Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs v Elliott [2009] FCAFC 37
SOCIAL SECURITY – review of decisions to cancel disability support pensions – whether attribution of trust assets permissible – whether trust is a 'controlled private trust' – whether discretionary objects of a non-exhaustive trust have alone or together measurable interests in the corpus or income of the trust – s 1207V(2)(d) of the Social Security Act 1991 (Cth). HELD – not a 'controlled private trust' by virtue of s 1207V(2)(d) Social Security Act 1991 (Cth) ss 1207, 1207C(1), 1207P, 1207V, 1207X(2), 1208E(1) Attorney-General v Farrell [1931] 1 KB 81 referred to Attorney-General v Heywood (1887) 19 QBD 326 referred to Australian Securities and Investments Commission v Carey & Ors (No 6) (2006) 153 FCR 509 referred to Commissioner of Stamp Duties (Qld) v Livingston(1964) 112CLR 12referred to Gartside v Inland Revenue Commissioners [1968] AC 553 applied Leedale v Lewis [1982] 1 WLR 1319 considered R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 referred to SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v PAUL ELLIOTT and EMILSE ELLIOTT
VID 711 of 2008
BLACK CJ, STONE AND EDMONDS JJ
24 MARCH 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 711 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Appellant
AND: PAUL ELLIOTT
First Respondent
EMILSE ELLIOTT
Second Respondent
JUDGES: BLACK CJ, STONE AND EDMONDS JJ
DATE OF ORDER: 24 MARCH 2009
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
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