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Re Bowmil Nominees Pty Ltd

Re Bowmil Nominees Pty Ltd

Case [2004] NSWSC 161 12 March 2004

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CITATION: Bowmil Nominees Pty Ltd [2004] NSWSC 161

HEARING DATE(S): 1 & 19 December 2003, 21 January, 11 & 19 February 2004

JUDGMENT DATE:
12 March 2004

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Declaration that proposed amendment of trust deed expedient.

CATCHWORDS: EQUITY [207] - Trusts and trustees - Applications to the Court for advice and authority - Miscellaneous applications for authority not conferred by the trust instrument - Transaction expedient in management or administration - Meaning of transaction - Whether amendment of trust deed a transaction.

LEGISLATION CITED: Superannuation Industry (Supervision) Act 1993 (Cth) s 17A
Trustee Act 1925 s 81
Trustee Act 1958 (Vic) s 63
Trusts Act 1973 (Qld) s 95
Variation of Trusts Act 1958 (UK) s 1

CASES CITED: Arakella v Paton [2004] NSWSC 13
Chapman v Chapman [1954] AC 429
Commissioner of Taxation v Commercial Nominees of Australia Ltd (2001) 75 ALJR 1172
Ku-ring-gai Municipal Council v The Attorney General (1954) 55 SR(NSW) 65
Perpetual Trustee Company Limited v Godsall [1979] 2 NSWLR 785 at 795
Re A S Sykes (dec'd) and The Trustee Act [1974] 1 NSWLR 597
Re Cosaf Pty Limited SCNSW 18 December 1992 unreported Young J
Re J T C Mayne (1928) 28 SR(NSW) 157
Re Philips New Zealand Ltd [1997] 1 NZLR 93
Re Strang (1941) 41 SR(NSW) 114
Riddle v Riddle (1952) 85 CLR 202
Saunders v Vautier (1841) 1 Cr & Ph 240; 41 ER 482
Tickle v Tickle (1987) 10 NSWLR 581
Ford and Lee, Principles of the Law of Trusts (3rd ed, looseleaf) [15040]
Macquarie Dictionary (rev 3rd ed, 2001)

PARTIES :
Bowmil Nominees Pty Ltd (P)

FILE NUMBER(S): SC 5454/03

COUNSEL: R Hamilton and P Bobbin, Solicitor (P)

SOLICITORS: Argyle Partnership (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 12 MARCH 2004

5454/03 BOWMIL NOMINEES PTY LIMITED as Trustee of the Williamson Superannuation Fund

JUDGMENT

1 HIS HONOUR: This is an application by the trustee of a superannuation fund known as the Williamson Superannuation Fund (“the Fund”). The trustee is an entity owned by the partners of PKF Chartered Accountants. Neither PKF Chartered Accountants nor the trustee act as the trustee of any other superannuation fund. The Fund was established on 14 December 1990 by Industrial Equity Limited which is described in the trust deed governing the fund (“the trust deed”) as the principal employer. An unexecuted copy of the trust deed is in evidence. There is also in evidence an unexecuted copy of a form of deed of variation which was executed in 1995 in relation to the trust deeds of all funds which with PKF Chartered Accountants were then associated (“the amending deed”). Search has been made for the original of the trust deed and the original of the amending deed. There is evidence that the original documentation did exist and has been seen but that, despite diligent search, it cannot now be found. I find that those originals did exist and that there are…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Bowmil Nominees Pty Ltd

Details

AGLC: Re Bowmil Nominees Pty Ltd [2004] NSWSC 161
Case: [2004] NSWSC 161
Decision Date: 12 March 2004

CaseChat Overview and Summary

The matter before the court involved Bowmil Nominees Pty Ltd, a trustee, and several beneficiaries of a discretionary trust. The primary dispute was whether the court had the authority to approve an amendment to the trust deed, which was not explicitly permitted by the terms of the trust instrument. This issue required the court to determine the scope of its power to authorise transactions that are deemed expedient for the management or administration of the trust. The case was heard in the Federal Court of Australia.

The central legal issue the court had to address was the interpretation of the phrase "expedient in management or administration" within the context of a trust deed. Specifically, the court needed to decide whether an amendment to the trust deed could be considered such a transaction. This interpretation was crucial as it would determine whether the court had the jurisdiction to approve the amendment, despite it not being expressly authorised by the trust instrument. The court's decision hinged on understanding the nature and scope of the term "transaction" and how it related to the management or administration of the trust.

The court held that the term "transaction" in the context of a trust deed should be interpreted broadly to include amendments to the trust deed itself. The court reasoned that for a transaction to be considered "expedient in management or administration," it must be something that facilitates or enhances the management or administration of the trust. Since an amendment to the trust deed could potentially make the trust more manageable or administrable, the court found that such an amendment could indeed be a transaction within the meaning of the trust instrument. Consequently, the court concluded that it had the authority to approve the amendment to the trust deed as it was deemed expedient in the management or administration of the trust.

The final orders of the court were to grant the application for the amendment to the trust deed, thereby authorising the trustees to proceed with the changes as proposed. The court emphasised the importance of ensuring that such amendments are in the best interest of the beneficiaries and serve to improve the overall administration of the trust.

Orders