2 Mr O'Bryan for the trustees, and Mr Merralls for the appellant, have now submitted that the order to be made ought include terms to the effect, or which would be construed as meaning, that if application were made to the judge below pursuant to s.63 or s.63A of the Trustee Act 1958, and the judge made an order, the judge would be bound to direct that the proceeds of sale be distributed only to the beneficiaries of the clauses Y and T trusts. We are not disposed to accede to that application and we consider that the basis on which it has been propounded is misplaced.
3 The judge below concluded that there was power under the Will for the trustees to distribute the proceeds of sale to the beneficiaries. The effect of our reasons for judgment, published on 7 April 2005, is that there is no such power under the Will and that accordingly, the proceeds of sale must be held by the trustees upon trust for the beneficiaries of Clauses Y and T trusts.
4 As we endeavoured to make clear in our reasons of 7 April 2005, if the proceeds of sale are to be distributed to the beneficiaries, it may only be done pursuant to the rule in Saunders v. Vautier[1], or by reason of a variation of the trusts pursuant to s.63 or s.63A of the Trustee Act 1958.
5 The effect of what is proposed by Mr O'Bryan and Mr Merralls would be that we make a determination in advance of application being made to the judge below under s.63 or 63A, that his Honour would be bound, if he were disposed to make such an order, to order a distribution of the proceeds of sale to the beneficiaries of
the clauses Y and T trusts. Until and unless such an application is made, that question is academic. Until and unless the judge below has considered the application and the materials put in support of it, it would be precipitant for us to express any view as to the way in which his Honour ought exercise his powers.
6 Consequently, the court is of the view that the orders which should be made are in substance those which were referred to in paragraph 54 of our reasons for judgment or reasons of judgment, published on 7 April 2005.
WARREN C.J.:
7 The orders of the court are as follows:
1. The appeal is allowed.