Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960

Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960

The application failed because the orders sought would in substance permit the trustee to treat the Trust Deed as amended by extending the vesting date, which Re Dion Investments precluded under s 81(1). In any event, the proposed extension was not a bilateral "transaction" or sufficiently specific dealing within s 81(1), was too remote and broad to be approved as an authorised transaction, and was not expedient in the management or administration of the trust property having regard to the objectives disclosed by the Trust Deed, the absence of an immediate practical problem, and the further difficulties the extension would create.

Jurisdiction
Australia
Judgment Date
20 July 2017
Procedural Posture
Application Under Trustee Act 1925 (nsw), S 81 Concerning a Discretionary Family Trust / First Instance Principal Judgment in the Equity Jurisdiction
Outcome
Summons dismissed
Legal Topics
['trustee Act 1925 (nsw), S 81' 'discretionary Family Trust' 'extension of Vesting Date' 'advantageous Dealings' 'management or Administration of Trust Property' 'expediency' 'rule Against Perpetuities']
['equity' 'trusts'] ['trustee Act 1925 (nsw), S 81' 'discretionary Family Trust' 'extension of Vesting Date' 'advantageous Dealings' 'management or Administration of Trust Property' 'expediency' 'rule Against Perpetuities']

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Procedural Posture

Application Under Trustee Act 1925 (nsw), S 81 Concerning a Discretionary Family Trust / First Instance Principal Judgment in the Equity Jurisdiction

Legal Issues

  1. 1 ['Whether the Court could under Trustee Act 1925 (NSW), s 81(1) authorise the trustee to administer the Cisera Family Trust as if the vesting date were extended beyond 1 January 2024.' 'Whether the proposed extension of the vesting date was a "transaction" or other dealing within s 81(1).' 'Whether the proposed extension was expedient in the management or administration of the trust property.' 'Whether Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 precluded the relief sought.']

Ratio Decidendi

The application failed because the orders sought would in substance permit the trustee to treat the Trust Deed as amended by extending the vesting date, which Re Dion Investments precluded under s 81(1). In any event, the proposed extension was not a bilateral "transaction" or sufficiently specific dealing within s 81(1), was too remote and broad to be approved as an authorised transaction, and was not expedient in the management or administration of the trust property having regard to the objectives disclosed by the Trust Deed, the absence of an immediate practical problem, and the further difficulties the extension would create.

Court Disposition

Summons dismissed

Orders

  • ['Order that the Summons be dismissed.' 'Grant liberty to the parties to apply with respect to costs, such liberty to be exercised within 28 days.']