Glenfor Pty Ltd, Application by

[2007] VSC 222

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6316 of 2007

IN THE MATTER OF an application under 0.54 of the Supreme Court Rules

GLENFOR PTY LTD (ACN 006 174 554)
as Trustee of The AM Grice Family Trust  and Others Plaintiffs

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 JUNE 2007
DATE OF RULING:	5 JUNE 2007
CASE MAY BE CITED AS:	GLENFOR PTY LTD (ACN 006 174 554) AS TRUSTEE OF THE AM GRICE FAMILY TRUST & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 222

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Trust- two trust deeds entered into to establish two family trusts - whether copy trust deed should stand as the deed setting out terms of the first trust – vesting date of first family trust 15 September 2005 whereas vesting date of second family trust 15 September 2055 – vesting date of first trust rectified to 15 September 2055 – evidence that it was intended that the vesting day of both trusts be the same –earlier date would be contrary to usual practice and inconsistent with intended purpose of trust – settler evidence in support of rectification of vesting date.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr JP Murphy SC with Mr MY Bearman	Harwood Andrews Lawyers

HIS HONOUR:

1. The plaintiffs in this matter seek advice as to whether a copy trust deed should stand as the deed setting out the terms of the AM Grice Family Trust.  They further seek advice as to whether the vesting day stated on the last page of that document should be rectified to read 15 September 2055 in place of 15 September 2005. 

1. The applicants are Glenfor Pty Ltd, the trustee of the Trust, and the three daughters of Anne McKenzie Grice, namely Andrea Jane Alcorn, Deborah Anne Holmes and Marion Susan Margaret Wallace.  Mrs Grice's children are in turn the directors of Glenfor Pty Ltd and the specified beneficiaries of the Trust and the specified and residuary beneficiaries under the Will of Mrs Grice.  Notice has been given of the application to the Commissioner of Taxation. 

1. The Trust was originally established on the instructions of Mrs Grice in 1983.  She approached her solicitor, Mr De Kever, to reorganise her assets in a manner which would minimise liability of her estate for the purposes of Victorian probate duty.  Mr De Kever referred the matter to another solicitor, Mr Kovess, who specialised in arrangements of this type.  Mr Kovess drew trust deeds to establish this Trust and another trust called the Grice Family Trust No. 2.  He documented the various transactions which needed to take place in a letter to Mr De Kever dated 31 August 1983.

1. In due course, trust deeds were prepared and executed, seeking to give effect to the arrangements.  The deed with which I am concerned was settled by Mrs Grice's accountant, Mr Watters.  It had been drawn by Mr Kovess at the same time as he drew the trust deed of the Grice Trust No. 2 and the only differences between the two deeds related to the two names, settlors, trustees, additional beneficiaries, dates of establishment and the nature of the trust property.  In other words, the substantive provisions of the deeds were identical, but the differences are to be found essentially in the schedule to those deeds. 

1. I am satisfied on the basis of the affidavit evidence that it was intended that the vesting day of both trusts be the same.[1]  This is the evidence of Mr De Kever and Mr Kovess.  I am further satisfied, on the basis of the evidence of Mr De Kever and Mr Kovess, that it was intended to be 15 September 2055.  Matters tending to support this conclusion include the fact that the vesting day stated in the schedule of 15 September 2005 would be so short of the permitted maximum as to be highly unusual and contrary to the usual practice of those advising Mrs Grice and, further, would be inconsistent with the tenor of the definition of vesting day in Clause 1(f) of the trust deed.  Further, it would be inconsistent with the apparent purpose and framework of the arrangements which it was intended to give effect to.  It would also be inconsistent with the intention of Mrs Grice expressed in her Will, that the major shareholding in quality blue chip stock be retained in the long term for the ultimate benefit of her children. 

   [1]Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329.

1. The settler Mr Watters also says “Had I noted that the deed vested in 2005 not 2055, I would have raised the solicitor’s attention to it as such an early vesting date would be most unusual.”  He does not object to the proposed rectification.[2] 

   [2]          Lister v Hodgson (1867) LR 4 Eq 30.

1. In all the circumstances, I am content to make the orders which have been submitted to me.

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