Mercanti v Mercanti

(2016) 50 WAR 495; [2015] WASC 297

Supreme Court of Western Australia

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For Australian Law.

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Interrogate

Catchwords

1. Trusts
2. › Discretionary trusts
3. › Variation of trust deed
4. › Power of trustee to vary identity of appointor
5. › Construction of variation clause
6. › Whether power to vary 'contents of the schedule' empowers variation of appointor
1. Trusts
2. › Discretionary trusts
3. › Appointment of trustees
4. › Power of appointor to remove and appoint trustees
5. › Fiduciary nature of power
6. › Whether exercise for improper purpose
7. › Fraud on a power
1. Trusts
2. › Discretionary trusts
3. › Deeds of variation
4. › Execution by corporate trustee
5. › Whether valid corporate act
6. › Corporations Act 2001 (Cth), ss 127, 129
1. Equity
2. › Undue influence
3. › Family relationships
4. › Whether presumption of undue influence arises between adult son and elderly parent
5. › Whether undue influence established on the evidence

Quick Take

A power in a trust deed for the trustee to vary the 'contents of the schedule' may or may not empower the trustee to vary the identity of the appointor, depending on the construction of the particular trust deed. The power to appoint trustees, even when exercised by a beneficiary-appointor to appoint a company controlled by the appointor, is not exercised for an improper purpose where the appointor's purpose is to restore the status quo following a seizure of control by other family members. The equitable maxim 'he who seeks equity must do equity' need not be pleaded by a defendant; it is part of the plaintiff's case to offer to do equity when seeking equitable relief.