Vanta Pty Ltd v Mantovani

[2023] VSCA 53

Victorian Court of Appeal

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Interrogate

Catchwords

1. Trusts
2. › Discretionary trust
3. › Validity and certainty
4. › Three certainties
5. › Loss of trust deed
6. › Whether trust fails for uncertainty where deed lost but essential terms proved by secondary evidence
7. › Whether sufficient proof of certainty of intention, subject matter and object
8. › Knight v Knight (1840) 49 ER 58
1. Evidence
2. › Standard of proof
3. › Civil proceedings
4. › Proof of contents of lost document
5. › Whether 'clear and convincing proof' standard applies
6. › Whether balance of probabilities under s 140 Evidence Act 2008 (Vic) is the correct standard
7. › Evidence Act 2008 (Vic), ss 48(4), 140
1. Trusts
2. › Resulting trusts
3. › Automatic resulting trust on failure of express trust
4. › Whether resulting trust arises where transferor transferred property for consideration
5. › Whether transferor who is not settlor can be beneficiary of resulting trust
6. › Distinction between settlor and vendor
1. Trusts
2. › Administration of trusts
3. › Judicial guidance
4. › Power of court to give directions for administration where trust deed lost
5. › Trustee Act 1958 (Vic), s 63
6. › Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02

Quick Take

The 'clear and convincing proof' standard derived from Maks v Maks for proving the contents of a lost trust deed is misconceived; the correct standard is the balance of probabilities under s 140 of the Evidence Act 2008 (Vic). A trust does not fail for uncertainty merely because the deed is lost, provided the three certainties can be established from secondary evidence. Where non-essential terms cannot be ascertained, the court has power under s 63 of the Trustee Act 1958 and r 54.02 to give directions to fill the gap. A resulting trust does not arise in favour of a person who transferred property to the trustee for consideration rather than by way of settlement.