Arakella Pty Ltd v Pattern

Background

1. The proceedings arise as a result of amendments to the Land Tax Act and the Duties Act which impose surcharges to the extent that a "foreign person" may be, but not necessarily is, a beneficiary of a trust where the trust holds residential property.
2. Importantly, surcharge land tax is not charged if no beneficiary, including a potential beneficiary, is or can properly be a "foreign person".
3. Section 5D of the Land Tax Act relevantly provides: (1) The trustee of a discretionary trust is taken to be a foreign person in that capacity for the purposes of section 5A if the trust does not prevent a foreign person from being a beneficiary of the trust. (2) If a discretionary trust prevents a foreign person from being a beneficiary of the trust, the trustee is not in that capacity a foreign person for the purposes of section 5A. (3) A discretionary trust is considered to prevent a foreign person from being a beneficiary of the trust if (and only if) both of the following requirements are satisfied - (a) no potential beneficiary of the trust is a foreign person (the no foreign beneficiary requirement), (b) the terms of the trust are not capable of amendment in a manner that would result in there being a potential beneficiary of the trust who is a foreign person (the no amendment requirement). Note - Under the transitional arrangements for this section in Schedule 2 to the Principal Act, the no amendment requirement does not apply to a trust that satisfies the no foreign beneficiary requirement immediately before the commencement of this section. (4) A person is a potential beneficiary of a discretionary trust if the exercise or failure to exercise a discretion under the terms of the trust can result in any property of the trust being distributed to or applied for the benefit of the person. Note - A potential beneficiary is not limited to persons named in the trust instrument and extends to the members of any class of persons to whom or for whose benefit trust property can be distributed or applied pursuant to the discretions of the trust. (5) For the removal of doubt, a person is not a potential beneficiary of a discretionary trust if the terms of the trust prevent any property of the trust from being distributed to or applied for the benefit of the person. …
4. For the purposes of the Land Tax Act "foreign person" is defined in s 104J of the Duties Act to mean "…a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section…"
5. The definition of "beneficiary" in clause 2 of the Trust Deed is effectively an open class in that it names certain people as well as their "issue" and therefore at present it is possible for beneficiaries under the Trust Deed to meet the definition of "a foreign person".
6. On the advice of KPMG an annual liability of (at this stage) 2% of the taxable value of the land (which is residential property) held subject to the Trust Estate will be imposed on the Trustee of the Trust.

Question one

1. The first question concerns whether the Trustee would be justified in disclaiming or surrendering its powers to appoint income and/or capital to any beneficiary of the Trust Estate while the beneficiary is a "foreign person". I answered this question negatively for the following reasons.
2. First the Trust Deed does not give the Trustee power to revoke any trusts or powers, and while there is a power to revoke trusts in clause 15 of the Trust Deed, that power is reposed in named persons (not including the Trustee).
3. Second s 28 of the Conveyancing Act 1919 (NSW) ('Conveyancing Act') provides that: 28 Release and disclaimer of powers (1) A person to whom is given any power (other than a power coupled with a duty), whether coupled with an interest or not, may by deed release or contract not to exercise the power. (2) Any such person as aforesaid may by deed disclaim any such power, and after such disclaimer shall not be capable of exercising or joining in the exercise of the power. (3) On such disclaimer the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power. (4) This section applies to powers created by instruments coming into operation either before or after the commencement of this Act. (5) Where any such power is exercisable by a dealing to be registered under the Real Property Act 1900, the power may be released or disclaimed by a dealing in the form approved under that Act and such a dealing may be registered under that Act.
4. However the Trustee's power to appoint income and/or capital is in my view properly characterised as a "power coupled with a duty".
5. In Re Wills' Trust Deeds [1964] Ch 219 ('Re Wills'') Buckley J distinguished between "beneficial powers" (where the power is given to the donee with the intention that the donee may exercise it on the donee's own behalf, although not necessarily for his own benefit) and "vicarious powers" (where the donor intended the donee would in exercising the power act on the donor's behalf to achieve the end desired by the donor). Buckley J considered that the latter "would not inappropriately be called a power coupled with a duty or coupled with a trust, or a power in the nature of a trust" (228).
6. Clauses 4 and 5 of the Trust Deed relevantly provide: 4. The Trustee shall stand possessed of the settled property during the period of restriction UPON the following trusts;- (a) To pay or apply the whole or such part of the settled property as the Trustee may in its absolute discretion think fit for or towards the maintenance support education advancement in life or benefit of any one or more of the Beneficiaries exclusive of the other or others of them in such proportions and provisions as the Trustee shall in its absolute discretion think fit AND the Trustee shall be at liberty to pay any moneys so applied to the parent or guardian of any infant Beneficiary for any of the purposes aforesaid without being liable to see to the application thereof AND to accumulate the surplus of any income not so paid or applied by investing it and the resultant income to be derived therefrom in any of the investments hereinafter authorised AND TO HOLD the same as an accretion to the settled property with power to apply the accumulated income of any preceding year or years or any part thereof as if the same were, income for the current year, (b) The settled property shall at all times be possessed and enjoyed to the entire exclusion of the said Settlor and of any benefit to him by contract or otherwise and no part thereof shall be paid or loaned to or applied for the benefit of the Settlor or any wife of the Settlor under any circumstances whatsoever. 5. The Trustee shall at the end of the period of restriction pay or apply the whole of the settled property to any one or more of the Beneficiaries exclusive of the other or others of them in such proportions as the Trustee shall in its absolute discretion think fit and the Trustee shall be at liberty to pay any moneys so applied to the guardian or guardian of any infant Beneficiary for such purposes aforesaid without being liable to see the application thereof. In default of appointment the said settled property and income shall vest in the Beneficiaries in equal shares as tenants in common.
7. In Re Wills' Buckley J also stated: If the donee be himself an object of the power so that he could at his own option appoint the whole of the trust property in his own favour, I conceive that it would be impossible to regard the power as having any fiduciary character, for such a power would be equivalent to ownership.
8. Further, in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 Warner J classified powers (or in his Honour's words "fiduciary discretions") into four categories (see 1613-1614): In this classification, category 1 comprises any power given to a person to determine the destination of trust property without that person being under any obligation to exercise the power or to preserve it… Category 2 comprises any power conferred on the trustees of the property or on any other person as a trustee of the power itself… Category 3 comprises any discretion which is really a duty to form a judgment as to the existence or otherwise of particular circumstances giving rise to particular consequences… Category 4 comprises discretionary trusts, that is to say cases where someone, usually but not necessarily the trustees, is under a duty to select from among a class of beneficiaries those who are to receive, and the proportions in which they are to receive, income or capital of the trust property.
9. Warner J considered that category 1 powers could be released. His Honour stated that category 2 powers could not be released, and although it was not clearly stated, seemed to accept that powers and discretions of the kind falling within categories 3 and 4 could not be released.
10. Here, the Trustee cannot meet the definition of "Bencificiary" and therefore cannot benefit under the terms of the Trust Deed. Further the Trustee has an obligation to preserve the trust property such that Warner J's category 1 cannot apply.
11. A power coupled with a duty is a term referring to a power which it would be a breach of trust to release, as well as one to which a duty attaches. Accordingly in my view the Trustee cannot disclaim or surrender the power to appoint income and/or capital to a beneficiary of the Trust Estate.
12. Finally s 28 of the Conveyancing Act refers to powers not trusts. Thus even is the Trustee's powers could be released pursuant to s 28 it does not necessarily follow that the trusts could be surrendered or released.

Question two

1. The second question is whether the Trustee would be justified in not exercising its powers to appoint and/or distribute property pursuant to the trusts with respect to any beneficiaries that are "foreign persons" and who disclaim their interests.
2. I consider the answer to be yes on the basis that the current beneficiaries (who have legal incapacity) could disclaim their interests in the event that they satisfied the definition of "foreign persons" (see, e.g., Federal Commissioner of Taxation (Cth) v Vegners (1989) 89 ATC 5274; Vegners v Commissioner of Taxation (Cth) (1991) 91 ATC 213; Federal Commissioner of Taxation v Ramsden [2005] FCAFC 39).
3. However as I have stated the class of beneficiary is open and includes "issue". Therefore even if current beneficiaries were to disclaim their interest that would not satisfy the requirements of s 5D of the Land Tax Act as a "foreign person" may still become a beneficiary.

Question three

1. The third question is a matter of construction of clause 15 of the Trust Deed which as I have noted contains a power to "revoke all or any of the trusts hereby declared".
2. That power is reposed in certain named people, all of whom have died.
3. The issue is whether the power devolves, in particular to the legal representative of the last survivor of the donees, Leslie Frank Dion.
4. The answer it seems depends upon whether the power is annexed to an office (which may be determined by asking whether the power would have been conferred on the donees "but for their office" (see Crawford v Forshaw [1891] 2 CH 261 at 266)) or whether the power attaches to the named individuals only (see G Thomas, Thomas on Powers (Oxford University Press, 2nd ed, 2012) at [7.86]).
5. On the terms of the clause, which refers to "Thomas Dion, Edward Dion, Charles Dion, Ernest Sidney Dion, Leslie Frank Dion or any of them", I consider that the power is donated those specific people, and not a class of persons or persons virtute officii.
6. Therefore in my view the power contained in clause 15 of the Trust Deed was relinquished upon the death of Leslie Frank Dion and questions 3 (b) and (c) do not apply.

Order pursuant to s 81 of the Trustee Act

1. Section 81 of the Trustee Act relevantly provides: 81 Advantageous dealings (1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument, if any, creating the trust, or by law, the Court - (a) may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Court may think fit, and (b) may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income. (2) The provisions of subsection (1) shall be deemed to empower the Court, where it is satisfied that an alteration whether by extension or otherwise of the trusts or powers conferred on the trustees by the trust instrument, if any, creating the trust, or by law is expedient, to authorise the trustees to do or abstain from doing any act or thing which if done or omitted by them without the authorisation of the Court or the consent of the beneficiaries would be a breach of trust, and in particular the Court may authorise the trustees - (a) to sell trust property, notwithstanding that the terms or consideration for the sale may not be within any statutory powers of the trustees, or within the terms of the instrument, if any, creating the trust, or may be forbidden by that instrument, (b) to postpone the sale of trust property, (c) to carry on any business forming part of the trust property during any period for which a sale may be postponed, (d) to employ capital money subject to the trust in any business which the trustees are authorised by the instrument, if any, creating the trust or by law to carry on. (emphasis added)
2. Accordingly before an order can be made pursuant to s 81 three criteria must be satisfied (Re Grant (as trustee for the Grant Family Testamentary Trust) [2013] 1603; (2013) 10 ASTLR 149 ('Re Grant') at [32]; see also Arakella Pty Ltd v Pattern (2004) 60 NSWLR 334 at [81]). There needs to be a "proposed dealing", being a "sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction". The dealing must be in the Court's opinion "expedient". And the dealing must be incapable of being effected because of an absence of power.
3. The Trustee sought an order that the Trustee surrenders and/or releases all trusts and/or powers such that any beneficiary of the Trust that is a "foreign person is not a beneficiary whilst the meet that definition in the Land Tax Act and the Duties Act. That is the Trustee seeks a direct abstention from the doing of an act, being the alteration of the trusts and powers such that a "foreign person" will not be able to benefit from the Trust Estate (s 81(2)).
4. I have already concluded that the Trustee has no power to vary the trust in the manner sought and the Trustee cannot pursuant to s 28 of the Conveyancing Act surrender or release the power to appoint and the trusts with respect to the income and capital of the Trust Estate.
5. In relation to expediency, the question is whether the dealing would be "expedient" "in the management or administration of property vested in the trustee" [emphasis added] (Ku-ring-gai Municipal Council v The Attorney General (1954) 55 SR (NSW) 65 ('Ku-ring-gai Municipal Council') at 75; Riddle v Riddle (1952) 85 CLR 202 ('Riddle v Riddle') at 220), notwithstanding that it may alter the trusts or adjust a beneficiary's rights (ss 81(1)(a), 81(2)), although to what extent is somewhat unclear.
6. In Cameron v Jeffress [2014] NSWSC 702 the Court sanctioned a material departure from the terms of the Will, namely the destruction of an (indefeasible) fixed entitlement to income created by the trusts in the Will, by giving the trustee the power to accumulate income which caused the trusts of income to be subject to an event of defeasibility, and by giving the trustee a power to pay the capital to persons not entitled to the capital pursuant to the will, and so arguably caused there to be a material change (and even destruction) of beneficial interest(s) created by the testator in the will. The Court of Appeal in Dion Investments at [114] approved the approach taken by Hammershlag J in Cameron v Jeffress.
7. It seems that in this sense s 81 of the Trustee Act is broader than s 57 of the Trustee Act 1925 (UK) (see also Ku-ring-gai Municipal Council at 73-74; Riddle v Riddle at 220; cf Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960 at [20]-[22]- [70]-[73]).
8. The existence of a tax advantage can form the basis of expediency in the management and administration of trust property for the purposes of s 81 of the Trustee Act (see, e.g., Re Sykes (deceased) [1974] 1 NSWLR 597 at 602; Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004 at [55]; Barry v Borlas Pty Ltd [2012] NSWSC 831 at [22]-[23]; Soo v Soo [2016] NSWSC 1666 at [6]) and the evidence in this case indicates that the release or surrender will have the benefit of reducing the annual land tax charge on the Trustee with respect to the residential property held subject to the Trustee Estate. At this stage, the land tax amounts to an annual charge of over $100,000. The land tax assessment date is 31 December 2020. I consider in these circumstances that the release and/or surrender sought would be expedient in the management or administration of the residential property held by the Trustee, notwithstanding that the order would adjust or even destroy the rights of some (potential) beneficiaries to the extent that they meet the definition of a "foreign person".
9. Those criteria having been satisfied, the Court is empowered to "by order confer upon the trustees… the necessary power for the purpose" (s 81(1)(a)). It has been held that while such an order does not empower the Trustee to "amend the trust instrument or terms of the trust" the Court may "grant specific powers related to the management and administration of the trust property, being powers that coexist with (and, to the extent of inconsistency, override) those conferred by the trust instrument or by law" (Dion Investments at [100], held to be correctly decided in Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286 at [67]).
10. The Trustee in this case sought an order for a "direct" conferral of a power to release and/or surrender any trusts and powers (referable to the Trust Estate) which may benefit a "foreign person" (see Dion Investments at [109]), as opposed to an order amending the terms of the Trust Deed. I determined that the order should be made, particularly having regard to the expediency that would be achieved in this case.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020