4. & p; &nbp;&nbp; p; &nnsp;&&nsp; &nbp;
Top pry was puas purchaseough Atlas Investments Limited, an
Offshore Company, registered in Vanuatu.
5.: 1">
6.
7. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
tleetwith the the on-shore bookmakers , but was unable to se
Trip compthe pty despan>
>
8. p;&nbbsp; &bspp; &nbs; &nbs; ;&nbpp;
Followillowing further discussions with Tripp N I uonies avae to settle the property deal.
9. &nbssp;&nnbsp; nbsp;nbsp; &nbss;&nbbs;&nnbsp; &nsp; &nb p;
/span>JN arranged tged the settlement wripp.
&n/span
10. ;&nbssp; Fsp; For thir this consideration I transferred the shares of Atlas
Investments Limited to a Trust, the
Trusknownhe Sabra Trust, the
Trustee is Geoffrey Gee, and attorney resident in VanuaVanuatu.
11p; James Noall is the ienefy iary of the trust.
p>
12. &nnbsp;;&nspp;nbsp;nbsp;&nbp; &nnbsp;;
sp Opan>On February 12th 1996, Justice Purdy of the Family Court
of Australia decided in his judgment the subject property bought by Atlas
Investmenmitedmy
‘aego’ ano’ and cedd ceded thed the property to the
ex-wife.
13. &nnbsp;;&nbssp;&bsp;&nbs;&nbs; & p;
s Tpan>The property settlement is subject to an appeal set downheari on the 4th July, 1996.
14. &bsp; &nbbp;&nnbsp; &nb Gean>Geoffreyffrey Gee, the Trustee of the Sabra Trust believes JN and I should
have had an exchange ofers a the when hares
nsferred. See my letter tter to JNto JN date dated 25/d 25/05/9405/94.
15. ;&nbssp; &&bsp;&nsp; &nbs; &nb p;
/s I requested Jted JN to re-type, sign and return the draft letter
/94. ked mforward a copy of the draft letter for your opinion,
JN JN will will tele telephonephone you in due course.
16. & &nbbp;&nnbs; &nbs;
Signed: G. Atkinson
12/04/96”
In paragraph 14 Mr Atkinson is referring to his letter
dated 25/5/94. In fact it appears that he got the datng. The correct
date date is 23rd May 1994. It is written on his letterhead. I set it
out in full below-
“23rd May 1994
1">
Tel: 61.2.3623376
James Noall
C/- The Swiss Hotel,
Istanbul
TURKEY.
lass="MsoNoMsoNormal" style="text-indent: 36.0pt; margin-top: 1; margin-bottom: 1">
Dear Jim,
&nbs>
Further to our recent telephone conversations.
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
I appreciate your offer to help me through my present
problems, the situation iI explained, I do not beliebelieve any documents
are required providing we have an exchange of letters, it is a Bearer
Share deal, and as such is exempt from transfer fees or stamp duties.
For the record, we have agreed a figure of AUD$800,000.
Regards
Signed: kinson.
Ps. Sorry to be so formal, but I feel I should put my signature to this
letter.”
In paragraph 15 Mr Atkinson refers to a letter dated
6/6/94. No doubt he prepared it for Mr Noall to retype and sThere is no
signed coed copy of the letter on record . I set it out in full below –
“C/- The Swiss Hotel,
Istanbul
TURKEY.
Dear George
Alright Smedley, I owe you a favourl get you off the
hook.
I will take over the Muswellbrook property, and arrange
to clear your debt.
Agreed value of the propertt.$800.000.00.
lass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
As I informed you I still have the Trust I set up in Vila some years back,
the Trust is in the care of Geoffrey Gee &
Partners Attorneys, PO Box 479,
Port Vila, Vanuatu. Tel. 22067 Fax. 23710
Geoffrey Gee is the Trustee.
The Trust is known as the ‘Sabra Trust’ the Trust will
require all the shares in Atlas Investments Limited, you wiou will have to
instruct the Nominee Company to transfer the Shares to the Trust.
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
I need to receive documentation in due course that all
the income from Muswellbrook will be for the benefit of the Trust.
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
I have spoken to Sn Port Vila, you have his number
if you require his services.
lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Until I am in a position to return to Australia, I leave
it to you George to aster on my behalf.
Take care Smedley,
JAMES NOALL
6/6/94”
<
It appears that Mr Noall was not communicating with Mr
Atkinson so that on 28th January 1997 Mr Atkinson wrote again on
his letterhead from PO Box 451 Double Bay 2028, Australia. I set out below
the
full text of the letter –
“Tuesday 28th January7 &nnsp;&&nsp;;&nspp;&nssp;&nsp; nbsp;
Tel: 61.2.948
Dear Jim
I shall telephone you in a few days time.
I won my appeal in the mattertkinson/Atkinson as did
the Company Atlas Investments, the matter has now been sent bent back to
Parramatta for a new hearing.
On the 12/04/96 following your request I wrote to Mr
Sackville, your family Solicitors, I followed up with a phone call to Mr
Sackville.
Mr Sackville said he would advise you to follow the
advice of Geoffrey Gee, your attorney in Port Vila.
Geoffrey Ghe Trustee of the Sabra Trust said we
should have exchanged letters regarding the trae transfer of shares from me
to
the trust.
I enclose:-
1. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
tteleto Mr Sacr Sackville dated the 12/04/96
ass="rmal"e="tedent:0pt; n-left: 7ft: 72.0pt2.0pt; margin-top: 1; margin-bottom: 1">
1">
<2. &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n Myan>My letteletter to you dated 23/05/94
pan lEN-GB">3. ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Dofft letter dter dated the 6/06/94 from you to I, this letter should
be retyped inmilar and ned to me at thve bober.
Regards,
Signed (G.A).”
The signature on this letter is very much different fr the signature of Mr Atkinson on his letter of 23rd May, 1994 to
Mr Noar Noall.
Then on 16th February 1997 Mr Noall sent a
hand-written facsiwhich is in evidence as Exhibit P24. Page 1 of the
fa fax is set out
below –
“For Your Eyes Only &nnbsp;; &nbs;&nnbsp;&nbs; &nbs; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;;&nbbsp;
6 u>6 INC Page
 an>
From /span
800’000
To NUMBER ONE BETTING SHOP
Stamp Duty & Legals ;&nspp;&nssp; &nbbsp; &sp; &nbs &nbssp;&nnsp;&&nsp; &nsp;
n & &nnnbsp;;&nbssp;bssp;&nnbspnnbsp;;&nbssp;
407’00an/spp>
/
span>
>
OrigieposiGA   &nbssp; nbsp;  &nbs; nbsp;&nbp;
&nbbp;&nnbsp; &bsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp;
&&nsp;; 8sp; 88,000
Balance of Moneys to GA 175,000 &nbssp; nbsp;   &nbs; &nbss; &nbs; &nbs; ;&nbpp;
u <______________
800,000 p;&nbbsp;& &nssp;&bsp;  nbsp;nbsp; &nbbs; nbsp; &nbssp; &nbssp;& p;&spp;&nbbsp;bbsp; &nnbsp;;
sp;
& ;nbspp &nbs;    &&nbp;;&nbpp;&nbssp;&nnbsp;nbsp;; &nnbsp;;&nspp;&nsp;&nnbsp;;bsp;;&nbssp; &nbbsp; &nbp;
80p; 800,000
p>
span lang="EN-GB">&n/span>
TRANSACTION CARRIED OUT BY ‘STIG’ &
ACCOUNTANT IN PORT VILA, VANUATU
_______________________________________
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
IMPORTANT YOU NOTIOFF GEE RENT
REQUIRE HAS DUE ON PROPERTY JAN.97”
_______________________________________
records for the 1995 were were subpoenaed but they were not helpful. The
relevant records would have been for the year
1996 – 97 in the light of the
above facsimile. But there were not produced nor were they called for.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
But a very revealing document in evidence is Exhibit P6.
It is an ud note of acknowledgment from the Number One Betting Shop
ihop in
Port Vila. It is on Official letterhead providing full details of postal
addresses both in Vanuatu and in Australia.
It contains also telephone and
facsimile numbers in Vanuatu and in Australia. It reads as follows:-
“TO WHOM IT MAY CONCERN”
It may be stated categorically, all monies due to this
agency by (Mr) George Atkinson have been paid in full .
ass="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
We are aware funds
were made available tble to (Mr) Atkinson from the transfer of shares of the
Company, Atlas Investments
Limited .
Signed: Donald Harry
(Licensee Nambawan Betting Shop)”
“(a) &nbsTELLITE HO DINGTEIMIspa
(b) &nbbsp;&&nsp;; ssp; such chch charitable institutions or purposes as
the trustees shall see fit and as are deemed charitable
in accordance with
English law as applicable in Vanuatu.
(c) &nbbsp; &nsp; any perssn (aindefin the sthe schedule to the
Interpretation Act 1981) as the nominator or (if the nominator be an
individual) after his death his legal personal representative or
preseves sfrom
time tome to time time by n by notice in writing to the trustee
during the specified period appoint to e beneficiaries for
the purpose of
this Deed (not being:-
(i) &nbbsp; the nomi;
(ii) &nbp; &nnbp;&&nbp;;&nbpp; &nsp; p;
s the nome nominator’s legal personal representative or representatives
whether in their capacity as such legal persrepretive
their
personal cap;
(iii) &nbbsp;& p;&bsp;   &nnbsp;;&nspp;
sp;
the settlor; or
(iv) nbsp; &nbbp;&nnbp;& &nbbsp;
anan>any person or company who or which is or has been a trustee of the
trust fund).“
&nb">
The nominator is specifically named in Clause 4 of the
Deed as WATERFORD LIMITED. The settler is Regent Limited.
Clause 2 of the Deed specifiecifies both the duties and the power of the trustee.
Clause 2(4) gives the trustee power
to “create protective or discretionary
trusts or powers operative or exercisable at the discretion of any persons
or
person corporations or corporation;“
Clause 2 (6) of the Deed gives the trustee power to –
“generally make or confer in favour or for the benefit or
all or any of the objects of this power of appointment all such dispositions
charges or powers of or in relation to the trust fund and the income thereof
or any part or parts thereof respectively
as an absolute owner could
lawfully make or confer of or in relation to any property belonging to him
beneficially (regard
being had nevertheless to the law relating to
remoteness) PROVIDED always that no exercise of the power or powers
conferred by this clause shall invalidate any prior payments or application
of the trust fund or income thereof or any part or parts thereof
respectively made under any power conferred by this Deed
or by law AND
PROVIDED also that the trustee may at any time or times by deed
extinguish (or restrict the future exercise of) the power or powers
conferred by this clause AND PROVIDED further that no exercise of the
power or powers conferred by this clause 2 shall be effective without the
consent in writing
obtained in advance by the Nominator.”
Then on 1st December, 1999 Waterford Ltd, the
ominator issued a letter to Geoffrey Gee & Partners auts authorizing them to
remain
and to continue to act on their behalf in the following terms –
“Dear Sirs,
WATERFORD LIMITED – TRUST DEEDS.
I
write to confirm that from inception of your request in 1987 to Mr Tony
Richie, then director of Price Waterhouse, Port
Vila Office, that the
utilisation of Waterford listed as a Nominator in your Trust Deeds was and
continues to be on the
basis that such use was in a nominee capacity only
and that at all times Geoffrey Gee was and remains fully authorised to act
on behalf of Waterford Limited and without recourse to us specifically in
relation to its position as nominator in all
Trust Deeds engrossed and
settled by that firm were Waterford Limited is listed as nominator provided
Geoffrey Gee remained
both Trustee under the Trust and Proprietor of his law
firm .
Yours Faithfully,
Waterford Limited
Signed: Mark Conway
1">
Director.”
In my view that letter amounts to a consent unlause 2(6).
<
On 24th September 1997tkinson wrote the
following letter on letterhead from 40 Northland Road, Bellevue Hile Hill,
Australia
2028 –
“24th September,
1bsp; &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbp; ;&nbpp; &&nsp;; &nbp; &nbp; &&nbp;; &nnsp;& &nbp; &nbp;
&nnbp;& &nnbsp; &nbp; &nbp; : 936
c
Mr Mark Johnson,
GPO Box 119,
SYDNEY NSW 2001
Dear Mr Johnson,n>
I am inipt of your letter dated the 23rd
September inst; which was delivered by c by courier, and received by the writer
at approximately 5.45 pm on that day
.
I have noted the contents, and in reply I must state:-
1. &nbbsp; &bsp;&nbssp;&nbs; &nbs; ;&nbpp;
/ Ipan>I have no cont control over the company known as ‘Atlas Investments
Limited.’
>
2. p;&nbbsp; &bsp;&bsp; &nbss;&nbbsp;&&nsp; &nsp;
s
span "EN-GB">&nbs>
p cl
3. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
I s ‘Cons‘Consent Orders’ in the family Court of Austrat
arramon 19th
p class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
4. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Haden repn represented by a qualified lawyer the Orderld ne been d.
p class="Mmal" style="text-indent: -36.0p36.0pt; mat; margin-rgin-left:left: 72.0 72.0pt; mpt; marginargin-top: 1; margin-bottom:
1">
5. p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp; &nbp;
O 2theup>rd September 1997, I filed at the Family L C Sydngistr foll docu, Applicaplication tion – Affidavit –
Financial Statemeatement
– nt – FinalFinal Orde Orders, these documents were served on the
interested parties. In my Application I requested on behalf
of myself and
Barkus Pearson, Solicitors for Mrs Atkinson, that all the Consent Orders be
vacated or set aside pending
a further determination of the Court.
6. ;&nbssp;&nbs;&nbs; &nbp; & &nbssp; &nbp; &nbs;
I favearded yoed your letters of the 17th and 25th
Septelast offre and Partners, Vila,atu,
instructing Soliciolicitors,tors, who no doubt will advise you in due due courscourse.
Yours faithfully,
Signed: George Atkinson
: 1">
By facsimile, original by mail.
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Copies to:-
>
Barkus Pearson
Geoffrey Gee.”
I have examined the oral evidence ofPlaintiff
together with his affidavit evidence and the many other documents tendered ered
by him into evidence. I have found numerous inconsistencies, so much so that
I must conclude that Mr Atkinson cannot
be a truthful witness. His whole
evidence lacks credibility. I must however accept that what he said in his
letter to
Mr Mark Johnson in his letter of 24th September 1997 at
paragraphs 1 and 2 is the truth. I must also accept that Mr Atkinson’s
letter of 12th April, 1996 to Mr Sackville reflects the true
position as between himself and Mr Noall. Further, I must accept that his
letter of 23rd May 1994 to Mr Noall reflects the true position of
the matter as between himself and Mr Noall. This includes the purported
reply by Mr Noall to Mr Atkinson of 6th June, 1994.
There is nothing in those correspondences to suggest or
dicate that the arrangement was that James Noall would hold hold in trust
for
Mr Atkinson as the ultimate beneficiary. Mr Atkinson specifically admitted
in paragraph 11 of his letter to Mr Sackville
that Mr Noall is the
beneficiary of the trust. That admission is consistent with his instructions
to the trustee to transfer
AU$92,000 to Mr Noall’s account in Switzerland on
23rd March, 1997. What Mr Atkinson was doing in effect was simply
administering the funds from the Muswellbrook property on behalf
of Mr Noall,
the beneficiary. By doing so Mr Atkinson was complying with the instruction
of Mr Noall to him in his letter
of 6th June, 1994 (see last
sentence).
It is in the light of that last sentence that the Deed of
Trust must bstrued. For ease of reference I quote the sentence again
asin as
follows:-
<
“Until I am in a position to return to Australia, I leave
it to you Geto administer on my n my behalf.” (underlining, mine)
Much of what was said and done is privy only to Mr
Atkinson and Mr Noall. I have heard both Mr Atkinson and Mr give oral
evidence. nce. Due to the many inconsistencies in Mr Atkinson’s evidence I do not
regard him as a truthful witness. I accept
Mr Noall’s evidence in the light
of the acknowledgements and admissions made by Mr Atkinson in the various
correspondences
set out herein to be the truth.
Mr Atkinson cannot now ask the Court to interpret the
Deed of Trust and the Resolutions of the two meetings of 24th
October, 199, 1994 and of 15th June, 1995 in any other way. The Court
must construe the wording of the Deed and these Resolutions according to the
true
intent of the persons involved. And the true intent from the
correspondences herein set out is that Mr Noall was to be the
beneficiary
and Mr Atkinson was to ‘administer’ on his behalf. That is consistent with
clause 1 (3) (c) (i) of the Deed
which specifically provides that the
beneficiary cannot be the nominator. If Mr Atkinson claims to be the
nominator then
under this provision he cannot be the beneficiary as well.
But Clause 1 (4) specifically provides that the nominator here is
Waterford
Limited, not Mr Atkinson. The beneficiary is James Noall nominated as such
under a Declaration of Trust, Schedule
Two dated 15th June, 1995.
He is the only named beneficiary. And he is neither the ‘ protector’ nor the
‘nominator’. Different persons
or entities do that for him. Mr Gee and/or
his nominees and Mr Atkinson are examples of such persons and entities.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr Gee explained what the position of Mr Atkinson was and
is at paph 15 of his affidavit dated 19th may, 2000. It . It
reads as follows:-
“That at the same time and as discussed with the
Plaintiff to de the Plaintiff with ongoing authority to deal with the
he
Assets of the Trust. I nominated him as the overseer of the Trust Assets and
the general status of the Trust but again
made it quite clear that
ultimately this was always subject to the wishes of the beneficiary and
provided there was no
such instruction then his position as overseer of the
Trust Assets and dealings with them would continue.”
The term ‘overseer’ is defined in the New Collins
Dictionary as “boss”. Reading Resolution 1 of the Minutes of Trustee Meeting
of 24th October, 1994 it appears to me that being in the position
of ‘protector’ of the trust then, Mr Atkinson was the boss. In other
words
at the time, he was the beneficial owner of the Trust. However all that
changed when on 15th June, 1995 Mr Noall was declared to be the
sole beneficial owner. Mr Atkinson knew the circumstances that warranted
that
change. He conceded in his letter to Mr Sackville dated 24th
September, 1997 that he had no control over both Atlas Investments Limited
and the Sabra Trust (paragraphs 1 and 2).
In my considered opinion
Resolution 1 of 24th October 1994 is no longer operative. It was
rendered in-operative by the change of beneficial ownership in 1995 and
remains
as such to this day, and I so rule.
That being so, when Mr Atkinson nominated his brother
Gordon Atkinson on 17thth September, 1997. Secondly, that
nomination was purportedly done pursuant to his authority in Resolution 1 of
24th June, 1994. However as I have earlier ruled, on 15th
June 1995 that authority had ceased. Therefore it follows that on 17th
September, 1997 Mr Atkinson was no longer the protector of the trust and it
follows further that he had no authority
to make the nomination that he did,
and I so rule.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The First Defendant therefore was and is nund by law
to put into effect Mr Atkinson’s nomination of 17th September, ber,
1997. The First Defendant is now only bound to take and comply with the
instructions from or by Mr James
Noall, the Second Defendant as the
beneficiary of the Sabra Trust and/or the nominator, Waterford Limited.
For those reasons I must also conclude that the First
Defendant was not negligent and there was no bref a retainer on his
p part.
The Plaintiff’s Originating Summons is dismissed in its
entirety. The Plaintiff will pay the First Defendant’s costs of and
incidental to these proceedings. The Second Defendant’s costs are to be paid
out of the funds of the Trust.
Dated at Luganville this 31st day of July,
2001
class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
BYCOURT
OLIVER A. SAKSAK
Judge
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