In the matter of the Kien Trust (No 1) [2019] NSWSC 1601

In the matter of the Kien Trust (No 1) [2019] NSWSC 1601

The Court gave judicial advice because there was a real question concerning the operation and interpretation of the trust instrument. NSW was the proper law of the trust. Clause 16 permitted alteration of the distribution date, provided its provisos were satisfied, and those provisos were satisfied because the amendment would not benefit the settlor, would not alter any beneficiary's absolutely entitled income interest, and would not extend the distribution date beyond the latest contemplated date. If no person remained able to consent under cl 15, consent was not required rather than the variation power becoming incapable of exercise. The proposed amendment would not make any disposition...

Jurisdiction
Australia
Judgment Date
05 November 2019
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Interpretation and Variation of a Trust Deed / Summons Filed 11 October 2019; Heard and Orders Made on 5 November 2019
Outcome
Judicial advice given – orders made
Legal Topics
['judicial Advice' 'trust Deed Variation' 'distribution Date' 'proper Law of Trust' 'rule Against Perpetuities']
['equity' 'trusts and Trustees'] ['judicial Advice' 'trust Deed Variation' 'distribution Date' 'proper Law of Trust' 'rule Against Perpetuities']

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Interpretation and Variation of a Trust Deed / Summons Filed 11 October 2019; Heard and Orders Made on 5 November 2019

Legal Issues

  1. 1 ['Whether the jurisdictional requirement for judicial advice under s 63 of the Trustee Act 1925 (NSW) was met.' 'Whether the Court should exercise its discretion to give judicial advice.' 'Whether cl 16 of the trust deed could be used to extend the distribution date in cl 19(b).' 'Whether the variation power in cl 16 could still be exercised if there was no person able to consent as appointor under cl 15.' 'Whether the proposed amendment would offend the applicable rule against remoteness of vesting.']

Ratio Decidendi

The Court gave judicial advice because there was a real question concerning the operation and interpretation of the trust instrument. NSW was the proper law of the trust. Clause 16 permitted alteration of the distribution date, provided its provisos were satisfied, and those provisos were satisfied because the amendment would not benefit the settlor, would not alter any beneficiary's absolutely entitled income interest, and would not extend the distribution date beyond the latest contemplated date. If no person remained able to consent under cl 15, consent was not required rather than the variation power becoming incapable of exercise. The proposed amendment would not make any disposition...

Court Disposition

Judicial advice given – orders made

Orders

  • ['Advice was given that the power to vary in cl 16 of the trust deed could be used to extend the distribution date.']