Shead Real Estate Pty Ltd (In the matter of EA & F Shead (Chatswood) Trust) [2018] NSWSC 614

Supreme Court New South Wales

Medium Neutral Citation: Shead Real Estate Pty Ltd (In the matter of EA & F Shead (Chatswood) Trust) [2018] NSWSC 614 Hearing dates: 12-13 April 2018; Submissions 20 April 2018 Date of orders: 08 May 2018 Decision date: 08 May 2018 Before: Emmett AJA Decision: Direct the Trustee to file short minutes of orders to reflect the conclusions reached in the reasons of 8 May 2018. Catchwords: EQUITY – trusts and trustees – judicial advice –whether Deed Poll a "deed supplemental to" the Trust Deed – whether modification or alteration of provisions of Trust Deed relate to powers or discretions of the Trustee

EQUITY – trusts and trustees – rule against perpetuities – whether power to issue new units is general or specific power of appointment Legislation Cited: Conveyancing Act 1919 (NSW), s 36 Trustee Act 1925 (NSW), s 63 Perpetuities Act 1984 (NSW), ss 6, 7, 8 Cases Cited: Re Earl of Coventry's Indenture [1974] Ch 77 Re Park [1932] 1 Ch 580 Cadell v Palmer (1833) 1 Cl & F 372 Texts Cited: JHC Morris and W Barton Leach, The Rule against Perpetuities (Stevens & Sons, 1962, 2nd ed) Category: Procedural and other rulings Parties: Shead Real Estate Pty Ltd (Plaintiff) Representation: Counsel: Denis Barlin (Plaintiff)

Solicitors: Jemmeson & Fisher (Plaintiff) File Number(s): 2017/00310059

Judgment 1. The plaintiff, Shead Real Estate Pty Ltd (the Trustee) is the trustee of the EA & F Shead (Chatswood) Trust (the Trust) established by deed of trust executed on 23 December 1977 (the Trust Deed). The Trustee seeks judicial advice under s 63 of the Trustee Act 1925 (NSW) (the Trustee Act) in relation to amendment of the Trust Deed. Section 63(1) of the Trustee Act relevantly provides that a trustee may apply to the Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.