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[2026] NSWSC 1104
Supreme Court of NSW
2026-09-14
Parker J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Application of Barratt Nominees Pty Ltd (No 2) [2026] NSWSC 1104
Hearing dates: 30 June 2026; further written submissions 17 July 2026; further submissions 25 August 2026; 28 August 2026
Date of orders: 14 September 2026
Decision date: 14 September 2026
Jurisdiction: Equity
Before: Parker J
Decision: See [33]
Catchwords: TRUSTS AND TRUSTEES — application for judicial advice — discretionary family trust — amendment to definition of distribution date in trust deed — power of amendment excludes amendments extending the distribution date beyond the latest date provided by the deed — distribution date defined as earliest of fixed period, royal lives period and early termination period — variation extending fixed period from 50 to 80 years — as amended, distribution date will still not exceed royal lives period — amendment permissible — trustee justified in administering trust on footing that amendment valid
Legislation Cited: Trustee Act 1925, s 86A
Cases Cited: Application of Walker Corporation Pty Ltd [2022] NSWSC 1609
Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
In the matter of the CE Brenchley Family Trust [2019] NSWSC 1602
In the matter of the Kien Trust (No 1) [2019] NSWSC 1601
Category: Principal judgment
Parties: Barratt Nominees Pty Limited (Plaintiff)
Representation: Counsel: D Barlin (Plaintiff)
Solicitors: Gadens (Plaintiff)
File Number(s): 2026/66497
Publication restriction: Nil
These proceedings concern the affairs of a trust named the Barratt Property Trust (“the Trust”). The plaintiff, Barratt Nominees Pty Limited (“the Trustee” of the Trust), seeks judicial advice about an amendment to the Trust Deed.
On 21 July, I delivered a judgment on the Trustee’s application*: Application of Barratt Nominees Pty Ltd* [2026] NSWSC 860. In written submissions lodged after the delivery of judgment, counsel for the Trustee submitted that my conclusion was erroneous, and did not follow from the main premises of my reasoning.
I think, on further reflection, that counsel is correct. With the consent of the Trustee, I have withdrawn my July judgment and set aside the orders I made. I now make replacement orders, and set out a corrected set of reasons for those orders.
The Trust is a discretionary family trust. It was established by a deed of settlement dated 2 May 1977 (“the Trust Deed”).
As is conventional, the Trust was expressed to terminate on the “Distribution Date”. This was defined as follows:
"Distribution Date" means the first to occur of the following three dates:
(i) Fifty (50) years from the date hereof [that is, 2 May 2027];
(ii) The date twenty-one (21) years after the death of the last survivor of the lineal descendants of his late Majesty King George VI living at the date hereof;
(iii) The date (if any) which the Trustee in its discretion shall by deed or in writing or by oral declaration appoint as the Distribution Date.
I will refer to the periods of time specified in subparagraphs (i), (ii) and (iii) of the definition as the “fixed period”, the “royal lives period” and the “early termination period”.
Clauses in this form appear to have been not uncommonly used in discretionary trust deeds drawn up in the 1970s and the early 1980s. In Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960 I explained the thinking behind such drafting at [78]-[79]:
… the Perpetuities Act 1984 (NSW), which modernised the rule against perpetuities, had not been enacted when the Trust Deed was drawn up. At that time, it was not open to suspend the vesting of a trust interest by reference to any fixed period which exceeded twenty-one years. To achieve a longer suspension required reference to a life or lives in being (plus, if desired, up to a further twenty-one years thereafter).
If the intention had been for the vesting date to be deferred for as long as possible, the royal lives period would have been used on its own. In my opinion, it is clear that the royal lives period was not intended to define the maximum period before the vesting of the beneficiaries' interests. It was there as a backstop so as to ensure, with as much certainty as was possible, that it would be the fixed … period which would determine the vesting date (unless the Trustee should exercise its discretion to bring the date forward). ...
As I pointed out in Application of Walker Corporation Pty Ltd [2022] NSWSC 1609 at [78]-[79], Young J, later the Chief Judge of this Division, appears to have understood the drafting in the same way.
In recent years, there have been a number of applications brought to the Court in circumstances where the trust deed was in this form, the expiry of the fixed date was approaching, and those in control of the trust wished to ensure that it could continue to operate. The Cisera and Walker Corporation cases were examples; see also the earlier decisions referred to in Walker Corporation at [74]-[76].
The present case is another instance.
In November 2020, the Trustee executed a deed poll making various amendments to the Trust Deed in purported exercise of the power of amendment reserved to the Trustee under the Deed. Among the amendments was one to the definition of the “distribution date”, substituting the period of 80 years for the period of 50 years as the fixed date for the purposes of subparagraph (i). This would extend the fixed period until 2 May 2057.
Apparently, some concern has arisen as to whether this amendment was valid. Counsel for the Trustee confined his argument in the first instance to a claim for judicial advice that the Trustee would be justified in administering the Trust on the basis that it was. Alternative forms of relief in the summons, including orders for rectification or for amendment of the Trust Deed under s 86A of the Trustee Act 1925, were held over for later determination, if necessary.
to vary, amend or add to the provisions of this Deed by deed, or in writing or by oral declaration not being variations, amendments, or additions:
(i) enabling any of the Settlor, the Trustee or any donor or transferor of property to the Trust Fund or any trustee or legal representative of any such person to derive any additional benefit under the provisions of this Deed, or
(ii) adversely or prejudicially affecting the then vested interest of any of the Eligible Beneficiaries or
(iii) enabling the variation or amendment of the provisions of this clause; or
(iv) extending the Distribution Date beyond the latest date provided by this Deed.
The critical question is whether the amendment to paragraph (i) of the definition of Distribution Date falls outside the power of amendment because it extends to the Distribution Date “beyond the latest date provided by” the Trust Deed.
In supplementary submissions, counsel for the Trustee referred me to two decisions of this Court concerning the amendment of a discretionary trust deed in similar circumstances. Both are decisions of Sackar J, delivered on the same date in November 2019. The decisions are: In the matter of the Kien Trust (No 1) [2019] NSWSC 1601 and In the matter of the C**E Brenchley Family Trust [2019] NSWSC 1602.
In the Kien Trust case, the definition of distribution date is not fully set out in the judgment. But it appears that the definition took the same form as in the present case; namely the distribution date occurred at the end of the earliest period to expire of: a fixed period (1 January 2020); a royal lives period (again defined by reference to the descendants of King George VI, but also including two of the nominated beneficiaries); and an early termination period.
As in the present case, the proceedings involved an application for judicial advice as to the validity of an amendment to the definition which had previously been purportedly made by the trustee. The trust deed in question reserved to the trustee a power for amendment which relevantly excluded an extension of the distribution date, as defined in the trust deed, “beyond the latest date mentioned in such definition”. The amendment purported to delete the fixed period, leaving the distribution date as the end of the royal lives period (unless the trustee were to exercise the power to bring the distribution date forward).
Sackar J considered that the amendment was valid, and gave judicial advice accordingly. His Honour reasoned at [27] and [29]:
It is … quite obvious, that by removing [the fixed period] will not extend the distribution date beyond the latest contemplated date. The distribution date will still be the later of 21 years from the last surviving descendant of King George VI at the date of the deed or 21 years of the last survivor of the first or second corpus beneficiaries living at the date of the deed.
…
I note further that it is clear that the proper law is that of NSW given that the settlor, most of the beneficiaries and trustee are or were domiciled in the state. I further note that the Perpetuities Act does not apply to the trust and therefore the general law relating to perpetuities applies. It is clear to me, that the amendments as sought would not make disposition so remote as to make the clause void.
The terms of the trust deed in the Brenchley Family Trust case were, in all material respects, the same, except that no actual attempt had been made to exercise the power of variation. The application was to rectify the trust deed by deleting the reference to the fixed period. Alternatively, judicial advice was sought that the power of amendment could be employed to do so.
His Honour considered that rectification of the trust deed could be obtained (that is not sought in the present case: cf Walker Corporation at [73]-[77], [99]-[106]). In the alternative, however, his Honour would have granted judicial advice. He expressed his reasoning in the same terms as in the Kien Trust decision.
Counsel submitted, by reference to these decisions, that the purported amendment to the Trust Deed in the present case had likewise been valid. But the facts of the cases are not precisely the same. In the Kien Trust case the trustee was unable to extend the distribution date beyond “the latest date mentioned in” the Trust Deed. In the present case, the Trustee was unable to extend it beyond “the latest date provided by” the Trust Deed.
Does this make any difference? I will begin by considering the question in accordance with general principles of interpretation, first as a matter of language and then by reference to the presumed purpose or objective of the Trust Deed.
In a context such as the present, the word “provides” is often used to refer to an operative consequence of the terms of a trust deed. It is, for instance, conventional to ask what the Trust Deed, on its true construction “provides” by way of dispositions to beneficiaries or grants of power to the trustee.
But it is difficult to read the word “provided” in that way where it appears in sub-clause S1S(x)(iv) of the Trust Deed in the present case. There are, I think, two reasons for that.
The sub-clause is concerned with identifying the earliest to occur of three dates. Once that date has passed, the vesting date has arrived; what and when might thereafter happen is immaterial. In these circumstances, it is difficult to speak of the Trust Deed “providing” for a “latest” date at all.
The Trust Deed must be interpreted, in accordance with basic principle, as at the date it was executed. At that point, it was overwhelmingly likely that the royal lives period would extend beyond the fixed period. But it was not certain. There was always a possibility that the royal lives period would expire before the fixed date and the trust would vest at that earlier date. It was therefore impossible to say with certainty what the “latest” date would be.
I think the answer to this problem starts by recognising that the power of amendment is an ambulatory power which may be exercised by the Trustee right up to the last minute before the Trust vests on the distribution date. What the Trust Deed “provides” must therefore be judged according to the circumstances as they exist at the time the power of amendment is exercised.
When the Trustee made the purported amendment in November 2020, there were numerous descendants of King George VI who had been born before the date the Trust Deed was executed in May 1977 and were still alive. It was therefore certain that the royal lives period would extend at least until November 2041, well after the end of the fixed period. At that point, it seems to me, the “latest” date for which the Trust Deed “provided” could only have been the end of that period.
In my view this interpretation is consistent with the purpose of including the royal lives period in the definition. The aim was to ensure compliance with the rule against perpetuities as it then stood, by ensuring that the vesting date would not be postponed beyond 21 years after the death of a person who was a “life in being” as at the date the trust was established. Reading the power of amendment in the way in which I have read it ensures that, in the events which have happened, the royal lives clause would determine the maximum period of time for which the Trust could last.
That is also, it seems to me, what Sackar J was saying in the passage which I have quoted from [27] of his decisions in the Kien Trust case. Furthermore, the term “mentioned” is arguably less descriptive than “provided”. I therefore think that the conclusion which I have reached by applying first principles of interpretation is consistent with his Honour’s decision.
The amendment in the Kien Trust case deleted the fixed period. In the present case, the fixed period was retained but extended by 30 years. Does this make a difference to the outcome, in terms of validity?
At the time the amendment was made in the present case, it remained overwhelmingly likely that the period of 21 years after the death of the last surviving descendant of King George VI would expire after the expiry of the purportedly amended fixed period in May 2057. But it was not a certainty. There was a possibility that the royal lives period would expire first.
As counsel for the Trustee submitted in the present case (and as Sackar J noted at [29] in the Kien Trust decision), the rule against perpetuities in its old form continues to apply to the subject Trust. To postpone the distribution date for a fixed period expiring in May 2057 would, if no other provision were made, fall foul of that rule. But the Trust Deed, in its amended form, postpones the distribution date until the earlier of the fixed date and the royal lives date. Should the royal lives period end before the fixed period, the Trust will vest on the royal lives date, consistently with the rule.
I conclude that the purported amendment was valid. I will therefore advise the Trustee that it is justified in administering the affairs of the Trust on that basis. It is unnecessary to consider the other relief sought in the summons.
The orders of the Court are:
Order that the plaintiff would be justified in managing and administering the Barratt Property Trust on the footing that the deed poll of variation of trust deed located at pages 76-82 of exhibit MB-1 to the affidavit of Michael Arnott Burnley sworn on 4 February 2026 has validly amended cl 1.1(e)(i).
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15 September 2026 - Order (1) amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule) to correct the page number.