New South Wales Supreme Court CITATION : Global Custodians Ltd v Mesh [1999] NSWSC 624 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2539/98 HEARING DATE(S) : 18/05/99; 19/05/99 JUDGMENT DATE : 25 June 1999 Global Custodians Limited (P) PARTIES : Pamela Ann Mesh and Helen Chuproff (D1 & 2) Hari Bhagat (D3) JUDGMENT OF : Young J Plaintiff: R F Margo COUNSEL : Defendants 1 & 2: L Robinson and B MacRae Third defendant in person SOLICITORS : Plaintiff: Holding Redlich CATCHWORDS : Equity [145]; Trusts; Settlor; Power to amend trust deed; Limits on power; Equity [184][213]; Trusts; Beneficiary's right to assign; What assignment entails; Whether assignee entitled to call for account (NSW) Charitable Fundraising Act 1991 (NSW) Conveyancing Act 1919, s 12 ACTS CITED : (NSW) Partnership Act 1892, s 31 (UK) Statute of Uses Supreme Court Rules Pt 20 r1(3A) Attorney-General v Beck (1980) 2 NSWLR 77 Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 Farley and Lewers Ltd v Attorney-General (1962) 63 SR (NSW) 814 CASES CITED : Glegg v Bromley [1912] 3 KB 474 King v Victoria Insurance Co Ltd [1896] AC 250 Morris v Morris (1993) 9 WAR 150 Re Simersall (1992) 108 ALR 375 DECISION : See para 81 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG, J FRIDAY 25 JUNE 1999 2539/98 - GLOBAL CUSTODIANS LIMITED V MESH & ORS JUDGMENT 1 HIS HONOUR : By summons filed 22 May 1998 and amended on 17 June 1998, the plaintiff sought a declaration that it was entitled to inspect all books of account of the Estate Mortgage Fighting Fund Trust established by deed made 2 August 1990 between Hari Bhagat as settlor and Pamela Ann Mesh and Helen Chuproff as trustees. Various ancillary orders were sought. 2 After voluminous affidavits were filed on both sides, the matter found its way into what might loosely be called "the Estate Mortgage Case Management List" of which I am in charge. On hearing the matters in that list on 9 December 1998 I ordered that the questions in Schedule A to the plaintiff's notice of motion be decided separately and before all the other issues in the proceedings. I then listed for 18 and 19 May 1999 the hearing of these separate issues. 3 On 18 May Mr R F Margo appeared for the plaintiff, Dr L Robinson with Mrs B Macrae appeared for the first and second defendants, and the third defendant, Mr Bhagat, appeared in person. Mr Margo said that he now only sought the determination of three questions. However, the defendants objected to this and in the end, rather than lose the hearing date, Mr Margo agreed that the original questions would be before the court, but he indicated that he would only be seeking to argue questions which were the equivalent of 3 to 8. 4 The defendants made it quite clear that the reason why they objected to questions 1 and 2 being deleted was that the only assignment on which the plaintiff could possibly rely before the proceedings were commenced on 22 May 1998 was the assignment to the Speights referred to in question 1. Unless the plaintiff could establish the Speight assignment, then there was no locus standi for it to bring any proceedings on 22 May and accordingly the whole suit should be dismissed. 5 Mr Margo submitted that the summons had been amended on 17 June 1998. By that date there had also been an assignment by the Greenlees so that even if the Speight assignment was bad, the Greenlees assignment would support the proceedings. The defendants said that this was too late. 6 There is no doubt that the defendants' argument would have been correct before the introduction of Part 20 r 1(3A) of the Supreme Court Rules. 7 I believe the appropriate way of dealing with this problem is to insert a further question 2A, which I have inserted of my own motion, into the questions posed last December because it is necessary to answer this question along with the others. With this amendment the questions I have to consider are as follows: 1. Whether Mr John Healey Speight (also known as Jack Speight) and Mrs Jessie Barrie Marr Speight ("the Speights") were beneficiaries of the Estate Mortgage Fighting Fund Trust ("the Trust")? 2. If the answer to question 1 is in the affirmative, whether the deed of assignment dated 17 February 1998 between the Speights as assignors and the plaintiff as assignee was valid to assign the Speights' rights as beneficiaries of the Trust to the plaintiff? (I have called this the "Speight Assignment") 2A. If the answer to question 1 or 2 is in the negative, whether it was competent for the plaintiff to amend the summons on 17 June 1998 and continue this litigation? 3. Whether the amending deed dated 6 April 1998 between the third defendant as settlor of the Trust and the first and second defendants as trustees of the Trust purporting to amend the trust deed of the Trust by amending the definition of "Beneficiaries" in the trust deed retrospectively to the effect that beneficiaries in the Trust will not be entitled to assign their rights as beneficiaries ("the Amending Deed"): (a) was made in breach of fiduciary obligations owed to the beneficiaries, further or alternatively to the plaintiff beneficiary, by the settlor and the trustees respectively? (b) is ineffective? (c) should be set aside? 4. If the answers to questions 1, 2 and 3(b) or 3(c) are in the affirmative, whether or not the plaintiff until further order and by its external legal advisers and independent professional accountants, who have given confidentiality undertakings to the court, should be permitted to inspect the books of account of the Trust and lists of its beneficiaries ("the interim relief")? 5. If the answers to questions 1 and 2 are in the affirmative, and the answer to question 3(b) and 3(c) are in the negative, whether or not the amending deed operated retrospectively to invalidate the assignment by the Speights to the plaintiff? 6. If the answer to question 5 is in the negative, whether or not the plaintiff should be given the interim relief? 7. Whether the deed of assignment dated 30 May 1998 between Mr Archie Greenlees and Mrs Norma Patricia Greenlees ("the Greenlees") as assignors and the plaintiff as assignee was valid to assign the Greenlees' rights as beneficiaries of the Trust to the plaintiff? 8. If the answer to question 7 is in the affirmative, whether or not the plaintiff should be given the interim relief? I will deal with these questions in turn. 8 1 & 2. The first matter of fact that arises before I can answer these questions is whether the Speights were ever members of the Trust. 9 The background facts are more or less undisputed. In June 1990 concern was felt amongst a lot of investors in a series of property trusts which can conveniently be described as "the Estate Mortgage Trusts". There were many small investors in these trusts including many pensioners. A Mr Van Breugel in Melbourne and Mr Hari Bhagat in Sydney, concerned themselves in organising unit holders into groups for the purpose of bringing recovery actions. 10 At a meeting in Melbourne on 8 July 1990, a national committee was elected to represent unit holders and the Estate Mortgage Fighting Fund was formed. Messrs Galbally and O'Bryan were appointed solicitors to that Fund. 11 On 16 July 1990, Mr Bhagat placed advertisements in newspapers, for a meeting to be held at the Hordern Pavilion in respect of the Estate Mortgage Fighting Fund. The advertisement bore the names Hari & Pamela Bhagat. Pamela Bhagat is the wife of Hari Bhagat and is identical with the first defendant, Pamela Anne Mesh. Mr Van Breugel, who by that stage called himself the chairman of the national committee, gave that meeting his goodwill, but indicated that any money collected should be sent to Melbourne, that the NSW committee would be considered a sub-committee of the national committee, and that careful arrangements should be made to record the names of subscribers so that they could receive the news releases. 12 At the Hordern Pavilion on 22 July, Mr Bhagat made a speech, the text of which is in evidence. A hundred dollars was collected from each of a series of people and was banked by Brambles Security with the Westpac Bank, initially in Brambles own bank account. 13 However, even by the next day, a dispute arose between the national committee and the NSW group as to various matters. It was initially proposed that the NSW moneys would be covered by a trust deed in which there would be six trustees including a Mr Clout. This deed was executed on 25 July 1990. On the same day a bank account was opened at the Westpac Bank Royal Exchange Branch and Brambles transferred the moneys collected at the Hordern Pavilion into that account. 14 The settlor named in the trust deed was Hari Bhagat. Clauses 2.1 to 2.3 of the trust deed were as follows: "2.1 The Settlor declares and directs that the Trustees shall act and the Trustees agree to act as Trustees of the Trust Fund and will hold the Trust Fund upon the trusts subject to the provisions of this deed. 2.2. The Trustees may in their absolute discretion at any time or times during the continuance of the Trust accept or reject any moneys, investments and property which may be donated or otherwise given or offered to the Trust by any person. 2.3 The Trustees shall stand possessed of the Trust Fund in trust for the Beneficiaries in proportion to their respective contributions to the Trust Fund." 15 "Beneficiaries" was defined in clause 1.2 as "Those parties who have, at any time, been represented by the Settlor and Pamela Mesh/Bhagat in the Proceedings and any other person who has contributed moneys, investments or property to the Trust which has been accepted by the Trustees." 16 Paragraph 9.1 of the trust deed is as follows: "At the direction of the Settlor, the Trustees must by deed alter, modify, add to or cancel all or any of the provisions of this deed (including this clause) in such manner and to such extent that the Settlor thinks fit on the condition that the Settlor is and the Trustees are satisfied that such alteration, modification, addition or cancellation does not, unless all the Beneficiaries agree, prejudice the interests of the Beneficiaries at the time of such alteration, modification, addition or cancellation." 17 Clause 10.1 permitted the settlor by instrument to remove any trustee in his absolute discretion and without giving any reason for the removal. 18 On 27 July 1990, Mr Bhagat indicated to Mr Van Breugel, that as far as he was concerned, the Estate Mortgage Fighting Fund Trust NSW was not a party to the national committee. He stipulated his terms for co-operation with the national committee. On 29 July, there was a purported removal of Mr and Mrs Bhagat from their office in the NSW Estate Mortgage Fighting Fund with them being replaced by Messrs Priddy and Joyce. 19 On 30 and 31 July, the six trustees directed Westpac to freeze the account until further notice. 20 On 31 July Mr Bhagat as settlor, purported to remove all the trustees and to appoint instead his wife and a Mrs Chuproff, who are the present first and second defendants. 21 A new trust deed was then executed on 2 August 1990 with Mr Bhagat as settlor and Ms Mesh and Mrs Chuproff as trustees. Apart from the change of trustees, the only difference was the omission of clause 10.4 which had required the trustees to give notice of the fact of removal of a trustee to all beneficiaries. 22 On 5 August 1990, Mr Bhagat as settlor, purported to amend the 25 July 1990 deed to delete clause 10.4. 23 The Speights, it would appear, attended the Hordern Pavilion meeting and a cheque butt has been produced dated 22/7/1990 with the notation "Estate Mort Fighting Fund $100". Although Exhibit DX218 gives a list of the people who had contributed at the Hordern Pavilion and elsewhere, there is no mention of this $100 having been banked. 24 On 7 August, J & B Speight wrote to the Westpac Bank alleging that they had subscribed $100 by cheque, that they understood the money had been deposited with Westpac and under no account did they want their money removed by Mr Bhagat. 25 In November 1990, a settlement was reached between the Melbourne group and Mr Bhagat. The settlement was that if a donor requested his or her money to be returned that would happen, where there was a request that a fund go to either the Sydney or Melbourne fund that would be implemented; otherwise the funds would be divided one-third to Melbourne and two-thirds to Sydney. 26 Although the evidence is fairly slim, it would seem that Mr Clout's copy of the Westpac list confirmed a payment by the Speights and that Mr Clout's recollection is that that payment eventually found its way to Melbourne. Neither Mr Clout nor Mr or Mrs Speight gave evidence. 27 In March 1992, the Speights wrote to Mrs Chuproff requesting a meeting of beneficiaries to consider and determine the Trust pursuant to clause 8.3 of the trust deed and asking for a full audited account to be sent to the beneficiaries prior to the meeting. There is no evidence as to what happened following this letter. 28 My duty is to find the facts on the material that I have. On that material I must find that the Speights paid their $100 at the Hordern Pavilion, it was collected by Brambles and banked to the Westpac account in the name of the six trustees and then transferred to Melbourne. The question is on these facts were they beneficiaries? 29 The reason why this question is important is that on 17 February 1998 the Speights executed a deed of assignment of their interest in the Trust to the plaintiff. The plaintiff claims that that assignment gives it locus to commence these proceedings (alternatively if this assignment does not, then the Greenlees assignment, to which I will pass in due course has that effect). 30 I should note here that although it is not relevant for this set of reasons, it would seem that the Melbourne group settled with the persons involved with the Estate Mortgage Funds whereas the Sydney group is still very much in battle with them. The plaintiff, which is closely connected with the current trustees of the Estate Mortgage Funds is very much interested in the activities of the NSW group. Mr Bhagat has been its very vocal opponent in various pieces of litigation now before the court. 31 I have already set out the definition of beneficiaries. On the facts as I have found them, there is a literal compliance with the definition in that the Speights' money was contributed at the Hordern Pavilion and it was banked in the name of the six trustees with Westpac Bank. Only later did it go to Melbourne either as a result of the Speights' letter of August 1990 or because of some formal or informal distribution of contributions. There does not appear to be any qualification on the definition as to a person who has been a beneficiary but who has ceased to have any involvement with the Trust. That this is so is reinforced by the words "at any time" in the definition. 32 However as has been seen, under clause 2.3 the Trust Fund is held in trust for the beneficiaries in proportion to their respective contributions to the Trust Fund. This would seem inequitable if, pursuant to the settlement with the people in Melbourne, people who had their money in the Westpac Bank account returned to them were still able to claim as beneficiaries. 33 However, on the other hand, it is to be noted that the rights of beneficiaries are incidentally noted throughout the deed. The most important reference is clause 8.3 that the Trust may be determined by a two-third majority vote of the beneficiaries which suggests that there is a definable number of beneficiaries and that a list is kept of them. There are other provisions dealing with the consent of all the beneficiaries. 34 This causes one to analyse what are the rights of the beneficiaries. 35 There was much debate before me as to whether the present trust is a fixed trust or a discretionary trust. 36 The defendants submit that the distinction between the two types of trust is that with a discretionary trust the trustee has a discretion as to when any payment from the trust fund will be made and as to who in a definite class of beneficiaries will receive it, whilst in a fixed trust the trustee has no such discretion. They cite Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547. However, at p 552 in that report Gummow J, when a Federal Court Judge, said that the meaning of the term "discretionary trust" is "Primarily a matter of usage, not doctrine." 37 The argument then proceeded that as none of the beneficiaries had an interest in the capital or income of the Trust until the time of distribution their entitlement was merely to due administration of the Trust and so they did not have an interest in the benefit under the Trust and thus had no standing. Collins v AMP Superannuation Ltd (1997) 147 ALR 243, 251, was cited in this connection, but that was a case as to standing before the Commonwealth Superannuation Tribunal. 38 There is no element of discretion in the instant Trust. Clause 2.3 is quite clear. The Trust Fund is held for the beneficiaries in proportion to their contributions. However, in the meantime it is to be utilised for the common purpose of recovering moneys from what Mr Bhagat calls "the Estate Mortgage debacle". 39 However, this does not necessarily mean that a beneficiary's interest is assignable. All that happens to a person who purports to assign his or her interest is that he or she ceases to be a beneficiary. 40 For practical purposes, as the Speights are not plaintiffs, what must be shown is the assignment of a legal chose in action within the meaning of s 12 of the Conveyancing Act 1919. The reason for this is that it would only be such an assignment which would have the effect of enabling the plaintiff to sue in its own name or at least enabling the plaintiff to sue in its own name without naming the Speights as defendants. 41 A legal chose in action within s 12 comprehends all assignable legal rights: King v Victoria Insurance Co Ltd [1896] AC 250, 254. "An essential criterion of a chose in action is that the right concerned is one of a proprietary character; a purely personal right, however valuable it may be from the standpoint of the person entitled thereto, cannot be of the nature of a chose in action ...". 42 In the instant case it is only when the Trust has been terminated, the beneficiaries and their respective shares known, that there could be a situation where a legal chose in action existed. Up until that time there is either an equitable chose in action or an equitable right short of a chose in action. In either case s 12 of the Conveyancing Act would not be applicable. 43 It follows that the present suit cannot be properly constituted without the assignors being parties. 44 I pause here to note that there appears to be a gap in the State's protection of funds raised at a public meeting. Probably, though not certainly, as funds were raised from Estate Mortgage investors there was no fund raising from "the public" under the Corporations Law. As the funds were not raised for any charitable, benevolent, philanthropic or patriotic purpose, the Charitable Fundraising Act 1991 is inapplicable. Thus it would not appear that any public official could intervene to ensure that the fund is, as promised, controlled by trustees, rather than being used at the settlor's sole discretion. However, there is some control as a beneficiary may obtain relief if he or she can show a breach of trust or otherwise good cause for the court to involve itself in the administration of the trust. Experience with other public funds tends to show that this is insufficient as only very few beneficiaries will spend their own moneys to take this step. I thus draw the matter to the attention of Law Reform bodies. 45 It is tempting to stop at this point, but as the Speights are obviously in the plaintiff's camp, and were persons who probably held the beneficiary's right for an account at the date of institution of the proceedings, it would be doubtless an easy matter for them to be added as plaintiffs or defendants. Accordingly, I will need to consider the problem a little more deeply, that is, is the right of a beneficiary at this stage something which can be assigned? 46 I believe that it is useful to start with the case of a discretionary trust even though the present is not a discretionary trust. Although there is very little learning on the point, the better view is that one cannot assign one's interest as a possible object of a discretionary trust in such a way as to give the assignee the benefit accruing to the object of the trust in the form of appointed property; see Grbich and others Winding Up Trusts (CCH, Sydney, 1984) p 56. At the most, what would be able to be assigned would be the right to have the Fund properly administered. That is the right to apply to a court of equity to have the Fund properly administered. 47 It is clear that a bare right of action cannot be either a chose in action or assignable under s 12 or otherwise; see eg Glegg v Bromley [1912] 3 KB 474 and Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101, 120. The test is, in the words of Parker J in Glegg's case at p 490, "Whether the subject-matter of the assignment was, in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity." 48 Thus with a discretionary trust the assignee would only get the right to bring proceedings for due administration and accordingly there could be no assignment of the interest. 49 The present Trust is not a discretionary trust but clause 7.3 of the trust deed reads as follows: "7.2 A Beneficiary is not entitled to require the transfer to him of any of the property comprised in the Trust Fund nor (subject to the Beneficiaries's rights created by this deed and by law) is he entitled to interfere with or question the exercise or non-exercise by the Trustees of any of the trusts, powers, authorities or discretions conferred upon them by this deed or in respect of such property." 50 As Ford and Lee show in their Principles of the Law of Trusts (LBC, Sydney, 1996) at para [9290] as substituted in 1999, it is misconceived to think of the right of the beneficiary to inspect documents in terms of a proprietary right of the beneficiary. Although that thought has passed through the minds of various Judges who have given recent decisions in this area, as those learned authors say, that theory gives rise to more problems than it solves. All the beneficiary really has is rights against the trustee; Re Simersall (1992) 108 ALR 375, 381. See also Morris v Morris (1993) 9 WAR 150, 153. 51 It should also be observed that this procedural equity to inspect documents is in any event subject to the proviso that such right is only exercisable when it would not be inconsistent with the purpose of the Trust; see Ford and Lee op cit para [9290]. 52 Thus the "right" to call for accounts or to inspect documents is a mere procedural right which has not passed to the assignee. 53 It follows that at least unless the trustee has committed an actual breach of trust or the Trust is at home, all that the beneficiary has is a right of action in equity. This is not the subject of an assignment. 54 There seems to be no provision made in the deed for assigning the right to receive a pro rata payment at the termination of the Trust. However, prima facie all species of property legal or equitable present or future can be assigned at least in equity. However, an assignment of a right to receive proceeds at the end of the Trust does not transfer the right to interfere with the Trust itself. An analogy is an assignment of a share in a partnership. Unless the partnership agreement makes special provision, an assignment of a partner's interest merely assigns the share of capital or income otherwise payable to the assignor. Although the assignment of the interest of a partner is now dealt with by s 31 of the Partnership Act 1892, that section is merely declaratory of the rules of law and equity before the Act was commenced. 55 The assignment of an interest in the partnership operates to assign the income and capital of the partnership in such a way as to make the partner a trustee of the assignee, but it in no way entitles the assignee to interfere with partnership affairs: Commissioner of Taxation v Everett (1980) 143 CLR 440. Furthermore in partnership it is clear that the assignee is bound to accept the account of profits as agreed by the original partners and the partnership books of account are conclusive in the absence of contrary agreement: Yuill v Kidman (1910) 11 CLR 601 and see Higgins and Fletcher, Law of Partnership in Australia and New Zealand 7th ed (LBC, Sydney, 1996) pp 67 and 68. 56 Thus, although the deed in the instant case purports to be an absolute assignment of all the legal and beneficial rights title and interests of the Speights, it operates only to transfer the ultimate interest in the Trust Fund. 57 It should be noted that the way the deed is drawn the ultimate benefit in the Trust Fund will not include any of the moneys that may be recovered from those responsible for the so-called Estate Mortgage debacle. All that will be left is what is left in the Fund after the action is completed or the Trust terminated, augmented if need be by any recovery from the present trustees of the Estate Mortgage Fighting Fund Trust. 58 It follows that questions 1 and 2 should be answered as follows: 1. Yes; 2. Yes, but it only operates so that the rights that the Speights otherwise had to the ultimate distribution from the Fund is now held by them in trust for the plaintiff. It does not operate so as to permit the plaintiff to maintain these proceedings. 59 2A. The real question here is whether a person must have locus standi at the time the suit is instituted or whether by virtue of Part 20 of the Supreme Court Rules or otherwise, a suit can be saved if the plaintiff has locus standi at the time of hearing. 60 The decision of Yeldham J in Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463, and my own decision in Darrington v Caldbeck (1990) 20 NSWLR 212, seem to suggest that if a person does not have locus standi at the date of institution of the suit, then the mere fact that he or she gets standing at a later time such as by obtaining a grant of probate does not affect the fact that initially the proceedings were a nullity and as a nullity cannot be validated. 61 However, in Farley and Lewers Ltd v Attorney-General (1962) 63 SR (NSW) 814, the Court of Appeal, though holding that a local council did not have standing to maintain an action, allowed an amendment to substitute the Attorney General as plaintiff. It did this, as p 821 of the report shows, under a special rule then in force that if proceedings had been commenced through a bona fide mistake in a doubtful case in the name of a wrong person a plaintiff can be substituted. That rule no longer applies. 62 In Attorney-General v Beck [1980] 2 NSWLR 77, 93, Powell J said that the proceedings in the Farley and Lewers case prior to the new plaintiff being substituted could not have been a nullity because if they were, the Court of Appeal could not have done what it in fact did do. He also noted that there were like cases in England. The defendant may at the relevant time move for dismissal, but unless that happens the proper plaintiff can be substituted. 63 The proper plaintiff would have to be a person who had the right as at the date of institution of the suit. There does not appear to be any authority which would allow a person not entitled to the relief as at the date of institution of the suit to be substituted as plaintiff. 64 It follows that even if the Greenlees Assignment had a greater effect than the Speight Assignment, it would not be sufficient to entitle the present plaintiff to maintain these proceedings. Question 2A is thus answered "No: At least not without further amendment". 65 3. This question does not arise because the plaintiff has no locus standi to raise it. 66 However, in case the matter should go elsewhere I will deal briefly with some of the submissions that were made. 67 There are various provisions of trust law which are so basic to the concept of a trust that a court of equity is loath to see them by-passed. These principles include: (1) When a settlor parts with the trust property either by conveyance or declaration of trust the settlor thereby relinquishes all right title and interest in the trust property save and except that which is reserved to the settlor under the trust deed (Underhill and Hayton Law of Trusts and Trustees 15th ed (Butterworths, London, 1995) p 6. (2) Up until the repeal of the Statute of Uses, the only effective way of reserving to the settlor any power to alter the trusts was to limit the trust property in such a way that the trustees held to the use of the settlor in certain circumstances or there were shifting uses to take effect on certain acts of the settlor. Unless the power given to the settlor was explicitly conferred to occur from time to time the power could be exercised once only. (3) Essentially, a power to amend is part of the declaration of trust by the settlor which is to be construed along with all the other trusts in the document. (4) It is difficult for a settlor to maintain that a power to amend or any other power which prima facie contradicts other trusts in the trust deed should be permitted because a subsidiary trust repugnant to the main trust will be considered to be void in equity. (5) The exercise of a power to amend cannot affect any vesting which has already taken place. This is because the power to alter the trusts is itself an interest in the Trust and its exercise cannot affect an already vested interest. (6) Subject to principle (5), if a trust deed is drafted in a sufficiently wide way a retrospective amendment will be valid: Gra-Ham Pty Ltd v Perpetual Trustees WA Ltd (1989) 1 WAR 65. 68 What happened in this particular Trust does not measure up particularly well against some of these principles. 69 There are also a series of other problems with this particular deed amongst which are: (1) The trust deeds of 25 July and 3 August 1990 are not precisely in accordance with what was told to the people contributing money in the Hordern Pavilion and it was on the basis of what they were told at that meeting that they contributed their money on trust. (2) The scheme of the deed is that the trustees make the amendment on the demand of the settlor, but at least one amendment was not so made because the trustees declined to do so and the settlor purported to put in new trustees and make a new trust deed. (3) There are problems with the phrase "Unless all the beneficiaries agree" in clause 9.1. This has been interpreted by the settlor as meaning that if one beneficiary considers that the alteration does not prejudice the interests of the beneficiaries, then the stage can never be reached where all the beneficiaries agree that it does so. There would be good arguments for other constructions. (4) The absence of the words "from time to time" in clause 9.1 and their presence in clause 9.2 may mean that there can only be one amendment to the deed and not subsequent amendments whenever the settlor thinks it appropriate. 70 However, having said all that, the plaintiff at present does not have standing to get an answer to question 3. In any event a major hurdle to the plaintiff would be to have the court hold that the settlor owes a duty to the beneficiaries in and about exercising the power to amend. Prima facie there would be no such obligation because as I have said earlier, the power to amend is given beneficially to the person concerned and not as a fiduciary power. 71 Accordingly, question 3 should merely be answered "This does not arise at this stage." 72 4-6. Do not arise. 73 7. The deed of assignment between Greenlees and the plaintiff is in the same form as the Speight Assignment. Accordingly, exactly the same problems arise. 74 However, a different question of fact arises as to whether Mr Greenlees and his wife were ever beneficiaries. 75 Mr Greenlees did give evidence. He says that on 15 August 1990 he sent a bank cheque for $100. He sent that to the Sydney accountants for the NSW branch of the Trust. He was appointed a member of the committee in August 1990 and in September 1990 became Vice-President of the committee. He resigned about 13 May 1991. 76 Mr Bhagat says that there are no records of the Trust showing Mr Greenlees' money having been received and that whilst it is acknowledged he was Vice-President of the committee, it must have been because everyone assumed that a man of such profile in the organisation had in fact made a donation. 77 It is more likely than not, especially in view of the inadequacy of many of the records of the Sydney Trust, that Mr Greenlees did make a payment of $100. His affidavit really was not answered by the fact that Mr Bhagat did not have records. 78 Accordingly I would find as a fact that Mr and Mrs Greenlees were beneficiaries of the Trust at the date they entered into the deed of assignment. 79 However for the reasons already indicated, the question must be answered the same way as question 2. 80 8. This does not arise. 81 It would follow from the answers to these questions that no interim relief should be given at present and that unless some move is made by the plaintiff in the near future, there is danger that the suit may be dismissed. 82 However, for the moment I will merely publish these reasons and the answers to the questions and stand over the suit to be mentioned on 16 July 1999 at 10 am which is the next occasion when the matters involving Estate Mortgage are before me. *************** Last Modified: 06/25/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.