BAGI Pty Ltd trading as atf Nick Ristevski Family Trust v Marka Ristevski [2023] NSWSC 567

Supreme Court New South Wales

Medium Neutral Citation: BAGI Pty Ltd trading as atf Nick Ristevski Family Trust v Marka Ristevski [2023] NSWSC 567 Hearing dates: 22 May 2023 Date of orders: 26 May 2023 Decision date: 26 May 2023 Jurisdiction: Equity Before: Slattery J Decision: 2015 Deed is rectified to amend the list of beneficiaries to the beneficiaries named in the 1989 Deed. Advice given pursuant to Trustee Act 1925, s 63 that the plaintiff Trustee would be justified in acting in the administration of the Trust on the basis that the 2015 Deed (as rectified) accurately reflects the form of the 1989 Deed with respect to the identity of the beneficiaries of the Trust. Catchwords: EQUITY – equitable remedies – rectification - discretionary trust created in 1989 – original Trust deed (the 1989 Deed) names three beneficiaries, a father and his two daughters – original trust deed lost – attempts made in 2015 to create a replacement Trust deed, reproducing the structure of the 1989 Deed (the 2015 Deed) – mistake made in the 2015 Deed which includes in the list of beneficiaries a man and his wife but not the couple's two daughters – whether there was a common intention at the time of execution of the 2015 Deed to reproduce the list of beneficiaries in the 1989 Deed – whether the 2015 Deed should be rectified. EQUITY – Trusts and trustees – judicial advice – Trustee Act 1925, s 63 – whether the Trustee would be justified in treating the 2015 Deed as rectified, as accurately reflecting a form of the 1989 Deed with respect to the identity of the beneficiaries of the Trust. Legislation Cited: Duties Act 1997, s 272 Trustee Act 1925, s 63 Cases Cited: Australasian Performing Right Association Ltd v Austarama Television Pty Ltd (1972) 2 NSWLR 467 Elders Lensworth Finance Limited & Anor v Australian Central Pacific Limited (1986) 2 Qd R 364 Macedonian Orthodox Community Church ST Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Marralinga Pty Ltd v Major Enterprises (1973) 128 CLR 336 Pukallus v Cameron (1982) 180 CLR 447 Simic v NSW Land and Housing Corporation (2016) 260 CLR 85 Category: Consequential orders Parties: Plaintiff: BAGI Pty Ltd trading as atf Nick Ristevski Family Trust Defendant: Marka Ristevski Representation: Counsel: Plaintiff: M. Donovan Defendant: ex parte