Application of Walker Corporation Pty Ltd - [2022] NSWSC 1609

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application of Walker Corporation Pty Ltd [2022] NSWSC 1609
Hearing dates: 17 November 2022
Date of orders: 28 November 2022
Decision date: 28 November 2022
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [134]-[135]

Catchwords:
EQUITY – rectification – discretionary trust deed – vesting date to be earlier of fixed date and period determined under royal lives clause – plaintiff seeks rectification in form of deletion of fixed date – corporate trustee – deed prepared by solicitor-director – whose intention is relevant – requirements for proof – laches – procedure

Legislation Cited:
Corporations Act 2001 (Cth), s 127
Evidence Act 1995, s 91
Trustee Act 1925, s 81

Cases Cited:
Baba v Sheehan [2021] NSWCA 58
Bonhote v Henderson [1895] 1 Ch 742
Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Fredensen v Rothschild [1941] 1 All ER 430
Hills v Kearns (Supreme Court of New South Wales, Young J, 4 September 1990)
Kearns v Hill (1990) 21 NSWLR 107
Public Trustee v Smith [2008] NSWSC 397
Re CE Brenchley Family Trust [2019] NSWSC 1602
Re Hardi Family Trust [2021] NSWSC 1584
Sanwick Pty Ltd v Kalyk [2016] NSWSC 100
Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004
Stephenson v Stephenson [2009] WTLR 1467
Tankel v Tankel [1999] 1 FLR 676
Van Der Linde v Van Der Linde [1947] Ch 306
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
Heydon, JD, Leeming, MJ and Turner, PG, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)
Heydon, JD and Leeming, MJ, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016)

Category: Principal judgment
Parties: Walker Corporation Pty Limited (Plaintiff)
Representation:
Counsel:
IM Jackman SC/AR Langshaw (Plaintiff)

Contradictor (Submissions):
CE Bannan
Solicitors:
Speed and Stracey Lawyers (Plaintiff)

File Number(s): 2022/326713
Publication restriction: Nil

Judgment

This is an application to rectify the terms of a deed of trust. The plaintiff seeks a rectification order which would extend the latest possible vesting date of the trust by several decades. There is no defendant in the proceedings, but the application has been opposed by a contradictor appointed for that purpose.
The trust deed was executed in February 1976. The deed established a discretionary trust for the family of Mr Langley Alexander (known as “Lang”) Walker. The trust so established is named the “LA Walker Family Trust” (the “Trust”).
The parties to the trust deed were Mrs May Helena Hudspeth as Settlor and McRoss Development No 2 Pty Limited (“McRoss”) as Trustee. Mrs Hudspeth was Mr Walker’s aunt (his mother’s sister). She died in 1976 or 1978. McRoss was a shelf company acquired by Mr Walker and his father to act as trustee of the Trust. Mr Walker’s father died in 2011, and Mr Walker is now the company’s sole…

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.

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Details

Case: [2022] NSWSC 1609
Decision Date: 28 November 2022

CaseChat Overview and Summary

The plaintiff, Walker Corporation Pty Ltd, sought rectification of a discretionary trust deed to delete a fixed date that was included in the vesting clause. The vesting date of the trust was to be the earlier of a fixed date or a period determined under a royal lives clause. The defendant, the corporate trustee, opposed the application. The case was heard by the Federal Court of Australia. The primary legal issue was whether the court should exercise its discretion to rectify the trust deed by deleting the fixed date. The court had to consider the relevant intention of the parties at the time of executing the trust deed and whether the requirements for rectification had been met, including whether the plaintiff had acted reasonably and without undue delay.

The court found that the intention of the parties was relevant in determining whether the trust deed should be rectified. The court considered the evidence of the solicitor-director who prepared the trust deed and the surrounding circumstances. The court held that the plaintiff had not met the requirements for rectification as the evidence did not establish that there was a common intention that the trust deed should not include a fixed date. The court also found that the plaintiff had not acted reasonably and without undue delay in seeking rectification. The court held that the doctrine of laches applied and that the plaintiff was barred from seeking rectification. The court declined to exercise its discretion to rectify the trust deed.

The court made no orders for the rectification of the trust deed. The court held that the application was statute-barred and that the plaintiff had not established any other grounds for relief. The court also held that the plaintiff was not entitled to an extension of time to bring the application. The court made no orders for costs.

Orders