IN THE MATTER of a trust created by deed of settlement dated 11 August 1969 (‘Mingot Family Trust’)
-and-
IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of questions arising in the execution of the trust and pursuant to section 63 and 63A of the Trustee Act 1958 (Vic)
Perenna Nominees Pty Ltd (ACN 004 786 181) (as trustee for the Mingot Family Trust)	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2021
DATE OF JUDGMENT:	14 April 2022
CASE MAY BE CITED AS:	Application by Perenna Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 193

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TRUSTS – Application for judicial advice – Perpetuity period applicable to trust – Rule against perpetuities – Statutory modification of perpetuity period – Whether trust deed contained a ‘date certain’ – Meaning of ‘date certain’ – Application for approval of arrangement to extend vesting date of a trust – Power of the Court to approve the arrangement – Where beneficiaries consent to arrangement – Whether vesting date for the benefit of minor and unborn beneficiaries should be extended of – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Perpetuities and Accumulations Act 1968 (Vic) s 5(3) – Trustee Act 1958 (Vic) s 63A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr P Bender	Rigby Cooke Lawyers
As Contradictor	Mr P Pascoe

HER HONOUR:

Introduction

The plaintiff, Perenna Nominees Pty Ltd, is the trustee of a discretionary trust known as the Mingot Family Trust (‘the Trust’), established by a deed of settlement dated 11 August 1969 (‘the Trust Deed’).

By way of amended originating motion, the plaintiff applies for certain judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’), and further seeks orders under s 63 and/or s 63A of the Trustee Act 1958 (Vic) (‘the Trustee Act’) for approval of an arrangement to extend the vesting date of the Trust in one of four alternative manners.

Background

Louis Mingot (‘Louis’) and his wife, Nerina Mingot (‘Nerina’), are 88 and 83 years old respectively. Louis and Nerina have three children: Maria Mingot (‘Maria’), born 19 March 1963; Susan Mingot (‘Susan’), born 12 January 1965; and Livio Mingot (‘Livio’), born 3 March 1969. Maria is married to Hiroyuki Mukai (‘Hiroyuki’), Susan is in a domestic partnership with Maurice Thaung (‘Maurice’), and Livio is married to Yu Hsiu Huang (‘Yu’). Louis and Nerina’s only grandchild is Livio and Yu’s son, Louis Benjamin Mingot (‘Louis Jr’), who was born in 2018.

Louis and Nerina started a construction and property development business in 1963, which they initially operated as sole traders until the plaintiff was incorporated in 1969. Louis and Nerina were appointed directors and sole shareholders of the plaintiff on its establishment. Though…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Perenna Nominees Pty Ltd

Details

AGLC: Application by Perenna Nominees Pty Ltd [2022] VSC 193
Case: [2022] VSC 193
Decision Date: 14 April 2022

CaseChat Overview and Summary

Perenna Nominees Pty Ltd applied to the Supreme Court of Victoria for judicial advice on the applicability of the perpetuity period to a trust, and whether the court had the power to approve an arrangement to extend the vesting date of the trust. The trust deed did not contain a date certain and the beneficiaries, who were minors and unborn, consented to the arrangement. The court had to determine whether the trust deed contained a date certain, the meaning of date certain, and whether the court had the power to approve the arrangement.

The court found that the trust deed did not contain a date certain as it did not specify a particular date for the vesting of the trust property. The court held that a date certain must be a fixed date and not subject to any contingency or uncertainty. The court also found that the statutory modification of the perpetuity period under the Perpetuities and Accumulations Act 1968 (Vic) applied to the trust, and that the trust was valid as it did not violate the rule against perpetuities. The court held that the power of the court to approve the arrangement was discretionary, and that the court could exercise its discretion to approve the arrangement if it was in the best interests of the beneficiaries.

The court approved the arrangement to extend the vesting date of the trust for the benefit of the minor and unborn beneficiaries. The court held that the arrangement was in the best interests of the beneficiaries as it provided for the efficient administration of the trust and the protection of the beneficiaries' interests. The court also held that the arrangement did not contravene any statutory provisions or the common law principles of trusts. The court made an order approving the arrangement and directing the trustee to give effect to it.

Orders