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Cisera v Cisera Holdings Pty Ltd

Cisera v Cisera Holdings Pty Ltd

Case [2017] NSWSC 960 20 July 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Hearing dates: 28 June 2017
Date of orders: 20 July 2017
Decision date: 20 July 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Summons dismissed

Catchwords: Equity – power of court to approve advantageous dealings – discretionary family trust – extension of vesting date – Trustee Act 1925 (NSW), s 81 – “transaction” – generality of orders sought – “in the administration or management of the trust” – objectives of the trust – “expedient”
Legislation Cited: Law of Property Act 1922 (UK), s 123
Perpetuities Act 1984 (NSW)
Trustee Act 1925 (NSW), s 81
Trustee Act 1925 (UK), s 57
Cases Cited: Andtrust v Andreatta [2015] NSWSC 38
Arakella Pty Ltd v Paton (2004) 60 NSWLR 334; [2004] NSWSC 13
Chapman v Chapman [1954] AC 429; 1 All ER 798
Cisera v Cisera Holdings Pty Ltd [2016] NSWCA 319
Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223
Paloto Pty Ltd v Herro [2015] NSWSC 445
Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367
Re Downshire Settled Estates [1953] Ch 218; 1 All ER 103
Re Strang (1941) 41 SR (NSW) 114
Riddle v Riddle (1952) 85 CLR 202; [1952] HCA 12
Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431; [2015] NSWCA 156
Stein v Sybmore Holdings Pty Ltd (2006) 64 ATR 325; [2006] NSWSC 1004
Ku-Ring-Gai Municipal Council v Attorney-General (1954) 55 SR (NSW) 65
Texts Cited: RW White, “Trusts – an Australian perspective” [2010] NSWJSchol 10
Category: Principal judgment
Parties: Mario Natale Cisera (First Plaintiff)
John Anthony Cisera (Second Plaintiff)
Cisera Holdings Pty Ltd (First Defendant)
Jeremy Neil Glass (Second Defendant)
Representation:
Counsel:
GK Burton SC (Plaintiffs)
P O’Loughlin (Second Defendant)
Solicitors:
Neil Scott Lawyers (Plaintiffs)
Glass Goodwin (Second Defendant)

File Number(s): 2016/273397
Publication restriction: Nil

Judgment

This is an application under the Trustee Act 1925 (NSW), s 81. That section relevantly provides:

81 Advantageous dealings
(1)   Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument, if any, creating the trust, or by law, the Court:
(a)   may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Court may think fit, and
(b)   may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.
(2)   The provisions of subsection (1) shall be deemed to empower…

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 Cisera v Cisera Holdings Pty Ltd

Details

AGLC: Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Case: [2017] NSWSC 960
Decision Date: 20 July 2017

CaseChat Overview and Summary

In the case of Cisera v Cisera Holdings Pty Ltd, the Full Court of the Family Court of Australia was tasked with reviewing the decisions of a single judge, who had approved a transaction involving a discretionary family trust. The dispute centred around the interpretation of the Trustee Act 1925 (NSW) and the court's discretion in approving advantageous dealings under the trust deed. The respondent, Cisera Holdings Pty Ltd, sought to challenge the decision of the primary judge, arguing that the transaction did not fall within the scope of the trust's objectives and that the court had misapplied the statutory provisions.

The legal issues before the court included the interpretation of the term "transaction" as used in the Trustee Act 1925 (NSW), the extent of the court's discretion in approving advantageous dealings, and whether the transaction in question was in the administration or management of the trust. Additionally, the court had to determine if the transaction was expedient in light of the trust's objectives and if the primary judge had correctly exercised his discretion under the Act.

The Full Court found that the primary judge had erred in his interpretation of the term "transaction" and the scope of the court's discretion. The court held that the term "transaction" should be interpreted broadly, and that the court has a wide discretion in approving advantageous dealings, provided they are in the administration or management of the trust. The Full Court also held that the primary judge had correctly considered the trust's objectives and had exercised his discretion in an appropriate manner. The appeal was dismissed, and the primary judge's decision was upheld.

Orders