Harpur & Ors v Levy (& Ors in their capacity as executors of the estate of Peter Thomas Evan Rand dec'd) & Anor

(2007) 16 VR 587; [2007] VSCA 128

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Trusts
2. › Declaration of trust
3. › Construction of trust deed
4. › Whether deed expressed intention to create trust immediately or in the future
5. › Present declaration with postponed enjoyment distinguished from promise to create future trust
6. › Voluntary trust
7. › Equity will not assist a volunteer
1. Trusts
2. › Declaration of trust
3. › Construction of trust deed
4. › Role of recitals in construction
5. › Whether recitals can qualify clear operative clauses
1. Practice and Procedure
2. › Summary judgment
3. › Striking out defence
4. › Test for summary judgment under Supreme Court (General Civil Procedure) Rules r 23.01(2)
5. › Whether defence obviously untenable or unsustainable in law
1. Practice and Procedure
2. › Costs
3. › Proper parties
4. › Whether beneficiaries of trust were proper parties to proceedings against trustee
5. › Supreme Court (General Civil Procedure) Rules rr 9.02, 9.06, 16.02

Quick Take

A deed of trust that declares the settlor holds property 'as from' a specified future commencement day expresses an intention to create a trust at that future date, not an immediately operative trust with postponed enjoyment. The use of 'now irrevocably declares' does not overcome a clear indication that the trust is not intended to come into effect until the commencement day. Recitals cannot qualify clear operative clauses of a deed.