Application of NBT Pty Ltd

NBT Pty Ltd applied to the court for advice regarding several issues concerning the administration of a trust. The trust was established on 8 January 1980, and the trustees had been administering it based on copies of the trust deeds as the originals were lost. The issues at hand included whether the trustees were justified in using the copies, whether the trustees had been validly removed and replaced, whether a beneficiary had been validly appointed, and whether former trustees had been excluded from being beneficiaries. The court was also asked to consider the extent of the powers to vary the vesting of the trust.

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.