Sanwick Pty Ltd v Kalyk

Sanwick Pty Ltd sought an order from the Supreme Court of New South Wales to rectify a trust deed, on the basis that the trust deed did not reflect the parties' true agreement. The trust deed was executed by the settlor, but not by the trustee. The settlor claimed that the deed did not accurately reflect the parties' agreement as it was executed by the settlor alone, and not by the trustee. The trustee argued that the deed was valid as a deed poll and that it accurately reflected the parties' agreement. The court was required to determine whether the trust deed was valid as a deed poll, and if so, whether it accurately reflected the parties' agreement. The court was also required to determine whether the settlor had an active and operative intention as to the terms of the trust.

The court found that the trust deed was valid as a deed poll, as the settlor had executed it in the presence of a witness and had intended it to be binding. However, the court also found that the settlor had no active and operative intention as to the terms of the trust, and had merely acted on the instructions of the trustee. The court found that the trustee had intended the trust to have an indefinite duration, to the fullest extent permitted by law. However, the terms of the trust deed provided that the trust would vest in 2020. The court found that the terms of the trust deed did not reflect the parties' true agreement, and that the settlor had not intended for the trust to vest in 2020. The court ordered the trust deed to be rectified to reflect the parties' true agreement.

The court ordered that the trust deed be rectified to provide that the trust would have an indefinite duration, to the fullest extent permitted by law. The court also ordered that the settlor's signature on the trust deed be disregarded, as it did not reflect the parties' true agreement. The court found that the trustee's signature on the trust deed was sufficient to make it binding, and that the settlor's signature was not necessary.