Cisera v Cisera [2023] NSWSC 1507

Supreme Court New South Wales

Medium Neutral Citation: Cisera v Cisera [2023] NSWSC 1507 Hearing dates: 17 November 2023; further written submission 20 November 2023 Date of orders: 5 December 2023 Decision date: 05 December 2023 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [168]-[170] Catchwords: EQUITY – Trusts and trustees – variation of trusts – Trustee Act 1925, s 86A – jurisdiction – doctrine that Court's powers do not extend to approval of resettlement – discretionary family trust established in 1974 with vesting date in 2024 – proposed arrangement to extend vesting date to 2054 and add descendants of existing named family member as members of beneficial class – whether a "variation" of the existing trust – scope of Court's power – application for approval on behalf of contingent members of beneficial class – benefit to persons for whom approval is sought – claimed tax savings – need for contradictor – application not approved in current form Legislation Cited: Duties Act 1997 Income Tax Assessment Act 1997 (Cth), Division 104 Trustee Act 1925 (UK), s 57 Trustee Act 1925, ss 81, 86A, 86B, 86C Trustee Act 1936 (SA), s 59C Trustee Act 1958 (Vic), s 63A(1) Trustees Act 1962 (WA), s 90 Trusts Act 1973 (QLD), s 95 Variation of Trusts Act 1958 (UK), s 1(1) Variation of Trusts Act 1994 (Tas), Pt 3 Cases Cited: Application of Nyasa No 19 Pty Ltd [2023] NSWSC 578 Application of Walker Corporation Pty Ltd [2022] NSWSC 1609 Baba v Sheehan (2021) ACSR 462 Campbell v Campbell [2022] NSWSC 554 Chapman v Chapman [1954] AC 429 Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960 Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747 Inland Revenue Commissioners v Holmden [1968] AC 685 Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223 Perpetual Trustees Victoria Ltd v Barns (2012) 34 VR 387 Re Ball's Settlement Trusts [1968] 1 WLR 899 Re Dyer [1935] VLR 273 Re Holt's Settlement [1969] 1 Ch 100 Re Perenna Nominees Pty Ltd (2022) 66 VR 246 Re Plator Nominees [2012] VSC 284 Re T's Settlement Trusts [1964] Ch 158 Roome v Edwards [1982] AC 279 Tallerman and Company Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 Thomas Hare Investments Ltd v Hare (2012) 34 VR 656 Wright v Gater [2012] 1 WLR 802 Wyndham v Egremont [2009] EWHC 2076 (Ch) Texts Cited: Harris JW, Variation of Trusts (1975, Sweet & Maxwell) Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia (2016, 8th ed, LexisNexis Butterworths) at [17-07], [23-15] Law Reform Committee, Court's Power to Sanction Variation of Trusts (1957, Cmnd 310) Tucker L, Le Poidevin N, Brightwell J, Lewin on Trusts (2020, 20th ed, Vol 2, Sweet & Maxwell) at [53-033], [53-059] Category: Principal judgment Parties: John Anthony Cisera (First Plaintiff) Sang Hee Shin (Second Plaintiff) Mario Cisera (Third Plaintiff) Cisera Holdings Pty Ltd (Fourth Plaintiff) Ryan Bada Cisera by his Tutor (First Defendant) Ruby Sarang Cisera by her Tutor (Second Defendant) Representation: Counsel: E Young/ G Adams (Plaintiffs) S O'Rourke, Solicitor (Defendants)