W E Pickering Nominees Pty Ltd & Ors v Pickering & Ors

[2016] VSC 71

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

1. Trusts
2. › Power of Court to vary trust
3. › Variation of trust deed
4. › Expansion of class of beneficiaries
5. › Whether variation for benefit of unborn beneficiaries
6. › Trustee Act 1958 (Vic), s 63A
1. Trusts
2. › Power of Court to vary trust
3. › General power of amendment of trust deed
4. › Whether Court should approve arrangement granting trustee general power of variation
5. › Trustee Act 1958 (Vic), s 63A
1. Trusts
2. › Management and administration of trust property
3. › Power of Court to confer powers on trustees
4. › Whether varying terms of trust is a transaction expedient in management or administration of trust property
5. › Whether s 63 empowers Court to confer power to amend trust deed
6. › Trustee Act 1958 (Vic), s 63
1. Precedent
2. › Stare decisis
3. › Comity between courts
4. › Whether single judge bound by decision of intermediate appellate court of another State
5. › Whether single judge should follow conflicting decision of single judge of same court
6. › Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Section 63A of the Trustee Act 1958 (Vic) requires the court to be satisfied that a proposed variation would benefit persons incapable of consenting, including potential unborn beneficiaries; a substantial expansion of the class of beneficiaries that would dilute the interests of unborn beneficiaries will not be approved, and a general power of amendment cannot be assessed for benefit to such persons in the absence of specific proposed variations.
Section 63 of the Trustee Act 1958 (Vic) empowers the court to confer specific powers for the expedient management or administration of trust property, but does not authorise the court to confer on trustees a general power to vary the terms of the trust or to alter beneficial interests — following Royal Melbourne Hospital v Equity Trustees Limited [2007] VSCA 162, Re Barns [2011] VSC 314, and Re Dion Investments Pty Ltd (2014) 87 NSWLR 753, and declining to follow Colonial Foundation Ltd v Attorney-General [2007] VSC 344.
The principle of comity requires a single judge of the Supreme Court of Victoria to follow decisions of intermediate appellate courts (including interstate) unless convinced they are plainly wrong, and to follow decisions of other single judges of the same court on the same basis.