Application of NSFT Pty Ltd [2010] NSWSC 380

Application of NSFT Pty Ltd [2010] NSWSC 380

Because the trust deed contained no power of variation and modernisation was expedient in the management or administration of the trust property for the benefit of beneficiaries, particularly to enable proper identification and classification of trust property and income for tax and accounting purposes, s 94 of the Trusts Act 1973 (Qld) empowered the Court to confer limited new powers on the trustee. The broader blanket amendment power sought was refused because it was not confined to what was expedient in the management or administration of trust property.

Jurisdiction
Australia
Judgment Date
05 May 2010
Procedural Posture
Application by Trustee for an Order Conferring Power to Vary a Family Discretionary Trust Deed Under S 94 of the Trusts Act 1973 (qld) / Principal Judgment
Outcome
Application granted in modified form.
Legal Topics
['variation of Trust Deed' 'trustee Powers' 'family Discretionary Trust' 'management and Administration of Trust Property' 'cross Vesting Jurisdiction' 'tax Treatment of Trust Income and Capital']
['trusts' 'equity' 'taxation'] ['variation of Trust Deed' 'trustee Powers' 'family Discretionary Trust' 'management and Administration of Trust Property' 'cross Vesting Jurisdiction' 'tax Treatment of Trust Income and Capital']

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Procedural Posture

Application by Trustee for an Order Conferring Power to Vary a Family Discretionary Trust Deed Under S 94 of the Trusts Act 1973 (qld) / Principal Judgment

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to make an order under s 94 of the Trusts Act 1973 (Qld).' 'Whether it was expedient in the management or administration of trust property to confer powers on the trustee to separately identify and classify trust property and income and vary the trust deed for tax or accounting purposes.' 'Whether the proposed blanket power of amendment was too wide for s 94(1).']

Ratio Decidendi

Because the trust deed contained no power of variation and modernisation was expedient in the management or administration of the trust property for the benefit of beneficiaries, particularly to enable proper identification and classification of trust property and income for tax and accounting purposes, s 94 of the Trusts Act 1973 (Qld) empowered the Court to confer limited new powers on the trustee. The broader blanket amendment power sought was refused because it was not confined to what was expedient in the management or administration of trust property.

Court Disposition

Application granted in modified form.

Orders

  • ['Order pursuant to s 94 of the Trusts Act 1973 (Qld) that the deed of settlement for the Neil Statham Family Trust be amended to give the trustee power to separately identify and classify the property comprising the Trust Fund and income of the Trust Fund as to their source and nature and to make distributions...