Sanwick Pty Limited v Kalyk [2016] NSWSC 100

Sanwick Pty Limited v Kalyk [2016] NSWSC 100

The Court was satisfied that Mr Saric, who controlled and stood behind the trustee, intended the Trust to have indefinite duration to the fullest extent permitted by law, that the 31 December 2020 distribution date did not reflect that intention, and that Mr Kalyk as settlor intended the Deed to operate in whatever manner Mr Saric intended. The evidence met the test for rectification, so cl 1(b)(i) was deleted.

Jurisdiction
Australia
Judgment Date
15 February 2016
Procedural Posture
Equity Proceeding for Rectification of a Trust Deed / Principal Judgment
Outcome
Rectification ordered
Legal Topics
['rectification of Trust Deed' 'family Trust' 'settlor Intention' 'trust Vesting Date' 'deed Poll or Deed Inter Partes']
['trusts' 'equity'] ['rectification of Trust Deed' 'family Trust' 'settlor Intention' 'trust Vesting Date' 'deed Poll or Deed Inter Partes']

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Procedural Posture

Equity Proceeding for Rectification of a Trust Deed / Principal Judgment

Legal Issues

  1. 1 ["Whether the deed establishing the Children's Trust Fund should be rectified by deleting cl 1(b)(i), which fixed 31 December 2020 as a distribution date." 'Whether the deed was valid and effective even though it was executed only by the settlor and not by the trustee.' 'Whether there was clear and convincing evidence that the deed failed to reflect the actual intention of the trustee and settlor as to the duration and operation of the trust.']

Ratio Decidendi

The Court was satisfied that Mr Saric, who controlled and stood behind the trustee, intended the Trust to have indefinite duration to the fullest extent permitted by law, that the 31 December 2020 distribution date did not reflect that intention, and that Mr Kalyk as settlor intended the Deed to operate in whatever manner Mr Saric intended. The evidence met the test for rectification, so cl 1(b)(i) was deleted.

Court Disposition

Rectification ordered

Orders

  • ['The Deed made on 20 May 1981 between the defendant and the plaintiff be rectified by deleting the following words in cl 1(b) of that Deed: "(i) the thirty-first day of December in the year Two thousand and twenty".']