Falkenhagen v Perpetual Trustee Company Limited [2017] NSWSC 580

Supreme Court New South Wales

Medium Neutral Citation: Falkenhagen v Perpetual Trustee Company Limited [2017] NSWSC 580 Hearing dates: 10 May 2017 Date of orders: 10 May 2017 Decision date: 10 May 2017 Jurisdiction: Equity Before: Lindsay J Decision: The administration of a trust may be brought to a practical conclusion, notwithstanding a beneficiary's inability to terminate the trust by invocation of the rule in Saunders v Vautier, by means of partial administration orders (under the Uniform Civil Procedure Rules 2005 NSW, rule 54.3) directing the trustee to distribute trust property when: (a) contingencies which impede termination of the trust are so remote as to be disregarded as a matter of practical certainty; and (b) those contingencies can be accommodated by an undertaking by the beneficiary to account for trust property in the event that, contrary to expectations, such a contingency occurs. Catchwords: EQUITY — Trusts and trustees — Termination of trust — Rule in Saunders v Vautier — Assignment of respective interests to principal beneficiary who holds life estate unavailable – Possibility new beneficiary may arise – Partial administration orders – Distribution of trust property – Effective end to administration of trust

EQUITY — Trusts and trustees — Partial administration orders — Uniform Civil Procedure Rules 2005 NSW, rule 54.3 - Distribution of trust property – Protection of contingent rights — Contingencies remote — Undertaking by plaintiff beneficiary to account for distributed trust property if required — Inappropriate for court to require undertakings detrimental to personal relationships — Undertaking to account sufficient — Protection of trustee – Judicial advice Legislation Cited: Uniform Civil Procedure Rules 2005 NSW Cases Cited: Bullas v Public Trustee [1981] 1 NSWLR 641 CPT Custodian Pty Limited v Commissioner of State Revenue (2005) 224 CLR 98 Gonzales v Claridades (2003) 58 NSWLR 188 Macrae v Walsh (1927) SR (NSW) 290 National Trustees Executors & Agency Co Ltd v Tuck [1967] VR 847 Re Bruxner [2010] NSWSC 718 Re Cassidy (deceased) [1979] VR 369 Re Estate late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 Re Schneider [2009] NSWSC 566; (2009) 3 ASTLR 61 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 (affirmed (1841) Cr & Ph 240; 41 ER 482) Simpson v Trust Company Fiduciary Services Limited [2009] NSWSC 912 Trustees Executors and Agency Co Ltd v Margottini [1960] VR 417 Wilcox v Poole [1974] 2 NSWLR 693 Texts Cited: Thomas on Powers (1998), page 176 Category: Principal judgment Parties: Plaintiff: BH Falkenhagen Defendant: Perpetual Trustee Company Limited 000 001 007 Representation: Counsel: Plaintiff: A Joseph Second Defendant: P O'Loughlin