Barry v Borlas Pty Limited & Ors [2012] NSWSC 831

Barry v Borlas Pty Limited & Ors [2012] NSWSC 831

The Court considered that the proposed amendment to the vesting day was expedient, in the management and administration of the trust, would advance the objectives of the trust and minimise adverse tax impacts, and was supported by the beneficiaries, so empowered the trustee to amend the vesting day under s 81 Trustee Act 1925 despite the deed’s prohibition.

Jurisdiction
Australia
Judgment Date
12 July 2012
Procedural Posture
Application Under Trustee Act / Judgment on Application
Outcome
Application granted
Legal Topics
['discretionary Trusts' 'power of Court to Alter Trustee Powers' 'vesting Day Amendment']
['equity' 'trusts'] ['discretionary Trusts' 'power of Court to Alter Trustee Powers' 'vesting Day Amendment']

Case Brief

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Procedural Posture

Application Under Trustee Act / Judgment on Application

Legal Issues

  1. 1 ['Whether the court may empower the trustee to amend the vesting day despite the trust deed prohibiting such variation' 'Whether the proposed amendment is expedient under s 81 Trustee Act 1925']

Ratio Decidendi

The Court considered that the proposed amendment to the vesting day was expedient, in the management and administration of the trust, would advance the objectives of the trust and minimise adverse tax impacts, and was supported by the beneficiaries, so empowered the trustee to amend the vesting day under s 81 Trustee Act 1925 despite the deed’s prohibition.

Court Disposition

Application granted

Orders

  • ['Orders 1, 3 and 4 made in accordance with the summons, empowering the first defendant trustee to amend the vesting day specified in the trust deed to a date not later than 14 June 2057.']