Cisera v Cisera Holdings Pty Ltd

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.