In the matter of The Ross Tomlinson Trust [2020] NSWSC 1196

In the matter of The Ross Tomlinson Trust [2020] NSWSC 1196

The definition of 'vesting day' in cl 1 of the Deed is construed to mean 'whichever shall be the longer period' as the literal meaning 'shorter' is absurd, inconsistent with conventional trust practice, and it is self-evident that the intention was to prolong the trust's duration; thus the trust deed is rectified accordingly.

Jurisdiction
Australia
Judgment Date
03 September 2020
Procedural Posture
Trust Rectification / Principal Judgment
Outcome
Declaration made rectifying the trust deed as specified.
Legal Topics
['rectification of Instruments' 'definition of Vesting Day' 'obvious Drafting Error' 'joinder of Parties']
['equity' 'trusts'] ['rectification of Instruments' 'definition of Vesting Day' 'obvious Drafting Error' 'joinder of Parties']

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Procedural Posture

Trust Rectification / Principal Judgment

Legal Issues

  1. 1 ["Whether the word 'shorter' in the definition of vesting day was erroneously used instead of 'longer'" 'Whether the error in the trust deed is obvious and rectifiable by construction' 'Whether it is appropriate to proceed without the joinder of beneficiaries as parties given only one may be adversely affected']

Ratio Decidendi

The definition of 'vesting day' in cl 1 of the Deed is construed to mean 'whichever shall be the longer period' as the literal meaning 'shorter' is absurd, inconsistent with conventional trust practice, and it is self-evident that the intention was to prolong the trust's duration; thus the trust deed is rectified accordingly.

Court Disposition

Declaration made rectifying the trust deed as specified.

Orders

  • ['Declare that, upon proper construction of the deed of settlement dated 22 September 1971, the vesting day defined in cl 1 is the day upon which shall expire the period of thirty years after execution or twenty years after the death of the last survivor of the descendants now living of King George VI, whichever...