Wilstead No. 5 Pty Ltd v Smyth

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2020 01116

WILSTEAD NO. 5 PTY LTD (ACN 006 983 482) as trustee of the Bowen Family Trust	Plaintiff
v
ANTHONY PAUL SMYTH	Defendant

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JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2020
DATE OF JUDGMENT:	7 October 2020
CASE MAY BE CITED AS:	Wilstead No. 5 Pty Ltd v Smyth
MEDIUM NEUTRAL CITATION:	[2020] VSC 651

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TRUSTS – Trust Deed – Definition of Primary Beneficiaries – Whether definition absurd – Whether Court should delete words if absurd – No absurdity established.

TRUSTS – Trust Deed – Equity – Rectification – Definition of Primary Beneficiaries – Whether definition did not reflect common intention of settlor and trustee – Clear and convincing proof of common actual intention – Form of rectification clear and precise in its terms, reflecting the actual common intention – Rectification granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M Barrett	Thomson Geer
For the Defendant	Mr B Gillies	Carrick Gill Smyth

HIS HONOUR:

INTRODUCTION

1. The plaintiff is the trustee of the Bowen Family Trust (the ‘Trust’) established by the Bowen Family Trust Deed dated 19 August 1988 (the ‘Trust Deed’).  The issue before the Court is whether each of Robert Evan Bowen, who was responsible for establishing the Trust, and his then wife Venetia Kitson Bowen (‘Mrs Bowen’) is a Primary Beneficiary of the Trust.  The plaintiff seeks a declaration that on the proper construction of the Trust Deed each of them is a Primary Beneficiary of the Trust.  Alternatively, it seeks an order for rectification of the Trust Deed to that effect.

1. Because the class of Primary Beneficiaries under the Trust Deed, as properly construed, may include children not yet of full age or unborn children who may be affected by the relief sought in this proceeding (including the children of the children of Mr Bowen and Mrs Bowen), I ordered that Mr Smyth be appointed to represent the Primary Beneficiaries other than those of full age who provided affidavits signalling their consent to the orders sought in this matter (‘Represented Class’), and that Mr Smyth be named as defendant in the proceeding in his capacity as representative of the Represented Class.

1. For the reasons that follow, I have concluded it appropriate to order rectification of the Trust Deed in the terms sought by the plaintiff. 

BACKGROUND TO THE TRUST

1. The plaintiff relies on the affidavits of:

(1)       Mr Bowen sworn 4 February 2020 (‘Mr Bowen’s affidavit’);

(2)       Mrs Bowen sworn 10 January 2020 (‘Mrs Bowen’s affidavit’);

(3)       Hannah Louise Brooks (née Bowen) affirmed 10 January 2020 (‘Hannah Brooks’ affidavit’);

(4)       Lucy Anne Bowen affirmed 16 January 2020 (‘Lucy Bowen’s affidavit’);

(5)       Alice Jane Bowen affirmed 10 January 2020 (‘Alice Bowen’s affidavit’); and

(6)       Michael John Anthony Tiernan sworn 19 February 2020 (‘Mr Tiernan’s affidavit’). 

1. The  defendant relies on the affidavit of Mr Smyth sworn 17 July 2020.

1. The relevant facts are not in dispute. 

1. Mr…