Re Dion Investments Pty Limited [2020] NSWSC 1661

Supreme Court New South Wales

Medium Neutral Citation: Re Dion Investments Pty Limited [2020] NSWSC 1661 Hearing dates: 27 October 2020 Date of orders: 27 October 2020 Decision date: 27 October 2020 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [5]. Short minutes of order were provided by the plaintiff. Catchwords: EQUITY — Trusts and trustees — Judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) — Whether the Trustee is justified in disclaiming and/or surrendering and/or not exercising its powers to appoint income and/or capital to any beneficiary of the Trust Estate whilst the beneficiary is a "foreign person" as that term is defined for the purposes of the Land Tax Act 1956 (NSW) and the Duties Act 1997 (NSW) — Whether the power contained in clause 15 of the Trust Deed was relinquished upon the death of the last named survivor EQUITY — Trusts and trustees — Powers of trustees — Statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW) s 81 — Where plaintiff sought an order that the Trustee surrenders and/or releases all trusts and/or powers such that any beneficiary of the Trust that is a "foreign person" as that term is defined in the Land Tax Act and the Duties Act is not a beneficiary whilst they are "foreign persons" Legislation Cited: Conveyancing Act 1919 (NSW) s 28 Duties Act 1997 (NSW) s 104J Land Tax Act 1956 (NSW) s 5D Trustee Act 1925 (NSW) s 63, 81 Cases Cited: Arakella Pty Ltd v Pattern (2004) 60 NSWLR 334 Barry v Borlas Pty Ltd [2012] NSWSC 831 Cameron v Jeffress [2014] NSWSC 702 Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960 Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286 Crawford v Forshaw [1891] 2 CH 261 Federal Commissioner of Taxation (Cth) v Vegners (1989) 89 ATC 5274 Federal Commissioner of Taxation v Ramsden [2005] FCAFC 39 Ku-ring-gai Municipal Council v The Attorney General (1954) 55 SR (NSW) 65 Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 Re Dion Investments Pty Ltd [2013] NSWSC 1941 Re Dion Investments Pty Ltd [2014] NSWCA 367; (2014) 87 NSWLR 753 Re Grant (as trustee for the Grant Family Testamentary Trust) [2013] 1603; (2013) 10 ASTLR 149 Re Sykes (deceased) [1974] 1 NSWLR 597 Re Wills' Trust Deeds [1964] Ch 219 Riddle v Riddle (1952) 85 CLR 202 Soo v Soo [2016] NSWSC 1666 Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004 Vegners v Commissioner of Taxation (Cth) (1991) 91 ATC 213 Texts Cited: G Thomas, Thomas on Powers (Oxford University Press, 2nd ed, 2012) Category: Principal judgment Parties: Dion Investments Pty Limited (plaintiff) Representation: Counsel: Mr D Barlin (plaintiff)