Levy v Harpur [2004] VSC 241

Levy v Harpur [2004] VSC 241 - VSC 2004 case summary — Zoe

[32]

"C. The trustee has this day been appointed trustee of the P & G R Harpur Trust and he is aware that he will subsequently be replaced by Kai Tak Pty Ltd. He knows that the directors of Kai Tak Pty Ltd are Paul Henry and Pamela Fay Rand Harpur. He is aware that the P & G R Harpur Trust is a discretionary trust and that Pamela Fay Rand Harpur is the appointor. Guy Edward Peter Rand Harpur is the specified beneficiary but he is aware that the discretionary nature of the trust allows for the trustees [sic] to exercise discretions in relation to a variety of matters including vesting date, distribution of income and distribution of the trust fund as between the general beneficiaries. He has read the P & G R Harpur Trust Deed. D. The trustee agrees to pay all costs of this Deed and any transfers required under the Transfer of Land Act 1958 to transfer the property referred to in Schedule A including any stamp duty and Titles Office lodging fees within 7 days of an assessment issuing. NOW THIS DEED WITNESSES: 1. The trustee is the owner of the property and assets specified in Schedule A and he now irrevocably declares that as from the commencement day he holds the property and assets specified in Schedule A for the beneficiary specified opposite each of those specified properties and assets. 2. Where a property is subject to a mortgage as specified in Schedule A the trustee from the commencement day holds the property subject to the mortgage for the beneficiary specified opposite the property in Schedule A. 3. From the commencement day the trustee will, at the request of a beneficiary specified in Schedule A, transfer the property specified in Schedule A opposite the name of the beneficiary to the beneficiary and will execute all documents including transfers of land and all things necessary for that purpose. 4. From the commencement day the trustee, without limiting the generality of anything contained in his power of attorney dated 3 June 1997, hereby authorises his attorney Paul Henry Harpur to do all things necessary including the execution of transfers of the property and assets specified in Schedule A to vest such property and assets or any item or part thereof in the beneficiary specified opposite such property in Schedule A. 5. The commencement date of this deed shall be the 1st October 1997. 6. This deed and any disputes arising hereunder shall be governed and determined in accordance with the laws in force in the State of Victoria."

[34]

"If an owner of property declares his intention to create a trust of the property in the future, or promises that he will create such a trust, whether by transferring the property to another as trustee or by constituting himself trustee, no trust is presently created. Although a manifestation of intention to create a trust is all that is needed for its creation, it must be a manifestation of intention to create a present trust and not merely to create a trust to arise at some future time. A promise to dispose of the beneficial interest in property at some time in the future is not a present disposition of the beneficial interest. This is true where the intending settlor owns the property at the time he makes the promise; it is true also where he has not yet acquired the property of which he intends to create a trust.[7] ... A promise to create a trust in the future is to be distinguished from the present creation of a trust with a postponement of enjoyment by the beneficiaries. A trust can be created although the settlor is to receive the income for life or for some other period, and the beneficiaries other than the settlor himself are not to receive income or principal until the expiration of the period. Thus where the owner of property transfers it in trust to pay the income to himself for life and on his death to convey the property to or to hold it for designated beneficiaries, a trust is created at the time of the transfer. So also, where the owner of property declares himself trustee in trust to pay himself the income during his life, and on his death the property is to be distributed among designated beneficiaries or held in trust for them, a trust is created at the time of the declaration of trust. In either case it is immaterial that no one but the settlor himself has an interest presently enjoyable and that the interests of the other beneficiaries are postponed in enjoyment. The interests are created at the time of the transfer or declaration of trust.[8] ... Where a person promises, not that he will transfer property in trust, but that he will himself be trustee of property at some time in the future, a trust does not automatically arise when that time arrives. It will arrive at that time, however, if the settlor then manifests an intention to be trustee. His subsequent conduct, taken in connection with his prior promise, may amount to a present declaration of trust."[9]

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Judgment (67 paragraphs)

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Cases Cited (1)