Application of Bristrol Custodians Limited [2012] NSWSC 1412

Application of Bristrol Custodians Limited [2012] NSWSC 1412

The summons was dismissed because the proposed deed, although within the plaintiff's amendment power under clause 19 if treated as a prospective amendment, could not have the retrospective rectifying effect apparently sought. Rectification with retrospective effect would require a Court order for rectification on proper evidence and with the Chief Commissioner of Stamp Duties joined or notified where duty consequences were involved. There was also insufficient material to justify advice that executing the proposed deed would be a proper exercise of trustee power or in beneficiaries' interests, and s 63 advice would not provide the requested immunity.

Jurisdiction
Australia
Judgment Date
13 November 2012
Procedural Posture
Application for Judicial Advice or Direction Under S 63 of the Trustee Act 1925 (nsw) Concerning a Proposed Deed of Rectification of a Trust Deed / Summons in the Equity Division Duty List
Outcome
Summons dismissed. No order as to costs.
Legal Topics
['judicial Advice' 'rectification of Trust Deed' 'trustee Powers to Amend Trust Deed' 'retrospective Effect of Deed Amendment' 'change of Trustee and Duty Assessment']
['trusts and Trustees' 'duties'] ['judicial Advice' 'rectification of Trust Deed' 'trustee Powers to Amend Trust Deed' 'retrospective Effect of Deed Amendment' 'change of Trustee and Duty Assessment']

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Procedural Posture

Application for Judicial Advice or Direction Under S 63 of the Trustee Act 1925 (nsw) Concerning a Proposed Deed of Rectification of a Trust Deed / Summons in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether the plaintiff trustee would be acting within its power by executing the proposed Deed of Rectification.' 'Whether the plaintiff would be bound by the trust deed as amended by the proposed deed.' 'Whether judicial advice or direction under s 63 of the Trustee Act 1925 (NSW) should be given in relation to execution of the proposed deed.' 'Whether the proposed deed could retrospectively supply an omitted definition in the original trust deed.' 'Whether the plaintiff should be immune from liability resulting from execution of the proposed deed.']

Ratio Decidendi

The summons was dismissed because the proposed deed, although within the plaintiff's amendment power under clause 19 if treated as a prospective amendment, could not have the retrospective rectifying effect apparently sought. Rectification with retrospective effect would require a Court order for rectification on proper evidence and with the Chief Commissioner of Stamp Duties joined or notified where duty consequences were involved. There was also insufficient material to justify advice that executing the proposed deed would be a proper exercise of trustee power or in beneficiaries' interests, and s 63 advice would not provide the requested immunity.

Court Disposition

Summons dismissed. No order as to costs.

Orders

  • ['The summons be dismissed.' 'No order as to costs.']