Andtrust v Andreatta [2015] NSWSC 38

Supreme Court New South Wales

Medium Neutral Citation: Andtrust v Andreatta [2015] NSWSC 38 Hearing dates: 06/02/2015 Decision date: 06 February 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Declaration made as to trustee's power under trust deed to extend vesting date Catchwords: EQUITY – trusts - express trust - discretionary - construction - whether trust deed confers power on trustee to extend vesting date - whether power to vary trust by enlarging category of eligible beneficiaries has any meaning otherwise - whether proscription on varying trust so as to infringe the rule against perpetuities has any meaning otherwise

EQUITY – trusts - express trust - discretionary - whether s 81 of the Trustee Act 1925 (NSW) empowers the court to confer a power on a trustee to extend vesting date Legislation Cited: Trustee Act 1925 (NSW) Cases Cited: Re Dion Investments Pty Limited [2014] NSWCA 367 Category: Principal judgment Parties: Andtrust Pty Ltd (Plaintiff) Giovanni Vittorio Andreatta (First Defendant and 17 others) Representation: Counsel: M Lawson (Plaintiff)

Solicitors: Atkinson Vinden Lawyers (Plaintiff) File Number(s): 2014/328859

Judgment (EX TEMPORE – REVISED 6 FEBRUARY 2015) 1. HIS HONOUR: The plaintiff is the trustee appointed under a deed of trust made on 23 August 1976. The trust may be described as, although it is not so called, "The Andreatta Family Trust". 2. As one might expect, the trust deed specifies who are the eligible beneficiaries and what is the vesting date. It also provides for a class of nominated beneficiaries, being persons declared to be such from among the class of eligible beneficiaries. 3. The eligible beneficiaries in general terms are Mr Giovanni Andreatta, his wife Lucy, any child or grandchild of Mr Giovanni Andreatta born before the vesting day and any spouse of Mr Giovanni Andreatta or his children or grandchildren born before the vesting day. 4. The vesting date is defined relevantly, for present purposes, as being the expiration of forty years from the execution of the deed. It is thus 23 August 2016. 5. The principal assets of the trust are two parcels of real estate. They have increased substantially in value. If the trust were to be wound up on the vesting day (the deed uses variously the expressions "vesting date" and "vesting day" but nothing turns on this), significant sums would be payable (by the beneficiaries to whom the proceeds of sale would be distributed) in respect of that capital gain.