Cisera v Cisera [2023] NSWSC 1507

Cisera v Cisera [2023] NSWSC 1507

The proposed arrangement was not within the court's power to approve under s 86A of the Trustee Act 1925 (NSW) because, in substance, it amounted to a resettlement and a change to the substratum of the trust rather than a mere variation, and therefore exceeded the statutory jurisdiction. Additionally, the benefit to contingent beneficiaries by claimed tax savings was not sufficiently established without a proper contradictor and evidence on taxation consequences. The application in its current form is not approved and is adjourned for consideration of further argument and appointment of a contradictor.

Jurisdiction
Australia
Judgment Date
05 December 2023
Procedural Posture
Application – Variation of Trust / Interlocutory Decision; Adjournment for Further Directions and Appointment of Contradictor
Outcome
Application for approval of the arrangement not granted in current form; proceedings adjourned.
Legal Topics
['variation of Trusts' 'trustee Act 1925 (nsw) S 86 A' 'jurisdiction to Vary Trusts' 'resettlement Doctrine' 'discretionary Family Trusts' 'vesting Date Extension' 'approval on Behalf of Minors/contingent Beneficiaries']
['equity' 'trusts'] ['variation of Trusts' 'trustee Act 1925 (nsw) S 86 A' 'jurisdiction to Vary Trusts' 'resettlement Doctrine' 'discretionary Family Trusts' 'vesting Date Extension' 'approval on Behalf of Minors/contingent Beneficiaries']

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Procedural Posture

Application – Variation of Trust / Interlocutory Decision; Adjournment for Further Directions and Appointment of Contradictor

Legal Issues

  1. 1 ["Whether proposed arrangement to extend trust vesting date and expand beneficial class is a 'variation' or an impermissible resettlement under s 86A Trustee Act 1925 (NSW)" "Scope of court's power to approve variations under recent legislation" 'Whether arrangement is for the benefit of contingent beneficiaries/minors' 'Whether claimed tax savings justify variation' 'Need for independent contradictor']

Ratio Decidendi

The proposed arrangement was not within the court's power to approve under s 86A of the Trustee Act 1925 (NSW) because, in substance, it amounted to a resettlement and a change to the substratum of the trust rather than a mere variation, and therefore exceeded the statutory jurisdiction. Additionally, the benefit to contingent beneficiaries by claimed tax savings was not sufficiently established without a proper contradictor and evidence on taxation consequences. The application in its current form is not approved and is adjourned for consideration of further argument and appointment of a contradictor.

Court Disposition

Application for approval of the arrangement not granted in current form; proceedings adjourned.

Orders

  • ['Adjourn the proceedings for further directions to the Expedition List on 8 December 2023, or such other date as may be arranged with my Associate.']