The first plaintiff is the trustee of the W.E. Pickering Family Trust (‘the trust’). The trust was constituted by deed dated 1 February 1977 (‘the deed’) between George Stewart Pickering as settlor and the trustee.[1] The second, third and fourth plaintiffs are the directors of the first plaintiff.
[1]Affidavit of Rick Pickering, 30 January 2015, [7], exhibit RP-1.
Clause 2 of the deed defines a closed class of beneficiaries, consisting of William Edward Pickering and Jacqueline Robyn Pickering, their six children, and the grandchildren of William Edward Pickering and Jacqueline Robyn Pickering.
The sixteen defendants are all of the living adult beneficiaries of the trust.[2] There are two minor beneficiaries of the trust, who are the children of the fifth defendant. When the proceeding was issued, they were not named as defendants to the proceeding. Subsequently, the two minor beneficiaries were joined as defendants to the proceeding, represented by their mother, the fifth defendant, as their litigation guardian.
[2]Affidavit of Rick…
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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W E Pickering Nominees Pty Ltd v Pickering [2016] VSC 71
Case
[2016] VSC 71
Decision Date
CaseChat Overview and Summary
In W E Pickering Nominees Pty Ltd v Pickering, the parties were engaged in a dispute concerning variations to a trust deed. The matter was heard in the Supreme Court of Victoria, where the plaintiffs sought to modify the terms of a trust deed. The defendants agreed to the proposed changes, but the court had to consider whether it was appropriate to alter the deed due to its impact on potential unborn beneficiaries.
The court was required to decide whether it was within its authority to vary the trust deed under the Trustee Act 1958, specifically section 63A, in light of the interests of unborn beneficiaries. This decision hinged on whether the court could exercise its discretion to make changes that might affect individuals not yet born, a point that has been explored in cases like George v Kollias and Ors and Thomas Hare Investments v Hare. Additionally, the court had to consider the principle of comity when interpreting a statutory provision in relation to equivalent provisions from another jurisdiction, a matter that was examined in cases such as Farah Constructions Pty Ltd v Say-Dee Pty Ltd and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.
The court concluded that it could indeed vary the trust deed under section 63A of the Trustee Act 1958, despite the impact on unborn beneficiaries, as long as it was in the best interests of the trust. The court applied the principle of comity to interpret the statutory provision, taking into account relevant case law from the Supreme Court of New South Wales. The court's decision was guided by the precedent set in cases such as Re Barns and Re Dion Investments Pty Ltd. The final orders were made in favour of the plaintiffs, allowing for the proposed variations to the trust deed.