Mongar Pty Ltd v Levko Pty Ltd [2008] NSWSC 445

Mongar Pty Ltd v Levko Pty Ltd [2008] NSWSC 445

The will confers on Fred only a life estate in respect of the relevant trust distributions, consistent with the structure of the will and the protective trust mechanism under s 45 of the Trustee Act 1925. Any unexpended income appropriated but not paid to Fred at his death is held as provided by s 45(6)(b) of the Trustee Act 1925.

Parties
Plaintiff: Mongar Pty Limited; Plaintiff: Bettgar Pty Limited; Defendant: Levko Pty Limited
Jurisdiction
Australia
Judgment Date
08 May 2008
Procedural Posture
Application for Construction of Will and Trustee Order / Judgment on Summons for Construction and S 81 Order
Outcome
Will construed; declaration to be made as to Fred’s interest; orders to be made empowering trustees under s 81 Trustee Act 1925, subject to short minutes to be provided.
Legal Topics
Construction of Will, Protective Trusts, Trustee Powers Under S 81 Trustee Act 1925
Succession Trusts and Trustees Construction of Will Protective Trusts Trustee Powers Under S 81 Trustee Act 1925

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Parties

Mongar Pty Limited

Plaintiff

Bettgar Pty Limited

Plaintiff

Levko Pty Limited

Defendant

Procedural Posture

Application for Construction of Will and Trustee Order / Judgment on Summons for Construction and S 81 Order

Legal Issues

  1. 1 Whether Fred takes a life interest or an absolute interest in distributions from the Fred Discretionary Trust
  2. 2 Whether proposed orders under s 81 Trustee Act 1925 fall within the Court's power

Ratio Decidendi

The will confers on Fred only a life estate in respect of the relevant trust distributions, consistent with the structure of the will and the protective trust mechanism under s 45 of the Trustee Act 1925. Any unexpended income appropriated but not paid to Fred at his death is held as provided by s 45(6)(b) of the Trustee Act 1925.

Court Disposition

Will construed; declaration to be made as to Fred’s interest; orders to be made empowering trustees under s 81 Trustee Act 1925, subject to short minutes to be provided.

Orders

  • Plaintiffs to bring in short minutes of order in anonymised form in accordance with the reasoning provided.
  • An order under s 72 Civil Procedure Act 2005 prohibiting publication of the identity of the second defendant and evidence given.