Nisus Pty Ltd [2022] NSWSC 369

Supreme Court New South Wales

Medium Neutral Citation: Nisus Pty Ltd [2022] NSWSC 369 Hearing dates: 22 February 2022 Date of orders: 22 February 2022 Decision date: 30 March 2022 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [21] Catchwords: EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether trustee can amend vesting day — Whether objects of the powers to appoint income and capital of the trust estate can be extended — Whether the terms of the Trust Estate may be amended so that successor trustees cannot benefit for the purposes of s 54(3) of the Duties Act — Whether trustee can define the term "income" to include statutory income such as capital gains Legislation Cited: Duties Act 1997 (NSW) Perpetuities Act 1984 (NSW) Trustee Act 1925 (NSW) Cases Cited: Kearns v Hill (1990) 21 NSWLR 107 Category: Principal judgment Parties: Nisus Pty Ltd – In the matter of the "Jennifer Trust" Representation: Counsel: D Barlin (plaintiff)

Solicitors: Medcalf Grant (plaintiff) File Number(s): 2021/364819 Publication restriction: N/A

Judgment 1. By way of Summons filed 23 December 2021 the trustee seeks judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW). 2. The Summons contains five prayers for relief which relate to the power to amend as contained in clause 2(a) of the Trust Deed. 3. In particular, the questions posed by these proceedings include whether the power to vary as contained in clause 2(a) of the Trust Deed can be exercised such that (and according to the prayers contained in the Summons): 1. the first prayer of relief - the term "vesting day" can be amended so as to exclude the fifty (50) year limitation, and retain the Royal lineage vesting period; 2. the second and third prayers of relief – the objects of the powers to appoint income and capital of the trust estate can be extended; 3. the fourth prayer of relief – the terms of the Trust Estate may be amended so that successor trustees cannot benefit for the purposes of s 54(3) of the Duties Act 1997 (NSW) ("Duties Act"); and 4. the fifth prayer of relief – the term "income" may be defined to include (as the default position) statutory income such as capital gains. 1. I heard this matter on 22 February 2022 having received detailed written submissions dated 17 February. I made orders at the conclusion of argument. I indicated I would provide reasons at a later date. These are they. 2. In the hearing before me the following evidence was relied upon: 1. the affidavit of Robin John Heming sworn on 7 November 2021 ("the Heming Affidavit"); 2. the affidavit of Robert Ross Medcalf sworn on 28 October 2021 ("the Medcalf Affidavit"); 3. the affidavit of Frank Butkovich sworn 23 November 2021 ("the Butkovich Affidavit"); and 4. the affidavit of Denis Meares sworn on 7 November 2021 ("the Meares Affidavit"); 5. the affidavit of Peta Edwina Howe ("Peta") sworn on 11 February 2022 ("the Howe Affidavit"); and 6. the affidavit of Heidi Aminta Heming ("Heidi") sworn on 11 February 2022 ("the HAH Affidavit"). 1. Peta and Heidi are the only children of Robin John Heming. They are the "first line" of the takers-in-default of the appointment of capital. They have an interest in the capital which is vested in interest (but not possession) contingent on them surviving the vesting date. 2. Both are aware of the proceedings and consent to the extension of the vesting date. 3. It may be noted that clause 1(i) of the Trust Deed contains the trusts of income. However the term "income" is not defined. Clause 1(ii) contains the trusts for income and capital upon the "Vesting Day" arriving. It is accepted that any extension of the vesting date would obviously affect the children of Robin John Heming but they have consented to the extension.