Re The Pickering Family Trusts

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S CI 2015 02020

IN THE MATTER of an Application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)

and

IN THE MATTER of an Application under s 63A of the Trustee Act 1958 (Vic)

W.E. PICKERING NOMINEES PTY LTD (ACN 007 817 825) (AS TRUSTEE FOR THE W.E. PICKERING FAMILY TRUST) & ORS (according to the Schedule) Plaintiffs
v 
JACQUELINE ROBYN PICKERING & ORS
(according to the Schedule)
Defendants

- and -

S CI 2018 02379

G.S. & B.W. PICKERING NOMINEES PTY LTD
(ACN 007 817 834) (AS TRUSTEE FOR THE GEORGE PICKERING FAMILY TRUST) & ORS (according to the Schedule)
Plaintiffs
v
KAYE HOLT & ORS (according to the Schedule) Defendants

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JUDGE:

LYONS JA

WHERE HELD:

Melbourne

DATE OF HEARING:

15 February, 17 September 2021 and, 22 February 2023 with further submissions and draft orders including 18 April, 16 August and 24 October 2023

DATE OF JUDGMENT:

24 January 2024

CASE MAY BE CITED AS:

Re The Pickering Family Trusts

MEDIUM NEUTRAL CITATION:

[2024] VSC 5

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TRUSTS – Trustee Act 1958 (Vic), s 63A – Application for Court approval of arrangement to vary trust on behalf of underage and potential unborn beneficiaries – Variation sought to put in place succession plan of those who established trust – Matters which Court may consider in determining if the ‘arrangement’ is ‘for the benefit of’ underage or unborn beneficiaries – Benefit must not be illusory – Observations concerning whether, if arrangement subject to risk, a ‘benefit’ for the purpose of s 63A can be established for underage children or unborn beneficiaries – George v Kollias [2007] VSC 46 and Re CL [1969] 1 Ch 587 considered – Court not satisfied that original arrangement was for benefit as benefit not real and illusory – Opportunity for trustees to put forward revised arrangement ‘for the benefit of’ underage and potential unborn beneficiaries – Court satisfied that revised arrangement both ‘for the benefit’ of underage and potential unborn beneficiaries and reasonable and fair in all the circumstances – Approval given.

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APPEARANCES:

Counsel Solicitors
For the Plaintiffs in each
proceeding
Mr D J Williams QC
with Mr B J McCullagh
Partners Legal
For the Defendants in each proceeding Mr N Jones Clancy & Triado

For the Contradictor in
S CI 2015 02020 (Ms Lyttleton and
Mr Pascoe)

For the Contradictor in
S CI 2018 02379 (Ms Lyttleton)

Mr P Pascoe Suzanne Lyttleton Lawyers

HIS HONOUR:

  1. Introduction  

  1. These two proceedings have a long history.  They relate to family trusts established by each of two brothers Edward (Ted) Pickering and George Stewart Pickering in mirror terms (the Ted Pickering Family Trust and the George Pickering Family Trust, and collectively the Family Trusts).

  1. The plaintiff in each proceeding is the trustee of each Family Trust, which I will refer to as the Trustee (or Trustees), unless it is necessary to identify…

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Details
Case
[2024] VSC 5
Decision Date

CaseChat Overview and Summary

This case involved an application for the court's approval of an arrangement to vary the terms of the Pickering Family Trusts on behalf of underage and potential unborn beneficiaries. The application was brought under section 63A of the Trustee Act 1958 (Vic). The dispute centred on whether the proposed variation of the trust arrangement would be for the benefit of the underage and unborn beneficiaries and whether it would be reasonable and fair in all the circumstances.

The primary legal issue before the court was whether the proposed variation of the trust arrangement was for the benefit of the underage and potential unborn beneficiaries. The court had to consider whether the benefit was real and not illusory, and whether the variation was reasonable and fair. The court was required to assess the arrangement against the statutory criteria outlined in section 63A of the Trustee Act 1958 (Vic). The court examined cases such as George v Kollias [2007] VSC 46 and Re CL [1969] 1 Ch 587 to determine whether the benefit to the underage and unborn beneficiaries could be established if the arrangement was subject to risk.

The court found that the original arrangement was not for the benefit of the underage and unborn beneficiaries, as the benefit was illusory. However, the court was satisfied that the revised arrangement was both for the benefit of the underage and potential unborn beneficiaries and reasonable and fair in all the circumstances. The court noted that the revised arrangement provided a clear succession plan for the trust and addressed the concerns of the trustees. The court approved the revised arrangement, allowing the trustees to implement the changes on behalf of the underage and potential unborn beneficiaries. The court's approval ensured that the trust could operate effectively and provide for the future needs of the beneficiaries.

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Evidence Before The Court

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Legal Principle Established

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