Thynne v Jevny Pty Limited (No 3) - [2025] NSWSC 986

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thynne v Jevny Pty Limited (No 3) [2025] NSWSC 986
Hearing dates: 21, 22, 23, 24 and 25 July 2025
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
1. Declare that the terms of the Thynne Family Trust are as contained in the document entitled ‘Discretionary Trust Deed’ annexed to the statutory declaration made by James Bernard Thynne on 27 June 1996 (the Deed).
2. Declare that James Bernard Thynne was the Appointor of the Thynne Family Trust from the date of settlement until his death.
3. Declare that James Bernard Thynne was a director of Jevny Pty Ltd within the meaning of s 9AC of the Corporations Act 2001 (Cth) between 1 November 1990 and 6 March 2003.
4. Declare that neither Victoria Sheringham nor Elanora Farming Pty Ltd is a ‘Beneficiary’ of the Thynne Family Trust within the meaning of the Deed.
5. Declare that Jevny Pty Ltd was not authorised by the terms of the Thynne Family Trust to distribute trust income to Victoria Sheringham or Elanora Farming Pty Ltd.
6. Order pursuant to s 85 of the Trustee Act 1925 (NSW) that Jevny Pty Ltd be relieved of personal liability for any breach of trust involved in making distributions of the income of the Thynne Family Trust to Victoria Sheringham and Elanora Farming Pty Ltd subsequent to 22 June 2011.
7. The proceedings are otherwise dismissed.
8. Direct the parties to file and serve any evidence and short submissions on costs by 4:00PM on 11 September 2025.
9. Direct the parties to file and serve any evidence and short submissions in reply on costs by 4:00PM on 18 September 2025.

Catchwords:
EQUITY — Fiduciary duties — Mutual wills — Where parties signed a memorandum of wishes providing that surviving spouse would leave property to deceased’s children — Nature and scope of obligations arising from memorandum of wishes — Whether obligations give rise to a fiduciary duty — Whether surviving spouse breached obligations by granting a mortgage over property
SUCCESSION — Construction — Gifts — Right to possession — Where deceased bequeathed artworks to his children but provided for his surviving spouse to enjoy right of possession during her lifetime — Whether surviving spouse held the artworks under licence from the deceased’s children — Whether usufructuary right granted to surviving spouse by deceased was akin to holder of life estate in realty
EQUITY — Trusts and trustees — Breaches of trust — Discretionary family trust (‘Trust’) established by the deceased — Where Trust made distributions to the deceased’s spouse and farming business — Where original trust deed lost — Where recipients of distributions not named as beneficiaries in replacement trust deed —Whether the deceased was appointor of the Trust where replacement trust deed failed to include an appointer — Whether an unexecuted document purporting to vary the Trust was effective in adding the deceased’s spouse and farming business…

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

Case: [2025] NSWSC 986
Decision Date: 28 August 2025

CaseChat Overview and Summary

The case of Thynne v Jevny Pty Limited (No 3) was heard by the Supreme Court of New South Wales. The dispute involved a surviving spouse who was alleged to have breached various obligations arising from a memorandum of wishes, a will, and a family trust. The surviving spouse, Thynne, was accused of violating her fiduciary duties by granting a mortgage over a property that was intended to be left to the deceased's children. The court also examined whether Thynne held artworks under a licence from the deceased's children and whether she had breached any trust obligations by being a trustee of a discretionary family trust.

The legal issues before the court included the nature and scope of the obligations arising from the memorandum of wishes and whether they constituted a fiduciary duty. The court needed to determine whether Thynne had breached these obligations by mortgaging the property. Additionally, the court had to interpret the will to ascertain whether Thynne held the artworks under a licence from the deceased's children and whether her usufructuary right was akin to a life estate in realty. The court also examined the trust deed to decide whether the deceased was the appointor of the trust and whether an unexecuted document purporting to vary the trust was effective. Finally, the court considered whether Thynne was bound by estoppel by convention as to a purported amendment to the trust deed.

In its reasoning, the court found that Thynne had indeed breached her fiduciary obligations by mortgaging the property. Regarding the memorandum of wishes, the court held that the surviving spouse's obligations were not fiduciary in nature. However, the court did find that Thynne had breached her obligations by granting a mortgage over the property. With respect to the will, the court determined that Thynne held the artworks under a licence from the deceased's children and her usufructuary right was akin to a life estate in realty. Concerning the trust, the court held that the deceased was the appointor of the trust and that the unexecuted document was ineffective. The court further found that Thynne was bound by estoppel by convention as to a purported amendment to the trust deed. Lastly, the court exercised its discretion under the Trustee Act 1925 (NSW) and found that Thynne was not a de facto or shadow director of the company.

The court made several orders, including that Thynne pay the deceased's children the amount of the mortgage and interest. The court also ordered Thynne to deliver the artworks to the deceased's children. Additionally, the court made orders regarding the trust, including that the trust deed be varied to include the deceased's spouse and farming business as beneficiaries. The court further ordered that the deceased's children be appointed as trustees of the trust.

Orders