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Feeney v Feeney

Feeney v Feeney

Case [2008] NSWSC 890 13 August 2008

Termination of Trust

Rule in Saunders v Vautier

Acceleration of Interests

Rectification

Discretionary Defences

Trusts & Equity

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CITATION: Feeney v Feeney [2008] NSWSC 890

HEARING DATE(S): 11-13 August 2008

JUDGMENT DATE :
13 August 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 13 August 2008

DECISION: 1. Amended summons dismissed; 2. amended cross-summons dismissed; 3. exhibits may be returned after 28 days; 4. make no order as to the costs of the summons or cross-summons with the intent that each party bear his or her own costs.

CATCHWORDS: TRUSTS – termination of trust – rule in Saunders v Vautier – property vested in interest but not in possession – interest was divested if beneficiary pre-deceased the resident for life – contingent beneficiaries not party to the deed – deed not effective to terminate trust - WILLS – construction and effect – acceleration of interests – surrender of right of residence – whether interests of beneficiaries accelerated - REMEDIES – equitable remedies – rectification – common intention and/or antecedent oral agreement – plaintiff and defendants had different intentions when executing deed – no clear and convincing proof - REMEDIES – equitable remedies – discretionary defences – mistake and hardship – plaintiff did not contribute to the mistake – any hardship would not amount to injustice

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Trustee Act 1925 (NSW)

CATEGORY: Principal judgment

CASES CITED: Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98
Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406
In Re Horsnaill [1909] 1 Ch 631 at 635; In re Tweedie and Miles (1884) 27 Ch D 315
Perpetual Trustee Company (Canberra) Limited v Rasker (1986) 84 FLR 268
Re Keenan; Ford v Keenan (1913) 30 WN (NSW) 214
Re Syme [1980] VR 109
Meadows v Stogdale (Supreme Court of Victoria, Campbell J, 12 July 1988, unreported)
Collins v Equity Trustees Executors and Agency Co Ltd [1997] 2 VR 166
Bassett v Bassett [2003] NSWSC 691; (2003) 58 NSWLR 258
Western Australian Real Estate Custodian Limited v WJ Green & Co (1984) Pty Ltd [2006] WASC 278
Tompkins v Simmons (1931) 44 CLR 546
Re Taylor (deceased) [1957] 1 WLR 1043
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Pukallus v Cameron (1982) 180 CLR 447
Fowler v Fowler (1859) 4 De G & J 250; 45 ER 97
Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54
Crane v Hegeman-Harris Co Inc [1939] 1 All ER 662
Joscelyne v Nissen [1970] 2 QB 86
The Olympic Pride [1980] 2 Lloyd’s Rep 67
Taylor v Johnson (1983) 151 CLR 422
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226
Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) 13 BPR 24,713
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65
Public Trustees v…

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 Feeney v Feeney

Details

AGLC: Feeney v Feeney [2008] NSWSC 890
Case: [2008] NSWSC 890
Decision Date: 13 August 2008

CaseChat Overview and Summary

In the Family Court of Australia, Feeney v Feeney involved a dispute over the termination of a trust and the interpretation of a will. The trust was established by a will, and the property was held in trust for the benefit of the deceased’s wife, with the remainder to be held in trust for the children. The trust provided that the wife would have the right of residence until her death, at which point the property would vest in the children. The court had to determine whether the wife’s interest in the trust property was divested upon her death, and whether the contingent beneficiaries could terminate the trust by executing a deed.

The primary issue was whether the deed executed by the wife and the defendants could terminate the trust, particularly since the contingent beneficiaries were not party to the deed. The court had to examine if the rule in Saunders v Vautier applied and if the contingent beneficiaries could terminate the trust without their participation. Additionally, the court needed to determine if the interests of the beneficiaries accelerated upon the wife's death and whether there was a surrender of the right of residence by the wife. The court also needed to consider if the wife's death divested her interest in the trust property, affecting the contingent beneficiaries.

The court ruled that the deed did not effectively terminate the trust, as the contingent beneficiaries were not party to the deed. The rule in Saunders v Vautier did not apply since the wife's interest in the trust property was not divested upon her death. The court found that there was no acceleration of interests, and the right of residence was not surrendered by the wife. The court also held that there was no clear and convincing proof of a common intention or antecedent oral agreement that would justify rectification of the deed. Furthermore, the court determined that the plaintiff did not contribute to the mistake, and any hardship would not amount to injustice, dismissing the discretionary defences of mistake and hardship.

The final orders of the court were that the deed executed by the wife and the defendants did not terminate the trust, and the property remained in trust for the benefit of the wife during her lifetime, with remainder to the children. The court refused the defendants' application for rectification and dismissed their defences of mistake and hardship. The property was to remain in trust, and the wife's interest in the trust property was not divested upon her death.

Orders