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Walker Corporation Pty Ltd [2022] NSWSC 1609
"The vesting date is too early. Rectify the deed!"
___
In 1976 a trust was established: [2]
P and P’s parent signed the deed for Tee: [3]
The trust assets included land in SW Sydney; likely “substantially” exceeding $100m: [5], [20]
The trust vested on the earlier of: a date in 2032, the date of death of a royal family member (“royal lives” clause), or a date determined by the Tee: [7]
The trust’s land might take years to develop, perhaps until 2046: [9], [54]
The deed was amended by Tee various times (in accordance with the deed) but there was no power to amend the vesting date: [9], [23] - [37]
Tee commenced proceedings to rectify the trust deed’s vesting date.
Tee was the sole party to the proceedings. No benef opposed them: [11]
The Court appointed a barrister as contradictor, with Tee to indemnify them for their costs: [12]
The contradictor said: the criteria for rectification were not met, and the Tee had been too slow to apply: [13]
The solic who drafted the deed had been involved in legal proceedings about a similar deed described as badly drafted, and criminal proceedings regarding a crime of dishonesty: [38] - [41], [43] - [46]
P swore an affidavit in support of Tee’s application: [47]
P’s evidence said they first turned their mind to the 2032 vesting date in 2016: [14] - [22]
P gave evidence they did not understand, or intend, that the trust vest in 2032: [48], [49]
Rectification requires proving: (i) what is in the deed is not what was intended, and (ii) what was actually intended: [74]
The deed was created when the “no perpetuities” required a reference to a life or lives for a trust to last beyond 21 years: [78], [79]
P said they thought the trust would last indefinitely, like a company; a legal impossibility. None of the criticisms of the solic come close to explaining why the solic would have given this wrong advice: [92]
46 years after the fact P’s evidence was of little assistance, possible more reconstruction than recollection: [93]
The deed was amended 9 times. It seemed inconceivable P had not been advised many times of the 2032 vesting date: [95] - [98]
Tee pressed that P’s intention was not 2032, and no instructions were given for 2032: [103]
In any case (presumably because it spoke in favour of an outcome not legally possible) P’s evidence did not support the application: [106]
Importantly: P’s parent executed the deed for the Tee too - there was no evidence about their intention; and no evidence at all about the 1985 and 2001 restatements of the deed: [110] - [114]
A defence based on laches - delay - was made out. The Tee was free to bring this claim from 1976 onwards. Relevant evidence had since been lost: [120 - [124]
The Court said it would be better if a party could have been nominated as defendant (with the power to conduct XX etc) rather than a barrister act as contradictor: [125] - [133]
___
If you'd like to contact me please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! #coffeeandacasenote #auslaw
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By James d'Apice
5
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"The vesting date is too early. Rectify the deed!"
___
In 1976 a trust was established: [2]
P and P’s parent signed the deed for Tee: [3]
The trust assets included land in SW Sydney; likely “substantially” exceeding $100m: [5], [20]
The trust vested on the earlier of: a date in 2032, the date of death of a royal family member (“royal lives” clause), or a date determined by the Tee: [7]
The trust’s land might take years to develop, perhaps until 2046: [9], [54]
The deed was amended by Tee various times (in accordance with the deed) but there was no power to amend the vesting date: [9], [23] - [37]
Tee commenced proceedings to rectify the trust deed’s vesting date.
Tee was the sole party to the proceedings. No benef opposed them: [11]
The Court appointed a barrister as contradictor, with Tee to indemnify them for their costs: [12]
The contradictor said: the criteria for rectification were not met, and the Tee had been too slow to apply: [13]
The solic who drafted the deed had been involved in legal proceedings about a similar deed described as badly drafted, and criminal proceedings regarding a crime of dishonesty: [38] - [41], [43] - [46]
P swore an affidavit in support of Tee’s application: [47]
P’s evidence said they first turned their mind to the 2032 vesting date in 2016: [14] - [22]
P gave evidence they did not understand, or intend, that the trust vest in 2032: [48], [49]
Rectification requires proving: (i) what is in the deed is not what was intended, and (ii) what was actually intended: [74]
The deed was created when the “no perpetuities” required a reference to a life or lives for a trust to last beyond 21 years: [78], [79]
P said they thought the trust would last indefinitely, like a company; a legal impossibility. None of the criticisms of the solic come close to explaining why the solic would have given this wrong advice: [92]
46 years after the fact P’s evidence was of little assistance, possible more reconstruction than recollection: [93]
The deed was amended 9 times. It seemed inconceivable P had not been advised many times of the 2032 vesting date: [95] - [98]
Tee pressed that P’s intention was not 2032, and no instructions were given for 2032: [103]
In any case (presumably because it spoke in favour of an outcome not legally possible) P’s evidence did not support the application: [106]
Importantly: P’s parent executed the deed for the Tee too - there was no evidence about their intention; and no evidence at all about the 1985 and 2001 restatements of the deed: [110] - [114]
A defence based on laches - delay - was made out. The Tee was free to bring this claim from 1976 onwards. Relevant evidence had since been lost: [120 - [124]
The Court said it would be better if a party could have been nominated as defendant (with the power to conduct XX etc) rather than a barrister act as contradictor: [125] - [133]
___
If you'd like to contact me please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! #coffeeandacasenote #auslaw
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