Feeney v Feeney [2008] NSWSC 298

Feeney v Feeney [2008] NSWSC 298

Even assuming s 81 of the Trustee Act 1925 applied, the Court would not exercise its discretion because the proposed transaction was not expedient in the interest of the beneficiaries. It would merely restore Christopher Feeney's life interest and remove Peter Feeney's interest, while the trust property might later be sold after Christopher Feeney surrendered or renounced the life interest. Further, persons whose interests might be affected, particularly Peter Feeney's progeny, were not before the Court and had no contradictor to advocate their position.

Jurisdiction
Australia
Judgment Date
10 March 2008
Procedural Posture
Application Under S 81 of the Trustee Act 1925 for Authority to Enter a Deed of Agreement and Release / Amended Notice of Motion; Ex Tempore Judgment
Outcome
Order under s 81 of the Trustee Act 1925 refused.
Legal Topics
['s 81 Trustee Act 1925' 'expedient Transaction' 'interests of Beneficiaries' 'variation of Trust Powers' 'life Interest Under Will']
['trusts and Trustees'] ['s 81 Trustee Act 1925' 'expedient Transaction' 'interests of Beneficiaries' 'variation of Trust Powers' 'life Interest Under Will']

Case Brief

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Procedural Posture

Application Under S 81 of the Trustee Act 1925 for Authority to Enter a Deed of Agreement and Release / Amended Notice of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether s 81 of the Trustee Act 1925 was enlivened to authorise the trustees to enter the proposed Deed of Agreement and Release.' 'Whether the proposed transaction was expedient in the interest of the beneficiaries.' 'Whether relief should be granted where potential beneficiaries, including the children of Peter Feeney, were not before the Court and had no contradictor.']

Ratio Decidendi

Even assuming s 81 of the Trustee Act 1925 applied, the Court would not exercise its discretion because the proposed transaction was not expedient in the interest of the beneficiaries. It would merely restore Christopher Feeney's life interest and remove Peter Feeney's interest, while the trust property might later be sold after Christopher Feeney surrendered or renounced the life interest. Further, persons whose interests might be affected, particularly Peter Feeney's progeny, were not before the Court and had no contradictor to advocate their position.

Court Disposition

Order under s 81 of the Trustee Act 1925 refused.

Orders

  • ['Relief in the Amended Notice of Motion declined.' 'Proceedings stood over to Thursday 27 March 2008 before the Registrar.']