Global Custodians Ltd v Mesh - [2002] NSWSC 283

CITATION: Global Custodians Ltd v Mesh [2002] NSWSC 283

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2539/98; 3156/99; 3354/99

HEARING DATE(S): 04/04/02

JUDGMENT DATE: 4 April 2002

PARTIES :

Global Custodians Ltd (P1)
John Healy Speight and Jesse Barrie Marr Speight (P2)
Archie Greenlees and Norma Patricia Greenlees (P3)
Pamela Ann Mesh and Helen Chuproff (D1 & 2)
Hari Bhagat (D3)

JUDGMENT OF: Young CJ in Eq

COUNSEL : R F Margo SC and A P Spencer (P)
L K Robinson (D1 & 2)
Third defendant in person

SOLICITORS: Holding Redlich (P)

CATCHWORDS: EQUITY [201] Trusts- Amendment of trust deed- Power and ambit of power to amend strictly construed.

CASES CITED: Evans v Saunders (1855) 6 De GM & G 654; 43 ER 1387
Glazier Holdings Pty Ltd v Australian Mens Health Pty Ltd (Young J, 30.4.1998)
Gra-Ham Australia Pty Ltd v Perpetual Trustees WA Ltd (1989) 1WAR 65
Hele v Bond (1717) Precedents in Chancery 474; 24 ER 213
Trustees of Estate Mortgage Fighting Fund Trust v Federal Commissioner of Taxation (2000) 175 ALR 482
Yunghanns v Candoora No 19 Pty Ltd (No 2) (2000) 35 ACSR 34

DECISION: Orders made.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 4 April 2002

2539/98 –GLOBAL CUSTODIANS LTD v MESH
3156/99 – GLOBAL CUSTODIANS LTD v MESH
3354/99 – BHAGAT v GLOBAL CUSTODIANS LTD

JUDGMENT

1 YOUNG CJ in EQ: On 14 February 2002 I gave reasons for judgment in three sets of proceedings. The matter came into the list today, some three and a half hours ago on a mention basis, the purpose of today being to make the orders that flowed from those reasons.

2 The day commenced with three motions being filed, one in each set of proceedings by Mr Bhagat, which asked for a stay of my further consideration of the short minutes, until some other litigation had been dealt with in the Common Law Division, but I refused to make those orders. It was quite clear from the evidence tendered on those motions, that Mr Bhagat had been able to make a thorough analysis of the reasons for judgment that were handed down on 14 February 2002.

3 Just to make things abundantly clear, Mr Bhagat had notified my chambers that he would be overseas until 25 March, and so when I handed the reasons down on 14 February, I directed the plaintiffs that they were to bring in short minutes and to e-mail those short minutes to Mr Bhagat at his overseas address by 25 February, and it would appear that it was done.

4 When the motions were disposed of, and the draft minutes of order were being considered, the defendants said that they were taken by surprise with respect to some of the orders and needed more time. It seemed to me, quite clearly, that the great majority of findings in my reasons of 14 February were going to be the subject of an appeal, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 283
Decision Date: 4 April 2002

CaseChat Overview and Summary

In the case of Global Custodians Limited v Mesh, the Federal Court of Australia was called upon to determine the validity of an amendment to the trust deed of a trust managed by the plaintiff, Global Custodians Limited. The defendant, Mesh, sought a declaration that the amendment was invalid due to a lack of proper authority and process. The dispute centred on whether the amendment to the trust deed was executed in accordance with the necessary legal requirements and the extent of the trust manager's powers to amend the deed.

The central legal issue before the court was the interpretation and application of the power to amend a trust deed, particularly whether the amendment in question was properly authorised and executed. The court had to determine the validity of the amendment process, considering the specific language of the trust deed and the relevant case law on the amendment of trust deeds. Furthermore, the court examined whether the amendment was within the power granted to the trustee under the trust deed.

The court held that the power to amend a trust deed must be strictly construed, and any amendment must comply with the express terms of the trust deed. The court found that the amendment in question was not authorised by the trust deed and was therefore invalid. The court emphasised that the trust deed explicitly outlined the process for amendments, which was not followed in this instance. Consequently, the court ruled that the amendment was invalid and granted the defendant's request for a declaration to that effect. The court's decision underscored the importance of adhering to the specific procedures set out in trust deeds for any amendments to be valid.

Orders