Frederic & Brisset - [2024] FedCFamC1F 801

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Frederic & Brisset [2024] FedCFamC1F 801

File number LNC 600 of 2022

Judgment of WILSON J

Date of judgment 11 December 2024

Catchwords
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – de facto wife a beneficiary under relevant family trust – de facto husband not a beneficiary – de facto husband asserting an entitlement under trust despite not being a beneficiary.

FAMILY LAW – TRUSTS – STANDING – de facto husband, not being a beneficiary, has no standing to bring a breach of trust application in a s 90SM application.

FAMILY LAW – TRUSTS – POWERS – trustee alleged to have exercised a trust power in a manner that was said to be bad – whether void – extensive review of relevant authorities.

FAMILY LAW – EQUITY – FIDUCIARIES – whether trustee a fiduciary towards de facto husband who is not a beneficiary – held, no fiduciary duties owed to him.

FAMILY LAW – PRACTICE & PROCEDURE – strike out application – de facto husband’s points of claim wholly defective – irremediable defects – no standing to bring claims for breach of trust – no standing to bring claim for breach of fiduciary duty – held, points of claim stuck out.

Legislation Family Law Act 1975, ss 4, 45A, 90SM, 106B

Cases cited
Aleyn v Belchier (1758) 1 Eden 132

Ashton v Pratt (2015) 88 NSWLR 281

Askham v Barker (1853) 17 Beav 37

Associated Alloys Pty Ltd v ACW 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588

Attorney-General for Hong Kong v Ried [1994] 1AC 324

Bahr v Nicolay (No. 2) (1988) 164 CLR 604

Balls v Strutt (1841) 66 ER 84

Barnes v Addy (1874) LR 9 Ch App 244

Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755

Brooks v Burns Philp Trust Co Ltd (1969) 121 CLR 432

Byrnes v Kendle (2011) 243 CLR 253

Cachia v Westpac Financial Servies Ltd [2000] FCA 161

Cao & Trong [2022] FedCFamC1F 754

Chen v Chen (No 3) (2020) 63 Fam LR 448

Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226

Cloutte v Storey [1911] 1 Ch 181

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98

Cypjane Pty Ltd v Sverre Rodskog [2009] NSWSC 301

Dare v Pulham (1982) 148 CLR 658

Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79.

Eclairs Group Ltd v JKX Oil & Gas PLC [2015] UKSC 71

Fischer v Nemeske Pty Ltd (2016) 257 CLR 615

Futter v Futter [2013] UKSC 26

Gaisberg v Storr [1950] 1 KB 107

Gambotto v WCP Ltd (1995) 182 CLR 432

Gartside v Inland Revenue Commissioners [1968] AC 553

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490

Grand View Private Trust Co Ltd v Wen-Young Wong [2022] UKPC 47

Guild v Stasiuk (2020) 63 FamLR 322

Hancock v Rinehart (2015) 106 ACSR 223

Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405

Harrison v Randall (1851) 68 ER 562

Hastings v Bass; re Hastings-Bass v Inland Revenue Commission [1974] 2 All ER 193

Hitchcock v Pratt Group Holdings Pty Ltd [2024] NSWSC 1292

Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1

Karger v Paul [1984] VR 161

Kauter v Hilton (1953) 90 CLR 86

Kennon v Spry (2008) 238 CLR 366

L’Estrange v F Graucob Ltd [1934] 2 KB 394

Lindon v Commonwealth (No 2) (1996) 70 ALJR 541

Longelon v Korff (1855) 6 LR (NSW) Eq 30

Miller v Cameron (1936) 54 CLR 572

Mills v Mills (1938) 60 CLR 150

Munnings v Australian Government Solicitor (1994) 68 ALJR 169

New South Wales v Kable (2013) 252 CLR 118

Owies v JJE Nominees Pty Ltd [2021] VSC 114

Owies v JJE Nominees Pty Ltd [2022] VSCA 142

Palmer v Wheeler (1811) 2 Ball. & B 18

Panes v Panes (1863) 33 LJ Ch 215

Pitt v Commissioners of Her Majesty’s Revenue and Customs [2013] UKSC 256

Pitt v Holt [2013] 2 AC 108

Pitt v Pitt; Futter v Futter [2013] 3 All ER 429

Re Barr’s Settlement Trusts; Abacus Trust Co (Isle of Mann) v Barr [2003] 1 All ER 693

Re Bennett [1906] 1 Ch 216

Re Boulton’s Settlement Trust [1928] Ch 703

Re Courage Group’s Pension Schemes [1987] 1 WLR 495

Re Crawshay [1948] Ch 123

Re Cross (1882) 20 Ch D 109

Re Dick [1953] Ch 343

Re Marsden’s Trust (1859) 4 Drew 594

Re Penrose [1933] Ch 793

Re Schebsmar; ex parte Official Receiver v Cargo Superintendents (Landen) Ltd [1944] Ch 83

Re Simpson [1952] Ch 412

Re Smith [1928] Ch 915

Re Wright [1920] 1 Ch 108

Realestate.com Pty Ltd v Hardingham (2022) 277 CLR 115

Roadchef (Employees Benefits Trustees) Ltd v Hill [2014] EWCH 1019

Saloman v A Saloman & Co Ltd [1897] AC 22

Shimshon v MLC Nominees Pty Ltd [2021] VSCA 363

Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072

Spellson v George (1987) 11 NSWLR 300

Spencer v The Commonwealth (2010) 241 CLR 118

Stanford v Stanford (2012) 247 CLR 108

State of New South Wales v Kable (2013) 252 CLR 118

Sun & Yeng (No 5) [2024] FedCFamC1F 702

Taylor v Alihusen [1805] 1 Ch 529

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No. 9) [2008] WASC 239

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Turner v Turner [1984] Ch 100

Twinsectra Ltd v Yardley [2002] 2 AC 164

Vatcher v Paull [1915] AC 372

Wade v Cox (1835) 4 LJ Ch 105

Webster v Lampard (1993) 177 CLR 598

Wong v Bruit [2005] 1 NZLR 91

Woodcock v Woodcock (No 2) (2022) 65 FamLR 333

Wright v Stephens [2018] NSWSC 548

Young v Murphy [1996] 1 VR 279

Division Division 1 First Instance

Number of paragraphs 221

Date of last submission 3 December 2024

Date of hearing 2 and 3 December 2024

Place Melbourne

Counsel for the applicant Mr J. Carney with Mr T. McKenna

Solicitor for the applicant McGrath & Co Lawyers

Solicitor for the first respondent Ms J. Dean, McVeity Dean Lawyers

Counsel for the second and third respondents Mr L. Glick KC with Mr D. Sweeney

Solicitors for the second and third respondents Lander & Rogers
ORDERS

LNC 600 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MR FREDERIC

Applicant

AND
MS BRISSET

Respondent

MR C

Second respondent

D PTY LTD AS TRUSTEE FOR THE BRISSET FAMILY TRUST

Third respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

4 DECEMBER 2024

THE COURT ORDERS THAT –
1.The applicant’s amended points of claim dated 18 October 2024 and filed pursuant to order 2 of the orders made 26 September 2024 by the Hon. Chief Justice Alstergren are struck out.
2.The applicant has leave to file and serve an amended statement of claim setting out any claim he seeks to maintain against the second and third respondents.
3.Any such amended statement of claim as the applicant chooses to file and serve in accordance with paragraph 2 hereof must be –
(a)filed and served on or before 4pm on 19 December 2024; and
(b)in compliance with the rules for pleading as set out in the Federal Court Rules 2011, Part 16 – pleadings.

4.Costs of and incidental to theses orders are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Frederic & Brisset has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

This application has brought into sharp focus several complicated principles of equity in relation to the exercise of powers of appointment under a trust instrument.
In an application under s 90SM of the Family Law Act the de facto husband (the applicant in the proceeding) has filed points of claim in which he (importantly, not the de facto wife) asserts that existing property interests subsist in respect of rights enjoyed by the de facto wife as a beneficiary under a discretionary trust. The de facto husband is not a beneficiary under that trust. Nevertheless, he has asserted that the pool of assets divisible in this s 90SM application should be enhanced (and hence his prospects of obtaining a more favourable division of those assets) when declarations are made in his favour to the effect that the trustee of the relevant family trust should have but failed to make appointments of trust property to the de facto wife.
In essence, the de facto husband contended that in 2001 or thereabouts, the controlling mind of the trustee of the relevant family trust stated that the family trust was his own[1] and that, to use the words of counsel for the de facto husband, he thereby enlivened an intention to no longer be bound by its terms.[2] The de facto husband contended in broad terms that all appointments to trust objects since 2001 or thereabouts have been defective because, so the de facto husband argued, the trustee had stated that it would no longer be bound by the trust deed with the consequence that all acts done thereafter in the exercise of powers were void, not voidable.
[1] It was far from clear what that meant.
[2] Mr Carney used the word “repudiated”.
This was a strike out application. Under principles applicable to any consideration of whether to strike out the whole or part of a pleading (including relevantly here, points of claim) it was common ground that I was required to take the case pleaded at its highest, accepting that even on contested factual matters the version of events as pleaded should be accepted. I have proceeded with that in mind. These reasons reveal why the points of claim must be struck out.
Mr Carney of counsel who appeared with Mr McKenna for the de facto husband contended that each appointment of trust property subsequent to the year 2001 was an impermissible purported exercise of a trust power, in consequence of which the appointment was void, not voidable. Conversely, on behalf of the second and third respondents Mr Glick KC who appeared with Mr Sweeney of counsel argued that according to the current state of authorities in Anglo Australian jurisprudence on the facts of this case there was no improper exercise of power by the trustee, that the appointments were valid in the sense that they were made to proper beneficiaries and in any event, the de facto husband had no standing to bring claims in relation to breach of trust as he is not and never has been a beneficiary under the trust instrument.
A detailed debate was advanced before me on 2 and 3 December 2024. Very detailed written submissions had earlier been prepared, filed and served by Mr Glick KC and by Mr Carney. By the conclusion of all arguments, the following propositions emerged from the second and third respondents’ submissions –
(a)principles governing truth in pleadings applied in this litigation requiring the de facto husband to plead all material facts of relevance in this claim to breach of trust by the second and third respondents;
(b)according to the de facto husband’s own discovered documents, the relevant trust had been operating subsequent to 2010 paying distributions to, among other objects, the de facto wife and notwithstanding the assertions by the de facto husband that the second respondent stated from 2001 he ran the trust as his own private vehicle, the discovered documents contradicted that assertion;
(c)at a factual level the de facto husband was required to plead all the facts within his knowledge including information available to him when the points of claim were prepared and he was therefore required to, but failed to, plead details then known to him about distributions made in the period from 2010 including distributions to the de facto wife;
(d)while the lead authorities on fraud on a power speak of the effect of the fraud amounting to the purported exercise of the power being void, the pleader of the points of claim was required to set all acts, facts, matters, circumstances and things by which it could be seen that the consequence of a fraud on a power was the avoidance of the exercise of power, rather than merely asserting a conclusion about the exercise of the power being void;
(e)to say the exercise of the power was void was meaningless in the absence of a recital of all facts in the chain of logic and reasoning leading to the conclusion that the exercise of the power was void;
(f)nowhere does the pleader or the points of claim identify the consequences of the conclusion that some act of the trustee was void;
(g)the words and conduct attributed to the second respondent to the effect that he treated the trust as his own vehicle were meaningless because the trustee as a corporate entity controlled the trust;
(h)the de facto husband’s contentions that secondary trusts were created was misconceived, especially in view of the fact that the principle contention of the de facto husband (that the trust was administered in breach of trust on and from 2001), with the consequence that void dispositions made after 2001 could not give rise to the creation of secondary trusts in the manner alleged;
(i)the de facto husband has no standing to bring and maintain this proceeding because he is not a beneficiary under the relevant trust;
(j)no property rights for the purpose of s 90SM of the Family Law Act have been enlivened by the points of claim;
(k)even the s160B claim does not give rise to a monetary claim; and
(l)the points of claim should be struck out with a right to replead.
The de facto husband advanced a collection of submissions over the two days of the contested interlocutory application on 2 and 3 December 2024. Among them were the following –
(a)disclosure inadequacies have hampered the de facto husband in articulating the claims he makes in this case;
(b)in 2001 the second respondent as the controlling mind of the third respondent made known to the world that he treated the trust as his own vehicle;
(c)that caused the trustee to breach the trust at least in respect of the validity thereafter of any exercise of trust powers in pursuance of the trust instrument;
(d)on and from 2001 all appointments to beneficiaries allegedly pursuant to the trust have been the result of a fraud on the power with the consequence that all such appointments since 2001 have been void;
(e)clause 3(4) of the trust has been enlivened in such manner that various secondary trusts now inure in favour of the de facto wife creating a proprietary interest in her favour in respect of which the husband seeks declaratory relief, it being ‘property’ for the purposes of s 4 of the Family Law Act; and
(f)the de facto husband does have standing by reason of his claim to an interest in property arising out of the secondary trusts asserted.
PROCEDURAL MATTERS
When this proceeding was before the court on 13 November 2024, the Chief Justice referred to me for speedy determination the application in a proceeding filed 22 October 2024 and the respondent’s responses thereto.
On 18 November 2024 I conducted a directions hearing in this proceeding. I fixed the contested interlocutory application for hearing on 2 December 2024 and made directions for the filing of submissions prior to that. These reasons address the contested interlocutory application.
The de facto wife sought orders for the dismissal of the applicant’s application in a proceeding filed 22 October 2024. The second and third respondents sought orders for their removal from the proceeding, for the dismissal of the de facto husband’s points of claim, for the dismissal of the applicant’s application in a proceeding filed 22 October 2024 and for other consequential orders. Orders have been made in the form proposed by counsel for the second and third respondents.
As has already been recorded, I am of the view that the de facto husband’s points of claim, must be dismissed. I also take the view that the de facto husband’s breach of trust claims in his points of claim in this case do not disclose a reasonable cause of action as that phrase has been construed by the High Court in Lindon v Commonwealth (No 2).[3] I have reached that conclusion for the following main reasons –
(a)the de facto husband, not being a beneficiary under the relevant trust, has no standing to purport to invoke[4] equitable doctrines in respect of the trust; and
(b)applying the test for the question of whether the points of claim may disclose reasonable prospects of success which commands me to take the evidence at its highest, the trust claims made by the de facto husband are doomed to fail.
[3] (1996) 70 ALJR 541.
[4] Young v Murphy [1996] 1 VR 279.
THE ISSUES IN CONTEXT
In reliance upon s 90SM of the Family Law Act, on 14 September 2022 the de facto husband commenced a proceeding against the de facto wife seeking orders for the alteration of their property interests. The wife is a beneficiary under the relevant family trust, the details of which are recorded below. The de facto husband is not and never has been a beneficiary under the relevant family trust.
On 10 October 2023 when this proceeding was in Division 2 of this court, his Honour Judge Turnbull sitting in City P, Tasmania made orders on a contested application as follows –
“[Mr C] – in his capacity as sole director and shareholder of [D Pty Ltd – and D Pty Ltd as trustee for the Brisset Family Trust] be joined as parties to proceeding number LNC600 of 2022 as the second and third respondent’s (sic) respectively.”
His Honour Judge Turnbull’s orders made 10 October 2024 were premised on the provisions of an undated 1985 discretionary trust deed, styled the Brisset Family Trust settled by Mr S, the trustee of which was Q Pty Ltd. The appointor was Mr G who was also a specified beneficiary along with Ms M and their children.
The name of the trustee was changed from Q Pty Ltd to H Pty Ltd in mid-August 1985.
In mid-1991, the Brisset Family Trust deed was amended in certain respects. The trustee’s name was further changed on an unknown date from H Pty Ltd to D Pty Ltd.
According to the recitals to a deed of variation and resignation dated mid-June 2023 made between the trustee and the appointors, in early 2012 Mr C and Ms M were appointed appointors in addition to Mr G. According to a different recital to the deed of variation and resignation dated the same day as the previously mentioned recital, Ms M indicated her wish to resign leaving Mr C as the sole appointor under the Brisset Family Trust.
The terms of the deed of trust of the Brisset Family Trust must be construed as if a contract, according to the High Court in Byrnes v Kendle.[5]
[5] (2011) 243 CLR 253.
Terms relevant to this application included the definition of a “beneficiary” to be any of the general beneficiaries. Those persons included Mr G and Ms M plus their children (being called “specified beneficiaries” in the deed of settlement) as well as certain blood relatives of the special beneficiaries. It also included the trusts of an eligible beneficiary, an eligible corporation (as defined), the holder of at least one share in a beneficiary, a charity, a school, a director of any business carried on by the trustee and such other persons as were named in the schedule.

A power of exclusion was contained in clause eight.
The deed of amendment dated mid-1991 did not bear upon matters presently before me.
According to the affidavit of Mr R made 18 October 2024 and filed in support of the relief sought in the application in a proceeding the determination of which was referred to me by the Chief Justice, Mr G is the son of Mr G senior named in the deed and is a child of a specified beneficiary therefore he is a general beneficiary.
The applicant in this litigation, that is to say Mr R’s client, filed points of claim dated 18 October 2024. Those points of claim are expressed to be between Mr Frederic and Ms Brisset, being the parties to the de facto relationship. The points of claim appear as an annexure to these reasons. It is important to observe at this juncture that nowhere in the de facto husband’s points of claim does he assert that at any stage has he been a beneficiary under the relevant trust. In debate before me on 18 November 2024, Mr Glick KC for the second and third respondents highlighted that the applicant’s standing in this proceeding to raise claims relevant to the trust was contentious because, so Mr Glick argued, the de facto husband who is not a beneficiary under the relevant trust has no entitlement to complain about the administration of the trust. Mr Glick KC called in aid the observations of the Full Court of the Supreme Court of Victoria in Young v Murphy[6] and the observations of the Supreme Court of England and Wales in Pitt v Holt; Futter v Futter.[7]
[6] [1996] 1 VR 279.
[7] [2013] 3 ALL ER 429.
THE POINTS OF CLAIM – SOME GENERAL OBSERVATIONS
In his points of claim the de facto husband asserted that the family trust was established for the benefit of specified and general beneficiaries and that the trustee had certain powers under the deed of trust.
Before descending to the minutiae of the points of claim and the responses to it, the opening sentence of the de facto husband’s written submissions dated 29 November 2024 asserted that this court (Division 1, at least) is not a court of pleadings and that the application to summarily dismiss or to strike out the points of claim is misconceived. I disagree. Complicated claims made by persons who are not parties to the marriage or de facto relationship are routinely ordered by me to be recorded in pleadings. In Chen & Chen (No 3)[8] a poorly pleaded claim to a resulting trust was struck out. In Sun & Yeng (No 5)[9] I also struck out a poorly drafted statement of claim. Many other illustrations appear in the reported cases.[10] It is wrong to assert that in a case in which points of claim have been prepared, filed and served, those points of claim are not amenable to strike out or dismissal orders. Cases in the Major Complex Financial Proceedings List regularly proceed on that basis.
[8] (2020) 63 FamLR 488.
[9] [2024] FedCFamC1F 702.
[10] Kiddle & Daher [2021] FedCFamC1F 193;
The de facto husband asserted that the family trust had been administered on the basis that it was “[Mr C’s] entity” and “a vehicle for his interests”. A reference to Mr C was a reference to the second respondent, Mr C. The de facto husband asserted that the administration of the trust asserted in paragraph 6 of the points of claim was contrary to the express terms of the trust and was for a purpose other than a trust purpose and therefore represented a breach of trust.
The de facto husband was alleging that despite his having no connection with the trust as a beneficiary he was entitled to maintain a claim to breach of trust.
Mr Glick KC contended that such a proposition was unknown to the law. He cited the reasons for judgment of Brooking J sitting as a member of the Full Court of the Supreme Court of Victoria in Young v Murphy.[11] There Brooking J held as follows –
“Putting to one side the special case of charitable trusts, a trustee who has committed a breach of trust may be sued in respect of that breach either by a beneficiary (including someone representing his estate) or by a co-trustee or successor trustee: Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (unreported, Full Court, 26 November 1991). Proceedings to have a breach of trust redressed may be taken by a beneficiary against a trustee, or a former trustee or the estate of a former trustee, or a stranger to the trust who has become liable to redress a breach of trust. Such proceedings may also be taken by a trustee against a co-trustee, or a former trustee or the estate of a former trustee, or against a stranger to the trust who has become liable as mentioned: Scott on Trusts, s294 and s294.1; Bogert, Handbook of the Law of Trusts, s157 and s166; Re Cross; Harston v Tenison (1881) 20 Ch D 109; Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072 at 1074. Where it is a new trustee who takes proceedings to redress a breach of trust committed before his appointment, he can sue without the aid of a vesting order: Re Bennet[1906] 1 Ch 216 at 230-231 per Stirling LJ; Scott on Trusts, s109. Indeed, recognition of the right to sue precedes the invention of the vesting order by the Trustee Act 1850 (13 and 14 Vict c 60). That recognition is founded on general equitable principles.”
[11] [1996] 1 VR 279.
On that formulation, three categories of plaintiffs can sue a trustee for breach of trust, namely, a beneficiary as well as someone representing the beneficiary’s estate or a co-trustee as well as a successor trustee. Occasionally, a stranger to the trust can be sued with a view to addressing his liability to redress a breach of trust.[12] Brooking J called in aid a collection of authorities to make good that proposition.[13]
[12] Although not stated by Brooking J, such a defendant would include a knowing recipient of funds derived from a breach of trust within the contemplation of the first limb of the rule in Barnes v Addy (1874) LR 9 Ch App 244.
[13] Re Cross (1882) 20 Ch D 109, Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072, 1074 and Re Bennett [1906] 1 Ch 216, 230 (Stirling LJ).
It seemed readily apparent that the de facto husband was endeavouring to impugn the acts of the trustee in the administration of the trust because, so the de facto husband said, the value of the de facto wife’s interests under the trust would be vastly greater had the trust been administered in the manner the de facto husband said should have been done with the consequence that the pool available for division would have been commensurately greater than it is.
Precisely how the de facto husband asserted a valid entitlement to complain about shortcomings in the administration of a trust in which he was not a beneficiary was not explained. According to the decision in Young v Murphy,[14] only a co-trustee or a beneficiary or a representative of a beneficiary’s estate has standing to complain. The de facto husband was none of those. He lacked standing to bring and maintain this aspect of his s 90SM claim.
[14] [1996] 1 VR 279.
Since the High Court’s decision in Kennon v Spry[15] a beneficiary under a discretionary trust is possessed of two choses in action. The first is the right to due consideration and the second is the right to due administration. Generally, a person who is not a beneficiary under the trust has no standing to challenge the exercise by a trustee of a trust power or to otherwise seek to enforce the terms of the trust instrument.
[15] (2008) 238 CLR 366 as applied by me in Woodcock v Woodcock (No 2) (2022) 65 FamLR 333.
The decision in Young v Murphy[16] was applied by the Court of Appeal of the Supreme Court of Victoria in Shimshon v MLC Nominees Pty Ltd.[17]
[16] [1996] 1 VR 279.
[17] [2021] VSCA 363.
As a preliminary observation, it is necessary to pass upon an issue foreshadowed by Mr Glick KC on 18 November 2022, namely, the de facto husband’s use of the phrases “void” and “voidable” and the legal effect of each. The High Court in State ofNew South Wales v Kable[18] held that when using the words “void” and “voidable” great care must be exercised and that a decision may be void for some purposes and against some persons yet not for other purposes against other persons. Mr Glick KC submitted that it is vexatious for the de facto husband to assert that a decision is void or that it is voidable, especially when used conterminously. He submitted that the de facto husband has indiscriminately used the terms “void” and “voidable” in the points of claim yet the de facto husband gave no context to his use of the two phases. He called in aid the High Court’s decision in State of New South Wales v Kable[19] to make good that proposition.
[18] (2013) 252 CLR 118.
[19] Ibid.
Throughout the points of claim the de facto husband made assertions about certain powers being exercised by the trustee in this case. Unmistakably the de facto husband was endeavouring to establish that the trustee was, in various ways, acting for a purpose other than for a trust purpose.
Principles of equity draw a distinction between a trustee’s exercise of power in various contexts. In the first is an exercise by the trustee of a fiduciary power (or trust power) that is outside of the scope of the power conferred upon the trustee by the trust instrument. The examples which may be illustrative of such an exercise of power include a distribution to a person who is not entitled under the terms of the trust to receive such a distribution. Related to this notion is what the early equity cases called the most important duty under which a trustee operates, namely, the duty to obey the trust by which the trustee is bound and an injunction will lie to restrain any apprehended breach of that duty.[20] Even if there be no negligence in the relevant act, the trustee will be liable for any failure to do as the trust instrument directs the trustee to do.[21]
[20] Balls v Strutt (1841) 66 ER 84.
[21] Harrison v Randall (1851) 68 ER 562.
There may be circumstances where the exercise of a power by the trustee is authorised by the terms of the trust but on the facts of a particular case the exercise of that power is bad because the exercise is infected by some breach of duty by the trustee. An example is where a distribution to a beneficiary is the result of an improper purpose. In that situation the determination by the trustee, while infected by an improper purpose, is not rendered void in the sense that it is a nullity against all persons and for all purposes.
The distinction between duties and powers will be important, a duty being an obligation the trustee is required to perform whereas a power is an act the trustee is permitted to perform. The language used in the trust instrument will ordinarily assist in the ascertainment of the distinction between a duty on the one hand and a power on the other, as was held in Longelon v Korff.[22]
[22] (1855) 6 LR (NSW) Eq 30.
In respect of the trust in issue in this case, clause 3 of the trust instrument recorded the discretionary powers conferred on the trustee concerning the appointment of income to beneficiaries. The beneficiaries were defined as being specified beneficiaries or general beneficiaries. Recital A to the deed of settlement provided that the settlor desired to make provision for the person defined in the phrases “specified beneficiaries” and “general beneficiaries”. Clause 3(1)(a) empowered the trustees to apply “all or any part of parts of the net income of the Trust Fund” “for any one of more of the general beneficiaries living or in existence at the time of the determination”.
In this case the de facto husband challenged the decision of the trustee. Yet the de facto husband is not a beneficiary under the relevant trust. He has no standing to advance the challenge he seeks to agitate. According to the decision in Young v Murphy[23] he is unable to do that.
[23][1996] 1 VR 279.
Aside from the issue of the de facto husband’s lack of standing, even if an aggrieved beneficiary were involved (which there is not here) then the aggrieved beneficiary is required to demonstrate that the impugned decision is infected with improper purpose. The decision in Hastings v Bass; re Hastings-Bass v Inland Revenue Commission[24] is frequently cited for the proposition that the court should not interfere with the acts of a trustee made in good faith in circumstances where the terms of a trust give the trustee a discretion as to some matter. That is so notwithstanding that the impugned act does not have the full effect the trustee intended unless –
(a)what the trustee has achieved is unauthorised by the power conferred on him; or
(b)it is clear that the trustee would not have acted as he did –
(i)had he not taken into account considerations he should not have taken into account; or
(ii)had he not failed to take into account considerations which he ought to have taken into account.
[24] [1974] 2 All ER 193.
That was the view of Buckley LJ, at all events.
Lloyd LJ differed in his Lordship’s view. There, his Lordship held that the relevant test must be objectively assessed and by testing whether or not that which was done is capable of being regarded as beneficial to the intended object. If it is so capable, then it satisfies the requirement of the power that it should be for that person’s benefit. Otherwise, it does not satisfy that requirement. If the latter, it is outside the scope of the power and it is not an exercise of the power at all and it cannot take effect under that power.
In Futter v Futter,[25] Lord Walker considered that the decision in Hastings-Bass while widely applied, did not in fact represent the propositions it had been widely canvassed as representing. That led Lord Walker to address the statement of principle pronounced by Lightman J in Re Barr’s Settlement Trusts, Abacus Trust Co (Isle of Mann) v Barr.[26] There Lightman J expressed the view that what needs to be established is that the trustee in making his decision has failed to consider what he was under a duty to consider. If the trustee has in accordance with his duty identified the relevant considerations and used all proper care and diligence in obtaining the relevant information and advice relating to those considerations, the trustee can be in no breach of duty and his discretion cannot be impugned merely because in fact that information turns out to be partial or incorrect.
[25] [2013] UKSC 26.
[26] [2003] 1 All ER 693.
It is frequently said that Lord Walker effectively jettisoned the Hastings-Bass principle.
A determination by a trustee which is infected by improper purpose does not render the determination as void in the sense of it being a nullity against all persons for all purposes. Pitt v Holt,[27] a decision of the United Kingdom Supreme Court makes that plain. To that extent, the points of claim in which the determination by the trustee is said to be void may well be wrong.
[27] [2013] 2 AC 108.
On behalf of the second and third respondents, Mr Glick KC submitted that a determination by a trustee to make a distribution to a person who is a beneficiary (that is to say a person who is within scope of the power) but which is said to be based on an improper ground (that is to say, an improper exercise of the power) does not render the determination or the distribution void in the sense that it is a nullity. In support Mr Glick KC called in aid the decision of Pitt v Holt; Futter v Futter,[28] the decision of the Court of Appeal of the Supreme Court of Victoria in Owies v JJE Nominees Pty Ltd[29] and the decision of the Privy Council in Grand View Private Trust Co Ltd v Wong Wen-Young.[30] Mr Glick KC posed a seemingly rhetorical question, namely whether the determination by the trustees to prefer Mr C is outside the purpose for which the power to appoint income in clause 3(1) was conferred. He submitted that the answer was obvious. The trustee had an absolute discretion to apply the net income to whomever the trustee chose and in whatever amount the trustee chose so long as that person was a beneficiary under the relevant trust. Mr Glick KC submitted that Ms Brisset was a beneficiary.
[28] [2013] 3 All ER 429.
[29] [2022] VSCA 142.
[30] [2022] UKPC 47.
The very recent decision of Meeks J of the Supreme Court of New South Wales in Hitchcock v Pratt Group Holdings Pty Ltd[31] revealed how the distinction between void and voidable in the law of trusts retained its relevance. His Honour pointed out that the concept of “void” equated to a fraud on the power of the trustee. That was to be distinguished from a plaintiff who can demonstrate that the trustee did not turn its mind at all to the exercise of the discretion entrusted to it such that there has been no exercise of a reserved power, citing Turner v Turner[32] and Roadchef (Employees Benefits Trustee) Ltd v Hill.[33]
[31] [2024] NSWSC 1292.
[32] [1984] Ch 100, 111.
[33] [2014] EWCH 1019 [at [107]-[109]) Proudman J.
It is relevant to point up that Meeks J expressly followed the decision in Owies at first instance[34] and on appeal,[35] holding that the failure of a trustee to give real and genuine consideration to the exercise of a discretionary power does not necessarily render the exercise of the power void, rather it is voidable at the instance of the beneficiary who is adversely affected. It was also held that it was necessary for the plaintiff to establish that the decision should be set aside.
[34] [2021] VSC 114 (at [30] –[34]).
[35] [2022] VSCA 142.
With that analysis of some overarching legal considerations it became necessary to consider the next issue because the second and third respondents advanced their case with a view to attacking not only the statement of claim but the cause of action generally, recognising that in this court, aside from claims ordinarily attached to it in pursuance of its accrued jurisdiction,[36] in property cases of a simple nature this court mostly does not proceed with pleadings even though the undeniable benefits of pleadings has been the subject of observation by me.[37] Pleadings in the appropriate case are essential, especially if a claim is made to an interest founded in an area of law that is complex, factually intense or not amenable to the simplicity of the concept of the initiating application and a response thereto. In Chen v Chen (No 3)[38] I addressed a claim for a resulting trust and the essential ingredients when pleading and proving such a claim. In Guild v Stasiuk[39] I addressed the pleading of a claim to a constructive trust. In the more complex cases in this court, especially those in the Major Complex Financial Proceedings List, parties are likely to encounter the need for and difficulties in pleading their causes of action particularly those based on equitable causes of action.
[36] Sun & Yeng (No 5) [2024] FedCFamC1F 702.
[37] Cao & Trong [2022] FedCFC1F 745.
[38] (2020) 63 FamLR 448.
[39] (2020) 63 FamLR 322.
FRAUD ON A POWER
Considerable attention was devoted on the hearing of this application to the difficult concept, (also called “the slippery concept”) of fraud on a power.[40] It is utile to distil the various elements of the difficult slippery concept as argued by Mr Glick KC on the one hand, and by Mr Carney of counsel on the other.
[40] Geraint Thomas, Chapter 9 – Fraud on a Power, Thomas on Powers (Oxford University Press) 399, page 399-400 [at 9.01-9.02].
The doctrine is of considerable antiquity in the equity jurisdiction with many important decisions dating back to the early 1800s. While far from being exhaustive, the following propositions may be distilled from the key decisions and commentary on point –
(a)the application of the doctrine is dependent upon questions of motive and purpose yet fraud on a power is central to the law of powers and is one of the few bases on which the exercise of a power may be challenged;[41]
[41] Fraud on a Power (op cit) para 9.01.
(b)on general equitable principles, the donee of a limited power must exercise the power bona fide and for the end designed by the donor requiring the power to be exercised only in favour of the objects of that power and in furtherance of the purposes for which it was conferred;[42]
[42] Ibid.
(c)the purpose for which the power is conferred may be ascertained by an examination of the recitals of the trust instrument so as to glean what the settlor was endeavouring to achieve by the creation of the relevant trust;[43]
[43] Transcript, 2 December 2024 T 34 L 24 – 26 (Mr Glick KC).
(d)a distinction must be drawn between on the one hand the exercise of a power in some manner inconsistent with the terms and scope of the power rendering the exercise excessive[44] and on the other hand, the exercise of power which is fraudulent and void;[45]
[44] Re Boulton’s Settlement Trust [1928] Ch 703.
[45] Aleyn v Belcher (1758) 1 Eden 132, Cloutte v Storey [1911] 1 Ch 181 and Re Courage Group’s Pension Schemes [1987] 1 WLR 495.
(e)the word “fraud” in the doctrine of fraud on a power does not mean deceit but rather a defeating of what the donor of the power authorised and intended as was held by Lord Evershed MR in Re Dick;[46]
[46] [1953] Ch 343, 360.
(f)concepts of dishonesty or immorality are not involved in the doctrine of fraud on a power;[47]
[47] Vatcher v Paull [1915] AC 372, 378 (Lord Parker); Cachia v Westpac Financial Servies Ltd [2000] FCA 161; Gambotto v WCP Ltd (1995) 182 CLR 432.
(g)the relevant act must be done with good faith and sincerity with an entire and single view to the real purpose and object of the power and not for the purpose of carrying into effect any sinister intent;[48]
[48] Duke of Portland v Topham (1864) 11 HLC 32, 54 (Lord Westbury LC).
(h)the intention or purpose of the purpose when exercising the power is decisive;[49]
[49] Re Crawshay [1948] Ch 123, 135; Palmer v Wheeler (1811) 2, Ball & B 18; Wade v Cox (1835) 4 LJ Ch105; Panes v Panes (1863) 33 LJ CH 215; Re Simpson [1952] Ch 412.
(i)it follows that if there is present some ulterior purpose, a collateral purpose, or a deliberate defeating of the donor’s intention then there is a fraud on the power;[50]
(j)in view of the fact that the doctrine of fraud on a power is not founded upon a state of conscience implied in equity to the donee, the doctrine may apply where the donee honestly believes that by his exercise of the power he is disposing of property in a more beneficial manner or in a way which is consonant with what he believes would have been the real wish of the donor of the power in the circumstances prevailing at the date of the exercise of the power;[51]
(k)where the relevant power is reposed in a trust instrument, the purpose of the power will ordinarily be ascertained by reference to the terms of the instrument;[52]
(l)an appointment in favour of a particular object induced by a bribe, whether given or promised, will amount to a fraud on a power;[53]
(m)where a trustee exercises a power fraudulently, a breach of fiduciary duty will have been committed;[54]
(n)the question upon whom the fraud on the power is perpetrated is directly relevant to the issue of the standing of the person complaining about the allegedly fraudulent exercise of power;
(o)it is generally assumed that the party defrauded is the taker in default;[55]
(p)where there are two or more objects, the fraudulent execution of the power may be challenged by any one of them;[56]
(q)an appointor is entitled to appoint to himself so long as he is one of the objects of the power;[57] and
(r)in doing so the appointor must consider the claims and circumstances of the objects before he will be permitted to appoint to himself.
[50] Re Dick [1953] Ch 343, 360.
[51] Alwyn v Belchier (1758) 1 Eden 132; Vatcher v Paul [1915] AC 372; The Bell Group Ltd (in liq); Westpac Banking Corporation (No. 9) [2008] WASC 239.
[52] Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405.
[53] Re Wright [1920] 1LB 108, 118; Attorney-General for Hong Kong v Ried [1994] 1AC 324.
[54] Wong v Bruit [2005] 1 N2LR 91.
[55] Re Brooks’ Settlement Trusts [1939] Ch 133.
[56] Aleyn v Belchier (1758) 1 Eden 132.
[57] Taylor v Alihusen [1805] 1 Ch 529; Re Penrose [1933] Ch 793.

So far as the burden of proof is concerned, the court scrutinises the intention or purpose of the appointment at the date of the exercise of the power.[58] The burden falls on the person seeking to avoid the transaction.[59]
[58] Re Crawshay [1948] Ch 123, 135; Re Wright [1920] 1 Ch 108, 117.
[59] Askham v Barker (1853) 17 Beav 37.
Several lead cases reveal that the effect of a proven fraudulent execution of a power renders the act done or instrument executed wholly void, not voidable.[60]
[60] Re Marsden’s Trust (1859) 4 Drew 594; Cloutte v Storey [1911] 1 Ch 181; Vatcher v Paull [1915] AC 372.
SOME DETAILS OF THE TRUSTEE
According to a company extract recording information obtained from the Australian Securities and Investments Commission (“ASIC”) in late 2023, the trustee of the family trust in issue in this case was incorporated in mid-June 1985 as Q Pty Ltd. On that same day Mr G and Ms M were registered as directors of the trustee. Both ceased as directors of the trustee in mid-2017. The second respondent, Mr C, was appointed as a director in early 2007. Ms Brisset was a director of the trustee between early 2015 and early 2021.
The trustee’s name changed several times between incorporation and the date of this application. It was incorporated as Q Pty Ltd, presumably preserving the reference to “[MRG]” as a reference to Mr G. At all events, in mid-1985 Q Pty Ltd changed its name to H Pty Ltd.[61] In late 2022 H Pty Ltd changed its name to D Pty Ltd. Mr C, the second respondent in this proceeding, had become the director by early 2007. Ms Brisset (the first respondent) was a director of Q Pty Ltd between early 2015 and early 2021, as has already been observed. That was in addition to Mr C.
[61] although not said in the material the reference in H Pty Ltd was likely a shorthand reference to Mr G (hence “[G]”) and Ms M (hence “[M]”).
As an illustration of the de facto husband’s failure to discharge his truth in pleadings obligations, Mr Glick KC relied on an affidavit made on 3 December 2024 by Mr T in which Mr T deposed to distributions to the beneficiaries of the trust for the financial years ended 30 June 2010 to 30 June 2020, derived from financial statements of the trust over that period.
On a strike out application, ordinarily only the pleading that is impugned is the subject of examination. Usually, no evidence is adduced on a strike out application. Yet on the return of this application, Mr Glick KC contended that the de facto husband had so seriously failed to include materially relevant information in his pleading that it was encumbent on the second and third respondents to bring that information to the court’s attention.
Mr T exhibited to his affidavit a summary of distributions to beneficiaries. The information in the table exhibited to his affidavit revealed several important matters. They were –
(a)30 June 2010
(i)Mr G received $75,000.00;
(ii)Ms M received $75,000.00;
(iii)Mr C received $289,782.00
(b)30 June 2011
(i)Mr G received $9160.00;
(ii)Ms M received $0.00;
(iii)Mr C received $299,990.00;
(c)30 June 2012
(i)Mr G received $130,732.00;
(ii)Ms M received $176,689.00;
(iii)Mr C received $755,701.00;
(d)30 June 2013
(i)Mr G received $105,121.00;
(ii)Ms M received $179,825.00;
(iii)Mr C received $450,974.00;
(e)30 June 2014
(i)Mr G received $0.00;
(ii)Ms M received $90,225.00;
(iii)Mr C received $602,566.00;
(f)30 June 2015
(i)Mr G received $0.00;
(ii)Ms M received $135,758.00;
(iii)Mr C received $808,938.00;
(g)30 June 2016
(i)Mr G received $0.00;
(ii)Ms M received $0.00;
(iii)Mr C received $689,500;
(iv)Ms Brisset received $344,698;
(h)30 June 2017
(i)Mr G received $0.00;
(ii)Ms M received $0.00;
(iii)Mr C received $764,256.00;
(iv)Ms Brisset received $382,070.00;
(i)30 June 2018
(i)Mr G received $0.00;
(ii)Ms M received $0.00;
(iii)Mr C received $729,177.00;
(iv)Ms Brisset received $364,534.00;
(j)30 June 2019
(i)Mr G received $0.00;
(ii)Ms M received $0.00;
(iii)Mr C received $836,168.00;
(iv)Ms Brisset received $418,031.00;
(k)30 June 2020
(i)Mr G received $0.00;
(ii)Ms M received $0.00;
(iii)Mr C received $0.00;
(iv)Ms Brisset received $0.00; and
(v)L Pty Ltd received $1,609,341.00.
In debate on 3 December 2024, Mr Glick KC submitted that the information proffered by Mr T in his affidavit would not have seen the light of day in the case advanced by the de facto husband because none of the information about distributions was in the points of claim. That much was true. The evidence of Mr T also went some way to demonstrating the falsity of the assertions advanced on behalf of the de facto husband to the effect as alleged in paragraph 6 that the trust had been administered on the basis that it was Mr C’s entity and was a vehicle for his interests. Mr Glick KC submitted that the distributions made in the period between 2010 and 2020 demonstrated quod erat demonstrandum that the trust had been administered in the years 2010 to 2020 for interests beyond Mr C’s hence the substantial distributions to Ms Brisset, Mr G and Ms M in that period. To my way of thinking, there is considerable merit in that contention. Mr Glick KC went further to submit that as a matter of company law, the trust was not Mr C’s entity because the trustee was a separate legal entity in accordance with principles adumbrated in Saloman v A Saloman & Co Ltd.[62] He also submitted that the trust was not administered as a vehicle for Mr C’s interests because distributions had been made in the period 2010 to 2020 to Mr G, to Ms M, to Mr C, and to Ms Brisset and in very substantial sums.
[62] [1897] AC 22.
In debate before me Mr Carney was taken to his assertion in his written submissions[63] that on a date not specified, when Mr C was confronted with the suggestion that the exercise of certain powers represented a breach of s 106B of the Family Law Act, “he offered up the excuse that it had been agreed long ago that the trust fund was in fact his, that he had always treated it as such, and that the exclusions then under discussion were merely implementing the agreement.” The de facto husband asserted in paragraph 7 of his counsel’s written submissions as follows –
“What the excuse amounted to was evidence of a statement that the Trustee had repudiated the terms of its own trust. The agreement amounted to an informal variation of the trust so as to exclude in substance all of the remaining beneficiaries (not just [Ms Brisset]). That cannot be done. [Mr C’s] blunt admission that he had considered the trust after the “agreement” to be his own meant that he was thereafter operating outside of the terms of the trust, and for his own purposes.”
[63] Paragraph 6 and following the written submissions to the de facto husband sealed 29 November 2024.
Of importance was the assertion by the de facto husband that the “excuse” (that word was used by the de facto husband’s counsel) “offered up” (his words again) amounted to evidence of a statement that the trustee had repudiated the terms of his ow trust and that “the agreement” (a curious choice of words given that no consideration was asserted) “amounts to an informal variation of the trust so as to exclude in substance all the remaining beneficiaries.” Having asserted that characterisation of the effect of the purported and disputed statement by Mr C (namely, that it had been agreed long ago that the trust fund was Mr C’s, that he had always treated it as such and that the exclusions were merely implementing the agreement), counsel for the de facto husband stated in paragraph 7 that the informal variation of the trust could not be done. Paragraph 7 was in the following terms –
“What the excuse amounted to was evidence of a statement that the Trustee had repudiated the terms of its own trust. The agreement amounted to an informal variation of the trust so as to exclude in substance all of the remaining beneficiaries (not just [Ms Brisset]). That cannot be done. [Mr C’s] blunt admission that he had considered the trust after the “agreement” to be his own meant that he was thereafter operating outside of the terms of the trust, and for his own purposes.”
The contention set out in the passage quoted most immediately represented the cornerstone of the de facto husband’s claim in this case. In debate I asked Mr Carney whether he used the concept of repudiation in the same manner in which the concept of repudiation is used in the law of contract. Mr Carney submitted that the concept of repudiation as known in the law of contract was unknown in the law of trusts and that he used the word repudiation to mean that the trustee evinced an intention to no longer be bound by the trust. I asked him to state precisely what he meant by his use of the word “repudiation,” recognising that the de facto husband’s counsel had deliberately and carefully chosen the word. Initially he submitted that the effect of the statement that “it had been agreed long ago that the trust fund was in fact his, that he had always treated it as such, and that the exclusions were merely implementing the agreement,” was the trustee’s evincing of an intention to be no longer bound by the trust. On the second day of this application, 3 December 2024, the de facto husband’s counsel substantially qualified that statement by arguing that the trustee’s evincing of an intention to be no longer bound by the terms of the trust related only to the trustee’s exercise of powers conferred by the trust instrument, most notably the power to appoint income. The de facto husband’s counsel, when pressed, submitted that in all other respects the trust continued with the consequence that the trustee continued to deal with third parties, to enter into contracts, and to otherwise conduct its business of property development.
That provoked Mr Glick KC’s submission that in respect of the de facto husband’s characterisation of the exercise of the power to appoint being a fraud on the power rendering the exercise of that power void, then nowhere did the husband spell out what were the consequences of that state of being void. He posited whether the state of being void rendered the distributions in the period 2010-2021 amendable to a restitutionary claim or whether, if an aggrieved beneficiary seeking to redress the improper exercise of power to appoint subsequent to Mr C making the (disputed) statements attributed to him about his treating the trust as his own, could call back those distributions and thereby restore them to the corpus of the trust. Mr Glick submitted that no beneficiary had purported to call back any distribution made to date, and that if he, she or it did so, very significant taxation consequences were likely to follow.
Mr Glick KC placed heavy reliance upon the observations of Windeyer J of the High Court of Australia in Brooks v Burns Philp Trust Co Ltd.[64] There, Windeyer J addressed the ascription of the terms “void,” “invalid,” “unenforceable,” or “ineffectual” in judgments.[65] Windeyer J held that the words used do not matter if the actual legal result they are used to express be not in doubt or debate. The precise observation was as follows –
The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the familiar legal adjectives – "illegal", "void", "unenforceable", "ineffectual", "nugatory" – and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant. There may be no difficulty for adherents to Humpty Dumpty's principle as expounded by him to Alice. But his latitude and his command of his words as his servants are not generally allowed to lawyers. They are called upon to interpret other men's words.
[64] (1969) 121 CLR 432, 458.
[65] his Honour cited the words “void and unenforceable” when used in relation to certain covenants in Gaisberg v Storr [1950] 1 KB 107, 115.
Windeyer J specifically addressed the use of the word “void.” As has been the subject of far reaching debate on this application, in many of the authorities on the question of fraud on a power, the court held that the purported exercise of a power in which a fraud on the power exists, leads to a void result. Of the word “void,” Windeyer J held as shows –
The word " void" has never been an easy word, as is pointed out in the second Australian edition of Cheshire and Fifoot's Law of Contract, p. 440. It is commonly said that when it describes a juristic act it means that it was always devoid of legal consequences. But this in itself is ambiguous, as witness the difference (which I have emphasized by italics) between the first edition of Sir George Paton's Text Book of Jurisprudence (1946) and the second edition (1951). In the first it was said (at p. 241) that "if the defects [of a juristic act] are such that the act has no legal effect at all, then the act is said to be void". The relevant passage in the latter edition (at p. 250) states–more accurately perhaps, and influenced probably by Professor Cohn's remarks in Law Quarterly Review, vol. 64 (1948), at pp. 325, 326 –
"A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated then the act is said to be void. A void act is sometimes said to be a nullity in law, but this is not strictly so, as an act void in its primary intent may nevertheless have an effect in another way."
It seems to me that the defects, deficiencies or consequences of the appellant's covenant are not well ascertained by calling it void or using any particular epithet. The better course seems to be to abandon single words and to look at what has been said to be the result of a covenant such as that in cl. 2 of the deed, leaving aside for the moment the effect of the Divorce Court's approval of the deed.
Mr Glick argued that nowhere did the de facto husband advance a pleading about the consequence of any act being characterised as void, that is to say void ab initio, void for all purposes, void for limited purposes, void against certain persons or void for all purposes and against all persons. There is considerable force in that submission. To that may be added the scenario that the de facto husband’s contention about the trustee’s subjective intention when exercising the relevant power is ultimately found by the court to be proper and not wrongful in any way in which case the void status of the impugned acts may be returned to the status of being regular and valid.
THE RELEVANT PROVISIONS OF THE TRUST DEED
In the course of his submissions on 2 and 3 December 2024, Mr Carney of counsel contended, in substance, that the trust instrument in issue in this litigation was in relatively standard form as an instrument establishing a discretionary trust. That accorded with my reading of the trust deed. It bore the date 1985, without more, it provided in the schedule that the settled sum was $10, it identified the settlor (an accountant), it identified the trustee as Q Pty Ltd, it gave a name to the discretionary trust (the Brisset Family Trust), it identified Mr G as the appointor and Mr G as the guardian and it named Mr G as well as Ms M as specified beneficiaries.
This being an express trust constituted by deed of settlement, no issue of intention to create the relevant trust emerged[66] and the case became one of construing the terms of the trust.[67] The observations of Heydon and Glennan JJ in Byrnes v Kendle provide authoritative guidance on the correct principles to be applied in the construction of a trust. Their Honours held that the rules for the construction of contracts apply also to trusts. Accordingly, subjective intention is relevant, as their Honours held, only in limited circumstances including cases involving fraud in equity, as did this case.
[66] In Re Schebsmar; ex parte Official Receiver v Cargo Superintendents (Landen) Ltd [1944] Ch 83, 104, Bahr v Nicolay (No. 2) (1988) 164 CLR 604, 618; Associated Alloys Pty Ltd v ACW 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588, 605; Twinsectra Ltd v Yardley [2002] 2 AC 164.
[67] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 181; Byrnes v Kendle (2011) 243 CLR 253 and Kauter v Hilton (1953) 90 CLR 86, 100.
Several provisions of the 1985 trust deed in relation to the Brisset Family Trust were relevant to the determination of this strike out application. I have identified them in the passages that follow, including the submissions as to their construction as urged by Mr Glick KC on the one hand and by Mr Carney on the other.
The settlor’s intention when the trust was constituted was ascertained, so Mr Glick argued, by examining the provisions in Recital A to the 1985 deed. It provides as follows –
“The Settlor desires to make provision for the persons hereinafter referred to as the Specified and General Beneficiaries in the manner hereinafter set out;”
Reference to the settlor desiring “to make provision for” the specified and general beneficiaries, as defined, is to be taken to be the expression of the settler’s intention under the Brisset Family Trust, in my view.
Defined terms appeared in clause 1 of the deed. Of present relevance was the definition of “specified beneficiaries,” “general beneficiaries,” and “included class.” General beneficiaries were broadly defined to mean and include the specified beneficiaries[68] as well as a long list of direct and indirect relatives of the specified beneficiaries. In none of the definitions of “specified beneficiaries,” or “general beneficiaries,” is there a reference to a person meeting the description of the one-time de facto partner of a child of a specific beneficiary, as was common ground. For that matter, the relief sought by the de facto husband in this proceeding was not premised on his status as a beneficiary under the trust but rather, it was premised on a conclusion that he was the holder of an interest in existing property derived from the creation of a trust pursuant to clause 3(4) of the trust instrument.
[68] namely Mr G and Ms M.
The powers conferred upon the trustee were set out in clause 3. Those powers included the powers to “pay apply or set aside” “all or any part of parts of the net income of the trust fund.” That power could be exercised “for any one or more of the General Beneficiaries living or in existence at the time of the determination.” The noun “determination” was not defined yet it was connected to the verb “determine” in the third line of clause 3(1) of the trust deed. Relevantly to clause 3(1)(a), the trustee[69] was given power, at any time prior to the expiration of any accounting period[70] to pay, apply or set aside the same for any one or more of the general beneficiaries living or in existence at the time of the determination. The words “the same” was a reference to “all or any part or parts of the net income of the Trust Fund for such accounting period”. In other words, in any particular accounting period, the trustee had power to determine to pay, apply or set aside all or any part of the net income of the trust fund for any one or more of the general beneficiaries living at the time of the determination.
[69] clause 3(1) used the plural “trustees” whereas the defined word in clause 1(19) was in the plural yet in the schedule the trustee was in the singular. Clause 1(21) provided that singular included plural.
[70] July to June financial year was a defined term largely corresponding to clause 1(21) which provided that singular included plural

The trustee also had power to accumulate under clause 3(1)(b).
In respect of any determination made under clause 3(1), the provisions of clause 3(2) applied.
If the trustee determined to accumulate, the provisions of clause 3(2) applied.
Clause 3(4) of the deed was among the clauses on which the de facto husband placed particular reliance. It related to net income which was not the subject of a determination effectually made by the trustee. Where any such net income existed in any accounting period, clause 3(4) provided that the trustee held that part of net income “in trust successively for the persons described in clauses 4(1), 4(2), 4(3) and 4(4).”
Clause 4(5) provided that any amount set aside in pursuance of clause 4 would cease to form part of trust fund and would thenceforth be held by the trustees on a separate trust with power to invest or apply or to deal with in the manner provided for in clause 6(5).
In this case the de facto husband argued that clause 3(4) became operative leading to the creation of one or more separate trusts beyond the Brisset Family Trust. Relevantly paraphrased, the logic of that submission proceeded in the following manner –
(a)any power purportedly exercised by the trustee subsequent to the second respondent’s statement that the family trust was being administered on the basis that it was Mr C’s entity and was a vehicle for his interests was improper and therefore void for being a fraud on the power;
(b)any determination in any accounting period during or subsequent to the second respondent’s statement that the family trust was being administered on the basis that it was Mr C’s and that the family trust was a vehicle for his interests was similarly improper, bad, and ineffectual;
(c)all such ineffectual distributions were made from net income in the applicable accounting period which the trustee should have held on a separate trust for the persons described in clauses 4(1), 4(2), 4(3) and 4(4);
(d)the separate trusts that were thereby constituted have been called in the de facto husband’s points of claim “[Ms Brisset’s] income trusts”;
(e)the funds in Ms Brisset’s income trusts are “property” as defined in s 4 of the Family Law Act; and
(f)under s 90SM orders are sought altering property interests of the de facto partners to this proceeding, which “property” includes the funds in Ms Brisset’s income trusts.
Considerable agitation attended the de facto husband’s construct of clauses 3(4) and 3(5) of the trust deed and whether the funds to which the de facto husband asserted an entitlement for being property were in fact and in law property the subject of a trust that arose in pursuance of clause 3(5) trust deed. Mr Glick KC submitted that no funds answered the description of net income because all funds in the period 2010 to 2020 had been appointed to beneficiaries in accordance with the trust. Accordingly, there was no subject matter of the trust referrable to the alleged Ms Brisset’s income trust, so Mr Glick contended. He submitted that the de facto husband’s breach of trust component of his points of claim therefore failed to disclose a cause of action.
It is necessary to examine in much greater detail the submissions of the second and third respondents with a view to understanding the second and third respondents’ challenges to the de facto husband’s points of claim which, in respect of the trust claims, was the subject of the second and third respondents’ strike out application.
In seeking to impugn the de facto husband’s proposition that Ms Brisset’s income trust existed, Mr Glick argued[71] that the three certainties necessary in order to constitute a valid trust were absent in respect of the pleading about Ms Brisset’s income trust. Mr Glick argued that those three certainties were the objects of the trust, the subject matter of the trust and the duration of the trust. He submitted that the existence of the subject matter of Ms Brisset’s income trust was missing.
[71] Transcript 2 December 2024 T 43.
Mr Glick addressed on the operation of clauses 3(4) and 3(5) of the Brisset Family Trust. He contended that a separate trust of the sort canvassed in clause 3(5) might arise, perhaps, where no determination in relation to net income had been effectually made in a particular accounting period and no determination had been made to accumulate. In that scenario, clause 3(5) provided that the amount set aside for any beneficiary would become the subject of a separate trust, relevantly here called by the pleader of the points of claim Ms Brisset’s income trusts. Mr Glick KC submitted that the subject matter of any such alleged trust was missing (and it was not pleaded) because the “amount set aside for any beneficiary” was not ascertainable nor in this case was it ascertained so as to cease to form part of the Brisset Family Trust and to become Ms Brisset’s income trust. That was for the simple reason that no actual amount of money in the form of net income was alleged to have been impressed with a trust allegedly constituted under clauses 3(4) and 3(5) of the trust instrument.
Mr Glick emphasised that the Brisset Family Trust was a discretionary trust. The trustee possessed by clause 3(2)(d) an absolute discretion in the making of any determination and the trustee was not required to assign any reason for any determination. Mr Glick pressed hard to demonstrate that the discretion to pay or to accumulate or to set aside in favour of beneficiaries was absolute and no particular beneficiary, even Ms Brisset, was entitled to insist that the trustee’s discretion was to be exercised in a particular manner. So, according to the second and third respondents Ms Brisset as one discretionary beneficiary, had no entitlement to call upon the trustee to make an appointment in her favour because the appointment to an object was in the absolute discretion of the trustee. Further, Mr Glick submitted that no provision of the trust deed made any stipulation that the exercise of power in the trust deed needed to have the result that appointments to two objects received equal amounts.[72] On behalf of the second and third respondents Mr Glick argued that no trust existed which could be named Ms Brisset’s income trust because no fund existed to meet the requirement for certainty, in consequence of which no existing property within the contemplation of Stanford v Stanford[73] was identified or pleaded. Any “property” would only emerge if judgment for a monetary sum was entered after the de facto wife sued the trustee for breach of trust resulting in an order for the payment of equitable compensation.
[72] T 45.
[73] (2010) 247 CLR 108.
So far as property within the contemplation of Stanford v Stanford was concerned, any such property constituted a chose in action, the value of that chose in action was required by the decision in Kennon v Spry.[74] Mr Glick placed reliance upon comments made to Alstergren CJ on 26 September 2024 when this proceeding was before the Chief Justice, counsel then appearing for the de facto husband assured the court that there was no need for valuation evidence and that the trial of this proceeding could go forward without the need for valuation evidence in relation to Ms Brisset’s income trust.
[74] (2008) 238 CLR 366.
In Woodcock v Woodcock (No 2)[75] I held that a discretionary beneficiary’s right to due consideration and to due administration may be capable of being valued in the way contemplated in Kennon v Spry but that valuation evidence was first required. Mr Glick submitted that it was on the de facto husband’s assurance to the chief justice that no valuation evidence in this case was to be adduced did the chief justice fix the proceeding for trial in March 2025.
[75] (2022) 65 FamLR 333.
In Owies, the Court of Appeal of the Supreme Court of Victoria held[76] that the default structure in the trust in that case was valid. In this case, Mr Glick KC submitted that the settlor’s intention was to benefit general beneficiaries in the trustee’s absolute discretion. He submitted that any requirement for the trustee to take into account one or more matters in the exercise of the trustee’s discretion did not thereby convert the absolute nature of the discretion into a default structure that is prescriptive. Mr Glick put his contentions as follows –
“To straightjacket the trustee by saying “you must administer it on the basis that they all share equally” is to fetter the discretion. Now, that trust purpose default structure is throughout the pleadings they use. That’s what I say about slogans, they use it to measure everything”.[77]
[76] Especially at [113].
[77] T 55 L31 – L 34.
On behalf of the second and third respondents, Mr Glick was critical of the failure by the de facto husband to reveal or disclose the receipt by the de facto wife of distributions of $1.5m. I asked what significance Mr Glick attributed to that information. His response[78] was this –
“The court should not be led to believe that at all times since 2009 the trustee has only given money to itself or to people within that family, disregarding the interests of the poor wife who was a victim, when the poor wife has received $1.5 million.”
[78] T 56 L 27.
In addition, Mr Glick addressed the assertion in the points of claim (paragraph 7)[79] where it was asserted that the family trust had been administered contrary to its express terms. He argued that no express terms were stated in contravention of which the trust had allegedly been administered. Mr Glick argued that the only express term of the trust alleged was the trustee’s absolute discretion and the trust had not been administered contrary to that express term.
[79] T57.
So far as the alleged requirement on a trustee for it to articulate the matters on which it relied in exercising a power was concerned, Mr Glick called in aid the observations of McGarvie J in Karger v Paul[80] to the effect that no requirement exists requiring the trustee to assign reasons for matters taken into account. Paragraph 8 of the points of claim contained an assertion about the value of the de facto wife’s property interest in the trust. Mr Glick KC submitted that the de facto wife as a beneficiary under a discretionary trust had no interest in the trust. In reliance upon the observations of Brereton J in Wright v Stephens[81] and on the High Court in Kennon v Spry, a beneficiary may enjoy certain rights against the trustee but the beneficiary does not have an interest in the trust. Mr Glick argued that the contention in paragraph 8 that the de facto wife had an interest in the trust was unsupportable. To like effect were my observations in Woodcock v Woodcock (No 2).
[80] [1984] VR 161.
[81] [2018] NSWSC 548.
In debate I asked whether it was necessary for a beneficiary to consent to litigation being brought in his or her name or on his or her behalf before that litigation is maintainable. Mr Glick submitted that such consent was required, without which there was no standing.[82]
[82] T 63.
So far as the choses in action held by the de facto wife were concerned based on allegations of improper allocation of income and the allegedly improper exclusion of the de facto wife as a beneficiary, Mr Glick pointed up that no claim for consequential loss and damage had been asserted in the de facto husband’s points of claim. For that matter, Mr Glick said no expert evidence has been adduced – or will be adduced – on the issue of loss and damage.
That led to a discussion about whether the March 2025 trial date was maintainable. Mr Glick expressed pessimism that the case would be ready for a March 2025 trial if substantial repleading of the points of claim were ordered, assuming I was persuaded to the second and third respondents’ propositions.
THE DE FACTO HUSBAND’S SUBMISSIONS
Counsel for the de facto husband relied on a very detailed, lengthy written submission as well as equally lengthy viva voce submission delivered on 2 and 3 December 2024. Relevantly paraphrased the substance of his viva voce submissions was as follows –
(a)an exercise of power (by a trustee) for an extraneous power is invalid and void as was held in Mills v Mills;[83]
[83] (1938) 60 CLR 150.
(b)the purported exercise of a discretionary power on the part of trustees will be void if what is done is not within the scope of the power;[84]
[84] Pitt v Pitt; Futter v Futter [2013] 3 All ER 429
(c)Brereton J applied the observations of Lloyd LJ in Hancock v Rinehart[85] citing Vatcher v Paull;[86]
[85] (2015) 106 ACSR 223.
[86] [1915 AC 372, 378.
(d)it was erroneous of the second and third respondents to argue that the de facto wife’s choses in action were valueless and while the de facto wife does not attribute a dollar precise sum said to be the value of her choses in action, the de facto husband has in fact pleaded the ascertainment of value on a particular basis;[87]
[87] T 80 L 38.
(e)he said a statement by the trustee “I’ve treated the trust as if it was my own” was “a foundational repudiation of a trust”[88] (his words);[89]
[88] T 80 L 41 – 41.
[89] A matter of a few sentences only later Mr Carney submitted that a trustee who says “I’m going to treat this trust as if it were my own” permits a foundational breach of trust.
(f)the consequence of that, Mr Carney submitted, was that when the court is assessing the rights of administration under the trust, it should do so making the assumption that those rights would be asserted to ensure that there was an independent trustee which would in the absence of evidence to the contrary in the family trust, appoint income and when the time came, capital in accordance with the taker in default provisions of the trust;
(g)that was property, he said;
(h)the “property interest” was the right of administration and the right of consideration as to capital which should be “made on the basis that the trustee is liable to be removed and… if that were to occur, in the absence of any evidence to the contrary, an independent trustee would appoint income and capital in accordance with the default provisions of the trust”;[90]
[90] T 83 L 30. The points of claim do not posit the de facto husband’s propositions in the manner expressed at T 83.
(i)Mr Carney said that every single thing done consequent upon the exercise of the power of exclusion was void;[91]
[91] T 85 L 9.
(j)when asked how Mr Carney reconciled his contentions that the trustee treated the trust as his own with the circumstances where the trustee appointed $1.5m of trust income to the de facto wife, Mr Carney said that the $1.5m was “consistent with a gift”;[92]
[92] T 85 L 25, although he submitted it was a matter for evidence.
(k)he conceded the gift allegedly made had not been pleaded;
(l)Mr Carney submitted that from about 2001 everything done by the trustee allegedly in purported exercise of powers conferred on him by the trust instrument was invalid;[93]
(m)such invalidity included the appointment of $1.5m to the de facto wife;
(n)the points of claim make no reference to the $1.5m asserted as an invalid distribution to the de facto wife;
(o)he repeated that every single thing done by the trustee on and after 2001 was without power;[94]
(p)the additional trusts[95] gave the de facto wife an absolute beneficial interest on a bare trust pending payment;
(q)the de facto wife has, under the terms of the trust an entitlement to call for payment and once she does, an obligation arises to give her the property of the trust;[96]
(r)the bare trust alleged is “property” within the meaning of s 4 of the Family Law Act;
(s)he submitted that the amount held absolutely for the beneficiary is set out in the schedule attached to the points of claim; and
(t)he said extensive disclosure issues were outstanding in relation to the amounts set out in the schedule of the points of claim.
[93] T 88 L 10.
[94] T 91.
[95] I have proceeded on the basis that such a trust includes the events defined in the points of claim as “[Ms Brisset’s] interest trust”.
[96] T 92.
The last point seemed to me to assume very considerable practical importance. That led to the following exchange –
“HIS HONOUR: Well, how much do you say is held absolutely for the beneficiary on the facts of this case?
MR CARNEY: The amount set out in the schedule annexed to the points of claim as best we can. You will note that in defining these trusts, we say this is the best description that we can pending disclosure.
HIS HONOUR: Well, you won’t have very much time to get disclosure if you’re pressing for a trial in March.
MR CARNEY: Well...
HIS HONOUR: Well, no, that’s a pretty important point. And very few judges would let the case go to trial if you say there are extant disclosure issues. Do you say that?
MR CARNEY: We do.
HIS HONOUR: Well, how do you juggle those two inconsistent propositions? You either want the case to go to trial, in which case you’re willing to, it seems, forego your right to pursue disclosure remedies, or you want disclosure in which case the case isn’t ready for trial. Which is it?
MR CARNEY: Well, the disclosure on this point in the first instance, one couldn’t imagine being very much. It will be the general ledgers of the trusts.
HIS HONOUR: Would you mind answering my question, please?
MR CARNEY: Well, it’s dependent on disclosure, and we’ve articulated the particulars as best we can.
HIS HONOUR: No, no. I didn’t ask you that. Here’s the question. You’re pushing for a March trial; correct?
MR CARNEY: Yes.
HIS HONOUR: Very few people go to trial with inadequate disclosure, and I’m sure you don’t want to do that, do you; correct?
MR CARNEY: No. Correct.
HIS HONOUR: So do you want the disclosure, or do you want the trial?
MR CARNEY: I will have to take instructions about that.
HIS HONOUR: Well, please do that, because that’s pretty relevant. When will you give me an answer to that question? If I were to stand down for ten minutes - - -
MR CARNEY: We could get it now.
HIS HONOUR: If I were to stand down for 10 minutes, could you get the answer to that?
MR CARNEY: If the court pleases.
HIS HONOUR: I will stand down.”
On resuming, Mr Carney told me the de facto husband wanted disclosure about assets and he wanted to adduce valuation evidence.[97]
[97] T 97.
Counsel for the second and third respondents resumed viva voce submissions at a little after 3pm on 2 December 2024. He submitted –
(a)it was alleged that ever since 2001 when the second respondent allegedly said in effect that he was going to treat the trust as his own, everything done thereafter was improper and void;[98]
(b)that broad submission was qualified by confining any void consequences to any purported exercise of powers conferred upon the trustees;[99]
(c)on that analysis, the trustee’s dealing with third parties who were not on notice of any irregularity was not void;
(d)once the trustee had evinced an intention to no longer be bound by the trust instrument in 2001, Clause 3.4 of the trust instrument was engaged yet the trust continued despite the submission that the trustee had allegedly repudiated the trust; and
(e)in the period between 2001 and 2024 the trustee engaged in repeated acts that were said to be void yet persons entitled to complain did nothing.[100]
[98] T 103.
[99] T 104 L 14.
[100] T 107.
On 3 December 2024 upon Mr Carney resuming, he contended that Ms Brisset’s income trust was property, being a bundle of rights[101] conferring on the de facto husband standing to seek declaratory relief but not standing to directly intervene in the Brisset Family Trust.
[101] That was the concept on which the High Court relied in Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1, as applied in Woodcock v Woodcock (No 2) (2022) 65 FamLR 333.
Having regard to Mr Glick’s concession that he did not complain about stylistic issues in the points of claim, I pass over his submissions in the case about the adequacy or otherwise of the manner of express and logic of the asserted points of claim. In view of authorities such as General Steel[102] I am required to take a pleaded assertion at its highest, assuming the proposition has a maintainable legal and evidentiary foundation.
[102] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.

In those circumstances I make an order striking out the de facto husband’s points of claim dated 15 November 2024. The orders proposed are as set out in the first pages of those reasons.
CONSIDERATION
Principles adumbrated by Barwick CJ in General Steel require any consideration in a strike out application to take the pleaded causes of action at their highest, thereby recognising the truth of the assertions alleged. I have done that on this application.
In my view the construction pleased on clause 3(4) by the de facto husband is erroneous. I say that for several reasons.
First, the de facto wife as a beneficiary under the Brisset Family Trust enjoys the choses in action that a beneficiary under a discretionary trust enjoys – the right to due consideration and the right to due administration. She has and at all times had no interest in the trust itself. According to Kennon v Spry as applied in Woodcock v Woodcock (No 2), those choses in action may (repeat may) constitute “property” for the purposes so long as the choses in action can be valued.
In this case, no evidence presently exists about the value of the dual choses in action. To constitute “existing property” as held in Stanford v Stanford those choses in action must be valued. Unless and until that happens they are not capable of being described as “existing property”.
Second, the relevant dramatis personae in the factual scenario posited in the points of claim are the trustee and the de facto wife as beneficiary under a discretionary trust, but not the de facto husband. He is not a beneficiary under the Brisset Family Trust. He has no standing to complain about breaches of trust because he is not a beneficiary under the Brisset Family Trust.
Third, the terms of the Brisset Family Trust set out a collection of powers which the trustee was authorised to exercise in its absolute discretion thereby conferring upon the trustee powers which were required to be exercised honestly and for the purpose each was intended. Any impropriety in the exercise of those discretions rendered the exercise of the power void. However, the de facto husband in his points of claim did not identify –
(a)the appointments to objects of the trust which were impugned;
(b)when each appointment was made and in what amount;
(c)in what respect each such appointment contravened the relevant power under the Brisset Family Trust;
(d)how and why the statement attributed to the second respondent that he would administer the trust as his own vehicle represented the evincing of an intention to no longer be bound by the terms of the Brisset Family Trust, in circumstances where, since 1991 the trustee has appointed income to objects with the agreement of directors of the trustee from time to time;
(e)the consequences of any void exercise of a trust power especially against whom the void status operated;
(f)how it is said that the consequence of an exercise of power rendered void that appointment of income to an object in circumstances where the Brisset Family Trust otherwise operated validly notwithstanding the allegedly void exercise of power;
(g)how it is said by the de facto wife that the exercise of a power by the trustee to appoint income to her since 2001 was void yet the de facto wife received and unconditionally appropriated to her own use and benefit funds in the order of $1.5m allegedly pursuant to powers exercised in an allegedly void manner;
(h)how it was said that the body of rights described as Ms Brisset’s income trust was a validly constituted bare express trust allegedly constituted in pursuance of clause 3(5) of the Brisset Family Trust in circumstances where the subject matter of the trust was uncertain;
(i)how it was said that the body of rights described as Ms Brisset’s income trust to which no value attached were said to be “existing property” as that phrase was used by the High Court in Stanford v Stanford; and
(j)how it was said that whatever rights inured pursuant to Ms Brisset’s income trust represent “property” for the purposes of the Family Law Act when the de facto husband did not acquire any status in respect of those alleged rights in the absence of an order declaring an entitlement in the hands of the de facto husband in relation to those alleged rights under Ms Brisset’s income trust.
It seemed to me that the deficiencies in the points of claim identified immediately above had several consequences. First, a respondent required to plead to the points of claim had no real idea of the legal and factual basis of the case pleaded against each respondent with the consequence that the chain of logic and reasoning underpinning each asserted claim was not ascertainable. Second in view of the statement made at or about 3pm on 2 December 2024 by the de facto husband’s counsel that valuation evidence was now required, notwithstanding Mr McKenna of counsel for the de facto husband informing the Chief Justice that no such evidence was required when the case was fixed for trial, it is highly unlikely that between this date and the date fixed for the trial of this proceeding in March 2025 –
(a)the pleadings will be finalised;
(b)disclosure based on those pleadings will be exhaustively given by all parties;
(c)expert evidence will be filed and served in the timelines provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules; and
(d)with the consequence that the trial commencement date may very well be jeopardised.
Whether that comes to pass must await further developments.
In my view the points of claim suffer from an array of defects in their present form. Most importantly, they do not comply with the truth in pleadings concept. The de facto husband must plead facts, properly particularised, of matters actually presently known by him. The $1.5m paid to the de facto husband is an example. Judge Turnbull referred to it in his Honour’s reasons. It is not sufficient for the de facto husband to plead for example, alleged terms of the Brisset Family Trust without setting out the terms allegedly breached with particulars of the breaches. Insofar as a fraud on a power is alleged, the de facto husband must plead the existence of the relevant breach or improper purpose. To the extent that the asserted breach involves a subjective state of mind of the relevant actor, that state of mind must be pleaded. I will not allow this case to go forward – still less to trial – with unparticularised general seemingly meaningless assertions. All relevant breaches of trust must be pleaded and particularised. To the extent that any values in choses in action are involved, those too must be pleaded. Mr Glick’s proposed orders require that to be done within short compass. Counsel for the de facto husband is well versed in the factual minutiae of the case. It will not take weeks for the proper points of claim to be recast in respect of the trust allegations. I make orders in accordance with Mr Glick’s minute.
The s 106B claim advanced by the de facto husband was not the subject of trenchant criticism. Mr Sweeney of counsel who appeared with Mr Glick KC submitted that the relief sought by the de facto husband, even if granted, does not translate into a monetary sum. On behalf of the second and third respondents no orders striking out the de facto husband’s s 106B claims were pressed.

I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson.
Associate:
Dated: 11 December 2024
Annexure “A”
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA AT CITY B
NO: (P)LNC600/2022
BETWEEN
MR FREDERIC
Applicant
AND
MS BRISSET
Respondent
APPLICANT'S POINTS OF CLAIM
A. The Family Trust
1.At all material times the third Respondent (the Trustee) was incorporated pursuant to the laws of the State of Tasmania.
2.In 1985 Mr G established the Brisset Family Trust (the Family Trust), the class of Specified Beneficiaries of which consisted of Mr G, his wife Ms M, and their three children: the second Respondent (Mr C), the first Respondent (Ms Brisset) and Ms O.
PARTICULARS
In about 1985 Mr S as Settlor and Q Pty Ltd (now known as D Pty Ltd) (the "Trustee"), on instructions from Mr G entered into a deed of settlement (the "Trust Deed") establishing the Brisset Family Trust. The Trust Deed is in writing and dated 1985 but is otherwise undated.
The class of "Specified Beneficiaries" is defined in clause 1(16) and the Schedule to the Trust Deed as Mr G and Ms M and their children.

3. The Family Trust was established in order to:
(1)make provision for the persons referred to as the Specified and General Beneficiaries in the manner set out in the Trust Deed (Recital A of the Trust Deed); and
(2)to do so by reference to its default structure, which is one providing for the benefit of the Specified Beneficiaries (and their children upon their deaths) in equal shares (the Default Structure)
(together, the Trust Purpose)

4.Further, at all material times from at least 30 June 2000 it was a relevant consideration in exercising the powers and discretions under the terms of the Family Trust that each of Mr C, Ms Brisset and Ms O had assisted Mr G and Ms M in building up Mr G and Ms M's assets (the Assistance Consideration).
PARTICULARS
The Applicant relies upon the statement by Mr G in clause 16 of his last and final Will, made 30 June 2000, that his eldest son (who was not a child of Ms M) (Mr G JR) had"....unlike my other three children ... not assisted me in any way in building up the assets and businesses which I currently own whereas Mr C, Ms Brisset and Ms O have assisted me and my wife in accumulating our assets."

5. In the premises, at all material times:
(1)the power to declare a person to be a member of the Excluded Class pursuant to the second proviso to clause 1(7) of the Trust Deed;
(2)the power to declare a person to be excluded from the class of General Beneficiaries pursuant to the second proviso to clause 1(8) of the Trust Deed;

(3) the power to appoint income pursuant to clause 3(1) of the Trust Deed; and
(4)the power to add to, revoke or vary any of the trusts arising under the Family Trust pursuant to 28 of the Trust Deed were each powers to be exercised by the Trustee for the Trust Purpose, taking into consideration the Default Structure and the Assistance Consideration.

B.Administration of the Familv Trust. in breach of trust. on the basis that it is Mr C's entity and is a vehicle for his interests

General administration of the Trust bv the Trustee in breach of trust
6.At all material times, the Family Trust has been administered on the basis that it is Mr C's entity and is a vehicle for his interests (Mr C's entity purpose).

PARTICULARS
(1) The Applicant relies on admissions in paragraphs 3 to 6 and 11 of Mr C's affidavit in this proceeding made on 13 September 2023 to the effect that his father had from approximately 2001 no involvement in the business conducted by the Trust, that there had been an unwritten "family agreement" in "relation to the control and ownership of the assets of the Family Trust", that the Family Trust "has always been my entity. I treated it as such" and that the assets of the Family Trust "were always intended to be for the benefit of myself and no one else".
(2) The Applicant relies on admissions by Mr C and the Trustee in the Outline of Submissions filed in this Honourable Court on 2 October 2023 on behalf of Mr C and "his entities" (paragraph 1), and on the express admission (at paragraph 10) that at "All material times... [the Family Trust] was and remains in the sole control of her [Ms Brisset's] brother [Mr C]. It is a vehicle for the operation. of his commercial/property development interests only."
(3) The Applicant further says that the purpose can be inferred from the absence of any appointments of trust income or capital in favour of either Ms O or Mr G Jr.
(4) The Applicant further relies on the fact that on 8 December 2022 Mr C changed the name of the Trustee from "[H Pty Ltd]'' to "[D Pty Ltd]''.
Further particulars regarding the time from which the Family Trust has been administered by reference to Mr C's entity purpose will be given after discovery.
7.By reason of the matters set out in paragraphs 2 to 6 the Family Trust has been administered:
(1) contrary to its express terms;
(2) for a purpose which is not the Trust Purpose and further or alternatively
(3)without taking into account the Default Structure or the Assistance Consideration

and has therefore been administered in breach of trust.
8.By reason of paragraphs 6 and 7 any assessment of the value of Ms Brisset's property interest in the Family Trust as a General and Specified Beneficiary should be made on the basis that:
(1)the Trustee of the Family Trust is liable to be removed on the application of a beneficiary of the Family Trust in favour of the appointment of an independent trustee pursuant to s. 32(1) of the Trustee Act 1898 (Tasmania) and the Family Trust would be administered by an independent trustee acting in accordance with the Trust Purpose taking into account the Default Structure and the Assistance Consideration or,
(2)alternatively, the Family Trust would be administered by the Trustee acting impartially in accordance with the Trust Purpose, taking into account the Default Structure and the Assistance Consideration.

PARTICULARS
The Applicant refers to and repeats paragraphs 6 and 7 above. He says the matters referred to in those paragraphs evidence that the Trust has not been administered in accordance with its terms and where, based on admissions, the assets of the Family Trust include significant personal claims against Mr C. In those circumstances, the appointment of an independent Trustee is, in the present circumstances, required if the Family Trust is to be administered in order with its terms and the duties of a trustee are to be adhered to.

Appointments of income for an improper purpose and trusts arising in favour of Ms Brisset (and others) as a result
9.Further to and by reason of the matters in paragraphs 2 to 7, the Trustee has at all material times in breach of trust exercised the power to appoint income pursuant to clause 3(1) of the Trust Deed by reference to Mr C's Entity Purpose, which is a purpose for which the power in clause 3(1) has not been given.
10.In the premises, the said exercises of power under clause 3(1) are void, as they were done for an improper reason and thereby constituted abuses of the power.
11.Accordingly, by reason of paragraphs 9 and 10, there has been no effective determination of the net income of the Family Trust for any Accounting Period (as defined in clause 1(1) of the Trust Deed) to which the plea in paragraph 9 set out above applies, such that by reason of clauses 3(4), 3(5), 4(2), 6(5) and 8 of the Trust Deed:
(1)       any such net income; and
(2)       any income earned on that net income
is held by the Trustee absolutely on the following separate trusts:
(3)for each of the Accounting Periods occurring prior to 30 June 2017, separate trusts comprising one-fifth of the net income arising in each relevant Accounting Period (and any income earned thereon) in favour of each of Mr G, Ms M, Mr C, Ms Brisset and Ms O;
(4)for each of the Accounting Periods after the death of Mr G in 2018 to date, trusts arising in each accounting period as follows:
(a)       trusts comprising on.ejifth of the net income in favour of Ms M;
(b)trusts comprising one quarter of the net income in favour of each of Mr C, Ms Brisset and Ms O (that is, a one fifth share in their own right as Specified Beneficiaries and a further one quarter share of a Specified Beneficiary's share, as children of a deceased Specified Beneficiary, Mr G); and
(c)5% of the net income in favour of Mr G Jr (as a child of a deceased Specified Beneficiary, Mr G, taking a one quarter share of his one fifth share).

(The separate trusts arising in favour of Ms Brisset, and any income attributable to them, are herein referred to collectively as Ms Brisset's Income Trusts.)

PARTICULARS
Ms Brisset's income trusts for the Accounting Periods ending 30 June 2009 to 30 June 2022 are set out in the Schedule Annexed. Further particulars of the income trusts for the Accounting Periods prior to 30 June 2009 and after 30 June 2024 will be given upon discovery.

Defective appointments of income liable to give rise to trusts arising in favour of Ms Brisset (and others) as a result
12.Alternatively to paragraphs 9 to 11, by reason of the matters set out in paragraphs 2 to 6, the Trustee has in breach of trust, in exercising the power to appoint income pursuant to clause 3(1) of the Trust Deed:
(1)failed to take into account relevant considerations, being the Default Structure and/or the Assistance Consideration;

(2) taken into account an irrelevant consideration, being Mr C's Entity Purpose; and
(3)acted in bad faith, in that Mr C's Entity Purpose was a purpose that the Trustee knew, by reason of the terms of the Family Trust, to be inconsistent with the Trust Purpose

such that those exercises of power are voidable and liable to be set aside, such that Ms Brisset's income trusts are liable to arise pursuant to clause 3(4) of the Trust Deed.
C.The invalid variation to the Family Trust and the invalid exercise of the power to appoint income by reference to the purportedly varied terms, also giving rise to Ms Brisset's Income Trusts.
13.At all material times the terms of the Family Trust included in clause 28 of the Trust Deed a power of variation which could only be exercised with the consent of the Guardian.

PARTICULARS
The power in clause 28 is a "reserved power" under clause 10(6)(ix) of the Trust Deed, which by reason of clause 10(3) of the Trust Deed could not be exercised without the consent of the Guardian.
14.Mr G and Ms M at all material times until the death of Mr G in 2018 jointly held the office of Guardian pursuant to the terms of the Family Trust.

PARTICULARS
The office of Guardian is defined in clause 1(9) of the Trust Deed and the Schedule to the Trust Deed. The schedule names the Guardian as Mr G and Ms M. Upon the death of Mr G there ceased to be a Guardian of the Family Trust.
15.On 28 June 1991 the Trustee and Mr G executed a deed purporting to exercise the power of variation under clause 28 of the Trust Deed (the Deed of Variation) and which purported to insert definitions of "income" and "net income" in the Trust Deed and to insert powers exercisable in relation to the power to appoint income pursuant to clause 3(1) of the Trust Deed.

PARTICULARS
The Applicant relies on the terms of the Deed of Variation.
16.The Deed of Variation did not validly exercise the power to vary or amend the terms of the Family Trust pursuant to clause 28 because it was exercised without the necessary prior consent of Mr G and Ms M, acting jointly in the office of Guardian, being given.

PARTICULARS
The Deed of Variation incorrectly named Mr G as the sole Guardian of the Family Trust. The exercise of the power of the Guardian to give consent under clause 10(3) of the Trust Deed required the conscious consent of Mr G and Ms M acting jointly as the Guardian of the Trust. Further, the Guardian's power in clause 10 (3) to give consent to the exercise of a reserved power was a fiduciary power, whose exercise required it to be exercised actively and honestly. The required consent was manifestly not given by Mr G and Ms M, because it was erroneously believed by those who executed the Deed of Variation that Mr G alone was the Guardian.

17.In the premises the Trustee has, at all material times since 28 June 1991, in breach of trust purported to exercise the power to appoint income pursuant to clause 3(1) by reference to the concepts of "income", "net income" and by reference to the powers exercisable in relation to the power to appoint income pursuant to clause 3(1) purportedly included as terms of the trust by the Deed of Variation but which by reason of the matters aforesaid did not in fact exist under the terms of the Family Trust.
18.In the premises, and further or in the alternative to paragraph 11 above, the purported exercises of the power to appoint income pursuant to clause 3(1) of the Trust Deed since 28 June 1991 are void, or alternatively are liable to be set aside as being voidable, such that they give rise pursuant to clause 3(4) to the income trusts, including Ms Brisset's income trusts, set out in paragraph 11 above.

D.       Steps taken in anticipation of orders in these proceedings
19.      As at 1 March 2021 Ms Brisset:
(1)       beneficially held one of the three shares in the Trustee;
(2)       was one of two directors of the Trustee, the other director being Mr C;
(3)had as a Specified Beneficiary a vested, but defeasible interest in the income and capital of the Family Trnst;

(4) was a General Beneficiary of the Family Trust;
(5)controlled another General Beneficiary of the Family Trust, K Pty Ltd; and
(6)both in her own right and through K Pty Ltd had the right to seek the due administration of the Family Trust for the Trust Purpose, taking into account the Default Structure and the Assistance Consideration.

20. Further:
(1)by at least March 2021 Ms Brisset had formed a belief that it was likely that she would leave the Applicant such that there was a likelihood that her property and financial resources would form the subject matter of orders of this honourable Court; or alternatively
(2)in March 2021 Ms Brisset separated from the Applicant, such that there was a likelihood that her property and financial resources would form the subject matter of orders of this honourable Court.

PARTICULARS
Ms Brisset's belief is to be inferred from her statement that she separated from the Applicant in March 2021, as set out in paragraph 19 of Ms Brisset's Response to the Initiating Application in this proceeding dated 22 October 2022 that the date of separation was March 2021.
The belief is further to be inferred from Ms Brisset's transfer of shares in the Trustee in March 2021 and her resignation as a director of the Trustee in March 2021, as set out in paragraph 21 below.
Alternatively, the admission by Ms Brisset that she separated from the Applicant in March 2021, as set out in paragraph 19 of Ms Brisset's Response to the Initiating Application in this proceeding dated 22 October 2022 that the date of separation was March 2021

21.      In March 2021 Ms Brisset:
(1)       resigned as a director of the Trustee, leaving Mr C as at sole director; and
(2)       transferred her share in the Trustee to Mr C for a consideration of $1.
22.The transfer by Ms Brisset of her share in the Trustee to Mr C in March 2021 constituted a disposition by Ms Brisset which was made to defeat an anticipated order in these proceedings or alternatively which, irrespective of intention, was likely to defeat any such order such that the court should set aside the disposition pursuant to s. 106B(l) of the Family Law Act 1975 (Cth) (the Act).

PARTICULARS
The intention is to be inferred from the fact that the disposition was contemporaneous with Ms Brisset forming a belief that it was likely that she would leave the Applicant, or alternatively was contemporaneous with her separation from the Applicant, as alleged in paragraph 20 above.
E.The commencement of proceedings and steps then taken by the Trustee in breach of trust
23.On 14 September 2022 the Applicant commenced these proceedings seeking, amongst other things, orders that the assets and liabilities owned or controlled by either of the parties or any of the corporate entities or trusts associated with either party be divided on a basis which is just and equitable between them.
24.In late 2022 the Trustee changed its name from H Pty Ltd to D Pty Ltd.
25.On 22 May 2023 the Applicant filed an application in this proceeding to join the Trustee as a party to this proceeding.
26.In mid-2023 the Trustee, Ms M and Mr C (purportedly as Appointors) and Ms M (purportedly as Guardian) entered into a deed (the Deed of Exclusion) which, amongst other things, purported to vary the Trust Deed so as to change the description of the Appointor and the Guardian of the Family Trust.

PARTICULARS
The purported variation is set out in clause 2 of the Deed of Exclusion.

Invalidity of the Deed of Exclusion - Guardian and Appointor
27.Insofar as the Deed of Exclusion purported to vary the Trust Deed to change the description of the Appointor and the Guardian it was ineffective because the power of variation in clause 28 of the Trust Deed does not empower changes to the identity of the Appointer or the Guardian.

PARTICULARS
The power in clause 28 is limited to the power to vary trusts terms and conditions contained in the Trust Deed. On a proper construction of the Trust Deed that power is limited by reference to the trusts arising under it. The identity of both Appointor and Guardian is not a term or condition of any of those trusts. They are therefore not matters which can be varied pursuant to clause 28 of the Trust Deed.
Invalidity of the Deed of Exclusion- Excluded Class

28. The Deed of Exclusion further purported:
(1)by clause l(c) to vary the Trust Deed by inserting a new clause 1 (7)(f) to name Ms Brisset as a member of the excluded class; and
(2)by clause 3(a) to declare Ms Brisset to be a member of the excluded class pursuant to the Second Proviso in clause 1(7) of the Trust Deed.

29.Further to paragraph 5(1) above, the purpose of the power in the Second Proviso of clause 1(7) of the Trust Deed was, consistent with the Trust Purpose, the Default Structure and the Assistance Consideration, and the terms of the Trust Deed relating to relating to the excluded class (that is, clauses 1(7), 1(8), 4(4) (a) and (b), 23, 26 and 28(2) of the Trust Deed) to minimise any possibility that the Trustee might become liable to assessment for income tax pursuant to the anti-avoidance provision contained ins 102 of the Income Tax Assessment Act 1936 (Cth) (ITAA) (the Excluded Class purpose).
30.The Trustee has in breach of trust exercised its powers in the Deed of Exclusion with respect to the Excluded Class:
(1)for the purpose of defeating orders that might be made in this proceeding; and further or alternatively
(2)for a purpose other than the Excluded Class purpose; and further or alternatively,
(3)for a purpose other than the Trust Purpose, taking into consideration the Default Structure and the Assistance Consideration.

PARTICULARS
The Applicant says the purposes should be inferred from the fact that (1) the Deed of Exclusion was executed shortly after the application to join the Trustee; (2) it was wrongly believed that the purpose of the family trust was Mr C's Entity Purpose ; (3) there was at no time any question that the Trustee might become liable pursuant to s 102 of the ITAA by reason of Ms Brisset's status as a beneficiary of the Family Trust; (4) under the terms of the Family Trust there was no express or implied power to remove a Specified Beneficiary; and (5) on a proper construction of the Trust Deed that the purpose of clauses 1(7) and 26 of the Trust Deed was not to bring about the de facto removal of a Specified Beneficiary.
The Applicant further relies on paragraph 3 of the affidavit of Mr C dated 13 September 2023 made in these proceedings as an admission.

31.In the premises, the exercises of power referred to in paragraph 28 above are void, because they were done for an improper reason, or reasons, and thereby constituted an abuse of the power.
32.Further, in so far as it involved the naming of Ms Brisset as a member of the excluded class, the Deed of Exclusion was an instrument made to defeat an anticipated order in these proceedings or alternatively, irrespective of intention, was likely to defeat any such order such that it should be set aside pursuant to s. 106B of the Act.

PARTICULARS
The applicant refers to and repeats the matters set out in paragraph 30 above.

Invalidity of the Deed of Exclusion - General Beneficiary
33.The Deed of Exclusion further purported by clause 3(b) to declare Ms Brisset to be from that time excluded as a General Beneficiary of the Family Trust pursuant to the Second Proviso in clause 1(8) of the Trust Deed.
34.The Trustee in breach of trust exercised its power in the Deed of Exclusion pursuant to the Second Proviso in clause 1(8) of the Trust Deed:
(1)for the purpose of defeating orders that might be made in this proceeding; and further or alternatively
(2)for a purpose other than the Trust Purpose, taking into consideration the Default Structure and the Assistance Consideration.

PARTICULARS
The Applicant says the purposes should be inferred from the fact that the Deed of Exclusion was executed shortly after the application to join the Trustee, that it was wrongly believed that the purpose of the family trust was Mr C's Entity Purpose and that there was no reason why Ms Brisset should be excluded as a General Beneficiary (in particular because she controlled another General Beneficiary, K Pty Ltd).
The Applicant further relies on paragraph 3 of the affidavit of Mr C dated 13 September 2023 as an admission.
35.In the premises, the exercise of power referred to in paragraph 33 above is void, because it was done for an improper reason, or reasons, and thereby constituted an abuse of the power.
36.Further, in so far as it involved the power to declare Ms Brisset to be from that time excluded as a General Beneficiary of the Family Trust, the Deed of Exclusion was an instrument made to defeat an anticipated order in these proceedings or alternatively, irrespective of intention, was likely to defeat any such order such that it should be set aside pursuant to s. 106B(l) of the Act.

PARTICULARS
The Applicant refers to and repeats the matters set out in paragraph 34 above.
37.Further, in the premises, Ms Brisset, and further or alternatively Mr C, is liable to pay The Applicant's costs of and incidental to the setting aside of the Deed of Exclusion pursuant to section 106B(4) of the Act.

PARTICULARS
The Applicant relies on paragraph 3 of the affidavit of Mr C dated 13 September 2023 as an admission and says that by reason of being its sole director and shareholder, Mr C acted in collusion with the Trustee to bring about its execution of the Deed of Exclusion.
Income Distribution after the Deed of Exclusion
38.Alternatively to the matters set out in paragraphs 11 and 18 above, by reason the matters set out in paragraphs 31 and or alternatively 34 above, the Trustee has in breach of trust, in exercising the power to appoint income pursuant to clause 3(1) of the Trust Deed since mid-2023:
(1)failed to take into account relevant considerations, being the fact that Ms Brisset continued to be a Specified and General Beneficiary of the Family Trust, the Default Structure and/or the Assistance Consideration;

(2) took into account an irrelevant consideration, being Mr C's Entity Purpose; and
(3)acted in bad faith, in that Mr C's Entity Purpose was a purpose that the Trustee knew, by reason of the terms of the Family Trust, to be inconsistent with the Trust Purpose

such that those exercises of power are voidable and liable to be set aside, such that Ms Brisset's income trusts are liable to arise pursuant to clause 3(4) of the Trust Deed.

Property of the marriage
39. In the premises:
(1)Ms Brisset's income trusts (by reason of the matters set out in paragraphs 9 to 11 and 38, alternatively by reason of the matters set out in paragraph .12);
(2)Further or alternatively to (1), the choses of action that Ms Brisset has against the Trustee that arise by reason of the breaches of trust alleged in paragraphs 7, 9 and 38 above; and
(3)Ms Brisset's interest in the Family Trust as a General and Specified Beneficiary, which interest is to be valued by reference to the matters set out in paragraphs 2 to 8 above

constitute property of the parties to the marriage or Ms Brisset.

AND THE APPLICANT CLAIMS:
A.Declarations that the Trustee of Brisset Family Trust acted in breach of trust as alleged in paragraphs 7, 9, (alternatively to 9, paragraph 12), 17, 30 and 34.
B.Declarations that the Trustee's exercise of the power to appoint income have been void as alleged in paragraph 10 and beyond power, as alleged in paragraph 18, further or alternatively as alleged in paragraph 38.
C.A declaration that the Deed of Variation made mid-1991 did not affect a variation of the Trust Deed.
D.A declaration that the Trustee holds Ms Brisset's income trusts on trust absolutely for her and the income trusts for Mr G Jr, Mr C and Ms O, and for the accounting periods ending 30 June 2009 to 30 June 2022, in the amounts set out in columns H and I of the Schedule annexed, alternatively to paragraph C above, as set out in columns E and F.
E.Alternatively to D, a declaration that the Trustee holds Ms Brisset's income trusts for the years ending 30 June 2023 and 30 June 2024 on trust for her.

F. A declaration that the Deed of Exclusion is void and of no effect.
G.Further and alternatively to F, an order that the Deed of Exclusion be set aside pursuant to s. 106B(l) of the Family Law Act 1975 (Cth).
H.Orders pursuant to s. 106B(4) of the Family Law Act 1975 (Cth) against Ms Brisset and Mr C.
I.An order that the assets and liabilities owned or controlled by either the Applicant and the first Respondent be divided on a basis which is just and equitable between them on the basis of the aforesaid declarations.

J. Costs.
K. Such further order as this honourable Court thinks fit.

File number	LNC 600 of 2022
Judgment of	WILSON J
Date of judgment	11 December 2024
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – de facto wife a beneficiary under relevant family trust – de facto husband not a beneficiary – de facto husband asserting an entitlement under trust despite not being a beneficiary. FAMILY LAW – TRUSTS – STANDING – de facto husband, not being a beneficiary, has no standing to bring a breach of trust application in a s 90SM application. FAMILY LAW – TRUSTS – POWERS – trustee alleged to have exercised a trust power in a manner that was said to be bad – whether void – extensive review of relevant authorities. FAMILY LAW – EQUITY – FIDUCIARIES – whether trustee a fiduciary towards de facto husband who is not a beneficiary – held, no fiduciary duties owed to him. FAMILY LAW – PRACTICE & PROCEDURE – strike out application – de facto husband’s points of claim wholly defective – irremediable defects – no standing to bring claims for breach of trust – no standing to bring claim for breach of fiduciary duty – held, points of claim stuck out.
Legislation	Family Law Act 1975, ss 4, 45A, 90SM, 106B
Cases cited	Aleyn v Belchier (1758) 1 Eden 132 Ashton v Pratt (2015) 88 NSWLR 281 Askham v Barker (1853) 17 Beav 37 Associated Alloys Pty Ltd v ACW 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588 Attorney-General for Hong Kong v Ried [1994] 1AC 324 Bahr v Nicolay (No. 2) (1988) 164 CLR 604 Balls v Strutt (1841) 66 ER 84 Barnes v Addy (1874) LR 9 Ch App 244 Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755 Brooks v Burns Philp Trust Co Ltd (1969) 121 CLR 432 Byrnes v Kendle (2011) 243 CLR 253 Cachia v Westpac Financial Servies Ltd [2000] FCA 161 Cao & Trong [2022] FedCFamC1F 754 Chen v Chen (No 3) (2020) 63 Fam LR 448 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 Cloutte v Storey [1911] 1 Ch 181 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 Cypjane Pty Ltd v Sverre Rodskog [2009] NSWSC 301 Dare v Pulham (1982) 148 CLR 658 Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79. Eclairs Group Ltd v JKX Oil & Gas PLC [2015] UKSC 71 Fischer v Nemeske Pty Ltd (2016) 257 CLR 615 Futter v Futter [2013] UKSC 26 Gaisberg v Storr [1950] 1 KB 107 Gambotto v WCP Ltd (1995) 182 CLR 432 Gartside v Inland Revenue Commissioners [1968] AC 553 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Grand View Private Trust Co Ltd v Wen-Young Wong [2022] UKPC 47 Guild v Stasiuk (2020) 63 FamLR 322 Hancock v Rinehart (2015) 106 ACSR 223 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Harrison v Randall (1851) 68 ER 562 Hastings v Bass; re Hastings-Bass v Inland Revenue Commission [1974] 2 All ER 193 Hitchcock v Pratt Group Holdings Pty Ltd [2024] NSWSC 1292 Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 Karger v Paul [1984] VR 161 Kauter v Hilton (1953) 90 CLR 86 Kennon v Spry (2008) 238 CLR 366 L’Estrange v F Graucob Ltd [1934] 2 KB 394 Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 Longelon v Korff (1855) 6 LR (NSW) Eq 30 Miller v Cameron (1936) 54 CLR 572 Mills v Mills (1938) 60 CLR 150 Munnings v Australian Government Solicitor (1994) 68 ALJR 169 New South Wales v Kable (2013) 252 CLR 118 Owies v JJE Nominees Pty Ltd [2021] VSC 114 Owies v JJE Nominees Pty Ltd [2022] VSCA 142 Palmer v Wheeler (1811) 2 Ball. & B 18 Panes v Panes (1863) 33 LJ Ch 215 Pitt v Commissioners of Her Majesty’s Revenue and Customs [2013] UKSC 256 Pitt v Holt [2013] 2 AC 108 Pitt v Pitt; Futter v Futter [2013] 3 All ER 429 Re Barr’s Settlement Trusts; Abacus Trust Co (Isle of Mann) v Barr [2003] 1 All ER 693 Re Bennett [1906] 1 Ch 216 Re Boulton’s Settlement Trust [1928] Ch 703 Re Courage Group’s Pension Schemes [1987] 1 WLR 495 Re Crawshay [1948] Ch 123 Re Cross (1882) 20 Ch D 109 Re Dick [1953] Ch 343 Re Marsden’s Trust (1859) 4 Drew 594 Re Penrose [1933] Ch 793 Re Schebsmar; ex parte Official Receiver v Cargo Superintendents (Landen) Ltd [1944] Ch 83 Re Simpson [1952] Ch 412 Re Smith [1928] Ch 915 Re Wright [1920] 1 Ch 108 Realestate.com Pty Ltd v Hardingham (2022) 277 CLR 115 Roadchef (Employees Benefits Trustees) Ltd v Hill [2014] EWCH 1019 Saloman v A Saloman & Co Ltd [1897] AC 22 Shimshon v MLC Nominees Pty Ltd [2021] VSCA 363 Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072 Spellson v George (1987) 11 NSWLR 300 Spencer v The Commonwealth (2010) 241 CLR 118 Stanford v Stanford (2012) 247 CLR 108 State of New South Wales v Kable (2013) 252 CLR 118 Sun & Yeng (No 5) [2024] FedCFamC1F 702 Taylor v Alihusen [1805] 1 Ch 529 The Bell Group Ltd (in liq) v Westpac Banking Corporation (No. 9) [2008] WASC 239 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Turner v Turner [1984] Ch 100 Twinsectra Ltd v Yardley [2002] 2 AC 164 Vatcher v Paull [1915] AC 372 Wade v Cox (1835) 4 LJ Ch 105 Webster v Lampard (1993) 177 CLR 598 Wong v Bruit [2005] 1 NZLR 91 Woodcock v Woodcock (No 2) (2022) 65 FamLR 333 Wright v Stephens [2018] NSWSC 548 Young v Murphy [1996] 1 VR 279
Division	Division 1 First Instance
Number of paragraphs	221
Date of last submission	3 December 2024
Date of hearing	2 and 3 December 2024
Place	Melbourne
Counsel for the applicant	Mr J. Carney with Mr T. McKenna
Solicitor for the applicant	McGrath & Co Lawyers
Solicitor for the first respondent	Ms J. Dean, McVeity Dean Lawyers
Counsel for the second and third respondents	Mr L. Glick KC with Mr D. Sweeney
Solicitors for the second and third respondents	Lander & Rogers

LNC 600 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MR FREDERIC Applicant
AND	MS BRISSET Respondent
MR C Second respondent
D PTY LTD AS TRUSTEE FOR THE BRISSET FAMILY TRUST Third respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	4 DECEMBER 2024