Lewis v Nortex Pty Ltd [2001] NSWSC 511

Lewis v Nortex Pty Ltd [2001] NSWSC 511

Although the impugned document was signed on 16 April 1991 or within a few days thereafter, it did not make Peter Lawrence Lewis sole appointor because the evidence did not establish delivery of the notice to the trustee or the required endorsement on the trust deed. The March 1997 endorsement could not operate retrospectively and had only limited effect after that date. The income splits from 1991 to 1995 were not validated by valid and effective determinations under clause 4(1), because there was no prior written consent of the appointor and no proper evidence of determinations made during the relevant accounting periods.

Jurisdiction
Australia
Judgment Date
22 June 2001
Procedural Posture
Notice of Motion by Lamru Pty Ltd Appealing Against Rejection of Its Proof of Debt in Winding Up Proceedings / Determination of Separate Questions Before Other Issues
Outcome
Separate questions answered substantially in favour of Lamru Pty Ltd on questions 2 and 5, with question 1 answered in favour of the Lewis interests; question 3 did not arise.
Legal Topics
['unit Trust Deed' 'appointor of Trust' 'delivery of Notice' 'recitals in Deeds' 'proof of Debt' 'income Distributions']
['equity' 'trusts' 'corporations and Insolvency'] ['unit Trust Deed' 'appointor of Trust' 'delivery of Notice' 'recitals in Deeds' 'proof of Debt' 'income Distributions']

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Procedural Posture

Notice of Motion by Lamru Pty Ltd Appealing Against Rejection of Its Proof of Debt in Winding Up Proceedings / Determination of Separate Questions Before Other Issues

Legal Issues

  1. 1 ['Whether the impugned document was signed on 16 April 1991 or another date.' 'Whether the impugned document had the effect of making Peter Lawrence Lewis the sole appointor of the Nortex Unit Trust.' 'If the impugned document made Peter Lawrence Lewis sole appointor, whether the appointor notified the trustee of the appointment or any consent to distribution by the trustee, and when.' 'What effect, if any, the notice bearing date 31 March 1997 had.' 'Whether the income splits from 1991 to 1995 were validated by valid and effective determinations in accordance with clause 4(1) of the trust deed.']

Ratio Decidendi

Although the impugned document was signed on 16 April 1991 or within a few days thereafter, it did not make Peter Lawrence Lewis sole appointor because the evidence did not establish delivery of the notice to the trustee or the required endorsement on the trust deed. The March 1997 endorsement could not operate retrospectively and had only limited effect after that date. The income splits from 1991 to 1995 were not validated by valid and effective determinations under clause 4(1), because there was no prior written consent of the appointor and no proper evidence of determinations made during the relevant accounting periods.

Court Disposition

Separate questions answered substantially in favour of Lamru Pty Ltd on questions 2 and 5, with question 1 answered in favour of the Lewis interests; question 3 did not arise.

Orders

  • ['Question 1(a) answered: Yes.' 'Question 2 answered: No.' 'Question 3: Does not arise.' 'Question 4 answered: The endorsement of March 1997 cannot have any effect before March 1997 and only has limited effect after that date.' 'Question 5 answered: No.']