Furey v Mackne [1999] NSWSC 1298

Furey v Mackne [1999] NSWSC 1298

Rectification was granted because clear and cogent affidavit evidence showed that the trust deed mistakenly recorded the anticipated purchase price as the settled sum and unit issue figures rather than the intended figures, and the only beneficiary, directly and through his superannuation fund, supported the application so no beneficiary prejudice issue arose.

Jurisdiction
Australia
Judgment Date
09 December 1999
Procedural Posture
Equity Proceedings for Rectification of a Trust Instrument / Application for an Order Rectifying a Unit Trust Deed
Outcome
Order for rectification made.
Legal Topics
['rectification of Trust Instrument' 'equitable Remedies' 'evidentiary Requirements' 'unit Trust Deed']
['equity' 'trusts'] ['rectification of Trust Instrument' 'equitable Remedies' 'evidentiary Requirements' 'unit Trust Deed']

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Procedural Posture

Equity Proceedings for Rectification of a Trust Instrument / Application for an Order Rectifying a Unit Trust Deed

Legal Issues

  1. 1 ['Whether the Court should rectify the Mackne Investment Unit Trust deed to correct mistakenly recorded settled sum and unit issue figures.' 'Whether there was clear and cogent evidence of the true intention behind the trust instrument.' 'Whether rectification would prejudice beneficiaries without an opportunity to be heard.']

Ratio Decidendi

Rectification was granted because clear and cogent affidavit evidence showed that the trust deed mistakenly recorded the anticipated purchase price as the settled sum and unit issue figures rather than the intended figures, and the only beneficiary, directly and through his superannuation fund, supported the application so no beneficiary prejudice issue arose.

Court Disposition

Order for rectification made.

Orders

  • ['The order sought in paragraph 1 of the summons was made.' 'The trust instrument was rectified to substitute the intended settled sum and unit figures for the mistakenly recorded figures.']