Nisus Pty Ltd [2022] NSWSC 369

Nisus Pty Ltd [2022] NSWSC 369

The powers of variation contained in clause 2(a) of the Trust Deed are sufficiently wide to enable the trustee to make all proposed amendments to the vesting day, the objects of the powers to appoint income and capital, to exclude successor trustees as beneficiaries for duty purposes, and to define 'income' to include statutory income such as capital gains. Judicial advice is granted in the affirmative as to all prayers for relief.

Jurisdiction
Australia
Judgment Date
30 March 2022
Procedural Posture
Equity – Trusts and Trustees – Judicial Advice / Final Determination – Judicial Advice on Summons
Outcome
Judicial advice granted to the trustee in the affirmative as to all prayers for relief.
Legal Topics
['judicial Advice' 'variation of Trusts' 'vesting Day Amendment' 'extension of Objects of Appointment of Income/capital' 'trustee Exclusion for Duty Purposes' 'definition of Income in Trust Deed']
['equity' 'trusts and Trustees'] ['judicial Advice' 'variation of Trusts' 'vesting Day Amendment' 'extension of Objects of Appointment of Income/capital' 'trustee Exclusion for Duty Purposes' 'definition of Income in Trust Deed']

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Procedural Posture

Equity – Trusts and Trustees – Judicial Advice / Final Determination – Judicial Advice on Summons

Legal Issues

  1. 1 ['Whether the trustee can amend vesting day to exclude fifty (50) year limitation and retain the Royal lineage provision' 'Whether the objects of the powers to appoint income and capital can be extended to include additional beneficiaries' "Whether the Trust Estate's terms can be amended to prevent successor trustees from benefiting (to meet Duties Act 1997 (NSW) s 54(3))" "Whether 'income' may be defined to include statutory income such as capital gains"]

Ratio Decidendi

The powers of variation contained in clause 2(a) of the Trust Deed are sufficiently wide to enable the trustee to make all proposed amendments to the vesting day, the objects of the powers to appoint income and capital, to exclude successor trustees as beneficiaries for duty purposes, and to define 'income' to include statutory income such as capital gains. Judicial advice is granted in the affirmative as to all prayers for relief.

Court Disposition

Judicial advice granted to the trustee in the affirmative as to all prayers for relief.

Orders

  • ["The trustee is justified in varying the definition of 'vesting date' to exclude the 50 year limitation and retain the Royal lineage provision or any earlier date at the trustee's discretion." 'The trustee may extend the objects of the power to appoint income and capital to include Robin John Heming and his lineal...