Supreme Court
New South Wales
Medium Neutral Citation: Re Dion Investments Pty Ltd [2013] NSWSC 1941 Hearing dates: 28 October 2013 and 10 December 2013 Decision date: 20 December 2013 Jurisdiction: Equity Division Before: Young AJ Decision: Judicial advice given. See paragraph [66].
Catchwords: TRUSTS - Settlement made in Port Moresby - All beneficiaries in NSW - What is proper law of trust - If PNG what jurisdiction has NSW Supreme Court to make orders affecting the trust
TRUSTS - Advantageous dealings - Whether and if so to what extent can order under s 81 of Trustee Act 1925 alter beneficial interests
TRUSTS - Deed - Amendment - Where power to vary trust in trust deed - Whether power exercisable to alter beneficiaries' entitlements - Whether court has power to amend deed - Trustee Act 1925, s 81
PRIVATE INTERNATIONAL LAW - Jurisdiction - Jurisdiction of NSW Supreme Court where proper law of trust is that of Papua New GuineaLegislation Cited: Conveyancing Act 1919
Statute of Uses 1535 (27 Hen VIII, c 10)
Trustee Act 1925 (NSW)
Trustee Act 1936 (SA)
Trustee and Executors Act 1961 (PNG)
Variation of Trusts Act 1958 (UK)Cases Cited: Arakella Pty Ltd v Paton [2004] NSWSC 13; (2004) 60 NSWLR 334
Augustus v Permanent Trustee Co (Canberra) Ltd [1971] HCA 25; (1971) 124 CLR 245
Chapman v Chapman [1954] AC 429
James N Kirby Foundation Ltd v Attorney General for New South Wales [2004] NSWSC 1153; (2004) 62 NSWLR 276
Ku-ring-gai Municipal Council v Attorney General (1953) 19 LGR (NSW) 105
Ku-ring-gai Municipal Council v Attorney General for New South Wales (1954) 55 SR (NSW) 65
Kearns v Hill (1990) 21 NSWLR 107
National Newark & Essex Banking Co v Rosahl 128 A 586, 1925 (NJ Ch)
NM Superannuation Pty Ltd v Hughes (Supreme Court of New South Wales, McLelland CJ in Eq, 5 March 1996, unreported)
Perpetual Trustees Victoria Ltd v Barns [2011] VSC 314; (2011) 7 ASTLR 349
Re BTA Institutional Services Australia Ltd [2009] NSWSC 1294; (2009) 3 ASTLR 207
Re Constantinou [2012] QSC 332; [2013] 2 Qd R 219; (2012) 271 FLR 276
Re Cosaf Pty Ltd (Supreme Court of New South Wales, Young J, 18 December 1992, unreported)
Re Crawshay (1888) 60 LT 357
Re Downshire Settled Estates [1953] Ch 218
Re Ker's Settlement Trusts [1963] Ch 553
Re Philips New Zealand Ltd [1997] 1 NZLR 93
Re Walker [1901] 1 Ch 885
Re Webb; Webb v Rogers (1992) 57 SASR 193
Re McNaughton (Supreme Court of New South Wales, Young J, 8 December 1994, unreported)
Riddle v Riddle [1952] HCA 12; (1952) 85 CLR 202
Saliba v Falzon (Supreme Court of New South Wales, Young J, 1 July 1988, unreported)
Salkeld v Salkeld (No 2) [2000] SASC 296
Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004; (2006) 64 ATR 325
Westfield Qld No 1 Pty Ltd v Lend Lease Real Estate Investments Ltd [2008] NSWSC 516; (2008)…
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- Case
- [2013] NSWSC 1941
- Decision Date
CaseChat Overview and Summary
The court had to determine several legal issues. Firstly, it needed to establish the proper law of the trust, considering that the settlement was made in Papua New Guinea while all beneficiaries were in New South Wales. Secondly, if the proper law was determined to be that of Papua New Guinea, the court had to assess its jurisdiction to make orders affecting the trust. Thirdly, the court had to examine the extent to which section 81 of the Trustee Act 1925 could be used to alter beneficial interests in the context of advantageous dealings. Finally, the court considered whether the power to vary the trust, as provided in the trust deed, could be exercised to alter beneficiaries' entitlements and if the court had the authority to amend the trust deed in such circumstances.
In its reasoning, the court held that the proper law of the trust was that of Papua New Guinea, given the settlement was made there. However, the court acknowledged that it had jurisdiction to make orders affecting the trust, as the beneficiaries were in New South Wales and the trust's administration was taking place in the state. The court concluded that section 81 of the Trustee Act 1925 could be used to alter beneficial interests where advantageous dealings occurred, provided the alteration was equitable and just. Regarding the power to vary the trust in the trust deed, the court found that the power could be exercised to alter beneficiaries' entitlements and that the court had the authority to amend the trust deed to reflect these changes. The court made orders to adjust the beneficial interests in accordance with the equitable principles, taking into account the advantageous dealings and the interests of all beneficiaries.
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