Andtrust v Andreatta [2015] NSWSC 38

Andtrust v Andreatta [2015] NSWSC 38

Clause 10 empowered the trustee to vary the trusts by extending the vesting date because the trusts included provisions for holding income until the vesting date and distributing capital on that date, and extending that date would vary those trusts. The concluding reference to the rule against perpetuities and the express reference to enlarging categories of eligible beneficiaries supported that construction. Relief under s 81 was unavailable because Re Dion Investments Pty Limited [2014] NSWCA 367 was binding.

Jurisdiction
Australia
Judgment Date
06 February 2015
Procedural Posture
Equity Division Proceeding Concerning Construction of a Discretionary Trust Deed and Alternative Application Under S 81 of the Trustee Act 1925 (nsw) / Further Amended Summons Seeking Declaratory Relief And, in the Alternative, an Order Under S 81
Outcome
Declaration made as to the trustee's power under the trust deed to extend the vesting date; alternative relief under s 81 refused.
Legal Topics
['express Trusts' 'discretionary Trusts' 'construction of Trust Deed' 'power to Vary Trust' 'extension of Vesting Date' 'rule Against Perpetuities' 'trustee Act 1925 (nsw) S 81']
['equity' 'trusts'] ['express Trusts' 'discretionary Trusts' 'construction of Trust Deed' 'power to Vary Trust' 'extension of Vesting Date' 'rule Against Perpetuities' 'trustee Act 1925 (nsw) S 81']

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Procedural Posture

Equity Division Proceeding Concerning Construction of a Discretionary Trust Deed and Alternative Application Under S 81 of the Trustee Act 1925 (nsw) / Further Amended Summons Seeking Declaratory Relief And, in the Alternative, an Order Under S 81

Legal Issues

  1. 1 ['Whether cl 10 of the trust deed conferred power on the trustee to extend the vesting date, provided the rule against perpetuities was not infringed.' 'Whether s 81 of the Trustee Act 1925 (NSW) empowered the Court to confer a power on the trustee to extend the vesting date.']

Ratio Decidendi

Clause 10 empowered the trustee to vary the trusts by extending the vesting date because the trusts included provisions for holding income until the vesting date and distributing capital on that date, and extending that date would vary those trusts. The concluding reference to the rule against perpetuities and the express reference to enlarging categories of eligible beneficiaries supported that construction. Relief under s 81 was unavailable because Re Dion Investments Pty Limited [2014] NSWCA 367 was binding.

Court Disposition

Declaration made as to the trustee's power under the trust deed to extend the vesting date; alternative relief under s 81 refused.

Orders

  • ['Declaration made in terms of prayer one of the further amended summons filed in Court on 6 February 2015.' 'Order made in accordance with prayer three.' 'Exhibits directed to be retained with the papers.']