Marshin Holdings Pty Ltd v Attorney General of New South Wales & Ors [2013] NSWSC 326

Marshin Holdings Pty Ltd v Attorney General of New South Wales & Ors [2013] NSWSC 326

The trust is not invalid for uncertainty or administrative unworkability due to the wide class eligible for appointment. The trustee's powers to appoint/remove to the Appointed Class are valid. Nominations and removals made on 3 September 2012 were valid, so the current Appointed Class consists of the eight named grandchildren and all Eligible Charities. The trustee has power to nominate a person or company in its capacity as trustee as a member of the Appointed Class.

Parties
Plaintiff: Marshin Holdings Pty Ltd; 1st Defendant: Attorney General of New South Wales; 2nd Defendant: Teresa Jozefa Tkaczyk; 3rd Defendant: Melissa Naomi Hagenfelds; 4th Defendant: Alan Saffron; 5th Defendant: Adam Brand
Jurisdiction
Australia
Judgment Date
12 April 2013
Procedural Posture
Application for Judicial Advice / Decision
Outcome
Judicial advice given under s 63 Trustee Act 1925 (NSW); plaintiff's costs paid out of the trust estate.
Legal Topics
Judicial Advice to Trustee, Validity of Appointment and Removal Powers, Construction of Trust Deed, Capacity of Trustee to Nominate Appointed Class
Equity Trusts Law Judicial Advice to Trustee Validity of Appointment and Removal Powers Construction of Trust Deed Capacity of Trustee to Nominate Appointed Class

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Parties

Marshin Holdings Pty Ltd

Plaintiff

Attorney General of New South Wales

1st Defendant

Teresa Jozefa Tkaczyk

2nd Defendant

Melissa Naomi Hagenfelds

3rd Defendant

Alan Saffron

4th Defendant

Adam Brand

5th Defendant

Procedural Posture

Application for Judicial Advice / Decision

Legal Issues

  1. 1 Whether the trusts created by the Trust Deed are invalid due to uncertainty in identifying Appointed Class members
  2. 2 Validity of the powers to appoint and remove members of the Appointed Class
  3. 3 Validity and effect of nominations and removals made on 3 September 2012

Ratio Decidendi

The trust is not invalid for uncertainty or administrative unworkability due to the wide class eligible for appointment. The trustee's powers to appoint/remove to the Appointed Class are valid. Nominations and removals made on 3 September 2012 were valid, so the current Appointed Class consists of the eight named grandchildren and all Eligible Charities. The trustee has power to nominate a person or company in its capacity as trustee as a member of the Appointed Class.

Court Disposition

Judicial advice given under s 63 Trustee Act 1925 (NSW); plaintiff's costs paid out of the trust estate.

Orders

  • Plaintiff advised under s 63 Trustee Act 1925 (NSW) in accordance with all subparagraphs set out at [21](a)-(e) of the judgment.
  • Plaintiff's costs of the application to be paid on the trustee basis out of the trust estate.