Application of NBT Pty Ltd

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]…