Shead Real Estate Pty Ltd (In the matter of EA & F Shead (Chatswood) Trust) [2018] NSWSC 614

Shead Real Estate Pty Ltd (In the matter of EA & F Shead (Chatswood) Trust) [2018] NSWSC 614

The Deed Poll was a deed supplemental to the Trust Deed within cl 33(a) and cl 33(b), and the alteration of the Vesting Day related to the Trustee's powers or discretions because it affected when those powers and discretions ceased. However, the Trustee was not justified in exercising cl 33(a) to delete the reference to the death of the last survivor of the descendants of King George V because the power in cl 7(d) to issue additional Units was not a general power of appointment for perpetuities purposes and an indefinite trust could permit issues outside the perpetuity period. The Trustee was justified in exercising cl 33 to delete cl 24 and the specified classification, designation and...

Jurisdiction
Australia
Judgment Date
08 May 2018
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Amendment of a Trust Deed / Procedural and Other Ruling; Decision on Questions for Advice
Outcome
The Court was satisfied that orders under s 63 of the Trustee Act 1925 (NSW) were appropriate and directed the Trustee to bring in short minutes of orders to give effect to the conclusions.
Legal Topics
['judicial Advice' 'amendment of Trust Deed' 'supplemental Deed' 'rule Against Perpetuities' 'powers of Appointment' 'unit Trust']
['equity' 'trusts and Trustees'] ['judicial Advice' 'amendment of Trust Deed' 'supplemental Deed' 'rule Against Perpetuities' 'powers of Appointment' 'unit Trust']

Case Brief

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Amendment of a Trust Deed / Procedural and Other Ruling; Decision on Questions for Advice

Legal Issues

  1. 1 ['Whether the Deed Poll executed on 29 June 2017 was a "Deed supplemental to" the Trust Deed within cl 33(a) and a "supplemental Deed" within cl 33(b).' 'Whether the modification of the definition of "the Vesting Day" related to the management or control of the Trust Fund, the investment of the Trust Fund, or the Trustee\'s powers or discretions within cl 33(a)(i).' 'Whether the Trustee would be justified in exercising the power in cl 33(a) to delete the reference to the death of the last survivor of the descendants of King George V from cl 1(4) of the Trust Deed.' 'Whether the power to issue additional Units under cl 7(d) was a general or special power of appointment for the purposes of the rule against perpetuities.' 'Whether the Trustee would be justified in deleting cl 24 and deleting words from cl 7(d) concerning classification, designation and re-classification of units.']

Ratio Decidendi

The Deed Poll was a deed supplemental to the Trust Deed within cl 33(a) and cl 33(b), and the alteration of the Vesting Day related to the Trustee's powers or discretions because it affected when those powers and discretions ceased. However, the Trustee was not justified in exercising cl 33(a) to delete the reference to the death of the last survivor of the descendants of King George V because the power in cl 7(d) to issue additional Units was not a general power of appointment for perpetuities purposes and an indefinite trust could permit issues outside the perpetuity period. The Trustee was justified in exercising cl 33 to delete cl 24 and the specified classification, designation and...

Court Disposition

The Court was satisfied that orders under s 63 of the Trustee Act 1925 (NSW) were appropriate and directed the Trustee to bring in short minutes of orders to give effect to the conclusions.

Orders

  • ['Direct the Trustee to file short minutes of orders to reflect the conclusions reached in the reasons of 8 May 2018.']