In the matter of the George Hardi Family Trust [2021] NSWSC 1584

Supreme Court New South Wales

Medium Neutral Citation: In the matter of the George Hardi Family Trust [2021] NSWSC 1584 Hearing dates: 26 November 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See [29]-[30] Catchwords: EQUITY — Trusts and trustees — Judicial advice — Rectification of trust deed — subjective intention of the party to the document and the person or persons behind it Legislation Cited: Perpetuities Act 1984 (NSW) Cases Cited: Colquhoun v Dronpane Pty Ltd & Ors [2011] NSWSC 1500 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 14 NSWLR 329 Kent v Brown (1942) 43 SR (NSW) 124 Kirkham as Trustee of the Kirkham Family Trust [2010] WASC 106 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Public Trustee v Smith [2008] NSWSC 397; (2008) 1 ASTLR 488 Re Butlin's Settlement Trusts [1976] Ch 251 Sanwick Pty Limited v Kalyk [2016] NSWSC 100 Texts Cited: Heydon DJ, Leeming MJ and Turner PG, Meagher, Gummow and Lehane's Equity – Doctrines & Remedies, 5th ed., LexisNexis, 2015 Category: Principal judgment Parties: Budumu Pty Ltd (A.C.N. 001 216 397) (plaintiff) Representation: Counsel: D Barlin

Solicitors: Stacks Champion File Number(s): 2020/353678 Publication restriction: n/a

Judgment 1. Budumu Pty Ltd ("Budumu") holds the position of trustee of the George Hardi Family Trust ("the Trust Estate"). The terms of the trust are contained in a trust deed dated 11 April 1974 and made between Leo Hardi (as settlor) and the Trustee as trustee. 2. The Plaintiff filed a summons on 14 December 2020 seeking five prayers for relief. Four of these have been dealt with (see Budumu Pty Ltd (ACN 001 216 397) [2021] NSWSC 522) leaving the fifth which seeks to have the Trust Deed rectified. In particular there is sought a rectification of the "vesting day" as contained in paragraph 1(c) of the Trust Deed by deleting the words "…the period of fifty years after the execution of this settlement or…", as well as the words "…whichever shall be shorter…" 3. If provided, the effect of the order rectifying the Trust Deed would be to have the Royal lineage provision apply. It is unclear on the evidence why the 50 year period was chosen, along with the Royal lineage provision. 4. The Trust Estate was established on 11 April 1974 which date was prior to the application of the Perpetuities Act 1984 (NSW) which applied from 31 October 1984. As a result the 80 year perpetuities period does not apply to the Trust Estate and the Trust Estate is subject to the general law perpetuities period of a life in being plus 21 years which is satisfied by the Royal lineage position. 5. The Trustee relies upon two affidavits. One of Tobor Louis Varnay (19 October 2020) together with exhibits and that of Geoffrey Mark Robertson (13 August 2021). 6. There is no Contradictor to the relief sought.