In the matter of Cupit & Aboud as trustees of the Australian Trust [2020] NSWSC 1715

In the matter of Cupit & Aboud as trustees of the Australian Trust [2020] NSWSC 1715

Order 1(iv) reserved to the Court a power to direct transfer of the Trust assets to Rosa before she turned 21, thereby terminating the Trust. Because Rosa was the sole beneficiary, the Trust was operating at a loss, continuing land tax and administration costs would substantially erode the Trust's cash resources and could require sale of property, and the evidence supported Rosa's maturity and plans to occupy the Bronte Property with her sister, termination and transfer of the assets to Rosa on 30 December 2020 was in Rosa's best interests and the trustees were justified in doing so.

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Equity; Trusts and Trustees; Judicial Advice / Application by Summons Filed by the Trustees Seeking Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and Orders for Termination, Transfer and Vesting of Trust Assets
Outcome
Application granted; the Australian Trust was ordered to be terminated and its assets transferred and vested in Rosa Charlotte Sophia Rodriguez Grieve on and effective from 30 December 2020, with the plaintiffs' costs paid from the Trust assets.
Legal Topics
['judicial Advice' 'termination of Trust' 'transfer and Vesting of Trust Assets' 'land Tax Consequences' 'principal Place of Residence Exemption' 'trustee Powers']
['equity' 'trusts and Trustees' 'taxation'] ['judicial Advice' 'termination of Trust' 'transfer and Vesting of Trust Assets' 'land Tax Consequences' 'principal Place of Residence Exemption' 'trustee Powers']

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Procedural Posture

Equity; Trusts and Trustees; Judicial Advice / Application by Summons Filed by the Trustees Seeking Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and Orders for Termination, Transfer and Vesting of Trust Assets

Legal Issues

  1. 1 ['Whether order 1(iv) of the orders made on 26 June 2018 reserved to the Court a power to direct transfer of the Trust assets to Rosa before she turned 21, thereby effecting termination of the Trust.' 'Whether the trustees would be justified in transferring the Trust property to Rosa on and effective from 30 December 2020.' 'Whether termination of the Trust and transfer of the assets to Rosa was in her interests having regard to land tax liability, administration costs, her maturity and her plans to reside in the Bronte Property.']

Ratio Decidendi

Order 1(iv) reserved to the Court a power to direct transfer of the Trust assets to Rosa before she turned 21, thereby terminating the Trust. Because Rosa was the sole beneficiary, the Trust was operating at a loss, continuing land tax and administration costs would substantially erode the Trust's cash resources and could require sale of property, and the evidence supported Rosa's maturity and plans to occupy the Bronte Property with her sister, termination and transfer of the assets to Rosa on 30 December 2020 was in Rosa's best interests and the trustees were justified in doing so.

Court Disposition

Application granted; the Australian Trust was ordered to be terminated and its assets transferred and vested in Rosa Charlotte Sophia Rodriguez Grieve on and effective from 30 December 2020, with the plaintiffs' costs paid from the Trust assets.

Orders

  • ['Pursuant to order 1(v) of orders of Lindsay J made on 26 June 2018, order that the Australian Trust be terminated on and effective from 30 December 2020.' 'Pursuant to r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW), direct the Plaintiffs, as trustees of the Australian Trust, to transfer the assets in the...