Mayer v Mayer [2015] VSC 2 (20 January 2015)

Last Updated: 22 January 2015

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2013 04028

TITANIA ELISABETH MAYER a minor by her litigation guardian TUNERA OU-MAYER and HELMUT PETER NIKOLAUS MAYER by his litigation guardian TUNERA OU-MAYER	Plaintiffs
v
GARETH PAUL MAYER FAIRY PARK PTY LTD GULLIVER PTY LTD ASGARD REALM PTY LTD	First Defendant Second Defendant Third Defendant Fourth Defendant

---

JUDGE:	CROFT J
WHERE HELD:	Geelong
DATE OF HEARING:	12 and 20 January 2015
DATE OF JUDGMENT:	20 January 2015
CASE MAY BE CITED AS:	Mayer v Mayer
MEDIUM NEUTRAL CITATION:	[2015] VSC 2

---

PRACTICE AND PROCEDURE – Persons under disability – Approval of proposed compromise – Principles to be applied – Supreme Court (General Civil Procedure) Rules 2005, O 15, r 8 – Page v Rogers (1977) 16 ALR 40; Elliott v Diener (1978) 21 ACTR 21; Clement v Basset [1987] NTSC 16; (1987) 46 NTR 36; and Robertson v Whitefield [1988] NTSC 25; (1988) 90 FLR 311.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Stuckey	Whyte Just & Moore
For the Defendants	Mr D. Collins QC with Mr M. P. Guthrie	HWL Ebsworth Lawyers

HIS HONOUR:

1 This is an application to the Court to approve a compromise proposed by the parties which involves the restructuring of the provision and beneficial entitlements under the trusts in respect of which the present proceedings have been brought. Approval of the Court is required and is sought pursuant to r 15.08 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). The application is made by the plaintiffs by their litigation guardian.

Background

2 The background to these proceedings is helpfully set out in the Reasons for Decision (Short Form) of Zammit AsJ, dated 4 May 2014, when her Honour dismissed an application for summary judgment. As these reasons have not previously been disseminated more broadly, they are annexed to these reasons so that they are conveniently accessible.

3 Although the issues in these proceedings were narrowed as a result of an application to amend the defendants’ pleadings on 22 December 2014, the reasons of Zammit AsJ remain of great assistance in the context of the present application. In any event, the amendment of these pleadings left open issues which were raised by the plaintiffs with respect to withdrawn admissions previously pleaded by the defendants. Moreover further issues were raised in these amended pleadings in relation to other, apparently more comprehensive, empowering provisions under the relevant trust deed. Consequently, there remain some broader issues in play beyond those delineated by the present state of the pleadings.

Principles to be applied

4 It is clear that a proceeding of this nature involving, as it does, persons under disability, cannot be the subject of a valid compromise without the approval of the Court.[1]

5 The principles and practice to be applied in an application such as the present one were considered in some detail, and with reference to earlier authorities, by Kearney J in the Supreme Court of the Northern Territory in Clement v Basset.[2] Although some of the formal procedural requirements in that Court may have differed in form from those applicable in this Court, the substance of the substantive and procedural requirements does not. Consequently, it is useful to set out the following passages from the reasons of Kearney J which, on this basis, can be taken to indicate the position in Victoria:[3]

The next friend of the plaintiff deposes that, having taken legal advice, she considers that “it is a satisfactory compromise and in the best interests of [the infant plaintiff]”. In terms of Practice Direction No 2 of 1985, I am satisfied that the next friend has fully considered the proposed compromise and is satisfied that it is for the benefit of the infant plaintiff.

The plaintiff’s solicitor deposes that he considers the proposed compromise to be satisfactory and in the best interests of the plaintiff. He annexes to his affidavit an “advice on quantum” which he prepared, presumably for the next friend, for the purpose of advising on the suitability of the proposed compromise. It analyses the plaintiff’s case and led the solicitor to conclude that the proposed compromise should be accepted as representing “an adequate and proper figure upon which to compromise this claim”. In the course of that advice the solicitor took account of medical reports on the plaintiff prepared by an orthopaedic surgeon. These reports are annexed to his affidavit.

Practice Direction No 2 of 1985 states that the opinion of the plaintiff’s solicitor favouring a compromise “... should be supported by sufficient facts and other information as to the circumstances giving rise to the plaintiff’s claim, as well as by ... an opinion of counsel, if one is available, as will enable the court to reach a proper conclusion on the application ...”. In this case no opinion of counsel is annexed. In all other respects the requirements of the Practice Direction have been met.

It is settled practice in many courts to require an opinion by counsel in addition to the infant’s solicitor’s affidavit. In some courts the opinion of counsel is required only when the sum involved is large; that is apparently the practice in the Australian Capital Territory – see Karvelas v Chikirow (1976) 11 ACTR 22 at 23. I consider, with respect, that it is a sound practice and one which Practice Direction No 2 of 1985 contemplates as applying in this jurisdiction. I think that this is a case where the sum involved on any view cannot be large, and the expense of counsel’s opinion is not warranted.

The court’s function on this application is to determine whether or not the proposed compromise will in fact be beneficial to the infant plaintiff. In making that determination the court necessarily relies heavily on the infant’s advisers.

In the Australian Capital Territory it has been held that the crucial question for the plaintiff’s solicitor is whether the prospect of getting a greater sum by rejecting the defendant’s present offer is good enough to outweigh significantly the risk of not getting any more: see Elliott v Diener (1978) 21 ACTR 21. At 22 Blackburn CJ said: “The solicitor says in his affidavit that he has considered what would be for the benefit of the infant; but that is not enough. The test of benefit to the infant is not whether the sum is adequate and reasonable. The matter is not to be decided by the plaintiff’s own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant’s claim is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of the proceedings may be great for some plaintiffs and insignificant for others. The question of costs, also, will usually be significant. The decision is peculiarly one for experienced counsel and solicitors”.

However that may be, in this jurisdiction the test of benefit is whether the compromise is proper, and reasonably in the interests of the plaintiff. I consider that the plaintiff’s solicitor has addressed the question which requires to be addressed. Various factors are to be weighed in coming to that decision, including those mentioned by Blackburn CJ and the award of interest under s 84 of the Supreme Court Act.

6 In more general terms, the position is as stated, by reference to the authorities, in Civil Procedure Victoria:[4]

Before the court approves the compromise of a claim to which a person under disability is party it must be satisfied that the compromise will benefit that person: Hargrave v Hargrave [1850] EngR 258; (1850) 12 Beav 408; 50 ER 1117; Re Wells; Boyer v Maclean [1903] 1 Ch 848 at 853; Moore v McKelvey (1906) 23 WN (NSW) 100; Katundi v Hay [1940] St R Qd 39; Gillespie v Alperstein [1964] VicRp 97; [1964] VR 749; Stephens-Sidebottom v Victoria (Department of Education and Early Childhood Development) [2011] FCA 893; BC 201105822; Smith v Marriott Support Services [2013] FCA 312; BC 201301696. The major consideration is the degree to which the person under disability is at risk that if the proceeding went to trial the result would be less favourable than what is offered in settlement. The court will hesitate to withhold its approval where that risk is not insignificant. Significant weight will be attached to the opinions of the person’s legal advisers, and, in some cases, the person’s litigation guardian or tutor (as the case may be): Re Barbour’s Settlement [1974] 1 All ER 1188; [1974] 1 WLR 1198 per Megarry J at 1191.

7 In support of the present application, the plaintiffs have filed an affidavit of Tunera Ou-Mayer, the litigation guardian to each of the plaintiffs, as well as an affidavit of Kristina Dimasi, solicitor, to which is annexed the opinion of Mr Stuckey of counsel addressing the question whether the proposed compromise is proper and reasonably in the interests of the persons under disability – in that the compromise will benefit each of those persons.

8 In my view, the opinion relied upon does properly address the relevant issues and supports the position that the proposed compromise is in the interests of each of the persons under disability, in that the compromise will benefit each of those persons, and in a number of important respects. These include that the proposed compromise adequately provides for the interests of each of the persons under disability in a manner and to the extent that might reasonably be thought to have been contemplated when trusts which might otherwise have benefited those individuals were established. Also addressed is the very relevant consideration that the termination of these proceedings in the manner proposed might reasonably be considered beneficial having regard to the risks of litigation, which in the present circumstances could not be regarded as insignificant, and the desirability of preserving funds that might be applied for the benefit of the persons under disability rather than for the purpose of meeting litigation costs. In my opinion, if the proposed compromise was not approved and the litigation proceeded, there is a very real risk that each of those persons would be significantly worse off in the result of determination of these proceedings at trial.

Conclusion and orders

9 For the preceding reasons, orders will be made for approval of the proposed compromise. I will hear the parties on the form of these orders, including with respect to any consequential or procedural orders.

ANNEXURE

REASONS FOR DECISION

(SHORT FORM)

ZAMMIT AsJ:

1 By summons dated 28 January 2014, the plaintiffs seek summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (“CPA”) or Order 22 of the Supreme Court (General Civil Procedure) Rules 2005.

2 Paragraphs 2 to 11 of the plaintiffs’ summons set out the relief they seek including that:

• Fairy Park Pty Ltd (the second defendant), (‘Fairy Park”) be removed as the trustee of the PH Mayer Family Trust (“the Trust”) and that a fit and proper person be appointed in its place (paragraph 2 of the summons);

• an order for the taking of an account of the dealings and transactions of Fairy Park as trustee and that the defendants be ordered to pay to the Trust the amount found to be due on the taking of such regular accounts together with interest (paragraph 9 of the summons);

• an order that there be an assessment of the amount of any loss sustained by the Trust by reason of the breaches by Fairy Park and that the defendants pay the new trustee the amount of such loss by way of equitable compensation (paragraph 10 of the summons); and

• an order that there be an assessment of the profits or other benefits received by the first, third and fourth defendants by reason of Fairy Park’s breaches of trust and that the first, third and fourth defendants each pay to the new trustee the amount of such profits or other benefit as they severally received (paragraph 11 of the summons).

3 The plaintiffs allege that by reason of its breaches of trust and the conduct of the first defendant, Gareth Mayer (“Gareth”) as the controlling mind of Fairy Park, the second defendant is not a fit or proper to fill or conduct the role of trustee.

4 The plaintiffs rely upon the affidavits of Tunera OuMayer (“Tunera”) sworn 23 January 2014, 8 April 2014 and 10 April 2014 and John Clement Nagle sworn 4 February 2014.

5 I will refer to the parties where appropriate by their first name to avoid confusion.

6 The defendants rely upon Gareth’s affidavit sworn 18 March 2014.

7 The parties rely on written submissions.

The claim

8 Titania was born in January 2000. She is the daughter of the litigation guardian, Tunera, and the second plaintiff, Helmut Mayer (“Helmut”). Tunera is married to Helmut.

9 The first defendant, Gareth, is Helmut’s son.

10 In 1996, Helmut established the Trust with Fairy Park as trustee. The trust assets included a theme park business called Fairy Park Pty Ltd and land.

11 At paragraph 4 of the statement of claim the plaintiffs refer to terms of the Trust. They include:

(a) Fairy Park Pty Ltd stood possessed of the Trust fund and income thereof upon the trust and with and subject to the powers and provisions contained in the Deed of Trust (clause 2);

(b) as from the vesting day the trustee should stand possessed of the trust fund and income thereof in trust for such charitable purposes and for such of the corpus beneficiaries for such interests and in such proportions and for one to the exclusion of the others as the trustee may (with the consent of the Guardian) appoint by instrument in writing before the Vesting Day;

(c) the corpus beneficiaries consisted of Helmut and his children;

(d) the beneficiaries included, inter alia, the corpus beneficiaries, the spouses, widows, cousins and all relations by lineal descent of the corpus beneficiary;

(e) the Appointor under the Trust Deed was Helmut;

(f) the Guardian under the Trust Deed was Helmut;

(g) the vesting date was the date of Helmut’s death or 80 years from the execution of the deed or such earlier date as the Trust Deed shall in its absolute discretion in writing appoint, whichever date should occur first;

(h) the Trustee was not entitled to exercise:

(i) its power to nominate persons to be a beneficiary under clause 1(b)(iii) or (iv);

(ii) its power to exclude persons from the class of beneficiaries under clause 1 proviso B;

(iii) its power to pay the corpus of the fund to the widow of the corpus beneficiary under clause 4(iv);

(iv) its power prior to the Vesting Day to pay, or transfer the whole or any part of the trust fund pursuant to clause 6(1); or

(v) its power to lend any sums out of the trust fund to any beneficiary pursuant to clause 6(i); or

(vi) its power to appoint new Trustees upon similar trusts of the whole or any part of the Trust Fund pursuant to clause 7(27);

(vii) its power to appoint the whole or any part of the trust fund to be held upon such trust as it might approve pursuant to clause 7(33); or

(viii) to amend the trust deed pursuant to clause 26;

(without Helmut’s written consent as guardian.) (my emphasis)

12 Clause 7(33) contains a power that allows a Trustee to do something that the Trustee would otherwise not be able to do. Clause 17(b) provides that this power may not be exercised except with the written consent of the guardian, in this case Helmut.

13 The plaintiffs allege that:

(a) Gareth persuaded Helmut to appoint him as director of Fairy Park on 6 October 2008 (paragraph 8 of the statement of claim);

(b) between 2008 and 2010, Helmut placed his trust and confidence in the Gareth to attend to his affairs and continue to do so until 2011 (paragraph 9 of the statement of claim);

(c) between 2008 and 2010 and thereafter, Helmut suffered age related mental debility including poor memory, Vitamin B12 deficiency and Lewy body dementia, with accompanying Parkinson’s disease (paragraph 10 of the statement of claim);

(d) immediately prior to August 2010, Gareth made representations to Helmut that his wife, Tunera, was likely to leave him or take the majority of the assets of the Trust and that Helmut should give Gareth control over all his assets so that he could protect them for him (paragraph 11 of the statement of claim);

(e) on or about 18 August 2010, Gareth persuaded Helmut to execute documents that had the effect of causing Helmut to:

(i) transfer all his shares in Fairy Park to Gareth;

(ii) resign as director and secretary of Fairy Park;

(iii) resign as appointor under the Trust thereby leaving Gareth with sole and unfettered control of the Trust of which he was trustee (paragraph 12 of the statement of claim);

(f) on or about 17 January 2011, Gareth arranged for the establishment of the Odin Trust with Fairy Park as its trustee and itself as beneficiary and principal (paragraph 13 of the statement of claim);

(g) on or about 17 January 2011, Gareth arranged for the establishment of the Asset Trust No. 1 trust with the fourth defendant, Asgard Realm Pty Ltd (“Asgard Realm”), as its trustee and himself as its beneficiary and principal (paragraph 14 of the statement of claim);

(h) on or about 17 January 2011, Gareth arranged for the establishment of the Asset Trust No. 2 trust with the third defendant, Gulliver Pty Ltd (“Gulliver”), as its trustee and himself as its beneficiary and principal (paragraph 15 of the statement of claim); and

(i) that at all material times Gareth was a sole directing shareholder of Asgard Realm and Gulliver.

14 The plaintiffs allege that on or about 30 March 2012 in breach of its duties as trustee of the Trust that:

(a) Fairy Park transferred Lot 2 to Asgard Realm to hold upon the terms of Asset Trust No. 1, the principal and beneficiary of which was Gareth;

(b) Fairy Park transferred Lot 1 to Gulliver to hold on the terms of the Asset Trust No. 2, of which the beneficiary and principal was Gareth; and

(c) from 2011, Fairy Park was purported to hold the business as trustee for Odin Trust, the beneficiary and principal of which was Gareth.

15 The plaintiffs allege that Gareth caused Fairy Park to take each of the steps outlined in the preceding paragraph and that each of the acts referred to in the preceding paragraph were in breach of Fairy Park’s obligation as trustee of the Trust and were part of a dishonest design to misappropriate the assets of the Trust for Gareth’s sole benefit (paragraphs 21 and 22 of the statement of claim). The plaintiffs allege that: Gareth was knowingly involved in the breaches of the trust by Fairy Park; Asgard Realm and Gulliver were knowingly involved in Fairy Park’s breach of the Trust; and were volunteers in relation to the transfers of property to them; and received trust property knowing that it came to them by reason of breach of trust by Fairy Park (paragraphs 22 to 24 of the statement of claim).

16 Exhibited to Gareth’s affidavit is a proposed amended defence.[5] In the proposed amended defence the defendants say that on 18 August 2010, Helmut had decided and intended to hand over the control of Fairy Park, the Trust and the Fairy Park business to Gareth as part of his retirement succession plan and as a consequence, he freely and voluntarily executed documents for the purpose of taking steps to transfer his shares in Fairy Park to Gareth; resign as director and secretary of Fairy Park; and resign as appointor under the Trust.[6]

17 In relation to the alleged breaches which rely on an absence of written consent by Helmut for the purpose of clause 7(33) of the Trust Deed, the defendants say:

• that Helmut agreed with and represented to Gareth, as director of Fairy Park, that the assets of the Trust should be transferred to new and separate trusts in order to improve the protection of the assets from liabilities;

• in order that Gareth may succeed him in controlling Fairy Park, the Trust and Fairy Park Anakie business, executed a package of documents prepared on his instructions by his solicitors, which provided to him:

(i) to resign from all roles of responsibility and decision-making in connection with the Trust; and

(ii) to appoint Gareth to all roles of responsibility and decision-making within the Trust.

18 The package of documents referred to by Helmut included a notice nominating a new appointor for the purpose of clause 25 of the Trust Deed which was executed by Helmut and Gareth on behalf of Fairy Park (“the clause 25 notice”); the clause 25 notice was executed by Helmut and on behalf of Fairy Park under a common mistake, alternatively a common assumption which was mistaken but it also operated as a notice of appointment of Gareth as guardian under the Trust; the transfer of trust assets to Asgard Realm and Gulliver took place in circumstances where Gareth consented and Helmut had given his oral consent; and under a mistake as to the existence of a compliance for the requirements that the steps required the written consent of the guardian.

19 The defendants say that by reason of the matters as alleged, the clause 25 notice should be rectified to provide that Helmut resigned and appointed Gareth as guardian of the Trust and that it would be unconscionable and the plaintiffs should be estopped from denying that Gareth was appointed guardian of the Trust with effect from 18 August 2010.

The evidence

20 Tunera deposes that Helmut’s state of health is not sufficient to enable him to conduct this litigation. Helmut resides in the High Level Care Accommodation at the McKellar Centre in Geelong.

21 Tunera’s affidavit raises Gareth’s dealings with Helmut upon Gareth’s return from Thailand to Australia in July 2000. Tunera’s affidavit refers to conversations she had with Helmut about Helmut’s dealings with Gareth and her belief that Gareth was seeking to persuade Helmut to give Gareth control of his family’s assets.[7]

22 Tunera deposes that she is advised and believes that the transfer of the land and business was in contravention of the duties of Fairy Park as trustee of the Trust and that Helmut did not consent in writing as guardian to any such transfers or disposition.

23 Gareth’s affidavit refers to a number of discussions and negotiations which took place between Helmut and himself and the ultimate transfer of assets from the Trust to Asgard Realm and Gulliver. In addition, Gareth deposes to his father’s desire to put in place succession planning which included the making of a new will. The new will provided, amongst other things, that Gareth be appointed as sole director of Fairy Park and be appointed as sole appointor and guardian for the Trust.

24 Gareth deposes to conversations with Helmut in or about July 2010 in relation to Helmut’s desire for Gareth to take control of the family business and that Helmut wanted to retire and fully relinquish all of his control and his responsibilities in the family business and the Trust.

25 Gareth’s evidence is that Helmut and he agreed that there should be exploration of a restructure to lay down a foundation for a sustainable future of the family business and that following the receipt of advice from solicitors there was an agreement between him and Helmut that Gareth should go ahead and organise a restructure.

26 Gareth deposes that after meeting with Helmut and solicitors, steps were taken and documents prepared to complete transfer of control to Gareth.

27 Gareth deposes that he did not appreciate that the documents prepared, and in particular the notice under clause 25 of the trust deed, did not address Helmut’s role as guardian under the trust deed and nothing was said by the solicitors or by Helmut.

28 Gareth deposes that even though he did not appreciate that the original trust deed provided for the transactions to require written consent of the guardian or that the solicitors had not mentioned it to him, that he believed that Helmut had given him sole control over the trust assets, including all such roles under the trust deed. Further, he deposes that the restructure had been extensively discussed between Helmut and himself over many years and that Helmut had agreed to going ahead with it.

29 The plaintiffs submit amongst other things, that Gareth’s failure and Fairy Park’s failure under Gareth’s control, to understand the terms of the Trust or the terms of the new trust being proposed is a breach of a trustee’s duty to make him or herself thoroughly acquainted with the terms of the trust which they undertake to carry out. Paragraphs 14 to 22 of the statement of claim set out the alleged breaches of trust by Fairy Park.

30 The defendants’ submit that the draft amended defence exposes triable issues and that the defendants should have an opportunity to pursue their defence at trial. The defendants point to the fact that there are issues of contested fact along with issues of construction of the trust deed and that the remedies sought by the plaintiffs require a trial, especially as to any removal of Fairy Park as trustee.

31. The defendants submit that even if there is no reasonable prospect of success, this is not the type of dispute of which it is in the interests of justice or appropriate not to send to trial. Importantly, the defendants note that the plaintiffs make serious allegations in relation to Gareth, that is, that he was involved in a dishonest desire to misappropriate assets for his own benefit.

Summary judgment test

32. In the recent decision of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,^[8] a question of law was referred to the Court pursuant to s 17B(1) of the Supreme Court Act 1986 as to the test to be applied when determining whether to give summary judgment in a civil proceeding under s 63 of the CPA. After reviewing the authorities and extrinsic materials the Court concluded as follows:

[u]pon the present states of authority:

(a) the test of summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail” test essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.^[9]

33 Section 64 of the CPA leaves to the Court a discretion to order that a civil proceeding go to trial if it is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because it is not in the interest of justice to do so, or the dispute is of such a nature that only a full hearing on the merits is appropriate.

34. The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and take into account the fact that if granted, a party will be deprived of the chance to pursue its claim or defence.^[10]
35. Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.^[11]

Decision

36. I am not satisfied that the defendants have no real prospect of success in mounting a defence to the plaintiffs’ claims.
37. The defendants admit that there was no written consent by the guardian as was required under the trust deed before any steps could be taken in relation to trust assets. However, there is at least an argument based on Gareth’s affidavit that Helmut decided and agreed to the transfer of assets into the new trust for the purpose of restructuring and also intended to make Gareth the guardian before the transfers took place. The formal documentation was prepared by a solicitor and an accountant. The consent by a guardian and appointment of Gareth as guardian was overlooked and was not appreciated by Gareth. That evidence is uncontradicted.
38. There are detailed issues of fact, in particular in relation to the negotiations and discussions which took place between Helmut and Gareth. It is important to note that Helmut has a litigation guardian, and that the evidence is that he is suffering from a form of dementia and Parkinson’s disease. It would appear that it is unlikely Helmut will be able to give evidence. However, there is no definitive evidence before the Court on this point. In such circumstances, it is all the more important that where there are contested issues of fact the matter be allowed to proceed to trial for a full assessment of the evidence.
39. I consider that there is at least an issue of construction in relation to the trust deed and in particular clause 17 of the trust deed as to whether consent without writing is sufficient.
40. In addition, I note the serious allegations made by the plaintiffs against the first defendant which include allegations of dishonesty and give rise to possible remedies including equitable damages against the defendants. It is not appropriate that such allegations be dealt with in an interlocutory application without a full hearing of the evidence.
41. Further, even if the defendants’ defence has no real prospect of success, I consider that pursuant to s 64 of the CPA, this proceeding should not be disposed of summarily at an interlocutory stage because it is not in the interests of justice to do so and because the dispute is of such a nature that only a full hearing on the merits is appropriate.
42. In the circumstances, I consider that the plaintiffs’ summary judgment application should be dismissed.
43. I will hear the parties as to the form of order and costs.

---

^[1] See the Rules, O15, r 8; and see Necora v Talbot [1960] VicRp 85; [1960] VR 537.

^[2] [1987] NTSC 16; (1987) 46 NTR 36; and see Singh (by her next friend Singh) v Calvary Hospital ACT Inc (2008) 164 ACT 44 at 45-6 (Refshauge J).

^[3] Clement v Basset [1987] NTSC 16; (1987) 46 NTR 36, at 37-38; and see Robertson v Whitefield [1988] NTSC 25; (1988) 90 FLR 311 (Asche CJ) and Page v Rodgers (1977) 16 ALR 40 at 41 (Toohey J) [NTSC].

^[4] Williams, Civil Procedure Victoria (LexisNexis, loose-leaf), [I 15.08.5].

^[5] Exhibit GPM-20 to the affidavit of Gareth Paul Mayer sworn 18 March 2014.

^[6] Paragraphs 12 and 12.1 of the proposed amended defence.

^[7] Affidavit of Tunera OuMayer sworn 23 January 2014 at paragraph 13.

^[8] [2013] VSCA 158.

^[9] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [No.3][2013] VSC 435 at [19].

^[10] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [42] (per Neave JA).

^[11] Barber v State of Victoria [2012] VSC 554 at [15].