Cihan v Cihan [2022] NSWSC 538

Cihan v Cihan [2022] NSWSC 538

The trustee's power of amendment extended to changing the nominator. The Third Deed was ineffective because it lacked the nominator's signature and was not intended to operate partially. The Fourth Deed did not take effect as it was held in escrow pending bank approval and was unregistered and unnotified to the trustee before valid amendment of the trust deed (the Sixth Deed) was completed. The Sixth Deed validly amended the trust deed, removing Kadir and appointing new nominators.

Jurisdiction
Australia
Judgment Date
05 May 2022
Procedural Posture
Equity / Principal Judgment
Outcome
The Sixth Deed is valid and effective; the Third Deed is ineffective; the Fourth and Fifth Deeds are invalid as they did not take effect before the Sixth Deed.
Legal Topics
['discretionary Trusts' 'trustee Powers' 'variation of Trust' 'appointment and Removal of Trustee' "nominator's Powers" 'family Provision']
['trusts' 'equity'] ['discretionary Trusts' 'trustee Powers' 'variation of Trust' 'appointment and Removal of Trustee' "nominator's Powers" 'family Provision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity / Principal Judgment

Legal Issues

  1. 1 ['Whether the trustee validly amended the trust deed to change the identity of the nominator' 'Whether the exercise of the power to remove and appoint a trustee was valid and effective' 'Whether the tripartite deed not signed by the nominator was effective' 'Whether the fourth deed was effective given it was held in escrow and unnotified to the existing trustee' 'Whether there was a fraud on the power by the nominator']

Ratio Decidendi

The trustee's power of amendment extended to changing the nominator. The Third Deed was ineffective because it lacked the nominator's signature and was not intended to operate partially. The Fourth Deed did not take effect as it was held in escrow pending bank approval and was unregistered and unnotified to the trustee before valid amendment of the trust deed (the Sixth Deed) was completed. The Sixth Deed validly amended the trust deed, removing Kadir and appointing new nominators.

Court Disposition

The Sixth Deed is valid and effective; the Third Deed is ineffective; the Fourth and Fifth Deeds are invalid as they did not take effect before the Sixth Deed.

Orders

  • ['Adjourn the proceedings to 9.30am on 24 May 2022 or such other time as arranged with Associate.' 'Direct the parties to confer on the form of orders to give effect to judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders.']