In the matter of the C.E. Brenchley Family Trust [2019] NSWSC 1602

Supreme Court New South Wales

Medium Neutral Citation: In the matter of the C.E. Brenchley Family Trust [2019] NSWSC 1602 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 Catchwords: EQUITY- trusts and trustees- rectification of trust deed

EQUITY- trusts and trustees- judicial advice Legislation Cited: Perpetuities Act 1984 (NSW) Trustee Act 1925 (NSW) Cases Cited: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 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: JD Heydon, Heydon on Contracts (2019, Thomson Reuters) Category: Principal judgment Parties: Elorance Pty Ltd (as trustee of the C E Brenchley Family Trust (plaintiff) Representation: Counsel: D Barlin (plaintiff)

Solicitors: Makinson d'Apice Lawyers (plaintiff) File Number(s): 2019/318341

Judgment

The proceedings 1. This matter concerns a claim for rectification of and in the alternative judicial advice with respect to, the trust deed which relates to the trust estate known as the "C.E. Brenchley Family Trust" (the Trust). The terms of the trust are evidence in a Deed made on 3 November 1981 as between the trustee and Arnold Vincent Milton (the settlor) (deed). 2. The plaintiff in this matter is the trustee of the trust estate. 3. The settlor was the long-time financial adviser and accountant for Colin Ernest. It is apparent that after obtaining advice from the settlor, Colin Ernest established a trust for the purchase of property and for the benefit of his family. 4. Broadly speaking, the proceedings relate to the definition of the term 'distribution date' in paragraph 21(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. 5. By summons filed 11 October 2019, the trustee seeks an order for rectification of the Deed to delete the words "….or the first day of January in the year two thousand and twenty whichever first occurs…" as contained in paragraph 21(b) of the Deed, being the definition of the term "distribution date". 6. In the alternative, 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 17 of the Trust deed. In particular whether the power to vary can be used to extend the 'distribution date'. 7. In support of the application the trustee relies on: 1. Affidavit of Anna Brenchley, 11 October 2019 2. Affidavit of Colin Russell Brenchley, 11 October 2019 3. Affidavit of Reginald Brenchley, 11 October 2019 4. Affidavit of Isabel McLelland, 11 October 2019 1. The evidence in this matter was entirely uncontroversial. 2. It was submitted that the subjective intentions of those involved in the establishment of the trust intended it to operate beyond January 2020 and the deed should therefore be rectified. Counsel for the trustee further stated that they considered the power to vary in cl 17 of the deed can be used to make the alterations as sought by rectification. 3. 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 rectifying the will and giving judicial advice. 4. I indicated I would in due course publish my reasons in full, these are they.