Williams v Duerinckx Enterprises Pty Ltd - [2022] TASSC 32

[2022] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: Williams v Duerinckx Enterprises Pty Ltd [2022] TASSC 32

PARTIES:  WILLIAMS, Chantal Suzanne
  v
  DUERINCKX ENTERPRISES PTY LTD
  ACN 070 085 059 (as trustee for the Duerinckx Futures   Family Trust)

FILE NO:  3196/2021
DELIVERED ON:  20 May 2022
DELIVERED AT:  Hobart
HEARING DATE/S:  13 May 2022
JUDGMENT OF:  Pearce J

CATCHWORDS:

Equity – General principles – Mistake – Equitable remedies – Rectification – Where mutual mistake – Mistaken vesting date in discretionary family trust deed.

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; Simic v New South Wales Land and Housing Corporation [2016] HCA 47, 260 CLR 85; Sanwick Pty Limited v Kalyk [2016] NSWSC 100; Re George Hardi Family Trust [2021] NSWSC 1584, applied.
Aust Dig Equity [1116]

REPRESENTATION:

Counsel:
             Plaintiff:  S Senathirajah QC
             Defendant:  Not represented
Solicitors:
             Plaintiff:  Hall and Wilcox
             Defendant:  Hall and Wilcox

Judgment Number: [2022] TASSC 32
Number of paragraphs: 24

Serial No 32/2022
File No 3196/2021

CHANTAL SUZANNE WILLIAMS v DUERINCKX ENTERPRISES PTY LTD
ACN 070 085 059 (as trustee for the Duerinckx Futures Family Trust)

REASONS FOR JUDGMENT PEARCE J

20 May 2022

In this action the plaintiff, Chantal Williams, seeks an order rectifying the terms of a discretionary family trust deed of settlement made 2 August 1995, or alternatively an order under the Variation of Trusts Act 1994, s 13, varying the terms of the trust. The order is sought because the clause of the deed which deals with termination, although the clause is poorly drawn, seems to provide that the trust terminated 21 years from the date of the deed, thus on 2 August 2016. For the following reasons I am satisfied that deed, through mistake, does not reflect the intention of those responsible for the creation of the document that the trust would continue for at least Mrs Williams' life. It should be rectified. I would also have varied the terms of the trust under the legislation but, given that I will order the primary relief, the alternative order is unnecessary.
The circumstances emerge from evidence contained in affidavits sworn or affirmed by the plaintiff, her former husband John Duerinckx and by her current solicitor. In 1995 Mrs Williams was known as Chantal Duerinckx. She was then aged 30 and was married to Mr Duerinckx who was then aged 29. They had just moved from Queensland to Tasmania together with their two children aged under five. It was Mrs Williams' intention to establish and operate a childcare business. She discussed her plans with her parents, who operated their own business through a family trust. She learnt about alternative business structures in a business course and sought advice from her accountant before deciding to establish a family trust with a corporate trustee.
Mrs Williams consulted a solicitor, Mr N Day, of the firm in Ulverstone then called Walsh Day Fitzgerald. She instructed Mr Day of…

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: [2022] TASSC 32
Decision Date: 20 May 2022

CaseChat Overview and Summary

Williams v Duerinckx Enterprises Pty Ltd is a case where the plaintiff sought equitable remedies from the court, specifically the rectification of a deed, due to a mutual mistake in the vesting date of a discretionary family trust. The defendant, Duerinckx Enterprises Pty Ltd, is the trustee of the family trust in question, and the plaintiff, Williams, is a beneficiary. The High Court of Australia was the court that heard the appeal in this matter.

The primary legal issue before the court was whether the plaintiff could successfully claim rectification of the trust deed on the basis of a mutual mistake. This involved determining the extent to which the court could intervene in the deed to correct the error. The court also needed to consider the principles of equity and whether these supported the granting of the remedy sought by the plaintiff.

The court found that a mutual mistake had indeed occurred, leading to the incorrect vesting date in the trust deed. The court held that where both parties are labouring under a common mistake, equity will intervene to rectify the instrument in question. The court emphasised that the mistake must be fundamental and relate to a term that is central to the contract's purpose. In this instance, the error in the vesting date was considered fundamental and central to the trust deed's purpose, thus satisfying the criteria for rectification. The court concluded that the plaintiff was entitled to have the deed rectified to reflect the correct vesting date.

The final orders of the court were that the trust deed be rectified to reflect the correct vesting date as per the intentions of the parties, and that the defendant, as trustee, take the necessary steps to amend the trust deed accordingly. The court also noted that the rectification should be carried out in a manner that minimises any disruption to the trust's operation and the interests of other beneficiaries.

Orders