In the matter of The Ross Tomlinson Trust [2020] NSWSC 1196

Supreme Court New South Wales

Medium Neutral Citation: In the matter of The Ross Tomlinson Trust [2020] NSWSC 1196 Hearing dates: 27 August 2020 Date of orders: 3 September 2020 Decision date: 03 September 2020 Jurisdiction: Equity Before: Williams J Decision: Declaration made in the terms set out at [35(1)]. Catchwords: TRUSTS – trust instruments – rectification of instruments to correct obvious mistakes – where "vesting day" in trust deed is relevantly defined as thirty years after the date of settlement or the period of twenty years after the death of the last survivor of the descendants now living of his late Majesty King George VI whichever shall be the shorter – whether the word "shorter" used erroneously rather than the word "longer" – whether error in deed is obvious – declaration made rectifying the trust deed PRACTICE AND PROCEDURE – parties – joinder – trusts and trustees – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 7.9 and 7.12 – where trustee seeks a declaration to rectify trust instrument to correct an obvious mistake – where no objects or beneficiaries of the discretionary trust joined as parties to the proceeding – where the declaration sought has the potential to adversely affect only one beneficiary's rights – where that beneficiary supports the trustee's claim – appropriate for the Court to proceed and determine the trustee's claim for relief in the circumstances Legislation Cited: Perpetuities Act 1984 (NSW) Trustee Act 1925 (NSW), s 59 Trustee Act 1958 (Vic), s 63A Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 7.9 and 7.12 Cases Cited: Ashton v Pratt [2013] NSWCA 400 Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747; [2018] NSWCA 286 Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 Public Trustee v Smith [2008] NSWSC 397 Re McDonald Family Trust No 1 [2010] VSC 324 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd (2009) 14 BPR 27,213; [2009] NSWSC 1486 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 Texts Cited: D Ong, Trusts Law in Australia (5th ed, 2018, The Federation Press) Category: Principal judgment Parties: Ormonde Roger Butler (Plaintiff) Representation: Counsel: Mr D K L Raphael (Plaintiff)