Stromovka Pty Ltd as Trustee of the Stromovka Trust [2016] NSWSC 1641

Stromovka Pty Ltd as Trustee of the Stromovka Trust [2016] NSWSC 1641

The Trustee is justified in appointing Ms Keys as a Discretionary Beneficiary pursuant to clause (f) of the Ninth Schedule of the Deed and, following that appointment and notification of eligible persons, distributing income or capital to her as part of the settlement. Clause 5.2 of the Will does not compel the Trustee or executors to make such an appointment, as it expressly eschews binding effect.

Parties
First Plaintiff: Stromovka Pty Ltd (ACN 067 166 474) as Trustee of the Stromovka Trust; Second Plaintiff: Ian Leonard Evans; Third Plaintiff: Michael Patrick Kantor; Claimant: Bernadette Maree Keys
Jurisdiction
Australia
Judgment Date
17 November 2016
Procedural Posture
Application for Judicial Advice by Trustee / Judicial Advice Given at First Instance
Outcome
Judicial advice given; orders made as sought
Legal Topics
Judicial Advice to Trustees, Discretionary Beneficiaries, Distribution of Trust Property, Notification to Beneficiaries Under Trustee Act 1925 (nsw) S 63(8)
Equity Trusts Judicial Advice to Trustees Discretionary Beneficiaries Distribution of Trust Property Notification to Beneficiaries Under Trustee Act 1925 (nsw) S 63(8)

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Stromovka Pty Ltd (ACN 067 166 474) as Trustee of the Stromovka Trust

First Plaintiff

Ian Leonard Evans

Second Plaintiff

Michael Patrick Kantor

Third Plaintiff

Bernadette Maree Keys

Claimant

Procedural Posture

Application for Judicial Advice by Trustee / Judicial Advice Given at First Instance

Legal Issues

  1. 1 Whether Ms Keys is a 'Discretionary Beneficiary' of the Stromovka Trust under the Deed
  2. 2 Whether the Trustee is justified in appointing Ms Keys as a Discretionary Beneficiary
  3. 3 Whether clause 5.2 of the Will compels the Trustee to make appointments from the Trust

Ratio Decidendi

The Trustee is justified in appointing Ms Keys as a Discretionary Beneficiary pursuant to clause (f) of the Ninth Schedule of the Deed and, following that appointment and notification of eligible persons, distributing income or capital to her as part of the settlement. Clause 5.2 of the Will does not compel the Trustee or executors to make such an appointment, as it expressly eschews binding effect.

Court Disposition

Judicial advice given; orders made as sought

Orders

  • Ian Leonard Evans and Michael Patrick Kantor are joined as second and third plaintiffs.
  • The Trustee, after giving notice per the schedule, is justified in appointing Ms Keys as a Discretionary Beneficiary under clause (f) of the Ninth Schedule and paying her income and/or capital of the Trust under clause 3.1 of the Deed.