Editors --- "An Application by Duke Eastern Gas Pipeline Pty Ltd and Anor - Case Summary" [2003] AUIndigLawRpr 9; (2003) 8(1) Australian Indigenous Law Reporter 75

• An Application By Duke Eastern Gas Pipeline Pty Ltd And Anor
• Facts:
• Held, Granting Application:

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Court and Tribunal Decisions - Australia

An Application by Duke Eastern Gas Pipeline Pty Ltd and Anor

Supreme Court of Victoria (Ashley J)

[2003] VSC 54

27 February 2003

Native title consent agreements — trusts to be created by and for the benefit of Aboriginal signatory groups — prolonged failure by signatory groups to establish a trust — moneys payable by plaintiffs held on Trust by them for the benefit of the trust — application by plaintiffs for an order directing them to pay moneys held on trust into Court — R 54.02 (2)(b)(ii) of Chapter 1 — s 69 Trustee Act (1958) (Vic)

Facts:

In 1998, the plaintiffs, Duke Eastern Gas Pipeline Pty Ltd and D.E.I. Eastern Gas Pipeline Pty Ltd acquired from Energy Gas Pipeline Pty Ltd (‘EGP’) the rights to construct a natural gas pipeline. A number of Native Title Consent Agreements had previously been concluded between EGP and Indigenous groups with claims over land along the route of the pipeline. In acquiring the rights to the project, the plaintiffs assumed the contractor’s obligations under the consent agreements to contribute to a trust to be created by and for the benefit of the Aboriginal signatory groups.

Five years after the agreements were concluded the trusts had still not been established. The plaintiffs therefore paid the money falling due under the agreement into a bank account which held the money on trust for the benefit of the Nyarmin trust which was not yet created. Relying upon R 54.02 (2)(b)(ii) of Chapter 1 and s 69 of the Trustee Act (1958) (Vic) the plaintiffs sought an order that the money in the account be paid into court, a declaration that the money in the account represent the money payable to the Nyarmin Trust, and the reimbursement of reasonable costs incurred.

Held, granting application:

1. By virtue of Order 54, the court has the power to order the payment of the moneys into court. Despite the submission by the two Aboriginal representative entities that the application was premature because of the prospect that an agreement would be concluded in April permitting the constitution of the Nyarmin Trust, such an order should be made. The moneys in the bank account are currently earning interest at 4.15% incurring significant tax liabilities to the detriment of the ultimate beneficiaries. The plaintiffs are also incurring expenses under this method. If the moneys were to be paid into court, the administration charges would be modest and the return would be considerably better for the beneficiaries; [6]-[7].

2. A declaration that the money at the bank is the money payable under the agreements is made: [9].

3. The plaintiffs should have their costs of and incidental to the proceeding on an indemnity basis and those costs should be paid out of the trust moneys. The plaintiffs are also entitled to recoup from the moneys paid into court their reasonable costs and disbursements of administering the trust over the period of years: [11] - [12].