Oates Properties Pty Ltd & Ors v Commissioner of State Revenue [2003] NSWSC 596

Oates Properties Pty Ltd & Ors v Commissioner of State Revenue [2003] NSWSC 596

The plaintiffs had a clear and continuing common intention at the time of execution to satisfy the Commissioner that trustees could never benefit under the trust, but the deed of appointment did not give effect to that intention because the deletion of cl 3.2 was not irrevocable. The plaintiffs displaced the hypothesis that the executed deed expressed their true intention, and the intention could be achieved by the proposed rectifying language, so rectification was granted.

Jurisdiction
Australia
Judgment Date
04 July 2003
Procedural Posture
Equity Proceeding Seeking Declaration and Rectification of Deed of Appointment of New Trustee / Judgment on Summons
Outcome
Relief granted in terms of paragraphs 1 and 2 of the summons; no order as to costs.
Legal Topics
['rectification' 'mistake of Law' 'common Intention' 'deed of Appointment of New Trustee' 'duties Act 1997, S 54(3)' 'ad Valorem Stamp Duty']
['equity' 'trusts' 'revenue Law' 'stamp Duties'] ['rectification' 'mistake of Law' 'common Intention' 'deed of Appointment of New Trustee' 'duties Act 1997, S 54(3)' 'ad Valorem Stamp Duty']

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Procedural Posture

Equity Proceeding Seeking Declaration and Rectification of Deed of Appointment of New Trustee / Judgment on Summons

Legal Issues

  1. 1 ['Whether the deed of appointment should be rectified to reflect a common intention that trustees be irrevocably excluded from becoming beneficiaries of the trust.' 'Whether a mistake as to the legal effect of the deed of appointment could support rectification.' "Whether there was disconformity between the plaintiffs' intention and the written deed of appointment at the time of execution."]

Ratio Decidendi

The plaintiffs had a clear and continuing common intention at the time of execution to satisfy the Commissioner that trustees could never benefit under the trust, but the deed of appointment did not give effect to that intention because the deletion of cl 3.2 was not irrevocable. The plaintiffs displaced the hypothesis that the executed deed expressed their true intention, and the intention could be achieved by the proposed rectifying language, so rectification was granted.

Court Disposition

Relief granted in terms of paragraphs 1 and 2 of the summons; no order as to costs.

Orders

  • ["Declaration that it was the plaintiffs' common intention at execution of the deed of appointment that it include the replacement clause set out in paragraph 13 of the judgment." 'The deed of appointment is rectified to give effect to that intention by including that clause as if from the date of execution.' 'No...