Lowther Park Pty Ltd as trustee for the Lowther Park Family Trust v Simon Della Marta [2023] NSWSC 1555

Lowther Park Pty Ltd as trustee for the Lowther Park Family Trust v Simon Della Marta [2023] NSWSC 1555

The Deed of Trust is rectified to remove the unintended vesting date of 1 January 2024, as clear and convincing evidence established that neither the settlor nor the parties intended the trust to vest on that date, and the relevant provision does not reflect their common intention. Further, orders are made to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 December 2023
Procedural Posture
Equity Proceeding (trusts) / Principal Judgment on Amended Summons (final Orders Made)
Outcome
Plaintiff succeeds; trust deed rectified; variation orders made; costs from trust on indemnity basis; further directions listed.
Legal Topics
['rectification of Trust Deed' 'variation of Trust Under Trustee Act 1925 (nsw) S 81(1)' 'perpetuity and Vesting Date for Trusts' 'exclusion of Foreign Persons as Beneficiaries']
['equity' 'trusts and Trustees'] ['rectification of Trust Deed' 'variation of Trust Under Trustee Act 1925 (nsw) S 81(1)' 'perpetuity and Vesting Date for Trusts' 'exclusion of Foreign Persons as Beneficiaries']

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Procedural Posture

Equity Proceeding (trusts) / Principal Judgment on Amended Summons (final Orders Made)

Legal Issues

  1. 1 ['Whether the Deed of Trust for the Lowther Park Family Trust should be rectified to remove a vesting date of 1 January 2024 not intended by the parties' "Whether the Deed of Trust should be varied to prevent 'foreign persons' as defined by statute from being beneficiaries"]

Ratio Decidendi

The Deed of Trust is rectified to remove the unintended vesting date of 1 January 2024, as clear and convincing evidence established that neither the settlor nor the parties intended the trust to vest on that date, and the relevant provision does not reflect their common intention. Further, orders are made to irrevocably prevent 'foreign persons' from being beneficiaries under the trust, pursuant to s 81 of the Trustee Act 1925 (NSW), as this variation is expedient, within the statutory power, and necessary to secure the trust from adverse tax consequences.

Court Disposition

Plaintiff succeeds; trust deed rectified; variation orders made; costs from trust on indemnity basis; further directions listed.

Orders

  • ['Plaintiff granted leave to file amended summons dated 11 December 2023.' 'Order pursuant to rule 7.6 of the Uniform Civil Procedure Rules 2005 (NSW) appointing Simon Della Marta to represent interests of any unborn and/or unascertained beneficiary.' "Order that the Deed of Trust dated 19 June 1974 be rectified by...