Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286 Hearing dates: 13 February 2018 Decision date: 26 November 2018 Before: Bathurst CJ at [1];
Beazley P at [4];
White JA at [5]Decision: (1) Grant the applicants leave to appeal from the orders of the Equity Division of 20 July 2017.
(2) The appeal be dismissed.Catchwords: EQUITY – trusts and trustees – powers of trustees – statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW) s 81 – where applicants sought orders that would provide for the extension of the vesting date of a trust or would allow the trustee to extend the vesting date – whether Re Dion Investments Pty Ltd (2014) 87 NSWLR 753 was wrongly decided or distinguishable – whether orders would be expedient under s 81(1) – appeal dismissed Legislation Cited: Income Tax Assessment Act 1936 (Cth), s 78
Settled Land Acts 1925 (UK), s 64
Trustee Act 1958 (Vic), s 63A
Trustee Act 1925 (NSW), ss 28, 81
Trustee Act 1925 (UK), s 57
Trustee Act 1936 (SA), s 59C
Trustee Act 1956 (NZ), s 64A
Trustees Act 1962 (WA), s 90
Trusts Act 1973 (Qld), s 95
Variation of Trusts Act 1958 (UK)
Variation of Trusts Act 1993 (Tas), ss 13, 14Cases Cited: Andtrust v Andreatta [2015] NSWSC 38
Arakella Pty Ltd v Paton (2004) 60 NSWLR 334; [2014] NSWSC 13
Bull v Boreas Pty Ltd [2015] NSWSC 761
Chapman v Chapman [1954] AC 429
Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207
House v The King (1936) 55 CLR 499
In Re Downshire Settled Estates; Marquess of Downshire v Royal Bank of Scotland [1953] Ch 218
James N Kirby Foundation Ltd v Attorney General (NSW) (2004) 62 NSWLR 276; [2004] NSWSC 1153
Paloto Pty Ltd v Herro [2015] NSWSC 445
Plator Nominees Pty Ltd [2012] VSC 284
Re Bowmil Nominees Pty Ltd [2004] NSWSC 161
Re Craven’s Estate (No 2) [1937] Ch 431
Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367
Re Dion Investments Pty Ltd [2013] NSWSC 1941
Re Philips New Zealand Ltd [1997] 1 NZLR 93
Riddle v Riddle (1952) 85 CLR 202
Southgate v Sutton & Ors [2011] EWCA Civ 637
Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004; (2006) 64 ATR 325
Sutton v England [2012] 1 WLR 326
Thomas Hare Investments Ltd v Raymond Thomas Hare [2012] VSC 200Texts Cited: Variation of Trusts in New South Wales (1990) 13(2) UNSW Law Journal 359 Category: Principal judgment Parties: Mario Natale Cisera (1st Applicant)
John Anthony Cisera (2nd Applicant)
Cisera Holdings Pty Ltd (1st Respondent)
Jeremy Neil Glass (2nd Respondent)Representation: Counsel:
Solicitors:
G K Burton SC with E W Young (Applicants)
Submitting appearance (1st Respondent)
M Cashion SC (2nd Respondent)
Neil Scott Lawyers…
Continue reading Cisera v Cisera Holdings Pty Ltd
Sign in free to access the full text
Details
- AGLC
- Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286
- Case
- [2018] NSWCA 286
- Decision Date
CaseChat Overview and Summary
The applicants, Mr and Mrs Cisera, sought orders from the Supreme Court of New South Wales extending the vesting date of a trust or authorising the trustee to do so. The respondents were Cisera Holdings Pty Ltd and others. The primary judge had refused the application, and the applicants sought leave to appeal that decision.
The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to grant the orders sought under section 81(1) of the *Trustee Act 1925* (NSW). This involved determining whether it was expedient for the court to confer powers on the trustee to extend the vesting date of the trust, and whether the decision in *Re Dion Investments Pty Ltd* (2014) 87 NSWLR 753 was wrongly decided or distinguishable from the present circumstances.
The Court of Appeal, comprising Bathurst CJ, Beazley P, and White JA, considered the principles governing the exercise of the court's discretion under section 81 of the *Trustee Act 1925* (NSW). The court affirmed that section 81 is intended to provide a remedy where circumstances have arisen that were not foreseen by the settlor and which render the trust unworkable or incapable of fulfilling its intended purpose. The court found that the applicants had not demonstrated that the existing trust provisions were unworkable or that the refusal of the orders would cause significant hardship. The court also considered *Re Dion Investments Pty Ltd* and found it to be distinguishable on its facts.
The Court of Appeal granted the applicants leave to appeal but ultimately dismissed the appeal, upholding the primary judge's decision.
The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to grant the orders sought under section 81(1) of the *Trustee Act 1925* (NSW). This involved determining whether it was expedient for the court to confer powers on the trustee to extend the vesting date of the trust, and whether the decision in *Re Dion Investments Pty Ltd* (2014) 87 NSWLR 753 was wrongly decided or distinguishable from the present circumstances.
The Court of Appeal, comprising Bathurst CJ, Beazley P, and White JA, considered the principles governing the exercise of the court's discretion under section 81 of the *Trustee Act 1925* (NSW). The court affirmed that section 81 is intended to provide a remedy where circumstances have arisen that were not foreseen by the settlor and which render the trust unworkable or incapable of fulfilling its intended purpose. The court found that the applicants had not demonstrated that the existing trust provisions were unworkable or that the refusal of the orders would cause significant hardship. The court also considered *Re Dion Investments Pty Ltd* and found it to be distinguishable on its facts.
The Court of Appeal granted the applicants leave to appeal but ultimately dismissed the appeal, upholding the primary judge's decision.
Orders
Orders of the court
(1) Grant the applicants leave to appeal from the orders of the Equity Division of 20 July 2017.
(2) The appeal be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.