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]…
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- Case
- [2023] NSWSC 919
- Decision Date
CaseChat Overview and Summary
The court examined the trust deed to determine if the trustees were justified in using the copies. It found that the trustees were justified in administering the trust based on the documents provided. The court also considered the removal and appointment of trustees, looking at the trust deed's construction and the legal principles regarding how the court should approach whether a person had signed a document in one or more different capacities. The court found that the trustees had been validly removed and replaced. The court also considered the appointment of a beneficiary and the exclusion of former trustees, concluding that the term "Trustee" only applied to the trustee or trustees for the time being of the trust fund.
The court then turned to the variation of the trust, examining the trust deed's construction and the power to vary the trust. It found that the trust deed did not restrict the trustees' power to vary the trust. The court also considered the vesting of the trust, noting that the Perpetuities Act 1984 (NSW) did not apply as the trust was established before its introduction. The court found that the trust was intended to have an indefinite duration to the fullest extent permitted by law.
Finally, the court considered the rectification of the trust deed, determining whose intention was relevant for rectification. It found that where the settlor had no active and operative intention as to the terms of the trust and acted merely on instructions of the trustee, the "real" settlor was the trustee and not the nominal settlor. The court ordered rectification of the trust deed to reflect the trustee's intention.
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