In the matter of the Kien Trust (No 1) [2019] NSWSC 1601

Supreme Court New South Wales

Medium Neutral Citation: In the matter of the Kien Trust (No 1) [2019] NSWSC 1601 Hearing dates: 5 November 2019 Date of orders: 05 November 2019 Decision date: 05 November 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: Judicial Advice Given – orders made Catchwords: EQUITY- trusts and trustees- judicial advice Legislation Cited: Perpetuities Act 1984 (NSW) Trustee Act 1925 (NSW) Cases Cited: Cadell v Palmer (1833) 6 ER 956 Dawson v Perpetual Trustee Co (Ltd) (1953) 89 CLR 138 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Re BTA Institutional Services [2009] NSWSC 1294 Re Dion Investments Pty Ltd [2013] NSWSC 1941 Texts Cited: n/a Category: Principal judgment Parties: Perivil Pty Ltd (plaintiff) Representation: Counsel: D Barlin (plaintiff)

Solicitors: Townsends Business & Corporate Lawyers File Number(s): 2019/338149

Judgment 1. This matter concerns the request for judicial advice in relation to interpretation of the trust deed which relates to the trust known as the Kien Trust (No 1) (the trust). The terms of the trust are evidence in a Deed made on 18 March 1975 as between the trustee and Frederic Josef Kien (the settlor) (deed) and as varied by a deed of variation dated 18 October 2017 (amending deed). 2. The plaintiff in this matter, Perivil Pty Ltd is the trustee. 3. Broadly, speaking the proceedings relate to the definition of the term 'distribution date' in paragraph 19(b) of the deed, with the earliest date to be 1 January 2020. The trustee is ultimately seeking that the trust extend beyond 1 January 2020. 4. By summons filed 11 October 2019, the trustee seeks judicial advice pursuant to s 63 of the Trustee Act as to the scope of the power to vary the deed contained in cl 16 of the Trust deed. In particular whether the power to vary can be used to extend the 'distribution date'. 5. The trustee also seeks advice as to whether, in the event that there is no person who has the power to 'appoint' trustees pursuant to cl 15 of the deed, (as amended by the amending deed in 2017), whether the power to vary contained in cl 16 can still be exercised. This is because the power to vary requires consent of such persons. 6. Counsel for the trustee stated that they considered the power to vary in cl 16 of the deed can be used to make the alterations to extend the distribution date as sought. 7. The matter was heard on 5 November 2019. After brief submissions from Counsel for the trustee and having carefully considered the written submissions and the other materials, I made Orders giving advice such that the power to vary in cl 16 could be used to extend the distribution date. 8. I indicated I would in due course publish my reasons in full, these are they.