Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd [2009] NSWSC 1486

Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd [2009] NSWSC 1486

The word "shorter" in the definition of "vesting day" was an obvious error apparent on the face of the trust deed. Reading it literally would make the Royal lives clause purposeless or anomalously abridge the 21-year period, contrary to the ordinary purpose of such a clause. The deed could therefore be construed without extrinsic evidence or rectification so that the vesting day is the later of 21 years after execution of the deed or 21 years after the death of the last survivor of the relevant descendants of King George VI, subject to any earlier appointment by the trustees.

Jurisdiction
Australia
Judgment Date
16 November 2009
Procedural Posture
Equity Division, Expedition List; Trusts and Trustees Construction or Rectification / Ex Tempore Principal Judgment on Summons Seeking a Declaration as to Construction of a Trust Deed, Alternatively Rectification
Outcome
Declaration made as to the proper construction of the trust deed.
Legal Topics
['construction of Trust Deed' 'rectification' 'royal Lives Clause' 'vesting Day' 'perpetuity Period']
['equity' 'trusts'] ['construction of Trust Deed' 'rectification' 'royal Lives Clause' 'vesting Day' 'perpetuity Period']

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Procedural Posture

Equity Division, Expedition List; Trusts and Trustees Construction or Rectification / Ex Tempore Principal Judgment on Summons Seeking a Declaration as to Construction of a Trust Deed, Alternatively Rectification

Legal Issues

  1. 1 ['Whether, on the proper construction of the Oasis Trust deed, the definition of "vesting day" used "shorter" erroneously and should be read as "longer" or "later".' 'Whether rectification was necessary to correct the alleged error in the trust deed.']

Ratio Decidendi

The word "shorter" in the definition of "vesting day" was an obvious error apparent on the face of the trust deed. Reading it literally would make the Royal lives clause purposeless or anomalously abridge the 21-year period, contrary to the ordinary purpose of such a clause. The deed could therefore be construed without extrinsic evidence or rectification so that the vesting day is the later of 21 years after execution of the deed or 21 years after the death of the last survivor of the relevant descendants of King George VI, subject to any earlier appointment by the trustees.

Court Disposition

Declaration made as to the proper construction of the trust deed.

Orders

  • ['Declare that upon the proper construction of the deed of trust of the Oasis Trust dated 30 June 1982, the Vesting Day defined in clause 1 of that deed is the day upon which shall expire the period of 21 years after the execution of the deed or the day upon which shall expire the period of 21 years after the death...