IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01502

ANNA ELIZABETH LIDGETT 
(In her capacity as the trustee of the Lidgett Property Trust)	Plaintiff	
		
v  		
		
SIMON JOHN LIDGETT	First Defendant	
		
TRENA LIDGETT	Second Defendant	
		
ERICA LIDGETT	Third Defendant	
		
JILLIAN LIDGETT	Fourth Defendant	

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JUDGE:	Moore J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 September 2023 and 11 October 2023	
DATE OF JUDGMENT:	22 November 2023	
CASE MAY BE CITED AS:	Re Lidgett	
MEDIUM NEUTRAL CITATION:	[2023] VSC 673	
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TRUSTS – Application for judicial advice – Where plaintiff seeks judicial advice that it would be appropriate and justified for the trust to defend claims brought against her in her capacity as trustee - Where plaintiff seeks judicial advice that it would be appropriate and justified for her, in her capacity as trustee, to pay the costs out of the assets of the trust – Where the claims are also brought against the plaintiff in her personal capacity – Where a property is the sole asset of the trust – Where the plaintiff and defendants are beneficiaries of the trust - Supreme Court (General Civil Procedure) Rules 2015, r 54.0 - Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law'), ss 18, 21, 22 - Transfer of Land Act 1958, ss 42(1), 43 - Aesthete Pty Ltd atf The Real Money Unit Trust [2022] NSWSC 769 - Alsop Wilkinson v Neary [1995] 1 All ER 431 - Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor [2014] NSWSC 321 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Morris v Smoel & Ors [2013] VSCA 11 - Rawson v Hobbs (1961) 107 CLR 466 - Re Application of Macedonian Orthodox Community Church St Petka Inc [No 3] [2006] NSWSC 1247 - Re Frosthollow Pty Ltd [2015] VSC 512 - Wicks v Bennett (1921) 30 CLR 80.  
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr T Wodak	Heinz Law	
			
For the First Defendant	Mr D Clough	Cinque Oakley Bryant Lawyers	
			
For the Second, Third and 
Fourth Defendants	No appearance		

HIS HONOUR:
1	The plaintiff in this proceeding, Anna Lidgett, is the trustee of the Lidgett Property Trust (the Trust), a discretionary trust established by deed dated 16 December 2022 (the trust deed).  In her capacity as trustee of the Trust, she seeks judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.
2	Anna Lidgett is one of the four adult children of Jillian Lidgett, the others being Simon Lidgett, Trena Lidgett and Erica Lidgett.  All the Lidgett children, and their mother, are the specified beneficiaries of the Trust and the parties to this proceeding.  For clarity, and without intending any disrespect to the parties, I will refer to each of them by their first names.
3	The sole asset of the Trust is a 700 acre farm located at 30 Lidgett’s Lane, Greendale (the Highton property).  The Highton property is on three titles and, as at September 2022, had a market value of approximately $9.4 million.
4	Jillian was the registered proprietor of the Highton property from 1981.  From at least 10 March 2000 until 9 February 2023, she and her son Simon were partners in a farming business which was conducted on the Highton property (the partnership).
5	On 22 December 2022, Jillian transferred two of the titles comprising the Highton property to Anna in her capacity as trustee of the Trust; the third title was transferred to Anna in the same capacity on 9 February 2023.
6	The partnership was in occupation of the Highton property when Anna became its registered proprietor.  Simon and his family were then residing in the house on the property and continue to do so.
7	On 24 March 2023, Simon commenced a proceeding in the Court, described in detail below, relating to the Highton property (Simon’s proceeding).  That proceeding is brought against Jillian and Anna (the latter in her own capacity and in her capacity as trustee of the Trust).  
8	On 20 June 2023, Anna, in her capacity as trustee, revoked any lease or licence by which the partnership, or Simon and his family, were occupying the Highton property.  She has not, however, taken any steps to recover possession of the property.  The Trust is not deriving any income from the Highton property which, as I have noted, is the Trust’s sole asset. 
9	On 19 July 2023, Anna, in her capacity a trustee, filed an application to summarily dismiss the claims made against her in Simon’s proceeding, or alternatively to strike out those claims (the summary dismissal application). 
10	Anna seeks judicial advice that it would be appropriate and justified for the Trust to defend the claims brought against her as trustee in Simon’s proceeding.  She also seeks an order that it would be appropriate and justified for her, in her capacity as trustee of the Trust, to pay the costs in defending the proceeding out of the assets of the Trust.
Simon’s proceeding
11	The claims in Simon’s proceeding are set out in an amended statement of claim filed on 7 September 2023 (the ASOC).  By way of background, Simon alleges that Jillian inherited the Highton property from her husband (and Simon’s father) in June 1982 and that she was not able to conduct a farming operation on her own.  If he had not remained working on the Highton property from 1985, Simon alleges that Jillian would have had to either sell or lease the Highton property, or enter into a share farming arrangement on inferior terms.  
12	A central allegation made by Simon is that, from about 1986, Jillian promised to him that, if he remained working on the Highton property for a reasonable time, or alternatively until her death, she would devise the Highton property to him by her will and bequeath to him all her interests in various farm business assets situated on it (the promise).  Simon pleads that, on the basis of the promise, he expected to obtain ownership of the Highton property upon Jillian’s death and that, by her conduct between 1986 and 2020, Jillian represented to him that he would inherit the property if he remained working on it for a reasonable time or until her death.  
13	Simon alleges that he relied upon the promise and the foregoing expectation to his detriment such that, on and prior to 9 February 2023 when Anna in her capacity as trustee of the Trust became the registered proprietor of the properties which comprise the Highton property, Jillian held the Highton property on a constructive trust for herself during her lifetime, and then for his benefit (the constructive trust).
14	Simon also relies upon the promise in pleading that he and Jillian entered into a contract pursuant to which Jillian would ensure that, by her will, she would fulfil the promise and that, in consideration for that promise, Simon would remain working on the Highton property for no wage (the contract).
15	Simon pleads that, in about August 2022, he and Jillian entered into an agreement to participate in a mediation (the agreement to mediate), which included terms that the parties would participate in the mediation in good faith and maintain the status quo with respect to their dispute until the termination of the mediation.  He alleges that he attended a mediation on 6 October 2022 with Jillian and Anna, which was then adjourned and reconvened on 15 November 2022, and again adjourned (the mediation).  Simon pleads that, on 10 February 2022, Jillian informed him that she did not wish to reconvene the mediation.
16	Against the backdrop of these allegations, Simon alleges that, on 9 February 2023:
(a)	Jillian was bound by the contract and by the agreement to mediate not to transfer ownership of any of the three titles comprising the Highton property to any person other than him;
(b)	Jillian had never previously evinced to him any intention to transfer ownership of any of the three titles comprising the Highton Property to any person other than him;
(c)	‘the parties’ were in the process of negotiating in good faith in relation to the claims the subject of Simon’s proceeding;
(d)	Jillian transferred registered ownership of each of the three titles comprising the Highton property to Anna in the latter’s capacity as trustee of the Trust;
(e)	Jillian knew, or ought to have known, that if Simon were aware of her intention to transfer ownership of any of the three titles comprising the Highton property to any person other than him, that he would have registered caveats on those titles; and
(f)	Jillian deceived Simon by not informing him of her intention to make the transfers and thereby deliberately avoided alerting Simon to the failure of the mediation and the prudence of registering caveats on the three titles comprising the Highton property.
17	Simon alleges that the transfers of the registered ownership of the titles comprising the Highton property from Jillian to Anna (in her capacity as trustee of the Trust) were:
(a)	in breach of the contract;
(b)	in breach of the obligation of good faith in the agreement to mediate;
(c)	deceptive, dishonest, opportunistic and unconscionable; and
(d)	in breach of the abovementioned constructive trust, 
and therefore occurred pursuant to a fraudulent design and done by means of fraud within the meaning of ss 42(1) and 43 of the Transfer of Land Act 1958 (the alleged fraud).  Simon also alleges that, by this conduct, Jillian engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL), and acted unconscionably within the meaning of the unwritten law and within the meaning of ss 21 and 22 of the ACL.
18	Simon advances an accessorial liability claim against Anna.  He pleads that, in her personal capacity and as trustee of the Trust, Anna holds the Highton property on constructive trust for him because, by receiving registered ownership of the properties comprising the Highton property, she:
(a)	knowingly assisted in the alleged fraud;
(b)	knowingly received registered ownership of the titles in the Highton property as the proceeds of the alleged fraud;
(c)	stood to benefit from the transfers;
(d)	stood to benefit from the alleged fraud;
(e)	intended to obtain these benefits;
(f)	acted deceptively, dishonestly, opportunistically and unconscionably; and
(g)	received registered ownership of the Highton property by means of fraud within the meaning of ss 42(1) and 43 of the Transfer of Land Act.
19	Simon also alleges that Anna:
(a)	engaged in misleading or deceptive conduct in contravention of s 18 of the ACL by failing to disclose to him during the mediation her intention to engage in the transfers;
(b)	acted unconscionably within the meaning of the unwritten law and s 20 of the ACL by engaging in the transfers of title comprising the Highton property; and
(c)	was involved in Jillian’s alleged contraventions of ss 18, 20 and 21 of the ACL.
20	Simon also pleads:
(a)	A claim of conspiracy by unlawful means based on the allegation that Jillian and Anna (in her personal capacity and in her capacity as trustee of the Trust) acted in concert in transferring to Anna the registered ownership of the titles comprising the Highton property, as a result of which Simon alleges he has suffered loss and damage.
(b)	A claim for equitable compensation.  Simon alleges that he has suffered loss and damage as a result of Jillian’s transfer to Anna of registered ownership of the titles comprising the Highton property, conduct said to be contrary to the promise and expectation, and in breach of the constructive trust.
21	In his prayer for relief, Simon relevantly seeks the following relief:
…
AA	Declaration that [Jillian] was contractually bound to devise the Highton property and bequeath the farm business assets to [Simon] upon her death.
…
BA	Order under ss 237(1)(a)(i) and 243(a)(ii) of the Australian Consumer Law that the transfers to [Anna] of the registered ownership of the property known as “Highton”, 30 Lidgett’s Lane, Greendale, Victoria, described in Volume 8672 Folio 391, Volume 4061 Folio 081 and Volume 2454 Folio 634 are void ab initio.
C	Declaration that [Anna] in her personal capacity and in her capacity as trustee of the Lidgett Property Trust, holds the property known as Highton … on constructive trust for [Simon].
D	Order that [Anna], in her personal capacity and in her capacity as trustee of the Lidgett Property Trust, do all such things and sign all such documents as may be required to transfer to [Simon] the property known as “Highton” …
E	Alternatively, equitable compensation.
F	Alternatively, damages.
…
Legal principles
22	The procedure under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 is a summary procedure intended to enable questions arising in the administration of an estate or trust to be resolved cheaply and simply.  The essential principles which apply to applications for judicial advice were explained by the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand.  
23	The High Court stated that proceedings for judicial advice are not to be treated as a trial of the issues to be determined in the principal proceeding; the process is meant to be a summary one.  As an exception to the Court’s ordinary function of deciding disputes between competing litigants, the procedure for the obtaining of judicial advice affords a means for giving ‘private advice’, as its function is to give personal protection to a trustee.  However, an application for judicial advice also has the additional, and no less important purpose, of protecting the interests of the trust.  A necessary consequence of the provisions providing for the giving of judicial advice was therefore that:
… a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings. In deciding that question a judge must determine whether, on the material then available, it would be proper for the trustee to defend the proceedings. But deciding whether it would be proper for a trustee to defend proceedings instituted about the trust is radically different from deciding the issues that are to be agitated in the principal proceeding. The two steps are not to be elided. In particular, the judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.
24	Whether judicial advice should be given that a trustee is justified in defending a claim by recourse to the assets of the trust will depend upon what is ‘practical and fair’ in the circumstances of the case.  In observations endorsed by the High Court, Palmer J at first instance in Macedonian Orthodox explained this as follows:
Where a trustee seeks an order that it is justified in defending a claim against the trust estate by recourse to the trust assets for the costs of the litigation, the question will be whether it is more practical, and fairer, to leave the competing claimants to the beneficial interest in the trust estate to fight the litigation out amongst themselves, at their own risk as to costs and leaving the trustee as a necessary but inactive party in the proceedings, or whether it is more practical, and fairer, that the trustee be the active litigant with recourse to the trust fund for the costs of the litigation. What is “practical and fair” will depend on the particular circumstances of each case and will include:
•	whether the beneficiaries of the trust estate have a substantial financial interest in defending the claim;
•	what are the financial means of the beneficiaries to fund the defence;
•	the merits and strengths of the claim against the trust estate;
•	the extent to which recourse to the trust estate for defence costs would deprive the successful claimant of the fruits of the litigation;
•	if the trust is a charitable trust rather than a private trust, what, if any, are the considerations of public interest.
25	These principles were considered by McDonald J in Re Frosthollow Pty Ltd who stated:
Whether it is appropriate for a trustee to have access to trust funds to defend its defence will depend on what is in the best interests of the trust having regard to the particular circumstances of the case. Relevantly, such circumstances will include:
•	the nature of the trust;
•	whether the trustee has a pecuniary interest in the outcome of the litigation;
•	the nature of the allegations against the trustee including whether there is an allegation of breach of trust;
•	whether the beneficiaries of the estate have a substantial financial interest in defending claims, including claims which are made against the trustee;
•	the financial means of the beneficiaries to fund their defence;
•	the merits and strengths of the claim against the trust estate;
•	the extent to which recourse to the trust’s estate for defence costs would deprive the successful claimant of the fruits of litigation; and
•	whether the costs likely to be incurred by the trustee in defending the claims, including potential exposure to a costs order in favour of the plaintiffs, are proportionate.
26	As stated by Croft J in Charlesworth, whether it is appropriate to provide judicial advice depends upon the ‘particular circumstances which provide the context of the application [and] the character of the dispute the subject of the primary proceeding to which the application relates’.  His Honour referred to Lightman J’s analysis in Alsop Wilkinson v Neary where his Honour stated that trustees may be involved in the three kinds of disputes:
(1)	The first (which I shall call “a trust dispute”) is a dispute as to the trusts on which they hold the subject matter of the settlement. This may be “friendly” litigation involving e.g. the true construction of the trust instrument or some other question arising in the course of the administration of the trust; or “hostile” litigation e.g. a challenge in whole or in part to the validity of the settlement by the settlor on grounds of undue influence or by a trustee in bankruptcy or a defrauded creditor of the settlor, in which case the claim is that the trustees hold the trust funds as trustees for the settlor, the trustee in bankruptcy or creditor in place of or in addition to the beneficiaries specified in the settlement. The line between friendly and hostile litigation, which is relevant as to the incidence of costs, is not always easy to draw: …. 
(2)	The second (which I shall call “a beneficiaries dispute”) is a dispute with one or more of the beneficiaries as to the propriety of any action which the trustees have taken or omitted to take or may or may not take in the future. This may take the form of proceedings by a beneficiary alleging breach of trust by the trustees and seeking removal of the trustees and/or damages for breach of trust. 
(3)	The third (which I shall call “a third party dispute”) is a dispute with persons, otherwise than in the capacity of beneficiaries, in respect of rights and liabilities e.g. in contract or tort assumed by the trustees as such in the course of administration of the trust.
27	Justice Lightman continued:
Trustees (express and constructive) are entitled to an indemnity against all costs, expenses and liabilities properly incurred in administering the trust and have a lien on the trust assets to secure such indemnity. Trustees have a duty to protect and preserve the trust estate for the benefit of the beneficiaries and accordingly to represent the trust in a third party dispute. Accordingly their right to an indemnity and lien extends in the case of a third party dispute to the costs of proceedings properly brought or defended for the benefit of the trust estate. Views may vary whether proceedings are properly brought or defended, and to avoid the risk of a challenge to their entitlement to the indemnity, (a beneficiary dispute), trustees are well advised to seek court authorisation before they sue or defend. The right to an indemnity and lien will ordinarily extend to the costs of such an application. The form of application is a separate action to which all the beneficiaries are parties (either in person or by a representative defendant). With the benefit of their views the judge thereupon exercising his discretion determines what course the interests of justice require to be taken in the proceedings: …. So long as the trustees make full disclosure of the strengths and weaknesses of their case, if the trustees act as authorised by the court, their entitlement to an indemnity and lien is secure.
28	Justice Lightman then referred to the judgment of Kekewich J in Ideal Bedding Co Ltd v Holland in relation to which his Honour stated:
I do not think that the view expressed by Kekewich J in the Ideal Bedding case that in case of a trust dispute (as was the dispute in that case) a trustee has a duty to defend the trust is correct or in accordance with modern authority. In a case where the dispute is between rival claimants to a beneficial interest in the subject matter of the trust, rather the duty of the trustee is to remain neutral and (in the absence of any court direction to the contrary and substantially as happened in Merry’s case [1898] 1 Ch 306) offer to submit to the court’s directions leaving it to the rivals to fight their battles. If this stance is adopted, in respect of the costs necessarily and properly incurred e.g. in serving a defence agreeing to submit to the court’s direction and in making discovery, the trustees will be entitled to an indemnity and lien. If the trustees do actively defend the trust and succeed e.g. in challenging a claim by the settlor to set aside for undue influence, they may be entitled to their costs out of the trust, for they have preserved the interests of the beneficiaries under the trust: consider In re Holden, Ex parte Official Receiver (1887) 20 QBD 43. But if they fail, then in particular in the case of hostile litigation although in an exceptional case the court may consider that the trustees should have their costs (see Bullock v Lloyds Bank Ltd [1955] 1 Ch 317) ordinarily the trustees will not be entitled to any indemnity, for they have incurred expenditure and liabilities in an unsuccessful effort to prefer one class of beneficiaries e.g. the express beneficiaries specified in the trust instrument, over another e.g. the trustees in bankruptcy or creditors, and so have acted unreasonably and otherwise than for the benefit of the trust estate: consider RSC, Ord 62, r 6; and see National Anti-Vivisection Society v Duddington, The Times, 23 November 1989 and Snell’s Equity, 29th ed (1990), p 258.
Anna’s submissions as trustee of the Trust
29	The central proposition advanced by Anna in support of her application for judicial advice was that defending Simon’s proceeding is in the best interests of the beneficiaries of the Trust because:
(a)	the Highton property is the sole asset of the Trust, held for the benefit of all five specified beneficiaries;
(b)	in his proceeding, Simon seeks an order that Anna holds the Highton property on constructive trust for him alone, and that the property be transferred from the Trust to him; and
(c)	therefore, if Simon succeeds in his proceeding, Anna would no longer hold the Highton property for the benefit of the five specified beneficiaries, and four of those beneficiaries would no longer have any beneficial interest in the Highton property.
Because Simon seeks to obtain for his own benefit a Trust asset, it was submitted that the appropriate course was not for Anna as Trustee to adopt a neutral position in Simon’s proceeding.  Judicial advice was sought to protect the interests of the beneficiaries of the Trust, not simply for Anna’s protection as Trustee.
30	Reference was made to the terms of the trust deed which confers extensive powers on the Trustee, relevantly including the power to defend any legal proceeding and to engage solicitors.  The trust deed also entitles the trustee to an indemnity of the trust fund against any liabilities which she may incur or to which she may be subject.  As Anna submitted, the trust deed is in conventional form and gives the trustee broad decision-making authority, including in cases of conflict, and empowers her to act on or not act on discretions as she sees fit.  The extent and nature of Anna’s powers as trustee under the trust deed were not controversial.
31	Given the existence of these powers, it was submitted to be appropriate for Anna to defend the claims made in Simon’s proceeding in circumstances where, if they were successful, the Trust would be deprived of its sole asset, rendering it no longer available to all of beneficiaries of the Trust, and where Anna’s solicitor was of the opinion that the claims were vulnerable to summary dismissal.  
32	The question of Anna’s prospects of successfully defending Simon’s proceeding was belatedly the subject of a confidential memorandum of advice from counsel.  In circumstances where the confidentiality attached to this advice has not been waived, it is inappropriate to address its contents, save to record counsel’s ultimate opinion that Anna, in her capacity as trustee of the Trust, has reasonable grounds to defend Simon’s proceeding.  This confidential memorandum of advice was also provided with a confidential estimate of the legal costs likely to be incurred in the event that Simon’s proceeding proceeded to trial.
33	Anna contested the proposition advanced by Simon that his proceeding concerned the circumstances of how she became trustee of the Trust.  It was submitted that the claims made against Anna in her capacity as trustee did not relate in any way to the circumstances by which she became trustee.  Rather, they were said to relate to the circumstances in which Anna came to own the Highton property as trustee of the Trust.  In this way, the claims made in Simon’s proceeding were properly viewed as relating to the exercise by Anna, as trustee of the Trust, of the power in paragraph 9.9 of the trust deed which provides:
9	Trustee’s specific powers
The Trustee shall, in addition to other powers vested in the Trustee under this deed and without limiting clause 8, have the following powers:
…
9.9	Deal with property
To hold, use, purchase, construct, demolish, maintain, repair, renovate, reconstruct, develop, improve, sell, assign, transfer, convey, surrender, let, lease, take on lease, exchange, take and grant licences options or rights in, alienate, mortgage, charge, pledge, reconvey, release or discharge or otherwise deal with any property or any right, estate or interest in it, whether forming part of the Trust Fund or not.
By taking an assignment of the three titles comprising the Highton property, it was submitted that Anna’s conduct in her capacity as trustee was within the broad power vested in clause 9.9 of the trust deed.  Simon’s essential complaint related to Anna’s exercise of her powers as trustee to take a transfer of property; there was no suggestion that she was not empowered to do that.  Accordingly, the claims made in Simon’s proceeding were properly understood as claims against Anna in respect of her management and administration of the trust.
34	It was also submitted that, to the extent that the claims made in Simon’s proceeding are made against Anna in her own right and in her capacity as trustee, the Trust’s interest would not be appropriately safeguarded by the engagement of legal representatives retained solely to protect Anna’s personal position; the Trust ought to have the benefit of lawyers engaged to act in its interests.  Reliance was placed on the statement by the High Court in Macedonian Orthodox that, ‘even if there is another party that will act as contradictor, it is almost always desirable, even necessary, for the trustee to take an active part in the proceedings so that issues are properly ventilated and argued’.
35	As to the question of Anna as trustee being indemnified out of the Trust for the costs incurred in defending Simon’s proceeding, it was emphasised that the application did not seek relief permitting Anna to require the Trust to bear the costs incurred by her in her personal capacity.  To the extent that claims are brought against Anna both in her own capacity and in her capacity as trustee, Anna in her capacity as trustee ought to be entitled to reimbursement to the extent costs were incurred for the benefit of the Trust.  If the Court provides the advice sought, that would not entitle Anna to have the Trust pay costs incurred by her in her personal capacity.
36	Anna submitted that the claims brought against her in Simon’s proceeding were principally brought against her in her capacity as trustee and not her personal capacity.  Although the central accessorial liability claims referred to in [18] were expressed to be against her in her personal and trustee capacities, because they were directed at ownership of the Highton property, they could only sensibly be understood as being directed at her in her capacity as trustee of the Trust.  This was submitted to be inherent in the fact that she owned the Highton property in her capacity as trustee.  The essence of the claim was said to be that, because of the circumstances in which she received the property as trustee, she was obliged to convey it to Simon.  It was submitted that Simon did not seek any personal relief against her in relation to this claim.  
37	In relation to Simon’s claims brought under the ACL, it was submitted that, insofar as they were brought against Anna, they could only be understood as being brought against her in her capacity as trustee and not in her personal capacity.  This was because the only relief sought under the ACL was for orders under statutory provisions providing for the transfer of property.  As with the fraud claims considered above, because the Highton property is owned by Anna in her trustee capacity, that relief could not sensibly be understood as being sought against her in her personal capacity as she would be incapable of complying with it in that capacity.  No claim was sought for damages under s 236 of the ACL. 
38	Counsel for Anna submitted that the only claim in Simon’s proceeding which was brought against her in her personal capacity (as well as being brought against her in her capacity as trustee and against Jillian) was the claim of conspiracy by unlawful means.  It was submitted that, on the face of the pleading, the claim for damages only related to this cause of action.  
39	Anna also submitted that the inclusion of particulars to the claim for equitable compensation (which referred to pleading of an estoppel and constructive trust against Jillian), indicated that that claim could only be understood as being made against Jillian.  
40	It followed from the above analysis that, because Simon’s claims brought against Anna were brought for relief against trust assets (save for the conspiracy claim), it was wholly appropriate for Anna in her capacity as trustee, as the owner of the assets, to defend those claims.  The appropriate person to defend a claim was the person against whom the claim is brought.  Neither Jillian nor Anna in her own right were the appropriate persons to defend the claims directed at obtaining assets of the Trust and there was said to be no basis for the claim that Anna, in her personal capacity, would defend the proceeding in any event.  If Simon succeeded in establishing that Anna’s title to the Highton property was defeasible, detriment would be suffered by the Trust and accordingly it was Anna in her capacity as trustee who had the principal interest in defending the claim on behalf of the beneficiaries.  Anna did not have sufficient interest in her personal capacity in defending the claims brought against her as trustee.
41	In terms of the taxonomy of trust disputes outlined by Lightman J in Alsop Wilkinson v Neary, it was submitted that, insofar as Simon’s proceeding related to Anna in her capacity as trustee, it was properly viewed as a third-party dispute.  The dispute concerned ownership of a trust asset brought by a person other than in their capacity as beneficiary in respect of the rights and liabilities of Anna as trustee.  The fact that Simon was also a beneficiary of the Trust was immaterial because it had nothing to do with his underlying claim.  Simon’s claim, in substance that Anna as trustee misconducted herself in obtaining title to the property, meant that Anna was essentially in the same position as an ordinary litigant facing a claim on their assets.  The attack ought be defended if there was a proper basis for the trustee to do so.  Counsel’s confidential memorandum of advice confirmed that there was such a basis to do so.
Consideration
42	In considering whether the Court should provide advice that it would be appropriate for Anna as trustee to defend the claims brought against her in that capacity in Simon’s proceeding, and whether it would be appropriate and justified for the costs in doing so to be paid out of the assets of the Trust, I accept, on the basis of the confidential memorandum of advice from counsel, that she has sufficient prospects of success to warrant the giving of such advice.  
43	Many of the submissions advanced on behalf of Anna in support of the giving of the advice which was sought rested on the proposition that, with only one exception, all the claims brought against her in Simon’s proceeding are brought against her in her capacity as trustee.  A number of important matters thereby follow, including that, in her capacity as trustee, she is the appropriate person to defend the claims, and that neither Jillian nor herself in her personal capacity have sufficient interest in defending Simon’s proceeding.
44	I do not accept this proposition; it proceeds from an inaccurate characterisation of the claims made against Anna in Simon’s proceeding. 
45	In seeking to characterise the nature of the claims made in Simon’s proceeding, Anna’s submissions were misdirected in that they did not focus on the various causes of action and material facts pleaded in the ASOC, but instead unduly focused on the relief sought by Simon.  The effect of this approach is to, in effect, wrongly read down the ordinary meaning of the paragraphs of the ASOC because, as stated by Dixon CJ in Rawson v Hobbs, the Court ‘is not confined in granting relief to that which plaintiffs have specified ...’.  This is consistent with the earlier statement of principle by Higgins J in Wicks v Bennett that:
It is not too much to say that it is for a plaintiff to state and to prove the facts which constitute his grievance, and it is for the Court, having found that there is that grievance, to find the appropriate remedy and to give it. This principle is at the very root of the administration of justice. 
46	With these principles in mind, I reject the submission that the accessorial liability claims made against Anna can only sensibly be understood as being directed at her capacity as trustee because she is the owner of the Highton property in that capacity and because of the terms of the relief sought in paragraphs C and D of the prayer for relief.  As counsel for Anna acknowledged, those claims are brought against her in both her personal and trustee capacities.  In the event that those claims succeed, it will be open to the Court to fashion appropriate relief.  That relief might include, for example, the grant of equitable compensation against Anna in her personal capacity, being a head of relief contained in the prayer for relief.  There is no proper basis to constrain the availability of such relief by the terms of the particulars to paragraph 53 of the ASOC.  The focus must be on the nature of the causes of action and material facts pleaded.  Here it is clear on an ordinary reading of the pleading of accessorial liability against Anna for Jillian’s allegedly fraudulent conduct, that liability is asserted against Anna, both in her personal capacity and in her capacity as trustee.  
47	More generally in relation to both the accessorial liability claims and the claim of conspiracy by unlawful means, the ASOC contains pleadings of liability against Anna in both her capacities, pleadings of causation, and pleadings of loss and damage.  Jillian and Anna (in both her capacities) are therefore properly on notice that the claim for equitable compensation and damages contained in the prayer for relief applies to both of them.  It is incorrect to contend that these pleadings can only sensibly be understood as claims brought against Anna in her trustee capacity, merely because she is the registered proprietor of the Highton property and because the relief that is sought includes (but notably is not limited to) the transfer of the Highton property to Simon.
48	A similar analysis applies in relation to Simon’s claims against Anna under the ACL.  Anna’s central contention was that, although the relevant paragraphs of the ASOC appear to advance pleadings of liability against Anna in her personal and trustee capacities, that is not conclusive because the only remedies under the ACL contained in the prayer for relief are orders under ss 237 and 243 for the transfer of ownership of the Highton property; the ASOC does not include any claim for damages under s 236 of the ACL.
49	I reject this argument.  The ASOC contains clear allegations that Anna engaged in misleading and deceptive conduct, unconscionable conduct and that she is accessorially liable for Jillian’s alleged contraventions of the ACL.  It is then pleaded that these contraventions resulted in loss and damage, and damages are part of Simon’s prayer for relief.  Section 236 of the ACL provides a right to recover damages for loss and damage caused by conduct in contravention of provisions of the ACL.  Subject to the terms of that section, relief under s 236 would be available to Simon if he succeeds in establishing the material facts pleaded in the ASOC.  In that event, the Court will give effect to a claim for damages so far as it is possible to do so at law.  Even if damages were not claimed (contrary to Simon’s proceeding), as a matter of principle, that would not prevent the Court from making an award where a plaintiff had established the material facts upon which they rely and where justice requires that damages be given. 
50	It follows from the above analysis of the claims in the ASOC that, properly considered, it can be reasonably expected that Anna, in her personal capacity, as well as Jillian, will seek to defend the claims made in Simon’s proceeding because they are each the subject of the various claims which I have described.  
51	As it is reasonable to expect that Jillian and Anna in her personal capacity will be active contradictors in the Simon’s proceeding, it is unnecessary for the Trust to also defend those claims.  This conclusion finds support in the reasoning of the High Court Macedonian Orthodox which it is necessary to set out in full:
The fact that one of the purposes of proceedings for judicial advice is to protect the interests of the trust has particular importance where, as in this case, the trust concerned is a charitable purpose trust. In litigation brought by private persons having a particular view about the terms of a trust, the trustee will ordinarily be joined as a necessary and proper party to the proceedings. Unless some other party will act as contradictor, the burden of defending the suit will fall upon the trustee. If, as will often be the case with a charitable purpose trust, there is no other party that will act as contradictor, the claims made about the terms of the trust will go unanswered unless the trustee can properly resort to the trust funds to meet the costs of defending the litigation. And even if there is another party that will act as contradictor, it is almost always desirable, even necessary, for the trustee to take an active part in the proceedings so that issues are properly ventilated and argued.
52	Two important matters emerge from these statements of principle. 
(a)	First, the usual position where a trustee is joined as a party to a proceeding concerns the presently analogous context of ‘litigation brought by private persons having a particular view about the terms of a trust’, except where, importantly, ‘some other party will act as contradictor’.  
(b)	Secondly, Anna’s reliance on the last sentence of the paragraph is misplaced.  It is apparent that, read in the context of the preceding sentences, the High Court was there describing the position in relation to charitable purpose trusts, as distinct from private trusts of the type the subject of this application. 
53	The first of the above propositions formed part of Croft J’s reasoning in Charlesworth and its potential significance was recently confirmed by Ward CJ in Eq in Aesthete Pty Ltd atf The Real Money Unit Trust.  In the latter case, judicial advice had been sought as to whether it was proper for a corporate trustee to defend proceedings in circumstances where a director of the trustee, Mr Amirbeaggi, was already actively defending some of the claims made in those proceedings.  Ward CJ in Eq stated as follows:
It is important to remember that the High Court has indicated that one (and no less important) purpose of proceedings for judicial advice is to protect the interests of the trust. In circumstances where Mr Amirbeaggi is equally a contradictor to certain of the claims made against the trustees, either because the allegations are that Mr Amirbeaggi personally made the oral representations alleged to amount to misrepresentations or because he is alleged knowingly to have been involved in the contraventions relating to or comprised by those misrepresentations, it would seem to me that it is relevant to take into account the fact that, if the trustees were not to continue to incur a liability for the funding of the defence of those claims, there is no real concern that the claims would remain undefended.
It therefore seems to me to be a difficult question to say that the trustees should incur the expense of defending those claims if there is another party represented by the same lawyers with a personal interest in defending the same claims that is equally capable of doing so and where that party has in fact been funding the proceedings since around September 2020.
54	As to the question of another party, rather than the trustee, funding the defence of the proceedings to which Ward CJ in Eq referred in the last paragraph above, there is no suggestion that Anna in her personal capacity is unable to fund her own defence of Simon’s proceeding so as to give rise to any concern that the proceeding would go undefended.  Given the nature of the separate and distinct claims made against them in Simon’s proceeding, both Jillian and Anna in her personal capacity have a substantial financial interest in defending the claims made against them.  Although the trust in Re Aesthete had little or no assets (unlike the Trust in this matter), I do not regard that as a presently relevant distinguishing feature. 
55	Immediately after her observations in Re Aesthete referred to above, Ward CJ in Eq identified that a different position applies where the claims in question are discrete claims for breach of trust or the like, and where the other person was not necessarily a contradictor to those claims; in that situation the trustee has an interest in defending the claims. 
56	That, however, is not this case.  Simon does not allege any breach of trust by Anna, or make claims about the proper interpretation of the trust deed.  Although Anna’s conduct as trustee in taking an assignment of the titles comprising the Highton property may be taken to have involved the exercise of the power in clause 9.9 of the trust deed, it does not thereby follow that Simon’s claims are to be characterised as concerning Anna’s management or administration of trust property.  Such a narrow characterisation is artificial and ignores the nature of Simon’s various claims to which I have referred.  The substance of those claims is that Jillian and Anna, in her personal capacity, engaged in a fraudulent scheme to defeat Simon's proprietary estoppel claim over the Highton property.  The alleged fraud and the ACL claims are based on Anna and Jillian’s alleged conduct during the mediation which preceded the transfer of the titles to the Highton property, and therefore cannot be said to concern the management and administration of trust property.  Simon’s proceeding does not seek to impugn Anna’s administration and management of the Trust, but the lawfulness of Jillian and Anna’s conduct which resulted in Anna becoming the registered proprietor of the Highton property in her capacity as trustee. 
57	There are other important considerations which lead to the conclusion that the more practical and fairer course in the circumstances of the case is for the Trust to be a necessary, but inactive, party to Simon’s proceeding in which the claims should be fought out between Simon, Jillian and Anna (in her personal capacity), without Anna as trustee having access to the Trust's property for payment of her legal costs.
58	The controversy which finds expression in Simon’s proceeding is self-evidently a family dispute between Simon on the one hand, and Jillian and Anna on the other.  As explained by Brereton J in Application of Uncle's Joint Pty Ltd ACN 148 176 792 & Anor by reference to the words of Lightman J in Alsop Wilkinson referred to in [28] above, in a family dispute, the ‘duty of the trustee is to remain neutral and, in the absence of any court direction to the contrary, offer to submit to the court's directions, leaving it to the rivals to fight their battles’.  The characterisation of the underlying controversy in a substantive proceeding involving a trustee as being a family dispute formed part of the reasoning by Croft J in Charlesworth and McDonald J in Frosthollow.  
59	The above analysis typically applies in relation to what is described as a ‘beneficiaries dispute’, being the second class of disputes to which Lightman J referred in Alsop Wilkinson.  Although, as I have explained, Simon’s proceeding does not involve a challenge to the propriety of Anna’s actions as trustee per se, the proceeding is broadly analogous to that class because it concerns how the Highton property came originally to be held by the Trust, as was the case in Uncle’s Joint.
60	Although Simon’s proceeding may, as a matter of form, be viewed as a third-party dispute because it is brought by Simon other than in his capacity as a beneficiary of the Trust, such a classification is artificial and inapposite to the substance of the dispute raised in Simon’s proceeding.  Simon is not a stranger to the Trust suing for breach of contract or tort.  He is one of the beneficiaries of the Trust who is embroiled in a complex family dispute concerning the propriety of how the Trust came to hold its sole asset.  A characterisation of Simon’s proceeding as a mere third party dispute ignores the true character of the claims made in the proceeding. 
61	Given the above matters, I accept the submission advanced on behalf of Simon that it would be unfair to permit Anna’s legal costs to be paid from the Trust’s property.  To do so would effectively benefit one camp in a family dispute against another. Furthermore, because the Highton property is the sole asset of the Trust and therefore the only asset from which Anna could draw for payment of her legal costs, if Simon succeeds in his claims and Anna was permitted to have her costs paid from the Trust property, Simon would be deprived of the fruits of victory based on his proprietary estoppel claim over the entirety of the Highton property.  The possibility that, if he succeeds, Simon will take the entirety of the Highton property, thereby depriving the Trust of its sole property, is not relevant in properly characterising the nature of the dispute between the parties. 
62	For the foregoing reasons, I do not consider that it is in the best interests of the Trust to provide the advice as sought by Anna in her capacity as trustee.  The Court will order as follows:
(a)	Anna Lidgett, in her capacity as trustee of the Lidgett Property Trust, is directed that it would be appropriate to and she would be justified in playing no active role in and abiding by the judgement of the Court in proceeding S ECI 2023 01185.
(b)	Subject to further order of the Court, Anna Lidgett, in her capacity as trustee of the Lidgett Property Trust, is directed that it would not be appropriate and she would not be justified in paying the costs of defending proceeding S ECI 2023 01185 out of the assets of the Lidgett Property Trust.
63	I will hear the parties on costs. 
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