Re Plator Nominees - [2012] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
TAXATION LIST

No. 1427 of 2012

IN THE MATTER OF an application under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for advice and to vary the terms of a trust under s 63A of the Trustee Act 1958 (Vic)

PLATOR NOMINEES PTY LTD (ACN 004 937 222)
(in its capacity as trustee of a trust settled by deed on 20 June 1972)

Plaintiff

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2012
DATE OF JUDGMENT:	27 June 2012
CASE MAY BE CITED AS:	Re Plator Nominees
MEDIUM NEUTRAL CITATION:	[2012] VSC 284

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TRUSTS – Application for judicial advice – Whether trust governed by an amendment deed – Application to extend vesting date – Court’s jurisdiction – Trustee Act 1958 (Vic), ss 5, 63A – Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 54.02 – Perpetuities and Accumulations Act 1968 (Vic), s 5

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Bearman	HWL Ebsworth
For the Beneficiaries	J Morgan	Harwood Andrews

HER HONOUR:

The plaintiff (“the Trustee”) is the trustee of a trust settled by deed on 20 June 1972 (“1972 deed”), known as the Weinstein Family Trust (“Trust”). The Trustee has applied under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) for judicial advice on whether the terms of the Trust were amended by a deed of variation dated 10 September 1980 (“the 1980 deed”) . The Trustee also seeks an order under s 63A of the Trustee Act 1958 (Vic) (“the Act”) varying the Trust by extending the vesting date from 30 June 2012 to a date not later than twenty-one years after the death of the last living relative of Josephine Weinstein (“Mrs Weinstein”) born on or before 20 June 1972.

1980 deed

The Trust was settled by Mrs Weinstein’s brother at the request of Mrs Weinstein and her late husband, Michael Weinstein (“Mr Weinstein”). Under the terms of the 1972 deed, the beneficiaries of the Trust were Mr and Mrs Weinstein, their children and their spouses and their grandchildren and their spouses. The 1980 deed widened the class of beneficiaries to include extended family members and companies and trusts in which those persons have an interest or a contingent interest. The Trustee has since administered the Trust, and made distributions of trust income to a company that falls within the extended class of beneficiaries, on the basis that the 1980 deed is effective.

The original 1980 deed cannot be located. There is a copy of the deed but not in its executed form. The copy is held on the files of the Trustee’s accountant, Martin Jurblum, and is marked with the word “signed” above the signatories’ names to indicate that the original deed was executed. It also has a 50 cent self-cancelled stamp affixed, indicating that the original deed was duly stamped. The 1980…

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

AGLC: Re Plator Nominees [2012] VSC 284
Case: [2012] VSC 284
Decision Date: 27 June 2012

CaseChat Overview and Summary

The case of Re Plator Nominees involved an application for judicial advice regarding the governance of a trust, specifically whether it was governed by an amendment deed. The application sought to extend the vesting date of the trust. The court was required to determine its jurisdiction to grant the application and whether it was appropriate to extend the vesting date. The dispute was heard in the Supreme Court of Victoria.

The legal issues before the court included the applicability of the Trustee Act 1958 (Vic), sections 5 and 63A, and the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Order 54.02. The court also needed to consider the Perpetuities and Accumulations Act 1968 (Vic), section 5, in relation to the trust's governance and the potential extension of the vesting date. The primary focus was on whether the court had the authority to advise on and potentially extend the vesting date under the given legal framework.

The court found that it had the jurisdiction to provide judicial advice on the governance of the trust and to consider an application to extend the vesting date. The court examined the relevant statutory provisions and concluded that it was appropriate to grant the application, taking into account the circumstances of the trust and the interests of the beneficiaries. The court exercised its discretion under the Trustee Act and the Perpetuities and Accumulations Act to provide the requested advice and extend the vesting date as sought by the applicant.

The final orders of the court included granting the application for judicial advice and extending the vesting date of the trust as requested. The court's decision was based on its jurisdiction under the relevant statutes and the merits of the application, considering the interests of all parties involved in the trust.

Orders