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[2026] VSC 188
General information, not legal advice.
Supreme Court of Victoria
2026-04-07
M OSBORNE J
Original judgment source is linked above.
TRUSTS - Trustee powers - Application by Trustee for conferral of power to extend time under unit transfer provisions - Underlying dispute between unitholder and third party - Alleged invalid assignment and entitlement to trust distributions - Impracticability of complying with two‑month period under Deed - Whether extension of time constitutes transaction in management or administration of trust property - Whether expedient in the interests of beneficiaries - Whether power sought absent from trust instrument - Court's power to grant additional powers - Conditions satisfied - Permission granted to extend time - Retrospective operation of order - Trustee Act 1958 (Vic), s 63.
TRUSTS - Construction of Deed - Drafting errors - References to 'clause' instead of 'schedule' - 'Sub‑paragraph' instead of 'rule' - Omission of reference to valuer - Whether Court may correct or supply words - Corrections necessary to give effect to operation of rules - Construction clarified.
PRACTICE AND PROCEDURE - Originating motion - Attempt to introduce inter partes dispute by counterclaim - Whether appropriate to convert proceeding to writ - Separate dispute concerning ownership of units and assignment - Potential prejudice to Trustee and other unitholders - Fresh proceeding required - Further orders refused.
1 The plaintiff ('the Trustee') is the trustee of the 'Men at Work' Unit Trust ('Trust'). The Trust was established by a deed of settlement dated 7 April 1981 ('Deed'). Each of the first to fifth defendants holds 10 units in the Trust. The first, second, third and fifth defendants are partners in the HHS&D Partnership, the property of which consists of 10 units within the Trust.
2 The Trustee seeks an order pursuant to s 63 of the Trustee Act 1958 (Vic) (the 'Trustee Act') that, in the management and administration of the property vested in it, the Trustee has the power, as and when a transfer notice is served by a unitholder on the Trustee under r 1 of the Third Schedule of the Deed ('Third Schedule'), to extend the time it has to comply with its obligations under r 9(i) of the Third Schedule beyond the two-month period prescribed in r 9(ii) of the Third Schedule, for such further period as the Trustee thinks fit.
3 In addition, the Trustee applies pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, now superseded by the Supreme Court (General Civil Procedure) Rules 2025 ('the Rules'), for the determination of certain questions which, relevantly for present purposes, are whether, as a matter of construction:
(i) the word 'clause' where it appears in rr 3, 11, 12, 14 and 15 of the Third Schedule should be corrected to read 'schedule';
(ii) the word 'sub-paragraph' where it appears in r 12 of the Third Schedule should be corrected to read 'rule';
(iii) the words 'or valuer' should be inserted between the words 'auditor' and 'shall' in the third last line of r 3 of the Third Schedule; and
(iv) the words 'or valuer' should be inserted after the word 'auditor' where it appears in r 4 of the Third Schedule.
4 The originating motion and summons filed on 31 October 2025 have been served on each defendant.
5 By orders made 5 December 2025, the Court directed that the Trustee file and serve its submissions in relation to paragraphs [2] and [3(c)] of the originating motion[1] and that by 4pm on 19 December 2025, any defendant that wishes to be heard in relation to the matters the subject of the Trustee's submissions shall file and serve any submissions in relation to paragraphs [2] and [3(c)] of the originating motion.
6 The orders timetabling those matters were made on 5 December 2025, at which time the Trustee, the first defendant, Mr Strykert, and the sixth defendant, Music Royalty Consulting, Inc ('MRCI') were represented.
7 No defendant filed any submissions in response objecting to the matters set out by the Trustee in its submissions. In submissions filed by the first defendant, Mr Strykert, dated 12 February 2026, Mr Strykert gave notice of his consent to the orders sought by the Trustee in its originating motion filed 31 October 2025 and adopted the analysis of the relevant provisions of the Deed and s 63 of the Trustee Act as set out in the Trustee's submissions.
8 Mr Strykert, however, sought that additional orders be made to facilitate the resolution of an underlying dispute in relation to ownership rights and assignments of his units in the Trust.
9 To that end, Mr Strykert sought further orders, inter alia, that he serve a counterclaim within seven days and that MRCI file and serve any defence to the counterclaim within 21 days of service of Mr Stryker's counterclaim.
10 The Trustee, Mr Strykert, and MRCI were parties to an earlier proceeding brought by the Trustee pursuant to r 54.02 of the Rules. On 3 October 2025, Connock J made orders in that proceeding. The background to that proceeding is summarised in the section of the orders headed 'Other Matters'. Relevantly, the notation in 'Other Matters' referred to some sensitive disputes between Mr Strykert and MRCI regarding, among other things, the validity or enforceability of agreements, other documents and arrangements between Mr Strykert and MRCI as to who is entitled to receive any distributions referable to the 10 class A units in the Trust and any other units in the Trust said to have been allotted to, or held by, or on behalf of Mr Strykert.
Factual matters relevant to the Trustee's application
11 On 10 October 2025, Mr Strykert served on the Trustee a notice titled 'Transfer Notice' ('Notice'). On 14 October 2025 Northam Lawyers, the lawyers acting for MRCI, wrote to the Trustee's lawyers. The letter stated, in part, as follows:
To be clear, our client considers the purported transfer notice to be invalid, and accordingly, the trustee should not take any action in response to the purported notice. Whether the trustee shares our view will inform whether our client will seek urgent interlocutory relief in relation to the purported notice.
If the trustee intends to seek fresh judicial advice, we ask that you join our client and Mr Strykert as defendants and serve on us the relevant process and supporting documentation.
12 The procedure to be followed by the Trustee when a unit holder serves a transfer notice on it is set out in the Third Schedule of the Deed.
13 A transfer notice must specify the number of units the unit holder wishes to transfer or sell and the price the unit holder fixes as the fair price. The notice may not be revoked by the unit holder except with the written consent of the Trustee.
14 In summary, the procedure to be followed after the Trustee is served with a transfer notice, is as follows:
(a) the Trustee considers whether the 'fair value' stated in the transfer notice is too high or too low;
(b) if the Trustee considers that the 'fair value' stated in the transfer is too high or too low, it may refer the question of fair value to the auditor of the Trust Fund;
(c) if there is no such auditor or the auditor is unable or unwilling to act then the question of fair value must be referred to a valuer appointed for the purpose by 'the President of the Institute of Arbitrators, Victorian Division (of failing such person, the most closely analogous [sic] thereto)' for the determination of the fair value;
(d) the fair value as determined by the auditor (or valuer) is deemed to be the fair value of the units the subject of the notice;
(e) the valuation is final and binding upon all interested parties;
(f) the units the subject of the notice must in the first instance be offered by notice in writing to all the unit holders (except the proposed transferor) pro rata as closely as possible in proportion to the number of units which they hold;
(g) the unit holders to which the offer is made have 14 days from the receipt of the offer within which to accept the offer and to state how many additional units (if any) it desires to purchase as the fair value;
(h) any units not accepted from the offer shall be used for satisfying any request for additional units but if there are insufficient units that have not been accepted to satisfy in full all such requests for additional units the unaccepted units must be distributed amongst the unit holders making such request as closely as possible in proportion to their respective unit holding;
(i) no unit holder is bound to take more additional parts than those it has offered to purchase;
(j) any units the subject of the transfer notice which have not been accepted for sale are to be dealt with as follows:
(i) the Trustee must use its best endeavours to find a unit holder or any person selected by the Trustee as to whom it is desirable in the interests of the Trust to admit as a unit holder and who is willing to purchase the unaccepted units at the fixed fair value of those units;
(ii) if before the expiration of two months from the date of service on the Trustee of the transfer notice (the two-month period) the Trustee has not found a unit holder or selected a person to admit as a unit holder who is willing to purchase the whole of the units the subject of the transfer notice, then the proposed transferor is at any time within three months after the expiration of the two-month period at liberty to sell of transfer the units not so purchased to any person at the fair value, subject to the proviso that the Trustee must be satisfied that those units are being 'transferred or sold in pursuance to a bona fide sale for the consideration stated in the deed or contract of sale without any deduction, rebate or allowance whatsoever to the purchaser';
(iii) if the Trustee is not so satisfied, then it may refuse to recognise the transfer or sale and may refuse to treat the purchaser or transferee as a unit holder of the trust in respect of units so sold or transferred.
15 The steps described in paragraphs 14(a) to 14(j)(i) inclusive must all be taken within the two‑month period.
16 As to the step described in paragraph 14 (b) and (c):
(a) there is no auditor of the Trust;
(b) the reference to the 'Institute of Arbitrators' is a reference to what was the 'Institute of Arbitrators Australia', which became known as the 'Institute of Arbitrators and Mediators Australia' (IAMA). In 2015 IAMA and Lawyers Engaged in Alternative Dispute Resolution merged to form Resolution Institute;
(c) based on information received from Resolution Institute, it would take approximately 14 days from a request being made for the appointment of a valuer, for a valuer to be appointed by the Chair of Resolution Institute.
17 Given the steps that are required to be taken within the two-month period, the 'material substantive disputes' that exist between Mr Strykert and MRCI, and MRCI's position in relation to the notice served by Mr Strykert on the Trustee - as stated in letter from Northam Lawyers dated 14 October 2025 - it was impracticable, if not impossible, for the Trustee to take all of the steps that are required to be taken within the two-month period to be taken.
18 Furthermore, the time required by an independent valuer to determine the fair value of the units the subject of a transfer notice is a matter for the valuer. It would not be for the Trustee to prevail upon the valuer to abridge that time in an attempt to meet the time constraint imposed by r 9(ii) at the expense of the valuer not being allowed to perform all of the valuation procedures that the valuer considers appropriate in that particular case. That a valuer's determination is final and binding upon all interested parties underscores the importance of valuers being afforded the time they need to make the necessary determination.
19 By reason of the impracticability, if not impossibility, of compliance with the Third Schedule in relation to the Notice, and in any future case where a determination by a valuer is required of the 'fair value' of units the subject of a transfer notice served by a unit holder on the Trustee under r 1 of the Third Schedule, the Trustee seeks orders under s 63 of the Trustee Act.
The application under s 63 of the Trustee Act
20 Section 63 provides:
Power of Court to authorize dealings with trust property
(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other 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 trust instrument (if any) or by law, the Court 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 (if any) as the Court thinks fit and may direct in what manner any money authorized to the expended, and the costs of any transaction are to be paid or borne as between capital and income.
(2) The Court may from time to time rescind or vary any order made under this section, or may make any new or further order.
(3) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.
21 Section 63(1) is written in very wide and beneficial terms that must be liberally construed.[2]
22 The power to authorise expedient dealings with trust property is meant to cover a multifarious range of circumstances that cannot be categorised in advance and must be dealt with case by case.[3]
24 The first class consists of 'any sale, lease, mortgage, surrender, release, or disposition'. Each of those words describes a dispositive act of an owner of property by which the property or some interest in it passes or accrues to another person. Dealings within the first class are thus, of their nature, dealings of a kind engaged in by an owner of property or trustees in whom property is vested.[5]
25 The second class of 'dealings' is defined or delineated by the words 'any purchase, investment, acquisition, expenditure, or transaction'. Other than the word 'transaction', those words concentrate on ways of deploying money.[6] 'Transaction', of itself, does not imply an outlay of money. No such limitation should be taken to be indicated by the fact that the reference to 'transaction' comes immediately after references to 'purchase', 'investment', 'acquisition' and 'expenditure'. A 'transaction' that in fact involves an outlay of money is contemplated. But so too is one that does not.[7]
27 Three jurisdictional conditions must be satisfied.[9] The dealing must:
(a) be 'in the management or administration of any property vested in trustees';
(b) 'expedient'; and
(c) not possible because of an 'absence of any power'.
28 Where those three conditions are satisfied, the discretion to give authorisation is unfettered.[10]
29 In Arakella v Paton,[11] Austin J said in relation to the general approach that the Court should take to the construction of s 81 of the Trustee Act 1925 (NSW):[12]
The Court should resolve any ambiguity in the meaning of s 81 by adopting a construction which reflects the breadth of the Court's jurisdiction. The Court should not construe the section as subject to any fetters or limitations beyond what is clearly imported by the statutory language. One approaches the central question in this case, namely whether the Court is capable of forming the opinion that the proposed transaction is expedient in the management or administration of any property vested in the trustees, in that light.
30 The words 'management or administration' in s 63(1) are of wide import and 'pick up everything that a trustee may need to do in practical or legal terms in respect of trust property'.[13] In general terms, 'management' has been taken to include commercial and practical matters and 'administration' all the legal powers and duties a trustee may need.[14]
31 The words 'management' and 'administration' largely overlap, but the linking word is 'or'. It was inserted to ensure that an unduly narrow interpretation is not adopted.[15]
32 The section requires the dealing to be 'in' the management or administration of 'property vested in trustees', not in the management or administration of something else.[16]
33 In Arakella, Austin J, after considering the dictionary definitions of the words 'management' and 'administration', said:[17]
The words 'management or administration', in a context as appears in s 81, refer to both the manner in which trust property is managed, administered, handled, directed or controlled and the actual carrying out of those functions.
34 That the dealing must be in the 'management or administration of any trust property' is a limiting requirement: the purpose of the section is to allow the authorisation of that kind of dealing, not a dealing that regulates or varies the trust or alters the beneficial interests to which it gives rise.[18]
35 As was recently observed by Harris J in Re EM McPherson Settlement:[19]
Authorities establish that the power in s 63 of the Trustee Act does not extend to the authorisation of an amendment to a trust instrument to enable the trustee to vary the terms of the trust.
36 In that regard, her Honour cited the following authorities: Re Dion Investments, [97]-[99]; WE Pickering Nominees Pty Ltd v Pickering [2016] VSC 71, [77]-[99]; Royal Melbourne Hospital, [304]; Re Estate of Barns [2011] VSC 314, [46]; Hancock v Rinehart [2015] NSWSC 646, [186]-[193].
37 In WE Pickering, McMillan J said:[20]
Consistently with the reasoning and conclusions in Re Dion, Royal Melbourne and Barns, this Court will not exercise its discretion under s 63 to grant the orders sought to confer the power to make any of the proposed amendments to the deed. All of the proposed amendments involve varying the terms of the trust, in particular, the proposed amendment to expand the class of beneficiaries of the trust, and takes the application beyond the ambit of s 63.
38 While 'transaction' is a very wide expression, power for a trustee to effect a particular 'transaction' may be supplied by the court only if, in the management or administration of any property vested in the trustee, the 'transaction' is, in the court's opinion, 'expedient'; an 'expediency tied to management or administration of trust property'.[21]
39 The Court's opinion of what is expedient is 'a criterion of the widest and most flexible kind'.[22] The ordinary meaning of 'expedient' is 'advantageous', 'desirable', 'suitable to the circumstances of the case'.[23] Expediency means 'expediency in the interests of the beneficiaries'.[24] 'The sole question is whether it is expedient in the interests of the trust property as a whole ...'[25]
40 The trustee must not already have the power it seeks.[26]
41 In Re Dion Investments, Barrett JA said:[27]
The substantive power that the court gives comes into existence by virtue of the court's order. It does not have its source in the terms of the trust. There is no addition to the content of the trust instrument. That content is supplemented and overridden 'as though' some addition had been made to it. The terms of the trust are reshaped accordingly.
Conferral of specific new powers pursuant to s 81(1) should not be by way of purported grant of authority to amend the trust instrument so that it provides for the new powers. Rather, the court's order should directly confer (and be the sole and direct source of) the powers which then supplement and, as necessary, override the content of the trust instrument. And, of course, the only specific powers that can be conferred in that direct way are those that fall within the s 81(1) description concerned with the management and administration of trust property.
42 Section 63(1) expressly contemplates a conferral of a power on a trustee 'either generally or in any particular instance'.
Application of the principles to the present case
43 As earlier stated, the Trustee seeks to have conferred on it the power, as and when a transfer notice is served by a unit holder under r 1 of the Third Schedule, to extend the time it has to comply with its obligations under r 9(i) of the Third Schedule beyond the two-month period prescribed in r 9(ii) of the Third Schedule for such further period as the Trustee thinks fit.
44 The Trustee also seeks that the order expressly provide that the power conferred upon it may be exercised so as to have retrospective effect - ie that the power may be exercised after the end of the two‑month period such that the extension applies on and from the time the two‑month period would, but for the extension, have ended.
45 The first condition requires the proposed transaction to be in the management or administration of any property vested in the Trustee.
In consideration of the premises the Settlor HEREBY DECLARES that the Trustees shall and the Trustees HEREBY DECLARE that they will henceforth stand possessed of the Trust Fund and the income thereof upon the Trusts and with and subject to the powers and provisions hereinafter expressed concerning the same.
the settled sum being a sum paid or to be paid by the Settlor to the Trustees upon the execution hereof together with all moneys paid to and accepted by the Trustees upon an issue of Units pursuant to sub‑cls (b) or (c) of cl 6 and all income and property whatsoever hereafter earned or acquired by the Trustees pursuant to this 12 Indenture and which for the time being has not been disposed of or applied in accordance herewith.
48 Clause 1(g) of the Deed defines 'The Vesting Day' to mean 'the day specified in the First Schedule hereto as the Vesting Day or such earlier date than the day so specified as the Trustees may with the consent of the Unit Holders appoint PROVIDED ALWAYS that notwithstanding anything herein contained all powers and dispositions made by or pursuant to or contained in this Indenture which but for this provision would or might vest take effect or be exercisable after the expiration of the perpetuity period shall vest and taken effect on and be exercisable only until the last day of the perpetuity period'.
49 The provisions of the Deed that govern the manner in which the property vested in the Trustee is to be managed, administered, handled, directed or controlled include cls 14, 15 and 16, which provide:
14 (a) SUBJECT to the provisions of sub-clause (b) of this Clause the trust created by these presents shall commence on the day referred to in the First Schedule and shall terminate on the Vesting Day unless it has been terminated prior to that date under the provisions of this Indenture.
(b) (i) Within a period of not more than eighteen months prior to the Vesting Day or prior to the termination of the Trust whichever shall be the earlier the Trustees shall convene a meeting of the Unit Holders for the time being to determine by unanimous Resolution whether the Unit Holders desire any plan for the continuation of the Trust or for its conversion into an alternative type of Trust or for the sale and realisation of the Trust Fund in any manner other than as herein provided.
(ii) The Trustees shall on the Vesting Day deal with all or any part of the Trust Fund in accordance with the Plan so ratified.
THE Trust may be terminated at any time before the Vesting Day if it is:
(i) so resolved by special Resolution of the Unit Holders and such termination shall take effect from a date to be named in a resolution;
(ii) if the trustees in their absolute discretion so decide.
(a) UPON the Trust terminating or being terminated under the provisions of Clause 14 or 15 hereof and subject to any unanimous direction of the Unit Holders the Trustees shall sell call in and convert into money or cause to be sold called in and converted into money the investments and property constituting the Trust Fund (all investments being sold to the highest bidder and any Unit Holder having a right to bid at any auction) divide the proceeds of such sale and conversion among the Unit Holders in proportion to the number of Units of which they are at the date of giving such notice respectively registered as the Holders PROVIDED ALWAYS that the Trustees shall retain full provision for all costs disbursements commissions brokerage fees expenses claims and advertising costs and demands incurred or expected by the Trustees in the liquidation of the Trust.
(b) Every distribution under the provisions of sub‑clause (a) of this Clause shall be made only against the production of the relevant Unit Certificates accompanied by request for payment in such form as the Trustees require. For any interim distribution the Trustees shall endorse Certificates with a notice of the payment made and for the final distribution Certificates shall be surrendered to the Trustees.
(c) The Trustees may in their discretion at the request of any Unit Holder transfer to such Unit Holder any assets of the Trust Fund in specie in satisfaction or part satisfaction of the entitlement of the Unit Holder on the termination of this Indenture.
(d) The Trustees shall as soon as practicable after the termination of the Trust give to each Unit Holder not less than one month's notice of the impending distribution and of the anticipated amount thereof.
(e) The Trustees may (subject to the provisions of this Indenture) postpone the sale and conversion of any part of the investments and property of the Trust Fund for such time as they think desirable in the interests of the Unit Holders and shall not be responsible for any loss attributable to such postponements.
(f) The Trustees may if they think fit transfer any of the investments of the Trust Fund to the Trustee of any other Trust (whether or not the Trustees hereof are in any way associated with any other Trust) on receiving cash equivalent to the value of such investment at the date of transfer valued in accordance with the foregoing provisions of this Indenture.
50 The Trustee is not seeking to have conferred on it a specific or general power to amend or vary the terms of the Deed or to divest or alter the beneficial interests of any unit holder.
51 For the purposes of s 63(1), the proposed 'transaction' is the act of extending time beyond the two-month period prescribed in r 9(ii).
52 That transaction is in the management or administration of the property vested in the Trustee because:
(a) the Trustee is required to keep and maintain a register of unit holders;[28]
(b) the person from time to time entered in the register as the unit holder shall be the only person recognised by the Trustee as entitled to the units registered in their name or to exercise the rights and privileges of the registered holder thereof pursuant to the Deed;[29]
(c) unit holders may request the Trustee to register transfers of all or any of the units held by them;[30]
(d) the proposed transaction - the extension of the time prescribed in r 9(ii) of the Third Schedule - relates to, and would facilitate, the process of the transfer of units;
(e) the process of maintaining the register of unit holders encompasses the admission and departure of unit holders in the Trust from time to time upon the transfer of units; and
(f) the maintenance of the register of unit holders is one of the essential managerial and administrative functions of the Trustee: the register must be maintained so that:
(i) the identity of each entity that holds units in the Trust at a particular time is known; and
(ii) the Trustee is in a position to perform its duties and obligations under the Deed, if and when required, including the duties and obligations imposed on the Trustee by cls 14, 15 and 16,[31] which are provisions of the Deed that govern the manner in which the property vested in the Trustee is to be managed, administered, handled, directed or controlled.[32]
53 The 'expediency' of implementation of the proposed transaction is an expediency that relates to the process of the transfer of units and the maintenance of the register of unit holders, and therefore relates to the management or administration of the property vested in the Trustee.[33]
54 In a case where the Trustee after considering the fair value stated in a transfer notice does not accept that fair value and the question of fair value has to be referred to a valuer, the appointment of that valuer and the valuer's determination of the fair value of the relevant units would have to be completed no later than six weeks after the date on which the transfer notice was served on the Trustee so as to give the other unit holders the 14 days within which to accept the Trustee's offer of the units the subject of the notice.
55 Even then, the two-month period would expire at the end of the 14 day period, which would mean that the Trustee would have no time within which to use its best endeavours (as it is required to do) to find a unit holder or select a person to admit as a unit holder who is willing to purchase the units at the fixed fair value before the proposed transferor was at liberty to sell or transfer the units to any person.
56 If a dispute arose between the Trustee and any of the unit holders, or between two or more unit holders, in relation to a transfer notice, then that dispute would be required to be referred to arbitration under r 14 of the Third Schedule. In such a case, as things stand, the time to process the proposed transfer of units in accordance with the Third Schedule could not be extended.
57 I accept that the proposed transaction would be expedient in the interests of the unit holders in that it would:
(a) preserve the rights of unit holders (other than the proposed transferor) under r 5 to have the units the subject of a transfer notice offered to them in the first instance; and
(b) provide the Trustee with reasonable time and opportunity to use its best endeavours to find a unit holder or select any person 'as to whom it is desirable in the interests of the trust to admit as a unit holder', and before the proposed transferor is at liberty to sell or transfer the units 'to any person'.
58 The power the Trustee seeks to have conferred upon it under s 63 is not expressly conferred by the Deed.
(a) clause 35 of the Deed;
(b) clause 20(w) of the Deed, which confers upon the Trustee the power to 'do all such other things as may be incidental to the exercise of the powers and authorities conferred on the Trustees by these presents'; and
(c) rule 15(ii) of the Third Schedule,
but submits, for the reasons set out below, that none of those provisions:
(d) empowers the Trustee to vary r 9(ii) of the Third Schedule to enlarge the two‑month period, or to declare the power it seeks to have conferred upon it by the Court under s 63;
(e) empowers the Trustee to extend the two-month period if and when required in a particular case; or
(f) otherwise provides a means by which the two-month period can be extended.
With the special consent of the Unit Holders the Trustees may at any time and from time to time by supplemental Indenture revoke add to or vary all or any of the Trusts hereinbefore limited or the Trusts limited by any variation or alteration or addition made thereto from time to time and may by the same of any other Indenture or Indentures declare any new or other Trusts or powers concerning the Trust Fund or any part or parts thereof the Trusts whereof shall have been so revoked added to or varied but so that any law against perpetuities is not thereby infringed and so that such new or other Trusts powers discretions alterations or variations:
(a) may relate to the management or control of the Trust Fund or the investment thereof or to the Trustees' powers or discretions in these presents contained.
(b) shall not be in favour of or for the benefit or result in any benefit to the Settlor or Trustees or any of them but shall otherwise be for the benefit of all or one or more of the Unit Holders or the next of kin of all or any of the Unit Holders.
(c) shall not affect the beneficial entitlement to any amount set aside for any Unit Holder prior to the date of the variation alteration or addition.
These presents shall not be capable of being revoked added to or varied otherwise than as provided in cl 35.
(a) the power (variation power) to revoke add to or vary all or any of:
(i) the Trusts hereinbefore limited; or
(ii) the Trusts limited by any variation or alteration or addition made thereto from time to time; and
(b) the power (declaration power) to declare any new or other Trusts or powers concerning the Trust Fund or any part or parts thereof.
63 The terms of cl 35 are substantially the same as the terms of the variation power considered by Moore J in Re Owies Family Trust.[35]
64 Clause 20 of the trust instrument in that case provided:
The Trustees for time being may at any time and from time to time by deeds with the consent of the Guardian if alive revoke add to or vary all of any of the trusts hereinbefore limited or the trusts limited by any variation or alteration or addition made thereto from time to time and may by the same or any other deed or deeds declare any new or other trusts or powers concerning the Trust Fund or any part or parts thereof the trusts whereof shall have been so revoked added to or varied but so that the law against perpetuities is not thereby infringed and so that such new or other trust powers discretions alterations or variations -
(i) may relate to the management or control of the Trust Fund or the investment thereof or to the Trustees' powers or discretions in these presents contained;
(ii) shall not be in favour of or for the benefit of the Settlor or result in any benefit to the Settlor but shall otherwise be for the benefit of all or any one or more of the General Beneficiaries or the next of kin of any of them or the next of kin of the Primary Beneficiary or Primary Beneficiaries or any of them;
(iii) shall not affect the beneficial entitlement to any amount set aside for any Beneficiary prior to the date of the variation, alteration or addition.
67 Insofar as the variation power conferred on the Trustee is concerned, applying what was said by Moore J in Re Owies, the scope of the power is not broad enough to empower the Trustee to vary r 9(ii) to enlarge the two-month period.
68 In relation to the declaration power conferred in Re Owies, Moore J said:[38]
69 The scope of the declaration power conferred upon the Trustee by cl 35 of the Deed is not broad enough to empower the Trustee to declare the power it seeks to have conferred upon it by the Court under s 63. Under cl 35 of the Deed, the new or other power to be declared must concern 'the Trust Fund or any part or parts thereof'. Such powers would include dispositive powers (or powers of appointment) or administrative powers - eg powers of sale, investment, etc. The power the Trustee seeks under s 63 is not of that type.
(w) To do all such other things as may be incidental to the exercise of the powers and authorities conferred on the Trustees by these presents.
71 For cl 20(w) to operate to confer that power on the Trustee, the 'thing' to be done must be incidental to the exercise of the powers and authorities conferred upon the Trustee by the Deed.[39] Here, the 'thing' to be done - the extension of the two‑month period in r 9(ii) of the Third Schedule - is not incidental to (in the sense of it being necessary for)[40] the exercise of any of the powers or authorities conferred upon the Trustee by the Deed. Rather, the extension of time is necessary so that the Trustee can comply with the obligations imposed upon it under the mandatory procedure for the transfer of units set out in the Third Schedule. For that reason, cl 20(w) is not a source for the power the Trustee seeks to have conferred upon it by the Court under s 63.
If all the unit holders agree in writing all or any of the requirements of this clause shall not apply in relation to:
(i) the sale or transfer by a unit holder of his units;
(ii) the varying, dispensing or non-observance of any of the provisions of this clause;
(iii) the giving to any person or persons of a preferential right or option to acquire any units of a proposed transferor.
73 As a matter of construction, the word 'clause' in this rule, and in other rules of the Third Schedule, should read 'schedule'.[41]
75 It is difficult to ascertain the meaning of r 15(ii).
If all the unit holders agree in writing, any of the rules of this schedule may be varied, dispensed with or not observed.
77 Rule 15 does not confer upon the Trustee the power it seeks. Nor does it otherwise provide a means by which the two-month period prescribed in r 9(ii) of the Third Schedule can be extended.
78 The Trustee seeks an order pursuant to s 63 in the following terms:
(a) Where a transfer notice is served by a unit holder under r 1 of the Third Schedule of the Deed, the plaintiff may extend the time the plaintiff has to comply with its obligations under r 9(i) of the Third Schedule beyond the two-month period prescribed in r 9(ii) of the Third Schedule for such period as the plaintiff thinks fit.
(b) The power conferred upon the plaintiff by this order may be exercised by the plaintiff so as to have retrospective effect.
79 For the reasons set out above, an order in those terms will be made.
80 By para 3(c) of the originating motion, the Trustee seeks the Court's advice regarding the proper construction of certain provisions of the Third Schedule.
81 Paragraph 3(c) raises the following matters of construction:
(a) Should the word 'clause' where it appears in rr 3, 11, 12, 14 and 15 of the Third Schedule be corrected to read 'schedule'?
(b) Should the word 'sub-paragraph' where it appears in r 12 of the Third Schedule be corrected to read 'rule'?
(c) Should the words 'or valuer' be inserted between the words 'auditor' and 'shall' in the third last line of r 3 of the Third Schedule?
(d) Should the words 'or valuer' be inserted after the word 'auditor' where it appears in r 4 of the Third Schedule?
82 The applicable principles of construction are summarised by Buss P in Mercanti:
(a) The construction of a written agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean.[43]
(b) A written agreement must be construed as a whole. The words of a clause in the agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all the provisions of the agreement with a view to achieving harmony among them.[44]
(c) Words may be supplied, omitted or corrected in an instrument where it is clearly necessary in order to avoid absurdity or inconsistency.[45] A court will seek to save a document rather than allow the intention of the parties to miscarry.[46]
(d) The rules that apply to the construction of contracts apply to the construction of deeds.[47] They also apply to trusts.[48]
(e) The search for 'intention' in relation to trusts, as with contracts, is for the intention as revealed in the words used by the parties. The expressed intention of the parties is to be found in the answer to the question, 'What is the meaning of what the parties have said?', not to the question, 'What did the parties mean to say?'
83 Dealing with each matter of construction in turn, I am satisfied of the following:
(a) Paragraph 3(c)(i): When regard is had to the context of each of rr 3, 11, 12, 14 and 15 of the Third Schedule and the Third Schedule as a whole, the reference to 'this clause' in each of those rules must have been intended by the settlor to be a reference to the Third Schedule as whole and not be limited to the 'purposes' of r 3 alone, the 'provisions' of r 11, 12 or 14 alone, or the 'requirements' of r 15 alone.
By way of example, r 14, as drafted, is concerned with the referral of disputes 'which arise between the Trustee and any of the unit holders or between any of the unit holders inter say [sic]' in relation to the operation of any of the provisions of this clause. Read literally, the reference to 'this clause' limits the operation of r 14 to disputes that arise in relation to the operation of that rule alone. This would mean that a dispute that arises between the Trustee and a unit holder regarding, say, the validity of a notice served by the unit holder on the Trustee under r 1 of the Third Schedule, or any other dispute that arises in relation to the operation of any of the rules of the Third Schedule, would not be referrable to arbitration under r 14. That cannot have been the settlor's intention.
A transfer notice is required to be given under the Third Schedule (specifically, r 1) and is deemed to have been so given (under the schedule) in the circumstances set out in r 12.
The word 'clause' where it appears in rr 3, 11, 12, 14 and 15 of the Third Schedule should be corrected to read 'schedule'.
(b) Paragraph 3(c)(ii):The provisions of the Third Schedule are referred to in cl 11 of the Deed as 'the rules set out in the Third Schedule relating to permitted transfers'. As a matter of construction, the word 'sub-paragraph' in r 12 should be corrected to read 'rule'.
(c) Paragraphs 3(c)(iii) and (iv): A notice served by a unit holder on the Trustee under r 1 of the Third Schedule must specify the price the unit holder fixes as the 'fair price' of the units which it desires to transfer or sell. If the Trustee is of the opinion that the 'fair value' stated in the notice for the purposes of the Third Schedule is too high or too low, it may refer the question of fair value to the auditor of the trust fund or (as in the present case, in the absence of such an auditor) to a valuer who is appointed by the Chair of Resolution Institute (see para 13 above). Despite r 3 contemplating a determination of the fair value of the units being undertaken by either the auditor or the appointed valuer, as the case may be, that rule then refers only to the fair value as determined by 'such auditor' and not to the fair value as determined by an appointed valuer. Similarly, r 4 refers only to the auditor 'making the valuation' or determining the 'fair value' of the units. Read literally, r 4 would not operate in a case where there is no auditor and as a result a valuer has been appointed to determine the 'fair value' of the units. Again, that cannot have been the settlor's intention. As a matter of construction, the words 'or valuer should be inserted in the places identified in paras 3(c)(iii) and (iv) of the originating motion.
84 In his submissions, Mr Strykert annexes a proposed counterclaim. The proposed counterclaim refers to a purported Music Publisher Royalty Payor Assignment between Mr Strykert and MRCI and includes a claim for relief against MRCI to the effect that the Assignment is void and unenforceable to the extent to which it purports to give MRCI an interest in the Trust. The asserted basis of unenforceability is said to be that the Assignment was entered into on the basis of a mutual mistake of law, in turn based on the assignment occurring otherwise than in accordance with the Deed. In addition, it appears to include an alternative claim that the Assignment was entered into by Mr Strykert on the basis of a misrepresentation made to him by MRCI.
85 The proposed counterclaim also includes a separate claim by Mr Strykert against the Trustee, in which he seeks declarations with respect to the Relevant Trust Monies as defined in the orders made by Connock J on 3 October 2025. Mr Strykert's asserted entitlement to those monies recognises the Trustee's entitlement to have its costs, on an indemnity basis, paid from those relevant trust monies.
86 The basis upon which Mr Strykert contends that he is entitled to the Relevant Trust Monies, apart from the Trustee's entitlements, is based on the same matters which give rise to his contention that the assignment between him and MRCI is void and unenforceable.
87 The counterclaim fundamentally seeks to advance an inter-partes claim between Mr Strykert and the MRCI.
88 I see no reason why it is appropriate that orders be made in this proceeding to the effect that the proceeding commenced by the Trustee by originating motion continue as if it were commenced by writ. The Trustee commenced the proceeding by originating motion in Form 5B which was entirely appropriate given the nature of the proceeding commenced by the Trustee given that the Trustee was applying for relief pursuant to r 54.02 of the Rules for the determination of questions that have arisen in the execution of a trust and because the Trustee was seeking orders pursuant to s 63 of the Trustee Act.[49]
89 Rule 4.07 of the Rules empowers the Court to make an order that the proceeding continue as if commenced by writ where that course is convenient.
90 In my view, that course is not appropriate here. Whilst it may be convenient to Mr Strykert, it is opposed by MRCI. More pertinently, there is no reason why the Trustee and the other unitholders of the Trust, aside from Mr Strykert, should be vexed by a proceeding which relates principally, if not solely, to matters between Mr Strykert and MRCI. It is true that the Trustee is a named party, but it appears likely that the Trustee's role is a very limited one. The limited nature of the Trustee's role in the proceeding, if it were to continue by writ, would likely minimise the extent of the disruption occasioned by it being party to the proceeding. If the fresh proceeding was one which also names the Trustee as a party and includes substantially the same claim as that made in the proposed counterclaim, the added disruption of continuation of the existing proceeding may not amount to much. However, it may still amount to something, and the Trustee's costs, limited though they may be, are likely to come from the trust fund. A similar position pertains to the remaining unitholders, who will remain parties to a proceeding in which the real protagonists are Mr Strykert and MRCI.
91 I see no reason why Mr Strykert should not be required to commence a separate proceeding against MRCI in the usual way.
92 Accordingly, the further orders sought by Mr Strykert will not be made.
93 The Trustee should prepare a proposed order to give effect to these reasons and circulate it to the other parties before providing a copy to the Court within seven days.
MEN AT WORK PTY LTD (ACN 005 799 271) as trustee for the "Men at Work" Unit Trust
HAY SONGS PTY LTD (ACN 006 017 741) AS TRUSTEE FOR THE COLIN HAY FAMILY TRUST
LINDA ANNE WOSTRY AS TRUSTEE FOR THE GREGORY NORMAN HAM FAMILY TRUST
RAMDENE PTY LTD (ACN 009 324 574) AS TRUSTEE FOR THE JOHN REES FAMILY TRUST
[1] Which correspond to the matters set out above.
[2] Royal Melbourne Hospital v Equity Trustees Limited [2007] VSCA 162; (2007) 18 VR 469, [148] (per Bell AJA).
[4] Re Dion Investments Pty Ltd [2014] NSWCA 367; (2014) 87 NSWLR 753, [89] (per Barrett JA). In Re Dion Investments, the NSW Court of Appeal was concerned with the NSW equivalent of s 63(1), being s 81(1) of the Trustee Act 1925 (NSW).
[19] [2024] VSC 744, [214]. Footnote omitted.
[22] Riddle v Riddle [1952] HCA 12; (1952) 85 CLR 202, 214 (per Dixon J).
[26] Royal Melbourne Hospital, [77]; Riddle, 214 and 219.
[34] Emphasis added. In Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495, [137], Buss P said: 'The words 'these presents' are an expression by which reference is made in a deed to the deed itself.'
[35] [2020] VSC 716. See also Jenkins v Ellett [2007] QSC 154, [7]-[17] (per Douglas J).
[36] Ibid [72]-[76]. Emphasis added.
[40] Black's Law Dictionary, 11th ed (2019), p 1415.
[44] Mercanti, [70]. See also Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109-110.
[45] Lambert [2006] HCA 10; (2006) 228 CLR 409, [21]. See, generally, Lewison & Hughes, The Interpretation of Contracts in Australia (2012), pp 407-410.
[46] See Welshman v Robertson (1875) 1 VLR 124, 128, where Barry J refers to the maxim ut res magis valeat, quam pereat in an exchange with counsel.
[47] Mercanti at [72]. See also Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45, [9]-[10].
[49] See r 4.05(b) and (c) of the Rules.
Men at Work Pty Ltd
Strykert [2026] VSC 188
(2007) 18 VR 469
(2014) 87 NSWLR 753
(2004) 60 NSWLR 334
(1952) 85 CLR 202
(2016) 50 WAR 495
(1973) 129 CLR 99
(2006) 228 CLR 409
(2002) 240 CLR 45