Smorgan v ES Group Operations Pty Ltd & Ors [2021] VSC608 

Where there were no clauses in the trust deed with such disclosure, disclosure of the trust deeds and accounting statements was granted.  Where there was such a restriction, it was enforceable.

Jenkins v Ellet [2007] QSC 154 

Here the variation power had been used purportedly to replace the principal of the trust.  The variation power was very narrow, only entitling the trustee to vary the “trusts declared” of the deed.  It was held this did not extend to varying a provision such as the definition of a principal.  The Court stated the drafter of the deed could easily have provided the trustee with a broader power to amend “this trust” but did not do so.

Mercanti v Mercanti [2016] WASCA 206

The variation clause of a trust deed entitled the trustee to vary “all or any of the trusts herein before provided”.  It was held this was the only permitted variation of the trust, and did not extend to other provisions, was power to alter the appointor.

Re Owies Family Trust [2020] VSC 716

Again the variation power only permitted variation of the “trusts herein before limited”.  It was held that the death appointor and guardians were “provisions” not “trusts”. 

Another issue regarding the discretion of the trustee when making distributions – it had been argued the trustee did not make proper enquiry of the circumstances of certain beneficiaries and was therefore unable to give genuine consideration to distributions.  It was held that there was no evidence the trustee received information about those beneficiary’s circumstances in certain years, and that the trustee should have made enquiries in that regard.  The distribution resolutions for those years were voidable.

Wareham v Marsella [2020] VSC 92

The deceased was survived by her husband of a second marriage of 32 years, and two children from her first marriage.  A superannuation binding death benefit nomination nominated her grandchildren as beneficiaries.  For a number of reasons it was invalid. The trustees of the fund were her daughters.  The daughter as trustee resolved to pay all death benefits to herself.  McMillan J emphasised, even where a trustee has unfettered discretion, that must be exercised with real and genuine consideration and in accordance with which the discretion was conferred.  She found the discretion had been improperly exercised as there was no real and genuine consideration.  This decision was upheld by the Court of Appeal.  It was also held that the duty of trustees to inform themselves property was held to be more intense in a superannuation fund than in a discretionary trust.

Chan v Valmorbida Custodians Pty Ltd [2020] VSC 590

The applicant sought discovery of various classes of trust documents created by present and past trustees of three discretionary trusts.  It was decided the proprietary approach, rather than the discretionary approach, was the law in Australia.  It was found the closer the relationship between the beneficiary and the trust, the more willing the Court will be to require a greater level of disclosure.  Orders were made for the inspection of certain classes of documents.