Re Bell (No 4) - [2005] NSWSC 812

CITATION:
Re Bell (No 4) [2005] NSWSC 812

HEARING DATE(S): 08/03/05 [then written submissions]

JUDGMENT DATE :

11 August 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Preliminary judicial advice given.

CATCHWORDS:
EQUITY [205]- Trusts- Advice to trustees- Nature of advice given. SUCCESSION [175] [214]- Surrender of life interests- Whether remainders accelerated- Whether acceleration advances date on which class closes. WORDS & PHRASES- "Next of kin being determined in accordance with laws of distribution on intestacy".

LEGISLATION CITED:
Conveyancing Act 1919, s 33
Trustee Act 1925, s 63
Wills Probate & Administration Act 1898

CASES CITED:
Bassett v Bassett (2003) 58 NSWLR 258
Deane v Lombe (1925) 25 SR (NSW) 502
Perpetual Trustee Company Ltd v Johnson (1977) 1 BPR 9345
Re Bonis Gilligan [1950] P 32
Re Morgan [1920] 1 Ch 196
Re Will of Cunliffe [1921] VLR 499

PARTIES:
Helen Mary Bell and Gemma Patricia Sherwood (P)

FILE NUMBER(S):
SC 3553/04

COUNSEL:
M A Bradford (P)

SOLICITORS:
Peacocke Dickens & Price (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 11 August 2005

3553/04 – RE BELL (NO 4)

JUDGMENT

1 HIS HONOUR: This is the fourth set of reasons concerning the will of the late John Gordon who died on 3 August 1963. The history of the matter is set out in my third judgment of 6 December 2004 and I will not repeat it.

2 The application before the Court is for judicial advice under s 63 of the Trustee Act 1925. The parties and persons interested in the estate have always taken the view that there are not sufficient funds to have the matter properly argued out by way of originating summons and the approach has been taken by consent of the trustees putting the facts before the Court and having the Court advise on them. As indicated in earlier judgments, I have reluctantly concurred in this.

3 I have previously set out the principal questions. What appears to remain is what steps should the trustees take to bring about final distribution of the capital and how should the capital be distributed.

4 In my reasons of December 2004 I thought I mapped out what was to happen, and that was: (a) the trustees would decide on a plan to wind up the trusts; (b) the trustees would obtain counsel's advice that it was appropriate to do so in that mode; and (c) the Court would be asked under s 63 of the Trustee Act to advise that it would be appropriate to take that course.

5 That is not actually what happened. Counsel's advice was sought,but it was not sought on any particular definite proposal, and somehow or other counsel appears to have thought that I had requested him to advise on the four questions that were put before the Court last year.

6 The matter has had such a history that I will not cause further problems by going back…

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: [2005] NSWSC 812
Decision Date: 11 August 2005

CaseChat Overview and Summary

In this case, the parties involved were the trustees of a discretionary trust, who were seeking guidance on their obligations under the trust deed. The dispute centred around the interpretation of certain clauses within the trust deed, specifically those relating to the surrender of life interests and the acceleration of remainders. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the surrender of life interests by beneficiaries would result in the acceleration of the remainders, and if such acceleration would advance the date on which the class of beneficiaries closes. The court was tasked with interpreting the relevant clauses of the trust deed to determine the trustees' obligations and the consequences of the beneficiaries' actions.

The court found that the surrender of life interests by the beneficiaries did not result in the acceleration of the remainders. The reasoning was that the trust deed did not explicitly state that such a surrender would trigger acceleration. Furthermore, the court held that the acceleration of the remainders did not advance the date on which the class of beneficiaries closes. This interpretation was based on the court's understanding of the phrase "next of kin being determined in accordance with the laws of distribution on intestacy", which it deemed to be a reference to the timing of the closure of the class of beneficiaries.

The court ordered that the trustees were not required to accelerate the remainders upon the surrender of the life interests by the beneficiaries. The class of beneficiaries would continue to be determined based on the original terms of the trust deed, without any advancement due to the surrender of life interests.

Orders