Application of NBT Pty Ltd

[2023] NSWSC 919

Supreme Court

New South Wales

Medium Neutral Citation:

Application of NBT Pty Ltd [2023] NSWSC 919

Hearing dates:

31 July 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Judicial advice given. Rectification orders made.

Catchwords:

JUDICIAL ADVICE — Principles discussed — Application for advice regarding issues as to whether trustees justified in administering a trust by reference to copies of trust deeds rather than originals, whether trustees had been validly removed and appointed, whether a beneficiary had been validly appointed, whether former trustees had been excluded as beneficiaries and the extent of powers to vary the vesting of the trust

TRUSTS — Original of trust deed misplaced, lost or accidently destroyed — Discussion regarding what is required by way of proof of whether copy of trust deed is a true copy of the original — What is required to establish whether a document is an accurate copy of an original trust deed depends upon the particular circumstances of any given case — On facts trustee justified in administering trust on the basis of the documents adduced on the application

TRUSTS — Removal of trustee and appointment of new trustee — Construction of trust deed and legal principles regarding how the Court should approach the question of whether a person who has signed a document has signed it in one or more different capacities

TRUSTS — Variation of trust — Construction of trust deed and power to vary trust

TRUSTS — Beneficiaries — Construction of trust — Whether former trustees excluded from being potential beneficiaries — As a matter of construction the term “Trustee” only applies to the trustee or trustees for the time being of the trust fund

PERPETUITIES — Trust was established on 8 January 1980, prior to the introduction of the Perpetuities Act 1984 (NSW) — Perpetuities Act 1984 (NSW) not applicable — Consideration of question of vesting of trust in light of provisions and “Royal Lives” clause

TRUSTS — Remedies — Rectification of trust deed — Issue as to whose intention is relevant for rectification — The identification of the party or parties whose intention is relevant depends upon the circumstances — Where settlor had no active and operative intention as to terms of the trust and acted merely on instructions of trustee — On facts the “real” settlor was the trustee and not the nominal settlor — Trustee intended trust to have indefinite duration to fullest extent permitted by law — Rectification ordered

Legislation Cited:

Perpetuities Act 1984 (NSW)

Real Property Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Alonsov SRS Investments (WA) Pty Ltd [2012] WASC 168

Application of Doolan [2023] NSWSC 320

Application of Walker Corporation Pty Ltd [2022] NSWSC 1609

Benaroon Pty Ltd v Larmar [2020] QCA 62

Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58

Grain Sorghum Marketing Board v J Jackson & Co Pty Ltd; Ex parte Grain Sorghum Marketing Board [1962] Qd R 427

In the matter of GeorgeHardi Family Trust [2021] NSWSC 1584

Kearns v Hill (1990) 21 NSWLR 107

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23

Mercanti v Mercanti [2017] HCASL 59

Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206

Public Trustee v Smith [2008] NSWSC 397

Re Cleeve Group Pty Ltd [2022] VSC 342

Re Estate of the late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844; (2013) 10 ASTLR 251

SanwickPtyLtd v Kalyk [2016] NSWSC 100

Category:

Principal judgment

Parties:

NBT Pty Ltd (First Plaintiff)
Breakfast Creek Station Pty Ltd (Second Plaintiff)

Representation:

Counsel:
D Barlin (Plaintiffs)

Solicitors:
Gadens Lawyers (Plaintiffs)

File Number(s):

2023/8103

EX TEMPORE JUDGMENT (REVISED)

Introduction

1. HIS HONOUR: The application before the Court is an application by two trustees, respectively NBT Pty Ltd (NBT) and Breakfast Creek Station Pty Ltd (BCS), collectively the trustees of the NBT Trust (Trust).

2. The trustees, by an amended summons filed on 25 May 2023, seek a raft of orders relating to the management and administration of the Trust as follows:

1. N B T Pty Ltd ACN 001 945 446 and Breakfast Creek Station Pty Limited ACN 654 314 539 (together the "Trustees"), in their capacities as trustees of the trust estate known as The NBT Trust ("Trust") seeks advice pursuant to section 63 of the Trustees Act 1925 (NSW) as to:

a. Whether the Trustees are justified in managing and administering the Trust pursuant to the terms of the trust deed and supplemental deeds located at pages 7 to 55 of Exhibit "NBT1" ("Trust Deed") to the affidavit of Nicholas Burton-Taylor sworn on 19 October 2022?

b. Whether NBT Pty Ltd ACN 001 945 446 was validly appointed as a trustee of the Trust on 30 September 1981 pursuant to the terms of the deed of appointment of new trustee located at pages 21 to 25 of Exhibit "NBT1" to the affidavit of Nicholas Burton-Taylor sworn on 19 October 2022?

c. Whether Nicholas Burton Taylor and Julia Helen Burton Taylor were each validly removed and discharged as trustees of the Trust on 30 September 1981 pursuant to the terms of the deed of appointment of new trustee located at pages 21 to 25 of Exhibit "NBT1" to the affidavit of Nicholas Burton-Taylor sworn on 19 October 2022?

d. Whether the Burton Taylor Foundation ABN 37 616 257 182 was validly appointed as beneficiary of the Trust on 28 June 2002 pursuant to the terms of the amending deed located at pages 41 to 43 of Exhibit "NBT1" to the affidavit of Nicholas Burton-Taylor sworn on 19 October 2022?

e. Whether the Trustees are justified in managing and administering the Trust such that Nicholas Burton Taylor and Julia Helen Burton Taylor or any corporation in or under which Nicholas Burton Taylor or Julia Helen Burton Taylor have any actual or contingent beneficial interest are not excluded as beneficiaries under the Trust?

f. Whether the Trustees are justified in exercising the power contained in clause 19 of the Trust Deed so as to vary the definition of "Vesting Day" contained in clause 1 (c) of the Trust Deed by deleting paragraph (i) of clause 1 (c) of the Trust Deed?

g. Whether as a consequence of Breakfast Creek Station Pty Limited ACN 654 314 539 being appointed as trustee of the Trust in respect of the property known as "Breakfast Creek Station" located at XXXX Lachlan Valley Way, Godfreys Creek NSW 2584 (Breakfast Creek Station), the perpetuities period in respect of Breakfast Creek Station is reckoned from the date on which Breakfast Creek Station Pty Limited ACN 654 314 539 became the registered legal owner of Breakfast Creek Station?

2.    Order rectifying the Trust Deed by:

a. deleting clause 1 (d)(bb) of the Trust Deed and substituting with the following clause 1 (d)(bb):

Any person being the Settlor.

b. deleting clause 24 of the Trust Deed and substituting with the following clause 24:

It is hereby declared that the Settlor is specifically excluded from all or any benefits whatsoever under this Trust Deed.

c. deleting "31 December 2074" from the Schedule of the Trust Deed.

3. Order that any and all income and capital distributions from the Trust that were distributed to Nicholas Burton Taylor, Julia Helen Burton Taylor or any corporation in or under which Nicholas Burton Taylor or Julia Helen Burton Taylor have any actual or contingent beneficial interest are valid distributions and do not breach any terms of the Trust Deed.

4. Order that any and all income and capital distributions from the Trust that were distributed to the Burton Taylor Foundation ABN 37 616 257 182 are valid distributions and do not breach any terms of the Trust Deed.

3. The first series of orders are in the nature of a form of judicial advice, that the trustees are justified in managing and administering the Trust by reference to certain matters. That is the relief sought in seven questions in Order 1.

4. There is further relief sought in relation to rectification of the Trust Deed which is sought in Order 2 of the amended summons.

5. Orders 3 and 4 of the amended summons are orders that distributions of income and capital from the Trust are valid distributions and in a sense have a connection with the earlier relief sought and in that respect are effectively consequential upon it.

6. On the hearing of the matter, Mr Barlin of counsel appeared for the plaintiffs.

7. The material before the Court included a statement of facts (MFI-1), a number of affidavits of Nicholas Burton Taylor (Mr Burton Taylor) sworn 19 October 2022, 30 May 2023 and 26 July 2023, Exhibit NBT-1 to Mr Burton Taylor’s first affidavit, an affidavit of Julia Helen Burton Taylor (Mrs Burton Taylor) sworn 25 October 2022 and an affidavit of Shane Douglas Oxenham (Mr Oxenham) sworn 10 November 2022.

8. At the hearing of the matter, there was tendered an opinion by Mr Barlin which was marked as Exhibit P1 and a number of other documents relating to the Burton Taylor Foundation which became Exhibit P2.

9. Mr Barlin provided submissions dated 28 July 2023 and has also assisted the Court by oral submissions.

10. I have been considerably assisted by the submissions of Mr Barlin.

Judicial advice principles

11. Mr Barlin, in his opinion, set out and addressed the law in relation to the giving of judicial advice. In particular, he referred to the decision of the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42, and, amongst other decisions, the decision of Lindsay J in Re Estate of the late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844; (2013) 10 ASTLR 251.

12. In addition, I refer to my decision in Application of Doolan [2023] NSWSC 320 (Application of Doolan) in which I addressed the power of the Court to give judicial advice and stated as follows (at [287]-[308]):

Inherent equitable and statutory jurisdiction

287. The Court has an inherent equitable jurisdiction to give advice: Macedonian Court Case at 81 n 47; Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558 (Macedonian No 2) at [23] per Palmer J.

288. There is also statutory jurisdiction pursuant to s 63 Trustee Act.

289. The High Court in the Macedonian Court Case at least expressly did not consider how far this Court may have jurisdiction to give judicial advice by reason of the inherent jurisdiction of a court of equity, or by reason of s 22 or s 23 Supreme Court Act 1970 (NSW): Cho-Poon at [172] citing Macedonian Court Case at 81 n 47, though cf Cho-Poon at [177]-[179].

290. The jurisdictional power under s 63 is enlivened where there is a question respecting the management or administration of the trust property or respecting the interpretation of the trust instrument: Macedonian Church Case at [58].

291. The inherent equitable jurisdiction allows for private advice to trustees. It is derived from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the Court – affording special assistance to those, such as trustees, who have no direct pecuniary interest in a fund but have assumed the onerous obligation of administering it for the benefit of others: Macedonian No 2 at [23].

292. The Court in a s 63 application is not bound to give judicial advice merely because a trustee has a right to apply for it: Cho-Poon at [43] per Lindsay J citing Application of Perpetual at [8]-[9] per Young CJ in Eq. Ultimately, the Court in dealing with such applications whether as to the form of the application or in the decision as to whether to give advice or not must be guided by what it perceives to be in the best interests of the trust estate: Macedonian Church Case at [72]; Cho-Poon at [45] citing Application by Marilyn Joy Cottee [2003] NSWSC 47 at [35] per Hallen J.

Purposes served by the jurisdiction

293. The primary purpose of judicial advice is to enable trustees to ascertain in advance whether particular conduct that they contemplate will be in accordance with their duties as trustees.

294. Applications by LPRs for advice under s 63 Trustee Act lay a foundation for an application to the Court:

(1) under s 85 Trustee Act, to be granted relief against liability for a breach of trust: Cho-Poon at [120] citing National Trustees Company of Australasia Limited v General Finance Company of Australasia Limited [1905] AC 373; Re Investa Properties Limited [2001] NSWSC 1089; 187 ALR 462 at [39]-[43]; and

(2) as evidence persuasive of an absence of any “wilful default” on the part of the trustee personally that, if present, could expose the trustee to liability Cho-Poon at [120] citing Perpetual Trustee Co v Watson (No 2) (1927) 28 SR (NSW) 43 at 46-47; Ah Toy v Registrar of Companies (Northern Territory) (1986) 10 ACLR 630 at 646.

295. In relation to the first matter, the High Court has indicated that it is desirable that trustees in doubt as to a course of action should not proceed with it and then seek s 85 relief, but rather seek s 63 relief first because one of the things which a trustee invoking s 85 requires to be excused from is his failure to seek s 63 advice: Macedonian Church Case at [36].

296. If trustees then act on the advice, they will have discharged their responsibility, and subject to the proviso in s 63(2) will not be liable for breach of trust. See also Australian Legion of Ex-Servicemen & Women [2021] NSWSC 149 at [44] per Robb J.

297. A related purpose concerns the right of a trustee to be indemnified from the trust fund for the trustee’s costs of performing the trustee’s duties.

298. In many cases, a trustee can obtain effective protection by acting upon the Opinion or advice of a lawyer: Cho-Poon at [110] per Lindsay J.

299. Wills or trust provisions might provide a facility for the executor or trustee to rely upon counsel’s advice or even other exemptive provisions. However, absent such an exemptive provision in the trust instrument, even though a trustee may be assisted by the provision of the Opinion or advice of a lawyer, the intervention of a lawyer in this respect provides no guarantee of protection if a Court subsequently perceives that the Opinion or advice was wrong or it was unreasonable for the trustee to have acted upon it: Cho-Poon at [110].

Application procedure

300. There is no precise form as to how an application for an order for judicial advice ought to be framed. A usual form of provision of advice is to the effect that the trustee “would be justified in [doing or omitting to do something] on the basis [assumption] that et cetera”: Cho-Poon at [31]; Perpetual Trustee Co Ltd v Attorney General (NSW) [2018] NSWSC 1456; (2018) 17 ASTLR 126 at [7(2)] per Leeming JA.

301. The provisions of the Trustee Act do not mandate that the application be supported by an Opinion: Cho-Poon at [109]. However, the practical reality is that the Court places considerable importance upon the availability of an Opinion of counsel: Cho-Poon at [107]-[121].

302. The procedural objectives of speed and efficiency served by judicial advice proceedings are facilitated by and in many cases cannot be achieved unless the Court is presented with the assistance of a memorandum of Opinion by an independently-minded lawyer who, out of court, has studied the problem to be solved, examined the factual context critically, analysed competing contentions in a comprehensive legal context, and worked out a solution that commends itself to his or her professional judgement: Cho-Poon at [113].

Section 63 procedure for binding beneficiaries

303. An application for judicial advice pursuant to s 63 Trustee Act is normally ex parte and not adversarial. However, subject to the nature of the question in issue the advice might impact beneficiaries’ rights. Thus, where the question is who the beneficiaries are or what their rights are as between themselves, the LPR before conveying or distributing any property in accordance with the Opinion, advice or direction of the Court shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution: s 63(8) Trustee Act.

304. A beneficiary who claims he or she will be prejudiced by the conveyance or distribution may apply to the Court for such order or directions as the circumstances may require: s 63(10) Trustee Act. Any person on whom notice of any s 63 advice application is served, or to whom notice (under 63(9)) is given in accordance with s 63(8), is bound by any Opinion, advice, direction or order given as if the Opinion, advice, direction or order had been given or made in proceedings to which the person was a party: s 63(11) Trustee Act.

Status of facts stated

305. The facts stated to the Court by the trustee are (ordinarily) untested by adversarial procedure and are assumed by the Court to be true only for the purpose of the application: Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 (Macedonian No 3) at [69] per Palmer J. It is not the Court’s purpose to determine the rights of adversaries although that might sometimes occur as a necessary incident of determining what course ought to be followed in the best interests of the trust estate: Macedonian Church Case at [104]-[105]; Macedonian No 3 at [41] referring to Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 (Marley) at 201g per Lord Oliver of Aylmerton for the Board.

306. There is no finding by the Court that the facts stated by the trustee are accurate. It has been said that no person bound by the advice is prevented from litigating as to the accuracy of those facts in other proceedings: Macedonian No 3 at [70].

307. However, that is not to say that the Court on judicial advice applications unquestioningly determines the application without some reflection on the materials presented.

308. The Court is cautious where it is presented with statements of fact which refer to trustees’ (including LPRs’) beliefs and lack of awareness of matters, which invite the Court to proceed on the basis of an unexamined state of mind of the trustees potentially without elaboration of any objective, underlying facts and potentially without any assurance that the trustees have made inquiries, let alone reasonable inquiries, about facts which they implicitly invite the Court to assume to be true: Cho-Poon at [141]-[142].

13. I am satisfied in the circumstances that the issues raised on the application, leaving aside the question in relation to rectification, constitute questions respecting the management or administration of trust property or questions respecting the interpretation of the trust instrument, and thus are susceptible to be the subject of judicial advice.

Background

14. In order to address the matters the subject of the application, some basic background is required.

15. On 8 January 1980, the Trust was established by a deed of settlement between Mr Oxenham as settlor and Mr Burton Taylor and Mrs Burton Taylor as original trustees.

16. The original Trust Deed has been amended on a number of occasions pursuant to deeds which are in evidence being, relevantly, deeds dated 27 May 1996, 28 June 2002, 3 May 2004 and 13 December 2021.

17. In addition, Mr and Mrs Burton Taylor as original trustees were, subject to a matter that I will come to, removed as trustees of the Trust and NBT was appointed as new trustee by deed on 30 September 1981 (1981 Deed).

18. On 13 December 2021, BCS was appointed as trustee with respect to specific assets held subject to the trust estate being the property known as Breakfast Creek Station located in Godfreys Creek, New South Wales.

14. Thus, whilst both NBT and BCS are trustees of the Trust, they hold different items of trust property solely.

Order 1 (Judicial advice)

Question 1 (Is it safe to act on a copy of the trust deed?)

20. The issue in relation to Question 1 arises from the fact that the original of the Trust Deed has been misplaced, lost or accidently destroyed.

21. Mr Burton Taylor, in his affidavit dated 26 July 2023, gives evidence that he has conducted searches and made inquiries in an attempt to locate the original Trust Deed. He sets out the inquiries he has made.

22. He has been unable to locate the deed and considers that it has been misplaced, lost or accidently destroyed.

23. Generally, in relation to evidence of a document, if a copy is relied upon, it must be shown by other evidence to be a true copy.

24. Statutory provisions may bear upon admissibility of evidence. In some contexts, it is said that there are no degrees of secondary evidence, and any admissible evidence may be received as evidence of the contents of the document: e.g. Grain Sorghum Marketing Board v J Jackson & Co Pty Ltd; Ex parte Grain Sorghum Marketing Board [1962] Qd R 427 at 443-444 per Stanley J. What is involved by way of proof also depends upon how the evidence is recorded: e.g. Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58 including at 185-186 per Mason CJ, Brennan and Deane JJ.

25. What is required to establish whether a document is an accurate copy of an original trust deed is the subject of discussion in much caselaw. In Re Cleeve Group Pty Ltd [2022] VSC 342 (Re Cleeve Group Pty Ltd), Gorton J noted that some authorities have suggested that the terms of a lost trust deed must be proved by “clear and convincing” evidence: at [34] citing Maks v Maks (1986) 6 NSWLR 34 at 36 per McLelland J (as his Honour then was).

26. However, a survey of the caselaw shows the type and cogency of proof will vary in any given case. There is a difference between a case where the terms of the lost deed are sought to be proved from the testimony of those who claim to have seen a lost deed and to remember its terms and a case where the terms themselves still exist, and are in writing, if it is first accepted that one of the documents available is a copy of the deed that was executed: Re Cleeve Group Pty Ltd at [34].

27. Thus, the terms of a lost trust deed may sometimes be proved by secondary evidence, including by the tendering of an unexecuted copy and by the drawing of an inference as to the form that the executed copy of the trust deed took: Evidence Act 1995 (NSW) s 48(4); Re Cleeve Group Pty Ltd at [33] per Gorton J.

28. Sometimes, the presumption of regularity might be invoked: e.g. Re Thomson [2015] VSC 370 at [24] per McMillan J.

29. In other cases, there may be no particular need to prove by inference that any formality has been complied with where a photocopy of the lost (or misplaced or destroyed) trust deed is signed and the evidence establishes directly that the parties concerned have always acted on the basis that it sets out the terms of the presumed trust: Sutton v NRS(J) Pty Ltd [2020] NSWSC 826 at [16]-[18] per Parker J.

30. On the facts of this case, what was adduced in evidence is a copy apparently of the original Trust Deed. It bears on the execution page signatures of each of Mr Burton Taylor, Mrs Burton Taylor and Mr Oxenham with those signatures having been witnessed.

31. The version in evidence has also been stamped with what at the time was a stamp duty imprint indicating $1.50 duty had been paid.

32. For such a copy to have been stamped, it seems to me highly likely that by reason of its presentation to the Commissioner of Stamp Duties that the document represents a true copy of the original document.

33. By reason of its presentation, I would be prepared to accept and am prepared to accept that the copy in evidence is a true copy of the original document.

34. The only other issue in relation to it is that there is handwriting on page 9 of the document which handwriting adds words to cl 25(d). Clause 25(d) is one of 23 powers which the Trust Deed provides the trustees are to have in addition to powers conferred by law.

35. There is no particular indication as to how that handwriting has come to be on the document.

36. Were the handwriting to be regarded as significant, I would likely require some additional evidence addressing how the handwriting came to be on the document and whether it was part of the original or not.

37. However, further debate on that point is moot, because by an amending deed on 27 May 1996 (New Trust Deed) made as between NBT and Mr Burton Taylor, all the provisions of the initial Trust Deed were revoked except those produced on the first schedule of the New Trust Deed.

38. One of those provisions revoked included cl 25.

Questions 2 and 3 (Was there a valid appointment and removal of trustees?)

39. Questions 2 and 3 address whether NBT was effectively appointed as a trustee of the Trust and whether Mr and Mrs Burton Taylor were validly removed. It focusses upon two issues.

40. The first issue is whether the 1981 Deed has been properly executed. The second issue is whether Mr Burton Taylor has signed in his capacity only as trustee of the Trust or in both his capacities as trustee of the Trust and as principal.

41. In relation to the first question as to whether the 1981 Deed has been validly or properly executed, the copy of the 1981 Deed that is in evidence does not on the execution page at least contain the signatures of Mr Burton Taylor and Mrs Burton Taylor either by reference to the section where they are to sign or, in the case of NBT, by reference to their witnessing the fixing of the seal of NBT. Rather, the 1981 Deed contains the typed words, in effect, “Signed”.

42. Once again, the 1981 Deed bears the hallmarks of a document which is a true copy of the original.

43. The 1981 Deed also bears an imprint indicating that it has been stamped with stamp duty.

44. Further, at the end of the 1981 Deed, after the execution clause, there is an additional page which contains a form of certification by Chrisanthe Celestia Kruit, a clerk of a firm of chartered accountants, who certifies that the writing contained on the previous three pages has been compared by her with the original instrument and is a true copy thereof.

45. I accept that the 1981 Deed has been properly executed.

46. The second question as to whether Mr Burton Taylor has signed in his capacity only as trustee of the Trust or both as a trustee and principal involves considering some legal principles regarding how the Court should approach the question of whether a person who has signed a document has signed it in one or more different capacities.

47. The principles regarding this are set out in a number of cases but, in particular, they were addressed by Edelman J (as his Honour then was) in Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168.

48. In that case, one of the defendants claimed that a guarantee was not enforceable against her personally and that she had only signed a document as a director of the principal debtor and not in her personal capacity.

49. Edelman J addressed the question of that defendant’s intention to be legally bound and indicated that it was not to be answered by reference to her subjective thoughts or intentions. The relevant intention is an intention objectively manifested.

50. His Honour set out the relevant principles at [47]-[53] as follows (footnotes omitted):

47. As the plurality of the High Court of Australia explained in Ermogenous v Greek Orthodox Community of SA Inc, the intention is manifested in light of 'the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances'. The High Court in Ermogenous did not suggest that there was any requirement of ambiguity in the words of an agreement before resort could be had to surrounding circumstances to determine whether there is a manifest intention to be legally bound. The issue of manifest intention in entering an agreement may be different from the construction of words in an agreement. But, for reasons set out below at [58] - [65], even if there were a requirement of ambiguity, it is present in this case.

48. Uncommunicated subjective beliefs and intentions of the parties are not relevant to the issue of intention to create legal relations. Therefore, the second defendant's professed subjective belief that she did not want to sign as guarantor is irrelevant. Neither the second defendant nor Mr Alonso suggested that she had communicated this belief to Mr Alonso. I find that she did not do so.

49. In contrast, the presence of a signature is a relevant circumstance in ascertaining whether there is an objective or manifest intention to be legally bound. The act of signing is a formal act 'which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents'.

50. But the presence or absence of a signature is only one circumstance to be considered in determining whether there is an objective intention to be legally bound. The absence of signature does not preclude a finding that there is a manifest intention to be legally bound by the instrument. Indeed, most contracts are binding without signature. And even if a signature is omitted from a place where it might have otherwise appeared an intention to create legal relations can nevertheless be manifest.

51. In Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd McHugh JA (who was later a party to the plurality decision of the High Court in Ermogenous) explained that 'the contents of a document may indicate that a signatory is bound even though a qualification attaches to his signature'. In Scottish Amicable, McHugh JA rejected an earlier English approach of Atkin LJ that '[i]f the assent to the contract clearly appears from the form of the signature to be qualified, it appears to me to be impossible to charge the signer on the footing that there is an unqualified assent by him'. Even in England, this approach of Atkin LJ was probably not then, or subsequently, the law.

52. The approach of McHugh JA has been applied or approved on numerous occasions by Australian courts. It has been iterated, and reiterated, that in considering whether there is an intention to be legally bound, qualification attached to a signature is only one relevant factor: 'intention, or lack thereof, is to be found upon the construction of the document as a whole, including but not being limited to the qualification attached to the signature, in the light of the surrounding circumstances to the extent to which evidence thereof is permissible'.

53. For these reasons, the omission of a signature next to the words 'Signed as a deed by Sara Sandford' is not conclusive. Nor is the signature of Ms Sandford, with the qualification 'Director' attached to it, conclusive of an intention to be legally bound only in that capacity. The question is ultimately whether 'the parties' conduct, viewed objectively, reveals a tacit understanding or agreement, or a manifestation of mutual assent, which evinces an intention to create legal relations'.

51. Ultimately, each case depends upon its own circumstances.

52. When one looks at the 1981 Deed, in recital C, there is reference to the fact that the principal of the Trust desires, pursuant to the provisions of cl 22 of the 1981 Deed, to appoint the new trustee (NBT) as trustee in place of the retiring trustee for the further implementation of the settlement.

53. Clause 22 of the Trust Deed, which was in existence, at least at that time, provided the principal may at any time, by notice in writing to the trustee, remove from office any or all of the trustees or trustee for the time being of the deed and may by deed appoint a new trustee in their place.

54. Thus, the person whose act was important for the appointment of a new trustee and removal of retiring or other trustees is the principal.

55. The 1981 Deed itself indicates that it is a deed between Mr Burton Taylor and Mrs Burton Taylor, described as retiring trustees, and NBT as the new trustee.

56. When one looks at the execution page, the execution page indicates that the parties have thereunder set their hands and affixed their seals. It contains provision for signing by Mr Burton Taylor and Mrs Burton Taylor, evidently as the retiring trustees and also by NBT as the new trustee.

57. However, beyond that, the signing by Mr Burton Taylor is not expressly qualified or limited.

58. Although the document might have taken a slightly better form and contained particular provision for Mr Burton Taylor to sign as principal, the document really could only have been effective had the power under cl 22 been exercised.

59. The fact that recital C refers to that suggests to me that on the whole the document should be construed as Mr Burton Taylor having signed in all relevant capacities and not simply as retiring trustee.

Question 4 (Was the Foundation validly appointed as a beneficiary?)

60. The fourth question relates to whether the Burton Taylor Foundation was validly appointed as a beneficiary of the Trust on 28 June 2022.

61. The evidence before the Court in relation to the Burton Taylor Foundation indicates that the Burton Taylor Foundation is a charity and the provisions relating to the foundation are set out in a deed created on 26 June 2002.

62. The Australian Charities and Not-for-profits Commission extract for the trustee for the Burton Taylor Foundation indicates under the heading, “Summary of activities” that it is a charity which made donations for a certain purpose [detail not reproduced]. More particularly, the charity programs described in the document are medical research and services and health and medical research.

63. Under the heading “Responsible People”, Mr Burton Taylor is described as trustee of the foundation. (I note a “responsible person” refers to someone responsible for governing a charity: ACNC Governance Standards).

64. The details regarding the charity’s subtype indicate that the purposes include “purposes beneficial to the general public that may be reasonably regarded as analogous to, or within the spirit of, any of the other charitable purposes” and with a further additional purpose added in 2012 “Another purpose beneficial to the community”.

65. The ABN Lookup details for the trustee for the Burton Taylor Foundation indicate that it has charity tax concession status including GST concession, FBT rebate and income tax exemption. However, it is not entitled to receive tax deductible gifts.

66. The answer to the question as to whether the foundation was validly appointed as a beneficiary involves analysis of the various deeds to that point.

67. Clause 19 of the original Trust Deed contains a power to vary and provides as follows:

19. Power to Vary Trust Deed

The Trustee may with the consent of the person who has the power to appoint a new Trustee hereof in accordance with Clause 22 at any time and from time to time in its absolute discretion by Deed or Memorandum in writing or oral declaration recorded in the Minutes of the Trustee:

(i) Vary all or any of the powers or provisions herein declared concerning the Trust Fund with the exception of the Vesting Day.

(ii) Add any persons, corporations, Trustees of trusts or classes of persons as Beneficiaries.

(iii) Exclude any persons, corporations, Trustees of trusts or classes of persons as Beneficiaries but so that this power shall not be capable of being exercised so as to derogate from any interest to which any Beneficiary has previously become indefeasibly entitled whether in possession or in reversion or otherwise.

68. The power to vary is self-evidently wide and calls to mind the type of trust deeds referred to and dealt with in Kearns v Hill (1990) 21 NSWLR 107 and Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206 (special leave to appeal to the High Court refused: see Mercanti v Mercanti [2017] HCASL 59).

69. By the New Trust Deed made as between NBT and Mr Burton Taylor, who, it will be recalled from the original Trust Deed, is the principal, the trustee and Mr Burton Taylor pursuant to cl 19 of the original Trust Deed revoked all the provisions of the deed except those reproduced in the first schedule of the New Trust Deed and in addition added clauses in the second schedule of the New Trust Deed.

70. It may be noted that cl 19 of the Trust Deed (the power to vary) was retained in the New Trust Deed document.

71. On 28 June 2002, in a deed between NBT and Mr Burton Taylor as appointor, the deed added to the category of primary beneficiaries the Burton Taylor Foundation.

72. Although at the time of Mr Barlin’s initial opinion the precise nature of the foundation was a little unclear, the documents tendered on the application (as I have outlined above) make its nature clear.

73. Clause 1(d) of the first schedule of the New Trust Deed defines the term “Primary Beneficiaries”. Paragraph 1(d)(iii) provides that the term means and includes:

(iii) Any trust or trusts, (not infringing the rule against perpetuities applicable to this Deed) which the Trustee may nominate at any time and from time to time by Deed or Memorandum in writing or oral declaration recorded in the Minutes of the Trustee, under which any one of more of the persons listed as Specified Beneficiaries in the Schedule is a Beneficiary present, contingent or discretionary.

74. Further, paragraph 1(d)(iv) of the first schedule of the New Trust Deed provides that:

(iv) Any additional persons, corporations and Trustees of trusts (not infringing the rule against perpetuities applicable to this Deed) as are nominated by the Trustee at any time and from time to time by Deed or Memorandum in writing or oral declaration recorded in the Minutes of the Trustee.

75. Further, cl 19 of the first schedule of the New Trust Deed gives the trustee (with the consent of Mr Burton Taylor as principal) the power to vary the provisions of the Trust Deed to add trustees of trusts as a beneficiary.

76. In the circumstances, I consider that Mr Barlin’s opinion is correct, and that the foundation was validly appointed as a beneficiary of the Trust.

Question 5 (Are former trustees excluded as beneficiaries?)

77. The issue in relation to Question 5 relates to whether Mr and Mrs Burton Taylor are excluded as beneficiaries of the Trust or not.

78. The reason why it perhaps might be thought that they are excluded focusses upon a provision in the deed.

79. When one looks at cl 1(d)(bb), the effect of it is to indicate that “Primary Beneficiaries” means and includes certain persons but with the proviso that primary beneficiaries shall not include “Any person being the settlor or the Trustee hereof”.

80. In clause 1(a) “Trustee” is defined to mean “the Company, person or persons named as such in the Schedule or any other Trustee or Trustees for the time being of the Trust Fund”.

81. Further, cl 24 which deals with exclusion from benefits, provides as follows:

24. Exclusion from Benefits

It is hereby declared that the Settlor or any person from time to time being the Trustee hereof or any corporation in or under which any Trustee has any actual or contingent beneficial interest are specifically excluded from all or any benefits whatsoever under this Trust Deed other than in respect of remuneration of the Trustee hereunder.

82. There is a question as to whether the expression “Trustee” includes or means the persons named in the schedule being Mr Burton Taylor and Mrs Burton Taylor irrespective of whether there is a change of trustee or not.

83. Whilst on one construction one might possibly think that the definition “Trustee” includes those persons irrespective of whether they have been replaced or not, I do not think that is the proper construction.

84. If one pauses for a moment to reflect on the consequences of such a construction, if it were to be interpreted as including persons who had been replaced by trustees then potentially a practical effect would mean that there could at any given time be multiple different trustees operating in relation to the Trust. I do not think that is the intent of the words properly construed. Rather, I consider that the proper construction of cl 1(a) is that the term “Trustee” only applies to the trustee or trustees for the time being of the trust fund. The naming of Mr and Mrs Burton Taylor in the initial schedule is in my opinion simply limited for the purpose of identifying the initial trustee or the trustee for the time being of the trust fund initially until such time as they were replaced, which occurred.

82. For those reasons, I consider that the New Trust Deed properly construed does not apply to exclude Mr Burton Taylor and Mrs Burton Taylor or any corporation in or under which they have any contingent beneficial interest from being beneficiaries under the Trust.

Question 6 (Is there power to vary the vesting day?)

86. Question 6 addresses the issue of whether cl 19 of the Trust Deed is wide enough to vary the definition of “Vesting Day” contained in cl 1(c) of the first schedule of the New Trust Deed so as to permit the deletion of paragraph (i) of that clause which paragraph is: “The day specified in the Schedule as the Vesting day.”

87. The day specified in the schedule as the vesting day is “31st December, 2074”.

88. The definition of vesting day in cl 1(c) is in full as follows:

(c) The "Vesting Day" means the first to occur of the following dates, namely:

(i)    The day specified in the Schedule as the Vesting day.

(ii)   The date being twenty (21) years after the death of the last survivor of the descendants now living of his late Majesty King George VI.

(iii)    Such other date as may be fixed by the Trustee as the Vesting Day whether by Deed or Memorandum in writing or oral declaration recorded in the Minutes of the Trustee

89. Mr Barlin, in his opinion, considered whether the provisions of paragraph 19(i) of the Trust Deed can be used to delete paragraph 1(c)(i) so that the vesting date of 31 December 2074 is excluded. Clause 19(i) is in the following terms:

19. Power to Vary Trust Deed

The Trustee may with the consent of the person who has the power to appoint new Trustee hereof in accordance with Clause 22 at any time and from time to time in its absolute discretion by Deed or Memorandum in writing or oral declaration recorded in the Minutes of the Trustee'

(i)    Vary all or any of the powers or provisions herein declared concerning the Trust Fund with the exception of the Vesting Day.

90. The provisions of cl 19(i) are, as I have noted, extremely broad. However, there is express reference to the fact that the power of variation does not extend to the “Vesting day”.

91. Mr Barlin is of the opinion, and I agree, that para 19(i) does not give power to delete the provisions relating to the vesting day.

Question 7 (Was the perpetuities period reset?)

92. The issue in relation to Question 7 is effectively an issue as to whether on the appointment of BCS as a trustee of the Trust the perpetuities period in respect of the Breakfast Creek Station is reset and to be reckoned from the date on which BCS became the registered legal owner of Breakfast Creek Station.

93. There is evidence consisting of a form pursuant to s 46C of the Real Property Act 1900 (NSW) recording that as having occurred on 13 December 2021.

94. In substance, the question is posed or based upon the proposition that potentially a change of trusteeship might amount to a new settlement.

95. Mr Barlin notes, and it is clear, that the Trust was established on 8 January 1980, prior to the introduction of the Perpetuities Act 1984 (NSW) (Perpetuities Act).

96. Mr Barlin’s opinion addresses the operation of the Perpetuities Act. In substance, he concludes that it does not apply to a settlement taking effect before the appointed day. His reasoning includes the following:

8.4 Section 1 of the Perpetuities Act provides for the title of the Act. Subsection 2(1) of the Perpetuities Act provides that sections 1 and 2 of the Perpetuities Act commences from the date of assent of the Perpetuities Act. The date of assent of the Perpetuities Act was 13 June 1984.

8.5 Subsection 2(2) of the Perpetuities Act provides that, except as provided by subsection 2(1), the Perpetuities Act commences on the day appointed by the Governor, and as notified by proclamation published in the Gazette. That is the "appointed day", as that term is defined in subsection 3(1) of the Perpetuities Act.

8.6    The "appointed day" was 31 October 1984 (refer Government Gazette of the State of New South Wales, Friday 19 October 1984, page 5077).

8.7 Subsection 4(1) of the Perpetuities Act provides that, except as provided by sections 11, 12 and 13, the Perpetuities Act does not apply to a settlement that takes effect before the appointed day (i.e. before 31 October 1984).

97. Mr Barlin is of the opinion, and I agree, that there is no, in effect, resetting of the perpetuities period and the consequence is that potentially, subject to the matter I will come to, the vesting day may arrive on 31 December 2074, notwithstanding who the trustee or trustees may be at that time or earlier.

Order 2 (Rectification relief)

98. In light of my advice in respect of the earlier questions, it is no longer necessary to address the relief sought in the amended summons under paragraphs 2(a) and (b).

99. The remaining question in Order 2 relates to whether the Trust Deed ought to be rectified by deleting the date “31 December 2074” from the schedule of the Trust Deed.

100. Mr Barlin, in his submissions, set out the principles regarding rectification.

101. In particular, he stated as follows:

3.1    The Court may rectify a document in which the party (or parties) have mistakenly expressed their intention. It is the rectification of a document, and not the reformulation of an agreement that is expressed in a document (Heydon, JD, Leeming MJ and Turner PG. Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies, (5th ed). LexisNexis, 2015 (“Meagher, Gummow & Lehane”) at [27-010]).

3.2    The Trust Deed is a deed. Rectification may be obtained in relation to a deed (including a deed poll) (Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 (per Mahoney AP, Sheller JA and McLelland AJA) (“Carlenka”)).

3.3    Mahoney AP in Carlenka at 331A considered that rectification requires the Court being satisfied of two things, being that:

(a)    the party (for a unilateral transaction) or parties (in the case of transactions between parties) had at all relevant times an intention which was to be given effect by the document to be rectified; and

(b)    that document does not give effect to that intention.

3.4    McLelland AJA at 345B-C in Carlenka considered that rectification of an instrument is available where clear and convincing evidence establishes that at the time of the execution of the instrument, the parties had an actual intention as to the effect of the instrument, which was inconsistent with the actual effect of the instrument. However, the intended effect does not include the legal or factual consequences of the operation of the instrument which is more remote, or collateral (being an effect which the party had not necessarily turned its mind to).

102. There are a number of cases which deal very specifically with a question of whether a trust deed may be rectified focussing attention upon the question of who is the person whose intention is relevant for the purposes of rectification.

103. In Application of Walker Corporation Pty Ltd [2022] NSWSC 1609 (Application of Walker), Parker J addressed that question and stated as follows:

80. Whose intention is relevant: In the English cases to which I refer above, it was the settlor’s intention which was treated as relevant. That was natural when, in each case, the trust deed involved the settlement of valuable property belonging to the settlor. But I agree with Sackar J in Re Hardi at [19] that there is no inflexible rule: the identification of the party or parties whose intention is relevant depends upon the circumstances.

81. It is, I think, important to remember that a deed of settlement is not a deed poll; it is a two-party instrument. The trustee, by entering into the trust deed, accepts obligations which are potentially onerous. In theory, both the settlor and the trustee have their own interests in the bargain, and there could be arms’ length negotiations about the terms of the deed.

82. Usually, the settlor of a “modern discretionary trust” (the description used by Brereton JA in Baba v Sheehan [2021] NSWCA 58 at [4]) is brought in just to sign the trust deed and thereafter has nothing further to do with the trust. In such a case, in the absence of any evidence to the contrary, the settlor would usually be assumed to have intended whatever the other party to the deed (i.e., the trustee) intended. Thus, the relevant intention would be that of the trustee.

83. As Brereton JA explained in Baba, a modern discretionary trust deed usually provides for the person who is responsible for the establishment of the trust, and whose family will benefit from it, to be made the appointor under the deed, with a power to remove the trustee and thereby exercise effective control over the trust. Brereton JA described the appointor under such a trust deed as the “true settlor” (see at [4]). This was in the context of a challenge to the exercise of an appointor’s power to replace the trustee.

84. It was suggested in argument that Mr Walker was the “true settlor” in the present case, and that it was therefore his intention which was relevant. I have some reservations about this suggestion. Where someone gives instructions for establishing a trust (which, for reasons already given, would ordinarily be instructions on behalf of the trustee), that person’s intention may, through the trustee, be indirectly relevant. But I find it difficult to see how the intention of such a person can be directly relevant, and displace the actual parties’ intentions, for the purposes of rectification.

85. The question of intention is also complicated where a solicitor is involved. That can happen in two ways.

86. First, the client’s intention may have to be filtered through the solicitor’s advice as to what is possible. The client may initially wish to achieve a particular result, but there may be legal obstacles to doing so, upon which the solicitor will have to advise. In this way, the solicitor’s perception of how the trust deed needs to be worded may become incorporated into the client’s ultimate intention.

87. The second possibility is delegation. Counsel for the Trustee accepted that, in principle, where the wording of an agreement is delegated to an agent, then, within the area marked out by the delegation, it is the agent’s intention which is relevant, not the principal’s. Where a solicitor is acting, delegation is common, especially on clauses that are, or are thought to be, “technical” or “boiler plate”. Unless such provisions are the subject of express instructions from the client to the solicitor, it will usually be the solicitor’s intention which will be relevant for the purposes of rectification.

104. Ultimately, the identification of the party or parties whose intention is relevant depends upon the particular circumstances of each case.

105. In Sanwick Pty Ltd v Kalyk [2016] NSWSC 100 (Sanwick), Stevenson J dealt with an application for rectification of a trust deed in circumstances where the settlor had no active and operative intention as to the terms of the trust and had merely acted on the instructions of the trustee. The evidence established that the trustee intended that, to the fullest extent permitted by law, the trust would have indefinite duration (by reference to what is known as the “Royal Lives” clause in the relevant definition): at [13].

106. Stevenson J addressed the tests in relation to rectification and, in particular, referred to an example of what is described as the “special class” of case to which Mason J (as his Honour then was) in Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 at 350 had referred to, being a voluntary settlement creating a trust where the settlor has no independent intention as to how the trust is to operate and who acts on the instruction of, or at the request of the proposed trustee, or, as was the case in Sanwick, the person who in substance stood behind the trustee (in Sanwick, a certain Mr Saric was the controlling director of, and held all the shares in, the trustee). Stevenson J referred, in particular, to the comments of White J (as his Honour then was) in Public Trustee v Smith [2008] NSWSC 397 at [71]:

71. … For the trust deed to be rectified there must be clear and convincing evidence that at the time the trust deed was executed the trustee and the settlor had an actual intention as to the effect which the deed was intended to create which was different from the effect which the instrument did have in a clearly identified way (Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 345). It must be demonstrated with clarity that the parties had a sufficiently precise intention that the court can determine both the substance and the detail of the precise variation to be made to the wording of the instrument (Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 at 407; Muriti v Prendergast [[2006] NSWSC 286] at [137]).

107. On the facts, Stevenson J was satisfied that the deed did not reflect Mr Saric’s (and, accordingly, the trustee’s) actual intention as to how the duration of the trust should be expressed and considered that it ought to be rectified.

108. In Benaroon Pty Ltd v Larmar [2020] QCA 62, the Queensland Court of Appeal dealt with an appeal in relation to a similar question. Philippides JA gave the main decision, with whom Fraser and Morrison JJA agreed.

109. Philippides JA noted in the case that there was no contest at trial that the settlor in that case had no relevant intention, and the primary judge inferred that the parties were content to proceed on the basis that it should be taken that the settlor’s intention was whatever Mr Larmar (sole director and secretary of the trustee) wanted: at [13].

110. In In the matter of George Hardi Family Trust [2021] NSWSC 1584, Sackar J also dealt with an application to rectify a trust deed, which was another case involving a similar situation concerning whether regard should be had to the subjective intention of a party behind the trust deed.

111. His Honour referred to Stevenson J’s decision in Sanwick and noted that his Honour had rectified an inter vivos voluntary inter-party trust deed, where the evidence indicated that the intent of the “real” settlor (and not the nominal settlor) differed from the express terms of the trust deed.

112. The decision of Parker J in Application of Walker is an instance of a circumstance in which his Honour was not satisfied that the claim for rectification was made out.

113. As I have noted, ultimately, it is a question of looking at the circumstances of the specific case at hand.

114. The evidence in the present case reveals the following.

115. In or around January 1980, Mr Burton Taylor asked Mr Oxenham to settle a family discretionary trust which was the Trust the subject of these proceedings.

116. Mr Oxenham, at the time, was a practising commercial lawyer in Sydney and agreed to be the settlor of the Trust. Mr Burton Taylor had previously been a chartered accountant. Mr Oxenham indicates that Mr Burton Taylor provided him with a copy of the Trust Deed and, after reviewing it briefly, he agreed to sign the deed as settlor to establish the trust.

117. Mr Burton Taylor, for his part, indicates that when establishing the Trust, it was his intention and understanding that there was no set date that the Trust needed to terminate or otherwise be limited or restricted. He did not instruct anyone to insert a vesting date of 31 December 2074 into the Trust Deed.

118. Mrs Burton Taylor, in her affidavit, did not provide any specific detail other than to indicate that she had read Mr Burton Taylor’s affidavit that I have just referred to (the first affidavit sworn on 19 October 2022) and agreed with its contents.

119. The evidence does not indicate how the Trust Deed was prepared. However, what is clear is that Mr Burton Taylor provided Mr Oxenham with the document. Further, Mr Burton Taylor’s evidence establishes that he did not, in establishing the trust, have any intention that the trust have a set date for termination or otherwise be limited or restricted and did not instruct anyone to insert the vesting day of 31 December 2074 into the Trust Deed.

120. On the evidence, I am satisfied that in this case rectification is appropriate.

Orders 3 and 4 (Judicial advice – validity of distributions)

121. Orders 3 and 4, as I have noted above, are sought in terms so as to order that all income and capital distributions from the Trust distributed on the one hand to Mr and Mrs Burton Taylor (or any corporation in or under which they have any actual or contingent beneficial interest) are valid distributions and on the other hand distributions in respect of the Burton Taylor Foundation are valid distributions. Mr Barlin clarified that the Order 3 and 4 relief was sought by way of judicial advice rather than order.

122. There are two aspects to this. The first aspect is dependent and consequential upon what I have addressed earlier, which is whether Mr and Mrs Burton Taylor were excluded as beneficiaries. I have found that they are not excluded.

123. The second relates to whether the Burton Taylor Foundation was validly appointed as a beneficiary. I have found that it was.

124. The further aspect of the matter relates to the actual distributions that were made.

125. The evidence on the application included details of all the income and capital distributions from the Trust.

126. This is set out in Exhibit NBT-1 (CB 87-147).

127. There are clearly provisions in relation to distributions made to Mr and Mrs Burton Taylor and I am satisfied of those.

128. On the hearing of the application, I expressly addressed with Mr Barlin the distributions made to the Burton Taylor Foundation and he directed my attention to specific parts of Exhibit NBT-1 which included CB 120, 122, 123, 124, 125, 128 and 129.

129. In the circumstances, I advise that the trustees are justified in proceeding on the basis that those distributions are valid distributions.

Conclusion

130. The questions in Order 1 are answered as follows:

1. 1(a) Yes.

2. 1(b) Yes.

3. 1(c) Yes.

4. 1(d) Yes.

5. 1(e) Yes.

6. 1(f) No.

7. 1(g) No.

131. In relation to Order 2, I grant rectification relief as below.

132. In relation to Orders 3 and 4, I advise that the trustees are so justified.

133. The orders of the Court (slightly reordered from the numbering of the relief sought) are:

1. Order pursuant to section 63 of the Trustee Act 1925 (NSW) (“the Trustee Act”) that NBT Pty Ltd (A.C.N. 001 945 446) and Breakfast Creek Station Pty Limited (A.C.N. 654 314 539) (“the Trustees”) are justified in managing and administering the trust estate known as the NBT Trust (“the Trust”):

1. pursuant to the terms of the trust deed made as between Shane Douglas Oxenham (as settlor) and Nicholas Burton Taylor and Julie Helen Burton Taylor (as initial trustees) and dated 8 January 1980, and as amended by deeds dated 27 May 1996, 28 June 2002, 3 May 2004 and 13 December 2021 (“the Trust Deed”);

2. on the basis that NBT Pty Ltd (A.C.N. 001 945 446) was validly appointed as a trustee of the Trust on 30 September 1981 pursuant to the terms of a deed of appointment of new trustee made as between Nicholas Burton Taylor, Julie Helen Burton Taylor and NBT Pty Ltd (A.C.N. 001 945 446) and dated 30 September 1981 (“the Appointment Deed”);

3. on the basis that Nicholas Burton Taylor and Julia Helen Burton Taylor were each validly removed and discharged as trustees of the Trust on 30 September 1981 pursuant to the terms of the Appointment Deed;

4. on the basis that the Burton Taylor Foundation (A.B.N. 37 616 257 182) was validly appointed as a beneficiary of the Trust on 28 June 2002 pursuant to “The NBT Trust Amending Deed” made as between NBT Pty Ltd (A.C.N. 001 945 446) and Nicholas Burton Taylor dated 28 June 2002;

5. on the basis that Nicholas Burton Taylor and/or Julia Helen Burton Taylor and/or any corporation in or under which Nicholas Burton Taylor and/or Julia Helen Burton Taylor have any actual or contingent beneficial interest are not excluded from being beneficiaries under the Trust;

6. on the basis that the perpetuities period in respect to the property known as “Breakfast Creek Station” located at XXXX Lachlan Valley Way, Godfreys Creek in the State of New South Wales, 2584 (“Breakfast Creek Station”) is not reckoned from the date on which Breakfast Creek Station Pty Limited (A.C.N. 654 314 539) was appointed as a trustee of the Trust and became the registered legal owner of Breakfast Creek Station; but that the perpetuities period is reckoned by reference to the definition of the term “Vesting Date” as contained in clause 1(c) of the Trust Deed;

1. on the basis that any and all of the income and capital distributions from the Trust that have been distributed to Nicholas Burton Taylor, Julia Helen Burton Taylor or any corporation in or under which Nicholas Burton Taylor or Julia Helen Burton Taylor have any actual or contingent beneficial interest are valid distributions and do not breach any terms of the Trust Deed; and

2. on the basis that any and all income and capital distributions from the Trust that have been distributed to the Burton Taylor Foundation ABN 37 616 257 182 are valid distributions and do not breach any terms of the Trust Deed.

2. Order pursuant to section 63 of the Trustee Act that the Trustees are not justified in managing and administering the Trust on the basis that the power contained in clause 19 of the Trust Deed permits variation of the definition of the term “Vesting Day” contained in paragraph 1(c) of the Trust Deed by deleting paragraph (i) of clause 1(c) of the Trust Deed.

3. Order that the Trust Deed be rectified by deleting the words “31 December 2074” from the definition of the term “The Vesting Day” as contained in the Schedule to the Trust Deed.

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Decision last updated: 10 August 2023