Bull v Boreas Pty Ltd - [2015] NSWSC 761

Supreme Court

New South Wales

Medium Neutral Citation: Philip James Bull v Boreas Pty Ltd [2015] NSWSC 761
Hearing dates: 12 June 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Jurisdiction: Equity Division
Before: Rein J
Decision:
See [17]

Catchwords: EQUITY - Trusts - Whether trust deed confers power on trustee to extend vesting date - Whether s 81 of the Trustee Act 1925 (NSW) empowers the Court to confer a power on a trustee to extend vesting date
Legislation Cited: Perpetuities Act 1984 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Andtrust v Giovanni Andreatta [2015] NSWSC 38
Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156
Re Dion Investments Pty Limited [2014] NSWCA 367
Stein v Sybmore Holdings [2006] NSWSC 1004
Texts Cited: N/A
Category: Principal judgment
Parties: Boreas Pty Ltd (ACN 000 803 387) (First Plaintiff)
Philip James Bull (Second Plaintiff)
Judith Wayne Bull (First defendant and 15 others)
Representation:
Counsel:
M.R Pesman SC (Plaintiffs)
C. Alexander (Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants)
Solicitors:
Craddock Murray Neumann Lawyers (Plaintiffs)
C J Boyd Solicitors (Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants)

File Number(s): 2015/156014
Publication restriction: nil

EX TEMPORE JUDGMENT

These proceedings concern three trusts of which Boreas Pty Ltd (“Boreas”) is trustee. The trusts were created at the instigation of Mr Philip James Bull, (“Mr Bull”) following receipt of legal advice in 1970, for his wife, Judith Wayne Bull, (“the Judith Trust”); his son, Duncan James Bull (“the Duncan Trust”); and his daughter, Georgina Louise Bull now Ohlsson (“the Georgina Trust”), and there is evidence from Mr Bull that he did not appreciate until late 2012 that the trust was to vest as early as 2015. There is evidence of the lack of appreciation that the trust would vest this year has led to an absence of forward financial planning involving the three trusts that would see the principal beneficiaries, that is, Judith, Duncan and Georgina disadvantaged if the vesting date was not extended. The principal beneficiaries in each case wish to see the trust continue in a fashion that the trust has been operating for many years rather than vest.
The Amended Summons on which the plaintiff, Boreas and Mr Bull move, seeks inter alia a declaration that the trustee is empowered to vary each of the trusts by extending the vesting date provided in each deed i.e. 15 July 2015 to 15 July 2050. Mr Bull is a beneficiary of vesting under each of the three trusts as well as being the ‘architect’ of the trust with the benefit of legal advice in 1970. Mr M.R Pesman SC appears for Mr Bull and now for Boreas as well, as Boreas was originally the first defendant but is now a second plaintiff.
Each of Judith, Georgina, Duncan and another daughter, Diana (for whom the Diana Trust was established in similar terms, but without an early vesting…

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.

Continue reading Bull v Boreas Pty Ltd

Details

AGLC: Bull v Boreas Pty Ltd [2015] NSWSC 761
Case: [2015] NSWSC 761
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the case of Bull v Boreas Pty Ltd, the dispute involved the interpretation of a trust deed and the extent to which it conferred a power on the trustee to extend the vesting date of property. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Bull, sought to enforce the trust deed's terms, while the defendant, Boreas Pty Ltd, argued that the deed did not confer such a power and that section 81 of the Trustee Act 1925 (NSW) did not empower the court to confer a power on the trustee to extend the vesting date.

The court was required to determine whether the trust deed expressly or impliedly conferred a power on the trustee to extend the vesting date. Additionally, the court needed to decide if section 81 of the Trustee Act 1925 (NSW) permitted the court to confer such a power on the trustee if the deed did not explicitly provide for it. This involved a careful analysis of the language used in the trust deed and the relevant statutory provisions.

The court found that the trust deed did not expressly or impliedly confer a power on the trustee to extend the vesting date. The language of the deed was clear and unambiguous, and there was no room for any implication of such a power. Furthermore, the court held that section 81 of the Trustee Act 1925 (NSW) did not empower it to confer a power on the trustee to extend the vesting date when the deed did not provide for it. The court's reasoning was based on the principle that the court should not rewrite the trust deed to include powers that were not explicitly or implicitly granted by the settlor.

The final orders of the court were in favour of the plaintiff, Bull, as the trust deed did not confer a power on the trustee to extend the vesting date. The court held that the trust deed's terms were to be enforced as written, and the trustee was not empowered to extend the vesting date without the settlor's explicit consent.

Orders