Links
Corporations Act 2001 (Cth) – the massive (1667 section) statute governing all aspects of the law relating to companies:
Fair Work Act 2009 (Cth) – Introduced by the Rudd Government in 2009 to reform the Australian industrial relations system:
Franchising Code of Conduct 2014 – Governing the relationship between franchisors and franchisees:
Austlii – a brilliant website, with well-organised searchable availability to Australian statutes (State and Federal), regulations and cases:
A New Tax System (Goods and Services) Act 1999 (Cth) – The main Act covering GST:
Retail Leases Act 2003 (Vic) – the Act which deems a number of provisions in retail leases, to take away certain harsh effects on tenants:
Victorian Small Business Commission – useful information about retail leases:
Blog of Sam Hopper, leading leases barrister
‘Cool links for legal students’ – an Australian site aimed at teachers and students of legal studies:
Power of Attorneys Act 2014 (Vic) – An extensive rewrite of the laws relating to financial and personal (as to living arrangements) powers of attorney:
Medical Treatment Planning and Decisions Act 2016 (Vic) – Relates to the appointment of a medical treatment decision-maker:
Sale of Land Act 1958 (Vic)– legislative controls in relation to the sale of land in Victoria, such as pre-sales, cooling-off rights and deposits:
Property Law Act – an older, more formal statute with technical provisions more familiar to lawyers:
Duties Act 2000 (Vic) – The law relating to stamp duty in Victoria. Replaced the old Stamps Act:
S. 102AG Income Tax Assessment Act 1936 (Cth) – The section which provides for an advantageous tax position for testamentary trusts:
Furses case – foundation case on this topic:
Trustee Act 1958 (Vic) – The law relating to trusts generally in Victoria – largely technical:
Disclaimer – Section 155 Property Law Act 1958 (Vic) – statutory power to disclaim e.g. role of appointor in trust:
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.
Commissioner of Taxation v Commercial Nominees of Australia Ltd [2001] HCA 33 – The case which began the process of raising the threshold as to a resettlement:
Commissioner of Taxation v Clark [2011] FCAFC 5 – Again reducing the chances of resettlement – with emphasis on the need to follow the powers in the trust deed:
Wills Act 1997 (Vic) – The statute governing the law relating to Wills in Victoria: