Public Trustee v Smith [2008] NSWSC 397

New South Wales Supreme Court

CITATION : Public Trustee v Smith [2008] NSWSC 397

HEARING DATE(S) : 18/10/07; 19/10/07

JUDGMENT DATE : 5 May 2008

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : Stand the proceedings over for counsel for the cross-claimant to bring in short minutes of order in accordance with these reasons and to give directions for the resolution of the remaining issues including any further issues which the Public Trustee may wish to raise in the summons for judicial advice.

CATCHWORDS : WILLS – Testatrix left property by will owned by a company as trustee of a discretionary trust – testatrix controlled trustee – testatrix not named as a beneficiary - TRUSTS – remedies – rectification – whether persons establishing discretionary family trust intended to name herself as an object – whether clear evidence of sufficiently precise intention so that Court can determine the substance and detail of variation ESTOPPEL – estoppel by convention – whether both parties conducted their relationship on the basis of a mutual assumption – whether an act or omission on the part of the trustee led to any action or inaction on the part of the plaintiff – testatrix the controlling mind of the trustee – same assumption in both capacities but no causal link founding an estoppel - EQUITY – equitable estates and interests – discretionary family trust – after rectification testatrix was a member of the class of objects and was the controlling shareholder and director of the corporate trustee – whether testatrix was therefore the beneficial owner of the trust property – trust not a sham – control of trustee with power of appointment coupled with membership of the class of objects does not amount to beneficial ownership

Environmental Planning and Assessment Act 1979 (NSW) Wills, Probate and Administration Act 1989 (NSW) LEGISLATION CITED : Stamp Duties Act 1920 (NSW) Family Law Act 1975 (Cth) Corporations Act 2001 (Cth)