking’s conduct in appointing JCN as an additional trustee indicates his willingness to act independently in the interest of all Eligible Beneficiaries and the Discretionary Trust as a whole. None of what is done indicates any partial interest (for or against) towards John, or Richard or the executors. Nor does it indicate that there is any prospect that he might act other than impartially as an appointor under the Trust Deed, clause 17. As will be seen, the executors’ motion filed in August 2021 under Trustee Act 1925, s 86A seeks the removal of clause 17 from the Trust Deed. This relief will not be granted. There is no demonstrable prospect of clause 17 being misused. On the contrary, until the assets of the Discretionary Trust are distributed pursuant to the relief the court is granting under s 86A, continuing Mr Tonking’s independent role is in the best interests of the Discretionary Trust.
163. That role should not be for an extended period. And although the Court has not yet determined the question, Mr Tonking has laid out a persuasive case to be indemnified in respect of his performance of that role upon the analogy of a trustee.
164. There is a case for reducing the costs of these proceedings by creating circumstances in which Mr Tonking may be able to file a submitting appearance and have his costs to date dealt with on a final basis.
165. Mr Tonking appointed an additional corporate trustee of the Discretionary Trust in December 2020. But he fully explained the reasons for that at the time and they are unlikely to recur without good reason which would be like you to come to the Court’s attention. Other than this event, there is no evidence of Mr Tonking indicating he was likely to exercise any powers under the Trust Deed clause 17(a) to remove the Trustee or to appoint a new Trustee. Thus, there appears to the Court to be little reason for his continuation in the proceedings. He should be let out of the proceedings after orders are made in relation to his costs.
166. Mr Tonking’s sole involvement in these proceedings is in a representative role as executor of the estate of Bruce Campbell. He claims that his costs should be paid on an indemnity basis by some of the parties to these proceedings. So far as the Court can see his involvement in the proceedings has been solely occasioned by the executors and Richard’s contentions that the Mundooie lands were held on bare trust for Bruce Campbell and in turn for Julian Campbell. That argument has failed in these proceedings and if costs would follow the event, it seems logical that the executors or Richard or both should pay his costs. The Court is not deciding this but foreshadowing the argument that it is anticipated that the executors and Richard will need to meet the costs argument that takes place. When the matter is next before the Court, it will ask all the parties for their positions (and if necessary submissions) as to whether MR TONKING should from now on be allowed to file a submitting appearance and have his costs paid and if so, whether those costs were paid on the ordinary basis or the indemnity basis.
167. Mr Tonking argues that he has only appeared in a representative capacity and should have his costs paid on the indemnity basis on the analogy of a trustee. His argument now requires a response by the executors and by Richard was set out in his closing written submissions on 29 March 2021.

The Trustee Act, s 86A Application

168. The Consensus. During final submissions and because of discussions between the parties it was seen as being in their best interests to apply for orders under the Trustee Act 1925, s 86A to bring forward the Perpetuity Date set in the Trust Deed of 24 November 2035, to an earlier date. The date of 31 December 2021 was initially proposed but it was accepted that another date could be agreed or may be ordered by the Court. The consensus developed between the parties that if the application were to be successful then the Discretionary Trust could be ended, its assets could be realised, and the proceeds of that realisation could be distributed to the default capital beneficiaries under the Trust Deed, clause 5 (Bruce Campbell's children).
169. Trustee Act, s 86A provides as follows:

“(1) If property is held in trust under any instrument creating the trust, the Court may, if it thinks fit, by order approve any arrangement to—

(a) vary or revoke all or any of the trust, or

(b) enlarge the powers of the trustees for the purpose of managing or administering any of the property subject to the purpose of the trust.

(2) An order under this section may be made by the Court only on behalf of—

(a) any person under the trust having an interest directly or indirectly, or vested or contingent, who by reason of being a minor or other incapacity is incapable of assenting, or

(b) any person who may become entitled, directly or indirectly, to an interest under the trust, and the entitlement is contingent on a future date or event that has not occurred at the time of application for an order under this section, or

(c) any unborn person, or

(d) any person in respect of any discretionary interest of the person under protective trusts where the interest of the principal beneficiary has not failed or determined.

(3) This section—

(a) extends to a trust created before the commencement of this section, and

(b) does not apply to trusts affecting property created by another Act, and

(c) does not limit the operation of section 81.

(4) In this section—

discretionary interest, in relation to protective trusts, means an interest arising under section 45(6).

principal beneficiary has the same meaning as in section 45.

protective trusts has the same meaning as in section 45.”

170. The section 86A Motion and the Evidence. On 29 March 2021 during oral submissions counsel for the executors made an oral application under Trustee Act, s 86A, that the Perpetuity Date defined in Trust Deed, clause 1(f) be varied as indicated. That application was later formalised by a motion filed on 9 August 2021 before the matter came back to Court on 10 August 2021. The motion (“the section 86A motion”) sought the following relief:

“The First and Second Plaintiffs move the Court for orders that:

1 Pursuant to s 86A of the Trustee Act 1925, the perpetuity date defined in clause 1(f) of the discretionary trust deed of the Campbell Property Settlement dated 24 November 1975 (“the Trust Deed”) be varied to 30 June 2022.

2 Bruce Campbell Nominees Pty Ltd and John Campbell Nominees Pty Ltd be restrained from exercising the powers in clauses 3, 4 and 6 of the Trust Deed, until further order of the Court.

3 Pursuant to s 86A of the Trustee Act 1925, the Trust Deed be amended to remove the power of appointment contained in clause 17(a).

4 Further and other orders.

5 The first and second Plaintiffs’ costs of the Motion be paid by any interested person opposing this application, or alternatively out of the Campbell Property Settlement.”

171. All four children of Bruce Campbell, namely Beth, Carolyn, John and Richard, the parties to the present litigation, consented to the grant of prayer for relief 1 of this section 86A motion, although there was disagreement about the appropriate amended vesting date. That issue is dealt with later in these reasons.
172. Ms Anthea Kennedy, the solicitor for the plaintiffs swore an affidavit of 4 August 2021 in support of the motion. Her affidavit indicated that in June 2021 that, on behalf of the plaintiffs, she had corresponded with all the eligible beneficiaries under the Discretionary Trust to give notice to them of the Trustee Act, s 86A application and had invited them to consent to it, or otherwise to indicate their positions. The Court is satisfied from her affidavit evidence that she has corresponded with the known class of Eligible Beneficiaries as defined under the Trust Deed and in the case of the Eligible Beneficiaries who are minors, with their parents or guardians.
173. Ms Kennedy’s affidavit and her correspondence presented the background facts to the Eligible Beneficiaries in the issue for their consideration. These facts in the structure of the Trust Deed have already been outlined earlier in these reasons. Her information to the Eligible Beneficiaries focused upon the following matters which also concisely raise the relevant facts and provisions of the Trust Deed for the Court’s consideration on the s 86A motion.
174. Ms Kennedy explained that the property Mundooie is partly owned by the Discretionary Trust, partly by Julian Campbell, partly by Richard Campbell and partly by another company, Mundooie Pty Limited. And at the time of Julian Campbell’s death, she and Richard Campbell operated a farming partnership on Mundooie. Ms Kennedy outlined that Nominees was the trustee of the Discretionary Trust from the time of its inception but by deed on 14 December 2020 John Campbell Nominees was appointed as an additional trustee.
175. The Trust Deed, clause 2(b) defines the “Eligible Beneficiaries” as Julian Campbell the spouse of Bruce Campbell (and as seen earlier in these reasons he is defined as “the Parent” under the Trust Deed) and the children, grandchildren, great grandchildren of the Parent, any future spouse of the Parent, any spouse of any child of the Parent and any other persons or entities appointed by the Parent or his legal personal representative. No other persons or entities have been appointed to the class of Eligible Beneficiaries by Bruce Campbell or his legal personal representative.
176. The Trust Deed, clause 3 provides that the Trustee has the power to appoint one or more of the Eligible Beneficiaries as the exclusive beneficiary, or beneficiaries, for whose benefit the capital and income of the Discretionary Trust is held. No such appointment has been made.
177. The Trust Deed, clause 4 provides that the Trustee has the power in its discretion to pay or apply the whole or any part of the income of the Discretionary Trust to or for the advancement, maintenance, education or benefit of any one or more of the beneficiaries. The Discretionary Trust has not derived income and no distributions of income from the Discretionary Trust have been made to Eligible Beneficiaries under clause 4.
178. The Trust Deed, clause 6 provides that the Trustee has the power in its discretion to pay or apply the whole or any part of the capital of the Discretionary Trust to or for the advancement, maintenance, education or benefit of any one or more of the Eligible Beneficiaries. No distributions of capital have been made from the Discretionary Trust.
179. The Trust Deed, clause 5, subject to any appointment under clause 3, and subject to any payment or application of income or capital under clauses 4 or 6, provides that as and from the Perpetuity Date, the whole of the capital and income of the Discretionary Trust is to be held upon trust for the children of the Parent who attain or have attained the age of 21 years in equal shares. Additional cascading provisions for the disposition of the share of any child of the Parent who dies before the Perpetuity Date to their children, are not presently relevant as all the children of the Parent are alive and have attained the age of 21 years. Upon the earlier vesting of the Discretionary Trust these default capital beneficiaries are the children of Bruce Campbell, namely Carolyn, Beth, Richard, and John.
180. The Trust Deed, clause 1(f) defines the “Perpetuity Date” as “the date being 60 years from the date of execution of this Deed [namely 24 November 2035] or the date of death of the last survivor of all the lineal descendants male and female of His late Majesty King George VI of England living at the date of the trust deed (whichever shall at first occur) or such earlier date as the Trustee shall in his absolute discretion appoint the Perpetuity Date for the purposes of this Deed”. Although the s 86A motion seeks an order of this Court to bring forward the Perpetuity Date, the Trust Deed, clause 1(f) gives the Trustee that power in any event. But the parties take the view in a case such as this, that a grant of relief upon the present s 86A motion may provide a more satisfactory mechanism to achieve the advancement of the Perpetuity Date.
181. The combined effect of clauses 2(b), 3, 4, 5 and 6 of the Trust Deed, in the events which have occurred in respect of this Discretionary Trust, are that if the Perpetuity Date is brought forward the whole of the capital and income of the Discretionary Trust will be held upon trust for the children of the Parent who are living on that date, in equal shares. And if any of the children of the Parent were to die before the amended Perpetuity Date, then the share of that child of the Parent will pass to his/her children who are living then and who attain or have attained the age of 21 years in equal shares.
182. Bruce Campbell did not create any separate document recording his wishes as the Parent in relation to the prospective decisions of the Trustee, the administration of the Discretionary Trust, or the ultimate distribution of its assets. But the terms of the Trust Deed, and particularly clause 5, indicate that upon the Discretionary Trust vesting that the benefit of its assets was intended to pass to the children of the Parent, Bruce Campbell, in the first instance and in equal shares to the children of such a child, in circumstances which have not yet arisen.
183. The result of this correspondence was encouraging for the prospects of the application. The wider classes of eligible beneficiaries would be affected by the giving of relief on the s 86A motion. These are the grandchildren and great grandchildren of the Parent, Bruce Campbell, and the spouses of the four children of the Parent. But no Eligible Beneficiary indicated opposition to the course proposed and several beneficiaries responded indicating their active assent to it.
184. The parties provide the court with a summary of the various classes of Eligible Beneficiaries. Several groups of family members are entitled to consideration as potential objects of the exercise of the discretion in Trust Deed, clauses 3 and 6. The first group are related to John. These include his wife, Kerry Henville. John’s children and grandchildren are identified here with their ages at the time of the trial: Charles Campbell, 25, and Briony Campbell, 29, and Briony Campbell’s child, Matilda Ley aged 8 months.
185. The next group are related to Beth Campbell. Her husband is Timothy Hudson. Her children are Ned Hudson, 18 and Erica Hudson, 14.
186. The next group are related to Richard. These include his wife, Alison Campbell. Richard’s children are identified here with their ages at the time of the trial: Georgia Campbell, 27, Paige Campbell, 24, Holly Campbell, 24, and Alexis Campbell, 21.
187. Finally, the last group is related to Carolyn. It comprises her husband, Bruce White.
188. But the position of the minor beneficiaries, Erica Hudson and Matilda Ley, needed separate consideration.
189. The Minor Eligible Beneficiaries. If the Perpetuity Date is brought forward as is being proposed, in the absence of the appointment of any Eligible Beneficiary other than the children of the Parent as a beneficiary under clause 3, no Eligible Beneficiary who is a minor will receive any part of that capital and income of the Discretionary Trust on the Perpetuity Date.
190. To deal with the position of the minor Eligible Beneficiaries, the plaintiffs sought from an experienced trusts and estate solicitor, Mr Jeremy Glass, a report on how their interests would be affected by the relief sought on the s 86A motion. Mr Glass was admitted to practice in March 1977, was accredited as a specialist in wills and estates law by the Law Society of New South Wales in September 1995 and is a well-known and well-respected practitioner in that field, carrying on practice as part of the firm Glass Goodwin Solicitors.
191. Mr Glass reported on 30 July 2021. He noted he did not have information about the financial and other circumstances of the minor beneficiaries, and he indicated that he had not sought that information. But the Court may infer that both minor beneficiaries are living with their parents. Mr Glass indicated that in the absence of information about the financial and other circumstances of the minor beneficiaries it was not possible for him to say whether any distribution of capital or income from the Discretionary Trust to them on the Perpetuity Date is warranted. But Mr Glass points out in his report that the application is not about the distribution of the capital and income of the Discretionary Trust but about whether the Perpetuity Date should be brought forward.
192. Mr Glass then lists eleven factors which in his view are relevant to the question of the bringing forward of the Perpetuity Date for the Discretionary Trust as follows:

“26. The following factors appear to me to support the view that the bringing forward of the Perpetuity Date for the Discretionary Trust is in the best interests of the minor beneficiaries:

(a) upon the sale of the Property, which the Trustee cannot prevent, the need to preserve the Discretionary Trust so as to hold an interest in the Property will come to an end and it will hold only a cash fund, being its share of the proceeds of sale;

(b) it is apparent that there is a degree of contention among the Children in relation to the estate of the deceased and the Discretionary Trust;

(c) if the Perpetuity Date is not brought forward then the ongoing administration of the Discretionary Trust and the ultimate distribution of its capital and income are likely to continue to be subject to that contention until 24 November 2035;

(d) until the Discretionary Trust vests, the share of its capital and income to be received by the Children, or any of the eligible beneficiaries (including the minor beneficiaries), will be uncertain;

(e) that uncertainty will have an impact upon the determination of the family provision claims and may result in the diminution of gifts made to the Children and Kerry Henville (the wife of John Campbell) under the will of the deceased, which indirectly may adversely affect the future inheritance of the minor beneficiaries descended from them;

(f) the earlier vesting of the Discretionary Trust may assist the resolution or determination of other issues in the Proceedings, in particular the family provision claims, because it will result in certainty as to the respective entitlements of the Children in its capital and income, and may lessen the impact upon the gifts made under the will of the deceased;

(g) the interests of the minor beneficiaries are not impacted by the bringing forward of the Perpetuity Date itself but by the Trustee's determination whether to distribute the capital and income of the Discretionary Trust otherwise than equally among the Children;

(h) whether the Trustee determines to distribute any of the capital or income to the minor beneficiaries will be a matter for it to decide prior to the Perpetuity Date (brought forward);

(i) even accepting that the distribution is to be equally to the Children only, the minor beneficiaries, being the children or grandchildren of the Children stand to benefit, at least indirectly, from the assets derived from the Discretionary Trust by their parent or grandparent who is one of the Children;

j) further, distribution of the capital and income equally among the Children, to the exclusion of the minor, and other eligible, beneficiaries, preserves equality among the branches of the family descended from the Parent and the deceased, consistently with the expectation evident from the Trust Deed;

(k) the Children, having control of the Trustee and each being the head of their respective branches of the descendants of the Parent and the deceased, should be permitted to bring the Discretionary Trust to an end, which the Trustee has power to do in any event under clauses 1 (f) and 5 of the Trust Deed, and to determine how to distribute its capital and income in the best interests of all of the eligible beneficiaries.”

193. The parties made submissions on the s 86A motion as follows.
194. The Executors Submissions. The executors point to the last consideration in the report of Mr Glass that each of the four children being the head of their respective branches of the descendants of the Parent and the Julian Campbell, should be permitted to bring the Discretionary Trust to an end, which the Trustee has power to do in any event
195. The executors submit that a grant of relief to them on the s 86A motion would cause the Trust Fund to vest in Bruce and Julian Campbell’s four children, which reflects intention of Trust Deed, clause 5(a), that the children receive the capital of the Discretionary Trust on the vesting date. All that the motion does is to accelerate the receipt of that capital to assist in bringing the present litigious disputes between these family members to an end. That in turn it is submitted will assist the advancement in life of the four children and indirectly other Eligible Beneficiaries.
196. The executors submit that they have approached this application cautiously and appropriately. They propound it on the following basis. All parties potentially adversely affected by the application have been given a thorough description of the proposal and invited to take it an independent position concerning it if they wish. As a result, all parties who can give consent to the application, have consented to it, recognising that the bringing forward of the vesting date will result in each of Bruce and Julian Campbell’s four children receiving a quarter of the Trust Fund to the exclusion of other Eligible Beneficiaries in the class of discretionary beneficiaries.
197. The executors have prepared for several potential risks, even if the s 86A orders are made. They seek supplementary orders to eliminate these risks, remote though they may be. They regard it as conceivable, although not presently threatened, that one of the corporate bodies constituting the Trustee, Nominees or John Campbell Nominees, may be deregistered or otherwise become incapable of acting before any amended vesting date so that the present balance within the Trustee of the discretionary trust might be broken. It is suggested this may allow the other corporate trustee to act unilaterally before any amended vesting date to produce a result different from that intended by the executors in pursuing the s 86A motion.
198. They also recognise at least the theoretical (though unlikely) possibility that the power of appointment under the Trust Deed could be used to change the composition of the corporate trustees, with the effect of defeating the objective of the present application.
199. To mitigate these risks, the executors’ s 86A motion seeks orders (a) amending the Trust Deed to remove the power to appoint the Trustee of the Discretionary Trust and (b) to restrain the present corporate trustees from exercising the power to vest capital or income of the Trust on any beneficiary prior to the vesting date.
200. Relevant parts of the executors’ legal analysis are referred to in the Court’s consideration below.
201. Submissions of the Other Parties. All other parties lodged written submissions in support of the principal prayer for relief in the s 86A motion. Richard’s and John’s submissions entered upon the issue of the subsequent impact of relief on the s 86A motion on the respective family provision cases. This is not necessary to consider such issues in these reasons as the determination of their family provision cases have been deferred.
202. Richard submits that if relief on the s 86A motion is granted that the vesting date should be brought forward to 30 June 2022, in part to facilitate the sale of the whole of Mundooie, not merely the lots held by the Discretionary Trust. He also puts submissions that the sale of the land held by the discretionary trust should be undertaken by the Trustees in consultation with the beneficiaries. He also submits that some mechanism needs to be adopted to prevent the Court being forced to deal with minor disputes about sale of Mundooie.
203. John’s submissions support the early vesting application in the s 86A motion.

Consideration

204. The Court will make the orders sought under Trustee Act, s 86A. The provision clearly confers power on the Court to do so. The four children qualify to bring an application under s 86A(2)(b).
205. The Court’s s 86A power is unconfined by the section. The Court “may” exercise its discretion “vary or revoke all or any of the trust”. This provision clearly extends to varying the Perpetuity Date defined under the Trust Deed.
206. The provision is plainly remedial and should be construed beneficially. As the second reading speech in the Parliament pointed out the provision is aimed at aligning New South Wales legislation with that of other States and remedying an existing limitation in the operation Trustee Act, s 81 which were identified in recent New South Wales authorities, Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 and Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747; [2018] NSWCA 286 (“Cisera”). The legislation takes up Bathurst CJ’s suggestion in Cisera for legislative reform to cure this deficiency.
207. And the cognate Victorian legislation has been used to vary the vesting date of a trust: In Re Plator Nominees [2012] VSC 284.
208. Some of the considerations which persuade the Court to make the orders sought on the s 86A motion are the following.
209. First, making of the orders will enable the parties to these proceedings to move past their present costly and paralysing legal disputes. Whatever be the financial benefits from accelerating the vesting date, they all equally benefit from this reduction in conflict. The regrettable alternative is further litigation about the administration of the Discretionary Trust. And further litigation is almost inevitable, as the Trustee is controlled by the two corporate entities, Nominees and John Campbell Nominees, makes likely a deadlock in the future conduct of the Discretionary Trust.
210. Second, making s 86A orders is consistent with the clearly identifiable objectives behind the creation of the Discretionary Trust, which may readily be inferred from clause 5: that Bruce Campbell and Julian Campbell primarily wanted their children to share in the capital of the trust equally at a vesting date, which was left within the power of the trustee to alter and bring forward so they could enjoy it before the Perpetuity Date set under the Trust Deed. All the present application does is to pray in aid the Court’s powers to prevent such provisions of the Trust Deed from misfiring.
211. Third, as Mr Glass has pointed out, the main issue here is not so much how other potential class members might be disadvantaged by making the orderssought but whether an order to bring forward the Perpetuity Date is properly justified in the exercise of the Court’s discretion. The interests of the minor beneficiaries are not impacted by the bringing forward of the Perpetuity Date itself but by the Trustee's determinations whether to distribute the capital and income of the Discretionary Trust and when.
212. Fourth, the answer to any contention that some Eligible Beneficiaries may be disadvantaged by this exercise of discretion is the long-standing structure of the Trust Deed. It has always been evident that all eligible beneficiaries other than the four Children, as defined under the Trust Deed, only ever had a right of the proper administration of the Trust and did not have a right to income or capital. In contrast the four children of the Parent always had an equal right to a share in the capital of the Trust upon vesting of the Trust.
213. Fifth, the Children with the benefit of the expert legal advice gained through these proceedings, and the other eligible beneficiaries well-informed about the nature of the s 86A motion have all consented to the orders sought. This also gives further assurance that the interests of the minor beneficiaries are well protected by bringing forward the Perpetuity Date.
214. Sixth, Mundooie will be sold whatever happens in this litigation. The assets of the trust will be converted to cash. The Discretionary Trust was not established for the purpose of holding or investing cash, so advancing the Perpetuity Date is a prudent response to this change in circumstances, particularly having regard to Richard’s and John’s extant family provision claims which both assert a present need for capital.
215. Seventh, the fact the Trust Deed already contains the power to vary the Perpetuity Date is not a reason for the Court not to exercise its power under s 86A, as the Trustee is deadlocked, and the amended perpetuity date is still a matter of contest and may lead to further paralysis in the exercise of that power by the Trustee.
216. The Court will also make the orders sought to restrain the present corporate trustees constituting the Trustee from exercising the power to vest capital or income of the Discretionary Trust on any Eligible Beneficiary prior to the vesting date.

Conclusions and Orders

217. For these reasons the Court will make the following orders and directions:

(1) In these orders and directions, the following expressions shall have the following meanings

(a) “the Trust Deed” means the deed made between David Baffsky and Kieta No. 83 Pty Ltd (which company was later named Bruce Campbell Nominees Pty Ltd) made on 24 November 1975 and being the discretionary trust deed of the Campbell Property Settlement;

(b) “the Discretionary Trust” means the discretionary trust constituted by the Trust Deed;

(c) “the Trustee” means the trustee of the Discretionary Trust, which office is presently jointly held by Nominees and JCN;

(d) “the Children” means the four children of the late Bruce Campbell and the late Julian Campbell, namely John Bruce Campbell, Carolyn Luise Campbell, Beth Frances Julian Campbell, and Richard Birrell Campbell, who are defined as “the children of the Parent” in the Trust Deed;

(e) “Nominees” means Bruce Campbell Nominees Pty Ltd, formerly called Kieta No. 83 Pty Ltd, the second defendant;

(f) “JCN” means John Campbell Nominees Pty Ltd, the present co-trustee of the Trust with Nominees; and

(g) “the contested part of Mundooie” means the land contained in Folio Identifier 1/651447, Auto Consul 7296–37 and Auto Consul 7296–38 being part of the property known as “Mundooie”, Warren in the State of New South Wales; and

(h) “the fourth defendant” means Alwyn Ian Tonking, the executor of the estate of the late Bruce Campbell and the fourth defendant in proceedings 2019/374756;

(2) Note that at the request of the parties but without making orders for separate determination of a question under Uniform Civil Procedure Rules 2005 r 28.2, the Court has decided first to determine the questions (a) whether or not the contested part of Mundooie is held on the trusts constituted in the Trust Deed comprising the Discretionary Trust the Discretionary Trust constituted by the Trust Deed and forms part of the Trust Property defined in the Trust Deed asked for the estate and (b) whether the Perpetuity Date as defined in the Trust Deed, clause 1(f) should be brought forward to a date earlier than 24 November 2035;

(3) Declare that Nominees holds the contested portion of Mundooie on the trusts constituted in the Trust Deed comprising the Discretionary Trust and that the contested portion of Mundooie forms part of the Trust Property defined in the Trust Deed;

(4) Order pursuant to Trustee Act 1925, s.86A that the Trust Deed be varied so that the Perpetuity Date as defined in the Trust Deed, clause 1(f) is brought forward from 24 November 2035 to a date to be settled by the Court, which date will be fixed to facilitate the early distribution of the capital of the Discretionary Trust to the Children whilst maximising the market value of the Trust Fund;

(5) Note that as no exercise by the fourth defendant to appoint a new Trustee of the Discretionary Trust under clause 17(a) of the Trust Deed is in prospect, the Court declines to vary the Trust Deed by removing clause 17(a);

(6) Each of Nominees and JCN in its role as Trustee of the Discretionary Trust is by its servants and agents restrained until further order from exercising any of the powers contained in the Trust Deed, clauses 3, 4, or 6;

(7) Direct that the parties exchange any evidence by Friday, 13 May 2022 and written submissions by Monday 16, May 2022 in relation to the Perpetuity Date that each party proposes to be substituted for the Perpetuity Date set under the Trust Deed, clause 1(f) (“the amended Perpetuity Date”);

(8) List the proceedings for a further hearing of no more than two hours in relation to the contest concerning the amended Perpetuity Date at a date and time convenient to the parties to be arranged with the Associate to Slattery J between Tuesday 17 May and Friday 20 May 2022;

(9) Grant liberty to the parties until Friday, 20 May 2022 to apply to vary these orders on incidental matters or to promote their more efficient implementation;

(10) Grant liberty to apply; and

(11) Costs are reserved.

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Amendments

27 June 2022 - [5], amended as agreed by the parties.

28 June 2022 - Formatting issues corrected.

28 June 2022 - formatting amended