Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286

Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286

Re Dion Investments Pty Ltd was correctly decided and applied. The orders sought, although framed as authorising the trustee to manage and administer trust property beyond the Terminal Date, were in substance an application to vary the terms of the trust by varying the definition of the Terminal Date. Such an order is not a specific power relating to the management or administration of trust property within s 81(1) of the Trustee Act 1925 (NSW), and therefore was not authorised. In any event, there was no proper basis to interfere with the primary judge's assessment that the orders were not expedient having regard to the Trust's objectives and the settlor's intentions.

Jurisdiction
Australia
Judgment Date
26 November 2018
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Trustee Powers Under Trustee Act 1925 (nsw) S 81 / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Dismissing the Applicants' Summons
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['powers of Trustees' 'statutory Jurisdiction to Confer Powers on Trustees' 'extension of Vesting Date of Trust' 'trustee Act 1925 (nsw) S 81' 'expediency in Management or Administration of Trust Property']
['equity' 'trusts and Trustees'] ['powers of Trustees' 'statutory Jurisdiction to Confer Powers on Trustees' 'extension of Vesting Date of Trust' 'trustee Act 1925 (nsw) S 81' 'expediency in Management or Administration of Trust Property']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Trustee Powers Under Trustee Act 1925 (nsw) S 81 / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Dismissing the Applicants' Summons

Legal Issues

  1. 1 ['Whether Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 was wrongly decided.' 'Whether Re Dion Investments Pty Ltd was distinguishable so that s 81 of the Trustee Act 1925 (NSW) authorised orders extending, or permitting the trustee to extend, the vesting date of the Cisera Family Trust.' 'Whether the proposed orders would be expedient in the management or administration of the trust property.']

Ratio Decidendi

Re Dion Investments Pty Ltd was correctly decided and applied. The orders sought, although framed as authorising the trustee to manage and administer trust property beyond the Terminal Date, were in substance an application to vary the terms of the trust by varying the definition of the Terminal Date. Such an order is not a specific power relating to the management or administration of trust property within s 81(1) of the Trustee Act 1925 (NSW), and therefore was not authorised. In any event, there was no proper basis to interfere with the primary judge's assessment that the orders were not expedient having regard to the Trust's objectives and the settlor's intentions.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicants leave to appeal from the orders of the Equity Division of 20 July 2017.' 'The appeal be dismissed.']