Feeney v Feeney [2008] NSWSC 890

Feeney v Feeney [2008] NSWSC 890

The deed was ineffective to terminate or alter the testamentary trusts because the five children other than Christopher had vested but defeasible interests, the testator's grandchildren had contingent interests, and those contingent beneficiaries were not parties whose consent could extinguish the trust. In any event, rectification failed because Peter Feeney did not share the alleged continuing common intention and there was no clear and convincing proof that the deed mistakenly failed to record a continuing antecedent agreement; conventional estoppel failed because Peter did not adopt the relevant assumption; and any mistake or hardship would not justify refusing specific performance if...

Jurisdiction
Australia
Judgment Date
13 August 2008
Procedural Posture
Equity Proceedings Seeking Specific Performance of a Deed, With a Cross Claim for Rectification and Estoppel / Principal Judgment After Hearing
Outcome
Amended summons dismissed; amended cross-summons dismissed; no order as to costs.
Legal Topics
['termination of Trust' 'rule in Saunders V Vautier' 'construction of Will' 'acceleration of Interests' 'right of Residence' 'rectification' 'conventional Estoppel' 'specific Performance' 'discretionary Defences' 'costs']
['trusts' 'wills and Estates' 'equity' 'civil Procedure'] ['termination of Trust' 'rule in Saunders V Vautier' 'construction of Will' 'acceleration of Interests' 'right of Residence' 'rectification' 'conventional Estoppel' 'specific Performance' 'discretionary Defences' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Specific Performance of a Deed, With a Cross Claim for Rectification and Estoppel / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the deed dated 18 January 2005 was effective to alter or extinguish the trusts created by the testator's will." 'Whether the deed should be rectified to provide that the property would only be sold if a price of at least $2,400,000 was achieved.' 'Whether the plaintiff was estopped from enforcing the deed according to its terms.' 'Whether specific performance should be refused on discretionary grounds of mistake and hardship.' 'What costs order should be made.']

Ratio Decidendi

The deed was ineffective to terminate or alter the testamentary trusts because the five children other than Christopher had vested but defeasible interests, the testator's grandchildren had contingent interests, and those contingent beneficiaries were not parties whose consent could extinguish the trust. In any event, rectification failed because Peter Feeney did not share the alleged continuing common intention and there was no clear and convincing proof that the deed mistakenly failed to record a continuing antecedent agreement; conventional estoppel failed because Peter did not adopt the relevant assumption; and any mistake or hardship would not justify refusing specific performance if...

Court Disposition

Amended summons dismissed; amended cross-summons dismissed; no order as to costs.

Orders

  • ['Amended summons dismissed.' 'Amended cross-summons dismissed.' 'Exhibits may be returned after 28 days.' 'No order as to the costs of the summons or cross-summons, with the intent that each party bear his or her own costs.']