27 June 2022

International Cases

Wheatland Holdings Pty Ltd. As Trustee For The Rodney Manuel Family Trust



Trusts and Societies

The Trustee has an express power to vary the trusts created

By an originating motion filed on 17 May 2022, the Trustee seeks a direction from the court pursuant to Section 92 of the Trustees Act, 1962 (WA), that it is within the power of the Trustee to amend the Trust so as to include a corporate beneficiary in the category of 'Income Beneficiaries', as that term is defined in the Trust Deed of the Trust.

The construction of a written agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. The rights and liabilities of the parties under a clause in the agreement are to be determined objectively. Consideration should ordinarily be given not only to the language of the agreement, but also to the apparent purpose and object of any transaction created by or evidenced in the agreement. Secondly, it is necessary, in determining the meaning of the provisions of a commercial contract, to ask what a reasonable businessperson would have understood those provisions to mean. Inquiry will require consideration of the language of the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. Thirdly, a written agreement must be construed as a whole. The words of a clause in the agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them.

Section 92(2) of the Trustees Act requires that every application made under the section be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient. The notice requirement has been met. Notice of this proceeding was given to all persons interested, and no beneficiary gave notice of an intention to be heard in relation to the proceedings.

The jurisdictional bar to the pursuit of relief under Section 92 of the Trustees Act has been met. The question posed concerns the interpretation of a trust instrument. Further, there are no circumstances revealed on the evidence which are a cause for reticence in the exercise of the discretion by the court.

The Trustee has an express power to vary the trusts created. Present Court accepts that a variation by the Trustee to the trusts created by the Trust Deed to enable the addition of a corporation to the 'Income Beneficiaries' so as to achieve taxation benefits is an exercise of such an ability to vary a trust. Further, the limits in clause 12 do not prohibit the variation proposed. In all of the circumstances presented, it is appropriate to make the direction sought.

Tags : Power Trustee Creation

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