Application of NBT Pty Ltd [2023] NSWSC 919

Supreme Court New South Wales

Medium Neutral Citation: Application of NBT Pty Ltd [2023] NSWSC 919 Hearing dates: 31 July 2023 Date of orders: 31 July 2023 Decision date: 31 July 2023 Jurisdiction: Equity Before: Meek J Decision: Judicial advice given. Rectification orders made. Catchwords: JUDICIAL ADVICE — Principles discussed — Application for advice regarding issues as to whether trustees justified in administering a trust by reference to copies of trust deeds rather than originals, whether trustees had been validly removed and appointed, whether a beneficiary had been validly appointed, whether former trustees had been excluded as beneficiaries and the extent of powers to vary the vesting of the trust TRUSTS — Original of trust deed misplaced, lost or accidently destroyed — Discussion regarding what is required by way of proof of whether copy of trust deed is a true copy of the original — What is required to establish whether a document is an accurate copy of an original trust deed depends upon the particular circumstances of any given case — On facts trustee justified in administering trust on the basis of the documents adduced on the application TRUSTS — Removal of trustee and appointment of new trustee — Construction of trust deed and legal principles regarding how the Court should approach the question of whether a person who has signed a document has signed it in one or more different capacities TRUSTS — Variation of trust — Construction of trust deed and power to vary trust TRUSTS — Beneficiaries — Construction of trust — Whether former trustees excluded from being potential beneficiaries — As a matter of construction the term "Trustee" only applies to the trustee or trustees for the time being of the trust fund PERPETUITIES — Trust was established on 8 January 1980, prior to the introduction of the Perpetuities Act 1984 (NSW) — Perpetuities Act 1984 (NSW) not applicable — Consideration of question of vesting of trust in light of provisions and "Royal Lives" clause TRUSTS — Remedies — Rectification of trust deed — Issue as to whose intention is relevant for rectification — The identification of the party or parties whose intention is relevant depends upon the circumstances — Where settlor had no active and operative intention as to terms of the trust and acted merely on instructions of trustee — On facts the "real" settlor was the trustee and not the nominal settlor — Trustee intended trust to have indefinite duration to fullest extent permitted by law — Rectification ordered Legislation Cited: Perpetuities Act 1984 (NSW) Real Property Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 Application of Doolan [2023] NSWSC 320 Application of Walker Corporation Pty Ltd [2022] NSWSC 1609 Benaroon Pty Ltd v Larmar [2020] QCA 62 Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58 Grain Sorghum Marketing Board v J Jackson & Co Pty Ltd; Ex parte Grain Sorghum Marketing Board [1962] Qd R 427 In the matter of George Hardi Family Trust [2021] NSWSC 1584 Kearns v Hill (1990) 21 NSWLR 107 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 Mercanti v Mercanti [2017] HCASL 59 Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206 Public Trustee v Smith [2008] NSWSC 397 Re Cleeve Group Pty Ltd [2022] VSC 342 Re Estate of the late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844; (2013) 10 ASTLR 251 Sanwick Pty Ltd v Kalyk [2016] NSWSC 100 Category: Principal judgment Parties: NBT Pty Ltd (First Plaintiff) Breakfast Creek Station Pty Ltd (Second Plaintiff) Representation: Counsel: D Barlin (Plaintiffs)