Colquhoun v Dronpane Pty Limited & Ors [2011] NSWSC 1500

Supreme Court New South Wales

Medium Neutral Citation: Colquhoun v Dronpane Pty Limited & Ors [2011] NSWSC 1500 Hearing dates: Friday, 4 November 2011 Decision date: 08 December 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to para [71] of judgment. Catchwords: EQUITY - trusts - rectification of trust deed - where trust deed contained no clause giving trustees discretion to appoint income or distribute capital prior to termination of trust - other clauses in trust deed indicate draftsman assumed power to appoint income or capital - affairs of trust conducted in way consistent with trustees believing they had power to appoint income and distribute capital without terminating trust - common intention that trustees have such powers - trust deed rectified in manner sought

EQUITY - trusts - rectification of trust deed - application for rectification of deed of resignation to provide for resignation of trustee - where deed of resignation purported to confirm resignation of trustee retrospectively - where trustee believed he retired as trustee by execution of previous deed of resignation - where previous deed of resignation expressly provided for trustee to continue - trustee did not intend that deed of resignation would effect his removal as trustee from date of deed - trustee intended to confirm mistaken belief that he retired as trustee by execution of previous deed of resignation - no disconformity between purported effect of deed and intention of plaintiff - rectification sought goes beyond jurisdiction to rectify instruments - claim for rectification of deed of resignation refused Legislation Cited: Trustee Act 1925 Cases Cited: Commissioner of Stamp Duties (NSW) v Carlenka Pty Limited (1995) 41 NSWLR 329 Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21; (2008) 238 CLR 516 Public Trustee v Smith [2008] NSWSC 397; (2008) 1 ASTLR 488 Bush v National Australia Bank Limited (1992) 35 NSWLR 390 Muriti v Prendergast [2005] NSWSC 281 Franklins Pty Limited v Metcash Trading Limited [2009] NSWCA 407; (2009) 76 NSWLR 603 MacKenzie v Coulson (1869) LR 8 Eq 368 Pukallus v Cameron [1982] HCA 63; (1982) 180 CLR 447 Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [1953] 2 QB 450 The Club Cape Schanck Resort Co Limited v Cape Country Club Pty Ltd [2001] VSCA 2; (2001) 3 VR 526 Texts Cited: George Farwell, A Concise Treatise on Powers, 2nd ed (1893) Stevens and Sons Category: Principal judgment Parties: Paul Julian Colquhoun (Plaintiff) Dronpane Pty Limited (1st Defendant) Alison Colquhoun (2nd Defendant) Anne Alison Judge (3rd Defendant) Lisa Jane Allan (4th Defendant) Sarah Jane Paton (5th Defendant) Richard Paul Colquhoun (6th Defendant) Chief Commissioner of State Revenue (7th Defendant) Representation: C J Bevan (Plaintiff) Defendants filed submitting appearances Gibney & Gunson (Plaintiff) File Number(s): 2011/39609