Re Dion Investments Pty Ltd [2013] NSWSC 1941

Re Dion Investments Pty Ltd [2013] NSWSC 1941

The proper law of the Dion Family Trust was the law of Papua New Guinea because the settlor went out of his way to set up the trust in Port Moresby and the relevant connecting factors outweighed those pointing to New South Wales. The Supreme Court of New South Wales nevertheless had jurisdiction because the trust had a substantial connection with New South Wales and the trustee was within the jurisdiction. Clause 15 did not authorise a mere variation of the trust deed; on its proper construction the reference to variation was to be treated as a reference to a declaration of fresh trusts. Section 81 of the Trustee Act 1925 did not empower the Court to confer a general power to modernise or...

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Application for Judicial Advice and for an Order Under Section 81 of the Trustee Act 1925 Concerning the Dion Family Trust / Principal Judgment
Outcome
Judicial advice given and limited section 81 orders made.
Legal Topics
['proper Law of Trust' 'jurisdiction of the Supreme Court of New South Wales Over a Trust Governed by Foreign Law' 'power to Vary a Trust Deed' 'advantageous Dealings Under Section 81 of the Trustee Act 1925' 'judicial Advice to Trustee']
['trusts' 'private International Law'] ['proper Law of Trust' 'jurisdiction of the Supreme Court of New South Wales Over a Trust Governed by Foreign Law' 'power to Vary a Trust Deed' 'advantageous Dealings Under Section 81 of the Trustee Act 1925' 'judicial Advice to Trustee']

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Procedural Posture

Application for Judicial Advice and for an Order Under Section 81 of the Trustee Act 1925 Concerning the Dion Family Trust / Principal Judgment

Legal Issues

  1. 1 ['Whether the proper law of the Dion Family Trust was the law of New South Wales or the law of Papua New Guinea.' 'Whether the Supreme Court of New South Wales had jurisdiction to give judicial advice or make orders affecting the trust if its proper law was Papua New Guinea law.' 'Whether clause 15 of the trust deed authorised a variation of the trust deed.' 'Whether section 81 of the Trustee Act 1925 empowered the Court to authorise amendments modernising the trust deed or altering beneficial interests.' 'Whether the proposed new clauses 7(n), 7(o) and 7(p) could be authorised under section 81 of the Trustee Act 1925.']

Ratio Decidendi

The proper law of the Dion Family Trust was the law of Papua New Guinea because the settlor went out of his way to set up the trust in Port Moresby and the relevant connecting factors outweighed those pointing to New South Wales. The Supreme Court of New South Wales nevertheless had jurisdiction because the trust had a substantial connection with New South Wales and the trustee was within the jurisdiction. Clause 15 did not authorise a mere variation of the trust deed; on its proper construction the reference to variation was to be treated as a reference to a declaration of fresh trusts. Section 81 of the Trustee Act 1925 did not empower the Court to confer a general power to modernise or...

Court Disposition

Judicial advice given and limited section 81 orders made.

Orders

  • ['I advise the trustee by order that it would not be justified in assuming that clause 15 of the trust deed of 10 August 1977 authorises a variation of the trust deed.' 'I order pursuant to section 81 of the Trustee Act 1925 that the trust deed may be amended by inserting new clauses 7(n), 7(o) and 7(p) as set out...