Court of Appeal
New South Wales
Case Title: Re Dion Investments Pty Ltd Medium Neutral Citation: [2014] NSWCA 367 Hearing Date(s): 9 September 2014 Decision Date: 30 October 2014 Before: Beazley P at [1]; Barrett JA at [2]; Gleeson JA at [117] Decision: 1. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days.
2. Allow the appeal to the extent only of permitting the appellants to bring in short minutes of an order or orders under s 81(1) of the Trustee Act 1925 (NSW) in conformity with the reasons of this Court.
3. Direct that final formulation of such order or orders be dealt with on the papers unless the Court sees fit to appoint a further hearing.
4. Order that the costs of the proceedings in this Court be paid out of the assets of the Dion Family Trust.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TRUSTS AND TRUSTEES - powers of trustees - statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW), s 81 - power to undertake a "transaction" may be conferred - whether amendment of the trust instrument is a "transaction" - whether the concept of amendment of the trust instrument as distinct from the terms of the trust is a meaningful concept - the court's jurisdiction is exercisable only when it is of the opinion that conferral of a particular power on the trustee is expedient in the management or administration of the trust property - general power of the trustee to alter the terms of the trust at will cannot be regarded as so expedient - particular specific and limited powers facilitating efficient tax management held to involve relevant expediency Legislation Cited: Income Tax Assessment Act 1997 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld)
Supreme Court Act 1970 (NSW)
Tax Laws Amendment (2010 Measures No 5) Act 2011 (Cth)
Trustee Act 1925 (NSW)
Trustee Act 1958 (Vic)
Trusts Act 1973 (Qld)
Uniform Civil Procedure Rules 2005 (NSW)
Variation of Trusts Act 1958 (Eng)Cases Cited: Anker-Petersen v Anker-Petersen [2000] WTLR 581
Arakella Pty Ltd v Paton [2004] NSWSC 13; 60 NSWLR 334
Ballard v Attorney-General [2010] VSC 525; 30 VR 413
Barry v Borlas Pty Ltd [2012] NSWSC 831
Beck v Henley [2014] NSWCA 201
Cameron v Jeffress [2014] NSWSC 702
Colonial Foundation Ltd v Attorney-General (Vic) [2007] VSC 344
CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; 224 CLR 98
Goulding v James [1997] 2 All ER 239
Hutchinson v Attorney-General [2009] VSC 551
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- Case
- [2014] NSWCA 367
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the amendment of a trust instrument constituted a "transaction" within the meaning of section 81(1) of the *Trustee Act 1925* (NSW). The court was also required to consider whether conferring a power to amend the trust instrument would be considered "expedient in the management or administration of the trust property" as required by the section.
The court reasoned that while the amendment of a trust instrument could be considered a "transaction," the court's jurisdiction under section 81 was not to be exercised lightly. It held that a general power for a trustee to alter the terms of a trust at will could not be considered expedient. However, the court found that conferring specific and limited powers to amend the trust instrument, particularly for the purpose of efficient tax management, could be considered expedient and thus fall within the court's jurisdiction under section 81.
The appeal was allowed to the extent that the appellants were permitted to bring in short minutes of an order or orders under section 81(1) of the *Trustee Act 1925* (NSW) in conformity with the court's reasons. The final formulation of such orders was to be dealt with on the papers, and the costs of the proceedings in the Court of Appeal were ordered to be paid out of the assets of the Dion Family Trust.
Orders
Orders of the court
1. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days.
2. Allow the appeal to the extent only of permitting the appellants to bring in short minutes of an order or orders under s 81(1) of the Trustee Act 1925 (NSW) in conformity with the reasons of this Court.
3. Direct that final formulation of such order or orders be dealt with on the papers unless the Court sees fit to appoint a further hearing.
4. Order that the costs of the proceedings in this Court be paid out of the assets of the Dion Family Trust.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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