Application of NSFT Pty Ltd [2010] NSWSC 380

New South Wales Supreme Court

CITATION : Application of NSFT Pty Ltd [2010] NSWSC 380

HEARING DATE(S) : 30 April 2010

JUDGMENT DATE : 5 May 2010

JURISDICTION : Equity

JUDGMENT OF : Biscoe AJ

DECISION : (1) Order that the Neil Statham Family Trust deed be varied by conferring new powers upon the trustee; (2) the plaintiff is to be paid its costs out of the Neil Statham Family Trust on the trustee basis.

CATCHWORDS : TRUSTS - order amending trust deed to empower trustee of family discretionary trust to separately identify and classify trust property and income and to vary trust deed to better manage and administer trust property.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) LEGISLATION CITED : Trustee Act 1925 (NSW) Trusts Act 1973 (Qld) Variation of Trusts Act 1958 (UK)

CATEGORY : Principal judgment

Arakella v Paton [2004] NSWSC 13, 60 NSWLR 334 Chapman v Chapman [1954] AC 429 CASES CITED : Commissioner of Taxation v Bamford [2010] HCA 10 Re Ritchie's Will Trusts [2005] QSC 81 Re Steed's Will Trusts [1960] Ch 407 Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004, 64 ATR 325

TEXTS CITED : Mowbray et al, Lewin on Trusts, 18th ed (2008) Sweet & Maxwell

PARTIES : NSFT Pty Ltd as trustee for the Neil Statham Family Trust (plaintiff)

FILE NUMBER(S) : SC 2010/00064139

COUNSEL : Mr M Evans (plaintiff)

SOLICITORS : PricewaterhouseCoopers (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BISCOE AJ

5 May 2010

2010/00064139 APPLICATION BY NSFT PTY LTD AS TRUSTEE FOR THE NEIL STATHAM FAMILY TRUST JUDGMENT 1 HIS HONOUR: This is an application for an order that would empower a trustee of a family discretionary trust to vary the trust deed to better manage and administer trust property. Such a power is commonly found in modern trusts. This is an old trust. The application is made under s 94 of the Trusts Act 1973 (Qld) because the governing law is the law of Queensland. This Court has jurisdiction by reason of Queensland cross-vesting legislation. 2 I propose to grant the application for the following reasons. THE TRUST 3 The plaintiff, NSFT Pty Ltd, is trustee for the Neil Statham Family Trust, a family discretionary trust established by a deed of settlement dated 21 March 1974 (the trust deed). 4 The original trustee was Hanini Pty Ltd. 5 The "Eligible Beneficiaries" identified in the trust deed are: (i) any children, grandchildren or great grand children of the Parent; (ii) any spouse of any child, grandchild or great grandchild of the Parent; (iii) any children, grandchildren or great grand children of the Brother; (iv) any spouse of any child, grandchild or great grandchild of the Brother; (v) any such other persons or companies (not being ineligible appointees) or charities as the Parent shall by notice to the Trustee before the closing date appoint to be beneficiaries for the purposes of this Deed.