Segelov v Ernst & Young Services Pty Ltd

; 97 ACSR 183 Streller v Albury City Council [2013] NSWCA 348 Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd (1995) 56 FCR 236 Vegners v Federal Commissioner of Taxation [1991] ATC 4,213 Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; 140 CLR 503 Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484 YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; 109 CLR 395 Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 Texts Cited: D Hayton, P Matthews and C Mitchell, Underhill and Hayton Law of Trusts and Trustees, (18th ed 2010, LexisNexis) D Ong, Trust Law in Australia, (4th ed 2012, Federation Press) H A J Ford and W A Lee, Thompson, Principles of the Law of Trusts, vol 1 (at Release 97) J C Campbell "Should the 'Rule in Hastings-Bass' Be Followed in Australia? - Trustees' Duties to Enquire and Trustees' Mistakes" (2011) 34 Australian Bar Review 259 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) K Lewison and D Hughes, The Interpretation of Contracts in Australia, (2012, Lawbook Co) L Tucker et al, Lewin on Trusts, (19th ed 2015, Sweet & Maxwell) Category: Principal judgment Parties: Dana Segelov (Appellant) Ernst & Young Services Pty Ltd (Respondent) Representation: Counsel: M K Meek SC with D Barlin (Appellant) I M Jackman SC with D F C Thomas (Respondent)

Solicitors: Turner Freeman (Appellant) King & Wood Mallesons (Respondent) File Number(s): 2014/113067 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2014] NSWSC 283 Date of Decision: 21 March 2014 Before: Nicholas AJ File Number(s): 2012/346052

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Ernst & Young Services Pty Ltd (EYS), is the trustee of the Ernst & Young Services Trust (the Trust), a service trust associated with the well-known firm of accountants, Ernst & Young (E&Y). The Trust provided services to E&Y in return for payment. The Trust was a discretionary trust, with broad powers conferred on EYS as trustee. The potential objects of a favourable exercise of discretion by the trustee, whom the trust deed described as "beneficiaries", included spouses of, and persons nominated by, partners of E&Y. Towards the end of June each year during the relevant period, the directors of EYS resolved to make distributions of income to certain discretionary objects. Prior to 30 June each year EYS made interim distributions to certain discretionary objects. The appellant, Ms Segelov, was nominated as a "beneficiary" of the Trust shortly before her husband, Mr Joseph, became a partner of E&Y in July 2006. In the financial year that followed, distributions totalling around $51,000 were paid into a St George bank account in the joint names of Ms Segelov and Mr Joseph. In July 2007, Mr Joseph directed EYS to pay further distributions into a different account held with Westpac in the joint names of Ms Segelov and Mr Joseph. Thereafter around $410,000 was paid into the Westpac account until March 2012. Ms Segelov was at all times unaware of her entitlement under the Trust and of the periodic payments into either account. She became aware of her entitlement and the payments only after she and Mr Joseph separated in November 2011. Clause 2.1(a) of the trust deed empowered EYS as trustee to apply prior to 30 June each financial year so much of the income arising from the trust fund as it thought fit, including by making payment into a bank account jointly held by a beneficiary and that payment in such manner would operate as a full and final discharge of the trustee's obligations, with or without the execution of a receipt by the beneficiary. The trust deed was amended on 30 April 1998 by inserting a new clause 6.26 which, without limiting the power to make distributions under clause 2.1, expressly empowered the trustee to make interim distributions of income. The expressions 'Income' and 'Income of the Trust Fund' at the relevant times were defined as the accounting income as set out in the annual accounts of the trust fund. The trust deed also contained a clause exempting the trustee from liability for loss, neglect or breach of trust unless the liability arose from the trustee's own wilful neglect or dishonesty. Ms Segelov brought proceedings in the Equity Division seeking equitable compensation in the amount of $468,995.39 alleging, amongst other things, breach of trust by EYS on the grounds that the trust deed did not authorise interim distributions of 'income' and that EYS had failed to perform its duty to inform beneficiaries of the Trust of their entitlement once determined by EYS. Nicholas AJ rejected her claim. Ms Segelov appealed the primary judge's decision. The main issues on appeal were whether:

Judgment

1. MEAGHER JA: I agree with Gleeson JA.
2. GLEESON JA: The Ernst & Young Services Trust (Trust), as its name implies, is a service trust. It provides staff and certain assets to Ernst & Young (E&Y), a well-known accounting firm, in return for payment from E&Y. The respondent (EYS) is the trustee of the Trust which is in the familiar form of a "discretionary trust", with broad powers conferred on the trustee. [1] As is common, the trust deed described the potential objects of a favourable exercise of discretion by the trustee as "beneficiaries". The beneficiaries include spouses, widows, children and other descendants of the partners of Ernst & Whinney (which includes E&Y as a successor in business), as well as persons nominated by partners of E&Y with the consent of EYS. At the relevant time, E&Y had over 400 partners.
3. The appellant (Ms Segelov) was nominated as a beneficiary of the Trust by her husband Mr Joseph, shortly prior to him becoming a partner of E&Y on 1 July 2006. Thereafter EYS, in the exercise of its discretion as trustee, made distributions of over $460,000 over a six year period, which were paid into accounts in the joint names of Ms Segelov and her husband. In November 2011, Ms Segelov and Mr Joseph separated.
4. Ms Segelov's complaint can be shortly stated. At all relevant times she was ignorant that she was a beneficiary of the Trust and ignorant of the distributions from the Trust to her which had been paid into bank accounts in the joint names of herself and her husband. She claimed that she derived no use or benefit from such payments.
5. The primary way in which Ms Segelov framed her claim against EYS, as trustee, was that EYS owed her a duty to inform her upon becoming entitled to a distribution that she was a beneficiary under the Trust. She also alleged that EYS owed her a duty to ensure that she received the benefit of any distribution to her. She claimed that EYS had breached these duties by failing to notify her of her entitlements under the Trust when determined by EYS in late June each year. Ms Segelov claimed equitable compensation which at trial was quantified in an amount of $468,995.39.
6. Ms Segelov also claimed that the payments which had been made into the joint bank accounts prior to 30 June each year were not payments of "income" of the "Trust Fund" (as those terms are defined in the trust deed) and accordingly EYS was not entitled to the benefit of the discharge provided by the receipts clause in the trust deed (cl 2.1(a)). She characterised these payments as "advances" of expected income, but not income. She claimed that she received no benefit from any of the payments into the joint bank accounts because her former husband had used them for his own expenditure.

Relevant terms of the Trust

1. The Trust is constituted by a deed of settlement dated 20 May 1988 and was originally known as "the Second Meritable Trust". The settlor, Mr Sicree, was a chartered accountant and the trustee was EYS, then known as E and W Secretariat Pty Ltd.
2. Amongst the recitals to the trust deed it was stated that: the settlor desired to create a settlement for the benefit of certain persons being members of the families of partners of the firm Ernst & Whinney (Recital A); the settled property was the sum of $100 transferred to the trustee on execution of the trust deed (Recital B); and the settlor desired the trustee to have the most absolute discretion possible in relation to the administration of the Trust Fund and in the distribution of the capital and income of the Trust Fund (Recital E).
3. The term "Ernst & Whinney" is defined in cl 1.4 to mean the partnership of Chartered Accountants known by that name and including every firm or corporation by whatever name which is the successor in business to that firm. It is common ground that E&Y is the successor in business of Ernst & Whinney.
4. The trust deed has been amended by further deeds on a number of occasions. It is unnecessary to refer to the detail of these amendments except in three respects: the first concerns the amendment to the name of the Trust to "Ernst & Young Services Trust" by an amending deed dated 19 May 2004; the second concerns an amendment to the definition of "Income" or "Income of the Trust Fund" in cl 1.6 (see [19] below); and the third concerns the addition of cl 6.26 conferring power on the trustee to make interim distributions (see [24] below).
5. The discretionary objects of the Trust (which, as already mentioned, the trust deed describes as "Beneficiaries") are defined in cl 1.1 in wide terms as follows: (a) the spouses for the time being of the partners of Ernst & Whinney or a widow of any such partner, (b) the children or other descendants for the time being of an Ernst & Whinney partner, (c) the trustee (in its his or her capacity as trustee) of any trust or settlement or will of which any one or more of the persons mentioned in paragraph (a) and (b) is or are named as a beneficiary or beneficiaries or a person or persons in whose favour a discretion vested in such trustee may be exercised and the corpus of which shall not vest outside the Perpetuity Period, (d) any corporation of which any of the persons referred to in paragraphs (a) and (b) are members, other than the Trustee, (e) any institution, body or organisation from time to time established in Australia and whose objects are charitable at law, (f) any object or purpose in Australia which is charitable at law, (g) any institution or body whose income is exempt from taxation by virtue of the provisions of the Income Tax Assessment Act 1936 or any amendment thereof from time to time in force, (h) any other person, corporation, trust or object from time to time nominated by a partner of Ernst & Whinney with the consent of the Trustee.

The relevant facts

1. The parties helpfully provided the primary judge with an agreed factual narrative, which his Honour adopted. [3] It is sufficient to refer to the following relevant facts which are taken from the agreed narrative.

Nomination form

1. In the form entitled "Nomination of Beneficiary - The Ernst & Young Services Trust" dated 8 June 2006 (nomination form), Mr Joseph listed Ms Segelov's name, date of birth and tax file number beneath the words "Pursuant to the Trust Deed, I wish to nominate the following beneficiaries". The nomination form included a declaration (to be signed by the nominating partner): "I hereby declare that I hold the authority of the beneficiary to the above TFN". It was common ground that this declaration appeared to have been signed by Mr Joseph. The next section of the nomination form is headed "Recommendation of % of EYST allocation to be advanced". No percentage was specified. This was followed by a space for the inclusion of payment details, being a bank account number and BSB code, as well as the corresponding bank account names. These details had been completed by Mr Joseph, who identified a joint bank account in the name of Ms Segelov and Mr Joseph held with St George Bank (St George account). The nomination form concluded with the statement that: "This recommendation is to remain in place until revoked in writing".
2. It was common ground that Ms Segelov jointly opened the St George account and was legally entitled to operate that account at all relevant times.
3. From 11 July 2006 to 8 June 2007, EYS made seventeen payments totalling $51,625 into the St George account.
4. On 9 July 2007 Mr Joseph sent an email to an employee of EYS stating: Starting this month and going forward can you pls (sic) pay my services trust distribution to the following account. The email contained the BSB code, account number and name of an account in the joint names of Ms Segelov and Mr Joseph held with Westpac Bank (Westpac account).
5. Ms Segelov was unaware of the request by her husband to change the bank account where payments from the Trust were to be made. The Westpac account was also an account held jointly in the name of Ms Segelov and Mr Joseph.
6. Between 26 July 2007 and 12 March 2012, EYS made payments totalling $417,370.39 into the Westpac account. This figure seems to have been taken from MFI 1 (being a schedule of 94 payments provided by counsel for Ms Segelov in his opening at the trial). On appeal, counsel for Ms Segelov provided the Court with a schedule of 92 payments into the Westpac account which totalled $411,241.84. The reason for the differences between this figure (and the slightly lesser number of payments) and the figure referred to by the primary judge, [4] was left unexplained. However nothing presently turns on this difference.

The manner in which EYS distributed income

1. It is common ground that the functions of EYS as trustee of the Trust are formally carried out by the board of directors of EYS. Each year, shortly before 30 June (2007 to 2012), the board of directors of EYS resolved to make distributions to certain discretionary objects, including Ms Segelov.
2. Taking the financial year ending 30 June 2007 by way of example, the minutes of meeting of directors of EYS held on 22 June 2007 recorded that the directors resolved that the net income of the Trust for the year end 30 June 2007 be distributed: (a) first, to certain beneficiaries in the amounts listed next to their names in Schedule A as attached to the minutes; and (b) to the beneficiaries listed in Schedule B - with each to receive an amount determined in accordance with a specified formula "A x (B-C)". The integers of the formula recorded in the resolution were described as follows: A is the percentage shown on Schedule B next to the beneficiary's name, B is the accounting profit of the trust in relation to the 2007 year. The accounting profit is to be determined in accordance with the accounting practices adopted by the trust in preparing the 2007 accounts, C is the total amount distributed under part a) of this resolution.
3. Ms Segelov's name appeared in Schedule B attached to the minutes, together with the specified percentage referred to as "A" in the formula, and a dollar amount of the distribution to her.
4. The resolutions of the directors of EYS in respect of the subsequent years were in similar terms, except for the financial year ending 30 June 2012. For the 2012 financial year, the formula by which the amount of distributions was determined was changed to one based on a particular number of units allocated to each beneficiary as listed in Schedule B to the minutes of resolution. Nothing material turns on this difference. The other relevant change was that the directors expressly resolved that in accordance with cl 1.6 of the trust deed, the income of the Trust Fund for the 2012 year means that accounting income as set out in the annual accounts of the Trust Fund for the financial year ending 30 June 2012. Again, nothing material is said to turn on this additional resolution.
5. After each financial year, EYS and E&Y prepared and provided to each partner of E&Y a document which set out financial information concerning payments made to that partner in connection with their role as a partner and which was required for the purpose of completing income tax returns for the corresponding financial year. These documents included a separate section setting out the payments made by EYS to beneficiaries of the Trust associated with the partner. It was the expectation of EYS and E&Y that the partner would provide the relevant portions of the documents to the partner's spouse where appropriate. Statements in this form were provided to Mr Joseph for each of the relevant financial years ending 30 June 2007 to 30 June 2012.

1. The amounts referred to above with respect to Ms Segelov are contained in a document which is the subject of a confidentiality order made by the primary judge. Nonetheless, the amounts themselves are not confidential. They were referred to in open court by counsel on the hearing of the appeal. The amount referred to in column 3 is the amount paid by EYS into the St George account in the period 11 July 2006 to 8 June 2007: see [29] above. The amount referred to in column 4 was paid by EYS after 30 June 2007 by instalments on 26 July 2007, 14 November 2007 and on 2 January 2008, as recorded in MFI 1. Counsel for Ms Segelov acknowledged that these instalments were paid into the Westpac account. [5] Counsel for EYS described these payments in oral argument as "top up" payments.
2. EYS issued similar statements to Mr Joseph in relation to the subsequent financial years ending 30 June 2008, 2009, 2010, 2011 and 2012. Again distributions were paid by EYS prior to 30 June each year with further payments to be paid by EYS after 30 June in each year, except 2012. For the year ended 30 June 2012 there was no "top up" payment. The last interim distribution was paid into the Westpac account on 12 March 2012.

Clause 6.26 and clause 2.1(a) of the trust deed

1. The primary judge first dealt with a construction argument raised by Ms Segelov that the power contained in cl 6.26 (to make interim distributions) was subsequently deleted by an amending deed dated 27 April 2006 which was expressed to vary cl 6 of the trust deed by inserting a new cl 6.26. This "new" cl 6.26 conferred the power to enter into and perform any derivative transactions. His Honour rejected this construction of the later amending deed, [6] and there is no appeal from this finding.
2. The primary judge next dealt with the contention of Ms Segelov that, having regard to the defined term "income" (which is set out at [19] above), until the annual accounts of the Trust Fund had been finalised, the payments made prior to 30 June each year might be described as "expected income", but not as income. [7] It was said in oral argument before the primary judge that the consequence of this contention was that the discharge to the trustee afforded under cl 2.1(a) did not apply to such interim payments.
3. The primary judge briefly recorded the parties' submissions before giving two reasons for rejecting this contention. The first was that, as his Honour had already found, cl 6.26 of the amending deed of 30 April 1998 was not replaced by the "new" clause (also numbered cl 6.26) under the amending deed of 27 April 2006. The second reason was that on proper construction of cls 2.1 and 6.26, having regard to the definition of "income", the distributions to the joint bank accounts prior to 30 June of each year were payments of income which attracted the benefit of the discharge in cl 2.1(a). [8] It seems that in reaching this conclusion, his Honour accepted the submission of EYS that the definition of "income" is to be understood as identifying the maximum amount available for distribution, that is, the accounting income as set out in the annual accounts of the Trust Fund. [9]

The asserted duty to inform

1. The "duty" case advanced by Ms Segelov was recorded by the primary judge in these terms [10] - that there is a positive duty requiring the trustee to inform a beneficiary of his or her entitlement to a distribution under the Trust; and the duty to inform arises on an occasion-by-occasion basis once it has been determined by the trustee to make a distribution to that person. His Honour also noted an additional argument advanced by Ms Segelov, either as an extension of this duty, or as a separate duty, that the trustee was required to ensure that the beneficiary received the moneys paid by way of distribution for his or her use and benefit.
2. The primary judge considered that the existence of the suggested duties must be resolved by reference to the obligations imposed upon EYS as trustee by the terms of the trust deed. His Honour reasoned that this followed from the most important duty of the trustee to obey the terms of the Trust so as to carry out the wishes of the settlor. [11]
3. The primary judge referred to the manner in which EYS carried out its task under cl 2.1(a) and cl 6.26, which has been summarised above at [39]-[46]. He found that by making the payments into the St George account, and subsequently into the Westpac account, EYS fulfilled its obligations under cl 2.1(a) of the trust deed. [12] His Honour reasoned that the rights in respect of each payment immediately vested jointly in Ms Segelov and Mr Joseph as joint holders of the accounts, referring to the effect of a deposit into a joint account as described by the High Court in Russell v Scott. [13]
4. The primary judge noted that in Hartigan Nominees Pty Ltd v Rydge [14] Mahoney JA expressed the view that, in general, a trustee is not obliged to volunteer documents or information to beneficiaries or possible beneficiaries. [15] Reference was also made to SAS Trustee Corporation v Cox [16] where Campbell JA said: [148] As I have endeavoured to explain elsewhere, the duty of any particular trustee depends on what is involved in faithfully carrying out the office of being trustee of that particular trust: J C Campbell, "Should the 'Rule in Hastings-Bass' Be Followed in Australia? - Trustees' Duties to Enquire and Trustees' Mistakes" (2011) 34 ABR 259, pp 270-7. There may be a core of duties that would always, or nearly always, be involved in faithfully carrying out a trust, regardless of its individual peculiarities. Beyond that, any additional duties of a particular trustee come to be understood through considering the practical exigencies of the types of decision that that particular trustee has to make, in the particular social or business environment in which that trustee is operating. To those factual matters one applies the standards of faithful performance of those duties that are laid down in the trust instrument, and of faithfully attempting to achieve the objectives articulated in the trust instrument. Because that is the way in which trustees' duties arise, one cannot say that trustees always are, or always are not, under a duty to inform a potential beneficiary of his or her entitlements under the trust. [149] … There was no positive duty to provide information in the trust instrument. Absent such a positive duty, I cannot see how a trustee is in breach of a duty it owes to a beneficiary by failing to give the beneficiary information that the trustee has no reason to believe will be of the slightest practical use to the beneficiary.

Hawkesley v May

1. Having reached this conclusion by reference to the terms of the Trust, the primary judge addressed Ms Segelov's contention that the decision of Havers J in Hawkesley v May [21] (Hawkesley) supported the existence of a duty to inform. His Honour noted [22] that in Hawkesley, Havers J held that the trustees under a deed of settlement had a duty to inform a beneficiary, on his attaining 21, that he had an interest in the capital and income of the funds of the trust.
2. The primary judge observed that Hawkesley had been the subject of comment in a number of Australian decisions: SAS Trustee Corporation v Cox; [23] Hawkins v Clayton; [24] and Hartigan Nominees Pty Ltd v Rydge, [25] but he was unaware of any authority which had accepted that Hawkesley stated a principle of general application - namely, that a trustee has an obligation to explain to a beneficiary what his rights are, and that such duty arises irrespective of the terms of the trust in a particular case. His Honour considered that the operation of cl 2.1(a) negated such a duty, [26] reasoning: In the present case a possible beneficiary has no entitlement until a determination to make a payment to him has been made. Once determined, EYS is required to make the payment to the beneficiary or to a bank account in his name, the effect of which is to transfer the property in it to him. Without more, I think that payment to an account in the name of a beneficiary would be a reasonable ground for the trustees' assumption that the beneficiary became aware of the payments. Unlike the situation in Hawkesley, EYS does not continue to hold the property of the beneficiary after entitlement has been determined. It then has a positive duty to hand it over to the beneficiary. In the circumstances it is difficult to see the basis of a duty to inform of the kind identified in Hawkesley. I also fail to see that a failure to inform a beneficiary that a payment under clause 2.1(a) has been made infringes any right the beneficiary has.
3. His Honour also rejected Ms Segelov's separate contention that making payments into the joint bank accounts involved a breach of the asserted duty to ensure that she received the benefit of any distribution to her. His Honour found that it was within the trustee's discretion to act upon the information provided by Mr Joseph and noted that as he was a partner, and the husband of a possible beneficiary, it would be curious had the trustee not done so. [27] There is no challenge to this finding.

Issues on appeal

1. The issues on appeal, including those raised by EYS' notice of contention, may be grouped as follows: 1. The duty issues: whether EYS owed a duty to Ms Segelov to inform her that she had been determined to be a beneficiary of the Trust (appeal grounds 1 - 3). 2. The breach issues: 1. whether the distributions paid into the joint bank accounts prior to 30 June each year were payments of "income" of the Trust Fund which attracted the benefit of the discharge contained in cl 2.1(a) of the trust deed (appeal grounds 4 - 6); 2. whether the exemption from liability conferred by cl 7.1 of the trust deed was applicable, or alternatively would EYS be excused from liability pursuant to s 85 of the Trustee Act (appeal grounds 7 - 9; notice of contention, grounds 1(a) and (b)). 1. The quantification issue: whether Ms Segelov failed to demonstrate that she suffered loss or damage in the amount claimed or any lesser amount, by reason of any breach by EYS (notice of contention, ground 2).
2. Ms Segelov did not press grounds 1(b) and (c) of her notice of appeal. These grounds concerned the alleged duties of EYS to refuse to take instructions from her husband as to the account where payments were to be made, and to ensure that trust distributions which were deposited in a joint bank account of Ms Segelov and her husband were received by her. It follows that the related grounds 4(c) and (d) were not pressed by Ms Segelov.
3. Nor did Ms Segelov make any written or oral submissions in support of ground 4(a). This concerned EYS' alleged failure to act in the best interests of the beneficiaries of the Trust. This ground may also be put aside.

Consideration

1. It is convenient to address the contentions of Ms Segelov in the order in which they were argued on appeal. The first issue was the construction question raised by cls 2.1(a) and 6.26 of the trust deed, namely whether the distributions paid into the joint bank accounts of Ms Segelov and Mr Joseph prior to 30 June each year were payments of "income" of the Trust Fund.
2. Although counsel for Ms Segelov framed this issue as going to the question of breach, logically this was the first question which arose on the appeal. This is because irrespective of the trustee's alleged duty of notification to a beneficiary, if the distributions prior to 30 June each year were not payments of "income" of the Trust Fund, then, on Ms Segelov's case, EYS committed a breach of trust by failing to pay the full amount of the distributions as determined by EYS in June each year to be applied in favour of Ms Segelov.
3. A number of preliminary observations should be made. The first is that counsel for Ms Segelov acknowledged that the asserted duty to inform did not relate to the payments made prior to the trustee's determination in June each year. This was consistent with counsel's characterisation of the payments prior to 30 June each year as mere "advances". The duty to inform was said to arise only on Ms Segelov becoming entitled to a distribution following the trustee's determination the subject of the June resolutions each year. [28]
4. The second matter is that Ms Segelov's contention that cl 2.1(a) was ineffective to give a valid discharge in respect of moneys paid into the joint bank accounts, was limited to the payments made prior to the trustee's determination in June each year. [29]
5. The third matter is related to the second. Subject to the effect of the alleged duty to inform, it was not contended by Ms Segelov that the discharge afforded by cl 2.1(a) was ineffective in relation to the so-called "top up" payments paid into the joint bank accounts after 30 June each year. That is, it was not contended by Ms Segelov that the full and final discharge to the trustee under cl 2.1(a) was limited to "such payment[s]" as were made in each relevant year.

Whether the payments prior to 30 June were mere "advances" or distributions of "income" of the Trust Fund

1. According to Ms Segelov's written submissions, the steps in her construction argument were as follows:

• first, cl 2.1(a) provides a discharge to the trustee in relation to the application of income;
• secondly, "income" is determined by reference to the Trust instrument: Commissioner of Taxation v Bamford [2010] HCA 10; 240 CLR 481. Here the term "income" for the purposes of cl 2.1(a) is defined in cl 1.6 of the trust deed to mean accounting income as set out in the annual accounts of the Trust Fund;
• thirdly, the "net income" of a trust estate cannot be properly ascertained until 30 June in any given year;
• fourthly, the payments made by EYS to any beneficiary during an income tax year may be the distribution of the "assessable income" of the Trust, but they are not the "net income" of the Trust; and
• fifthly, cl 6.26 of the trust deed which permitted EYS to make interim distributions of income did not avail EYS, because "income", as defined by the trust deed to be "net income", is not determined until just before or after the end of the financial year.

1. One matter should be immediately noted. The references in Ms Segelov's written submissions to the "net income" of a trust estate and the "assessable income" of the Trust for income tax purposes, and the contrast between these expressions and the "net income" of the Trust, may be ignored. These submissions were erroneously based on the definition of "income" as originally appearing in cl 1.6 of the trust deed. The written submissions overlooked the amendment to that definition brought about by the Amending Deed dated 1 March 2005, the terms of which are set out at [19] above. So much was acknowledged by counsel for Ms Segelov. [30]
2. As refined in oral argument, Ms Segelov advanced the following construction of cls 2.1 and 6.26: [31]

• the word "prior" in cl 2.1(a) allows an application of "income" by the trustee when the trustee has determined, by resolution in late June each year (but prior to 30 June), to make a distribution in favour of beneficiaries;
• the payments made by EYS to Ms Segelov prior to 30 June each year constituted "advances", not an application of "income" by the trustee (under cl 2.1(a)) or an interim distribution of "income" (under cl 6.26), because the payments were made prior to the determination by the trustee for each financial year of the accounting income as set out in the annual accounts of the Trust Fund;

Discussion

1. Clauses 2.1 and 2.2 of the trust deed confer powers on the trustee with respect to the income arising from the Trust Fund in each financial year. So much of the income, as the trustee thinks fit, may be either applied as between beneficiaries, or accumulated by the trustee. But in both cases the power must be exercised prior to 30 June in each financial year. As will be seen, this has significance for the meaning to be given to the term "income" in cls 2.1(a) and 6.26.
2. In the case of a determination by the trustee to accumulate income, the power is coupled with a duty in cl 2.2 to invest the income and the resulting income therefrom and to hold the accumulations as an accretion to the Trust Fund, subject to certain provisos in paras (a) to (d) of cl 2.2, which are not presently material.
3. In the case of an application of income by the trustee, the power may be exercised in one of four ways provided in cl 2.1, namely: by payment to the beneficiary in the manner provided for in para (a); by payment to a parent or guardian, or otherwise by application for the maintenance, education, advancement or benefit of the beneficiary in the manner provided for in para (b); by investment on behalf of any beneficiary in the manner provided for in para (c); or by a resolution of the kind referred to in para (d) to hold the income for any beneficiary.
4. In addition to the four ways of applying income provided in cl 2.1, the deeming provision in cl 1.17 has the effect that the power to apply income under cl 2.1 may be exercised by the trustee, being a corporation, by a resolution of the directors of EYS.
5. Clause 6.26 supplements the power to apply income under cl 2.1 of the trust deed. Clause 6.26 expressly permits the making of interim distributions of income at "any time determined by" the trustee. The subject matter of the interim distributions identified by cl 6.26 is "the income arising from the Trust Fund in the then current Financial Year". Such distributions may be made "in the same manner" and "to the same extent" as the income arising from the Trust Fund for the whole of that financial year may be either "paid" (under cl 2.1(a)), "paid" or "applied" (under cl 2.1(b), "invested" (under cl 2.1(c)) or "the subject of a resolution of the kind referred to in cl 2.1(d)".
6. It was not suggested by Ms Segelov that there is any implied restriction upon the general power to distribute income under cl 2.1, having regard to the specific power to make interim distributions under cl 6.26. The presence in cl 6.26 of the words "[w]ithout limiting its powers under cl 2.1" may be taken to evince an intention that the general power to make distributions under cl 2.1 should be given a construction that accords with the width of the language in that provision. The general power is not to be restricted by reference to the presence of the specific power to make interim distributions under cl 6.26. [36]

Meaning of "income" in cls 2.1(a) and 6.26

1. The first matter to note is that the rules for construction of contracts apply also to trusts. Accordingly, the search for "intention" is only a search for the intention as revealed in the words used by the parties, amplified by the facts known to the parties: Byrnes v Kendle. [37] In the present case the parties are the settlor and EYS as trustee.
2. The second matter to note is that the defined terms "Income" and "Income of the Trust Fund" use capitalised terms whereas the references to "income" in cls 2.1(a) and 6.26 are in lower case as they are elsewhere in the trust deed (for example, cls 2.1(b), (c) and (d), 2.2 and 6.23). However the trust deed is plainly not drafted with the degree of precision that would permit capitalisation to govern its construction.
3. The third matter to note is that the term "Income" is exhaustively defined in cl 1.6 by the use of the verb "means". An exhaustive definition "indicat[es] that its object is the whole of its subject": Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd. [38]
4. The fourth matter to note is that the labels "Income" and "Income of the Trust Fund" are part of the context in which cls 2.1(a) and 6.26 are to be construed. As Lord Hoffmann explained in Chartbrook Ltd v Persimmon Homes Ltd (Chartbrook), [39] concerning definitional provisions in contracts, words used as labels are "usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition. In such cases the language of the defined expression may help elucidate ambiguities in the definition or other parts of the agreement". See also Streller v Albury City Council; [40] Horsell International Pty Ltd v Divetwo Pty Ltd; [41] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [42] and K Lewison and D Hughes, The Interpretation of Contracts in Australia. [43]
5. Against this, it must be recognised however, as Leeming JA observed in Barangaroo Delivery Authority v Lend Lease (Millers Point) Pty Ltd [44] that in the context of a statutory definition, there is a line of authority against using the defined word(s) to construe the words of a definition. [45] Leeming JA doubted that that could be universally true, noting a similar doubt shared by the Victorian Court of Appeal, even prior to Chartbrook, in Hardy Wine Company Ltd v Janevruss Pty Ltd. [46] I share that doubt with respect to contracts or other instruments. Nonetheless even if the correct approach be that it is necessary to put to one side the fact that the parties' chosen labels are "Income" and "Income of the Trust Fund", it remains necessary to consider the purpose, as well as the text, of the definition and the context in which it is used. The sense in which the defined term is used cannot be determined mechanically. As Kitto J stated in YZ Finance Co Pty Ltd v Cummings, [47] that must depend upon "the true construction of the entire provision in which the word appears".

Clause 2.1(a)

1. Dealing first with cl 2.1(a). The starting point is that in order to construe the power contained in cl 2.1(a) the words of the definition of "income" have to be read into the operative text. [48] However when this is done it is readily apparent that there is a tension between the temporal condition affecting the exercise of the trustee's power contained in cl 2.1 - namely, the application of income must occur "prior" to 30 June, and the definition of the subject matter of the power - being the accounting income as set out in the annual accounts of the Trust Fund. The latter must necessarily be drawn up after 30 June each year.
2. If effect is given to the ordinary grammatical or literal meaning, then the power contained in cl 2.1 to pay or apply income could never be effectively exercised "prior" to 30 June, because annual accounts are not drawn up until after that date. Ms Segelov did not ultimately contend for such an extreme construction. Her construction argument recognised that operative effect must be given to the word "prior" in cl 2.1, but sought to limit the exercise of the power to pay income under cl 2.1(a) as being conditional upon the trustee having first made a determination about the "income" of the Trust Fund for that financial year. This argument should be rejected.
3. The power contained in cl 2.1(a) is not expressed to be conditional on the prior determination by the trustee of the amount of the "income" for the relevant financial year. The power is given with respect to a particular subject matter, namely, "so much of the income arising from the Trust Fund in that Financial Year". The words "so much" reinforce that the trustee has a discretion as to how much income (if any) may be applied by the trustee under cl 2.1 in each financial year, up to the maximum set by the accounting income recorded in the annual accounts of the Trust Fund. The word "arising" emphasises that the income from the Trust Fund arises during the course of each financial year.
4. It should be accepted, as EYS emphasised in oral argument, that income arises from the Trust Fund, in the sense that it is generated by or from the activities of the trust, week by week and month by month during the financial year as services are provided and payments in respect thereof are received by EYS. The purpose or object of the definition of "income" may be seen as setting the maximum amount of income that may be applied by the trustee under cl 2.1 in any financial year. The annual accounts record, as a historical fact, the "amount" of income which has arisen from the Trust Fund in each financial year. However, the finalisation of the annual accounts after 30 June, does not affect the character of what is otherwise income arising from the Trust Fund during the financial year.

Clause 6.26

1. Reliance by EYS on the power contained in cl 6.26 only becomes necessary if (contrary to my conclusion above) the power contained in cl 2.1(a) does not permit the distributions which were made by EYS prior to the June resolutions each year. Accordingly, I will express my views briefly.
2. In cl 6.26 the defined term "income" is first used with reference to the power to make interim distributions of "the income arising from the Trust Fund in the then current Financial Year". Notably this power may be exercised "at any time" determined by the trustee and "in the same manner" and "to the same extent" as "…the income arising from the Trust Fund for the whole of that Financial Year" may be dealt with in the four ways provided under cl 2.1.
3. The argument of Ms Segelov involves the proposition that the express power to make interim distributions contained in cl 6.26 can have no operation. It is said, reading the words of the definition of "income" into the operative text of cl 6.26, that because income does not exist until the annual accounts have been prepared there is no power to make interim distributions. However that approach fails to take account of the following matters.
4. First, "[a] court will strain against interpreting a contract so that a particular clause in it is nugatory or ineffective, particularly if a meaning can be given to it consonant with other provisions in a contract": Chapmans Ltd v Australian Stock Exchange Ltd. [50]
5. Secondly, as Fullagar J stated in Halford v Price, [51] there is no rule of law or of construction in the case of a statute, nor in the case of a contract or any other instrument, which requires a court to apply a definition where to do so would be at variance with a context or with a general intent to be gathered from the whole of the instrument. Similarly, it is not the rule that "defined terms inevitably bear every aspect of their defined meaning": Perpetual Custodians Ltd (as custodian for Tamoran Pty Ltd (as trustee for Michael Crivelli)) v IOOF Investment Management Ltd; Murray v Perennial Investment Partners Ltd. [52]
6. Thirdly, regard should be had to the circumstance that cl 6.26 was introduced into the trust deed by an amending deed dated 30 April 1998 executed by EYS exercising the trustee's power to amend the trust deed: cl 5.2. That power of amendment included, relevantly, the power to "add to" the provisions contained in cls 1, 2, 3 and 6 of the trust deed. As stated in recital C to the amending deed, the purpose of the amendment was to add to the trustee's powers contained in cl 6 of the trust deed. Undoubtedly the purpose was to permit interim distributions of income at any time during the financial year. Such a power would put beyond argument any suggestion (of the type advanced by Ms Segelov in this case), that the power contained in cl 2.1(a) was in some way insufficient to permit interim distributions throughout the financial year. It would be absurd, in my opinion, to read the term "income" in cl 6.26 in such a way as to defeat the very power to make interim distributions. It is necessary to construe cl 6.26 so as to avoid making commercial nonsense. [53]

Clause 6.26 affords the trustee a full and final discharge under cl 2.1(a)

1. The final issue of construction is whether the language of cl 6.26 is sufficient to pick up for the interim distributions, the full and final discharge afforded to the trustee by cl 2.1(a). Other than the argument that the interim distributions were "advances" not income (which has been rejected above), it was not suggested by Ms Segelov that the payment of interim distributions into the joint bank accounts in the name of Ms Segelov, was other than "in the same manner" and "to the same extent" as provided under cl 2.1(a) for the whole of the financial year.
2. It should be accepted, in my view, that on the proper construction of cl 6.26 the payment of interim distributions in the manner provided under cl 2.1(a) also afforded the trustee a full and final discharge under cl 2.1(a).
3. For these reasons, grounds 5 and 6 are not made out.

Asserted duty to inform a beneficiary of their entitlement to a distribution once determined

1. The asserted duty owed by EYS as trustee raises an anterior issue, being the source of a trustee's duty. In SAS Trustee Corporation v Cox, Campbell JA explained that to the extent that the duties of trustees are not expressly stated in the trust instrument, a trustee's duties are arrived at by a type of implication from the nature of his or her office. On this approach, the duty of any particular trustee depends on what is involved in faithfully carrying out the office of being trustee of that particular trust. Campbell JA had earlier explained in his article writing extrajudicially: [54] Just what is involved in the trustee faithfully carrying out his office depends on the precise terms of the individual trust in question, the circumstances surrounding its setting up, and the nature of the property involved.
2. Counsel for Ms Segelov ultimately accepted in oral argument the correctness of this approach. [55] It is appropriate to proceed on this basis.
3. The question which should be posed is thus: why does the faithful carrying out of the office of trustee require EYS to inform the "beneficiary" that it has exercised the power contained in cl 2.1(a), and accordingly the beneficiary has become entitled to a distribution under the Trust? The answer given by counsel for Ms Segelov at trial was that the trustee's duty is not exhausted upon payment in the manner provided under cl 2.1(a). It was said that the payment by the trustee under cl 2.1(a) needs to be effectual, and this means the trustee must ensure that the beneficiary is aware of the payment. The primary judge rejected this contention. In challenging his Honour's decision, Ms Segelov repeats her arguments put below.
4. First it is said that the primary judge erred in relying upon provisions of the trust deed as being inconsistent with the asserted duty to inform. Next it is said that the primary judge erred in taking into account the legal effect of payment into a bank account. It is then said that the decision in Hawkesley provides an adequate basis for finding a duty owed by EYS to Ms Segelov in the circumstances of this case. Finally it is said that the primary judge erred in finding that the practical exigencies of notification of entitlement firmly told against a duty of notification.

(a) Terms of the trust deed

1. Dealing first with the terms of the trust deed. The starting point is the primary judge's conclusion that no duty of notification of the kind asserted is expressed or implied by the terms of the trust deed. Ms Segelov did not directly challenge this finding. In my view, his Honour was correct to observe that the asserted duty involved EYS undertaking an additional duty not required under the trust deed.
2. Nor did his Honour err in placing reliance upon the so-called "receipts clause" in cl 2.1(a) as excluding the asserted duty. Counsel for Ms Segelov argued that the receipts clause dealt with the question of discharge of duty, not the existence of the trustee's duties. This involves an overly narrow view of cl 2.1(a). The payment obligation under cl 2.1(a) is expressed in terms that no receipt by or on behalf of any beneficiary is required where payment is made in the manner provided under cl 2.1(a). The fact that it is not necessary for EYS to seek or obtain any acknowledgement of payment is inconsistent with Ms Segelov's contention that for the payment to be effectual, the beneficiary needs to be aware that he or she or it has an entitlement under the trust.
3. Ms Segelov also challenges the reliance placed by the primary judge upon the discharge from liability afforded to the trustee by cl 2.1(a), where payment is made in the manner provided under that clause. But no error is disclosed. Once payment has been made by EYS into the joint bank accounts, Ms Segelov is taken to have received the distributions for the purposes of the trust deed, and EYS' duties are thereby discharged.
4. In my view, the primary judge did not err in his analysis of the terms of the trust deed or his conclusion that its provisions were inconsistent with the asserted duty of notification.

(b) Effect of payment into a bank account

1. It is to be observed that the foundation for imposing on EYS a duty to inform essentially rests on events and circumstances occurring after the payment into the joint bank accounts. Counsel for Ms Segelov contended that for the payments to be effectual, direct notification to the beneficiary is required. It is said that without such notification, the beneficiary may not obtain the "practical" benefit of the distribution. This is to be understood, in the present case, as a reference to Mr Joseph having expended at least some of the payments for his personal use without Ms Segelov's knowledge. In my view, this argument is misdirected. Reference to Ms Segelov not obtaining the "practical" benefit of the distributions is not to the point.
2. The effect of a deposit into a joint bank account is described by the High Court in Russell v Scott. [56] It was not disputed that the vesting of the right and title in the holders of the account takes place when the deposit is made, irrespective of knowledge that it has been made. [57] Nor was it disputed that an entitlement under a trust is valid notwithstanding that the beneficiary has no knowledge of it. [58] The primary judge did not err in taking these matters into account in rejecting the asserted duty of notification. The use to which moneys in the joint bank accounts were in fact put after payment of the distributions, does not inform, let alone provide a foundation for the asserted duty of notification at an earlier point in time.

(c) Hawkesley

1. The primary judge concluded that Hawkesley did not establish a principle of general application. Ms Segelov challenges this conclusion, principally by reference to the views of a number of text writers on trust law who have cited Hawkesley for various propositions. Before examining those views, it is necessary to consider a little more closely the facts and reasoning in Hawkesley.
2. In Hawkesley, the trustees of a deed of settlement held the trust fund for an identified brother and sister who on attaining the age of 21 became absolutely entitled as joint tenants. The brother turned 21 but the trustees, acting on legal advice (that it was their duty to retain the capital and reinvest the income until both the brother and sister turned 21 or until severance), failed to transfer to the brother his share of the capital or to pay him the income therefrom. After the sister turned 21 she severed the joint tenancy and her share of the capital was transferred to her, but the trustees continued to hold the brother's share of the capital and to accumulate income for a further year, acting on instructions of the brother's father who had intercepted communications between the trustees and the brother. Ultimately the trustees transferred the accumulated income and capital to which the brother was entitled, to the trustees of a voluntary settlement entered into by the brother. The brother brought an action against the trustees and their solicitor for conspiracy and against the trustees for breach of trust.
3. The conspiracy claim failed. As to the trust claim, Havers J held that it was the duty of the trustees to pay the income of his share of the fund to the brother when he turned 21, without any demand by him; and also to pay the capital to the brother and his sister as joint tenants upon the sister attaining 21, without any demand by them, or after severance of their respective shares to each of them, without any demand. [59] However, the brother's claim in respect of breaches of trust failed because the claim was barred under the applicable statute of limitations. In addition, Havers J also found that the trustees acted reasonably and honestly and ought fairly to be excused from liability under the statute.
4. Ms Segelov relies upon Hawkesley for the statements which Havers J made concerning the trustees duty of notification to the brother. This had two aspects. First, Havers J held that the trustees were under a duty to inform the brother that he had an interest in the capital and income of the trust funds when he turned 21 and his interests under the trust accrued. In reaching this conclusion, Havers J declined to apply to trustees under an express trust, the authorities which held that there is no legal duty on an executor to give notice of the terms of a legacy to the legatee. He reasoned that there was a distinction between the interest taken under a public document ("a will … is a public document in the sense that anybody can go to Somerset House and see it") [60] and a private document (a trust deed to which the beneficiary has "no access"). His Lordship's distinction is difficult to apply in the not uncommon case of a trust established by a will. As will be seen, the premise of this distinction so far as it concerns access to the trust deed is ambiguous.

(d) Practical exigencies

1. Ms Segelov's final complaint is that the primary judge erred in finding that the practical exigencies of notification of entitlement firmly told against a duty of notification. Counsel for Ms Segelov argued that all that would be required of EYS was a single notification direct to each beneficiary each year following the June resolutions. It was accepted that this would have involved notification to at least 400 beneficiaries, since there were in excess of 400 partners of E&Y at the relevant time. This analysis is too simplistic.
2. The difficulty with Ms Segelov's approach is that it views 'practical exigencies' as a separate inquiry and not part of the broader question of whether a duty of notification should be implied with respect to this trust. The approach suggested by Campbell JA in SAS Trustee Corporation v Cox is not to be applied as if it contained separate limbs. Rather, the inquiry is what is required of the trustee in the faithful performance of its duties according to the trust deed having regard to the relevant social or business context and the practical exigencies of the types of decision that the trustee has to make.
3. If the 'practical exigencies' are considered as a stand-alone question, then the mere mechanical requirement of informing in excess of 400 beneficiaries of their entitlement on each occasion would not be sufficient, in my view, to negate the existence of a duty to notify.
4. However, matters are not so simple. In this case, EYS was not in possession of contact details of the nominated beneficiaries. It had only a bank account (or as in this case, a joint bank account) for the beneficiary. The primary judge considered, correctly in my view, that the duty of notification raised many questions as to the scope and content of the asserted obligation. These included how such information would be communicated to the beneficiaries, for whom the only contact details held by the trustee was a bank account. Whether the trustee should be required to maintain some form of up to date register of beneficiary contact detail, and how often it would be required to actively seek out information was left unanswered by counsel for Ms Segelov. It is these types of practical considerations which reinforce that the terms of the trust deed in the present case are inconsistent with the asserted duty of notification to the beneficiary.

Other matters

1. In view of the above conclusions it is unnecessary to determine the remaining issues relating to exemption from liability under the trust deed, or relief under the Trustee Act 1925 (NSW), and the quantification of loss. Nonetheless I will briefly express my views on the exemption clause. It is appropriate to also note one concession made by Ms Segelov with respect to quantification.

(1) Exemption from liability - cl 7.1

1. The terms of cl 7.1 of the trust deed are set out above at [25]. An exemption from liability is provided to EYS for any loss, neglect, default or breach of trust unless the same is attributable to its own wilful neglect or dishonesty. Counsel for Ms Segelov disavowed any suggestion of dishonesty against the trustee, [78] and this may be taken to include any suggestions of lack of bona fides.
2. Ms Segelov advanced two arguments why the trustee exemption clause was not engaged. The first was that the exemption clause could not validly exclude liability for breach of the supposed duty to inform. Reference was made to Armitage v Nurse [79] where Millett LJ considered the permitted scope of trustee exemption clauses. His Lordship accepted that there is a irreducible core of obligations owed by trustees to beneficiaries and enforceable by them which is fundamental to the concept of a trust. A trustee exemption clause cannot validly exclude liability for breach of these core obligations. However, Millett LJ rejected the submission advanced in that case that the core obligations included the duties of skill and care, prudence and diligence. His Lordship continued: [80] The duty of the trustees to perform the trust honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trusts, but in my opinion it is sufficient. See also Leerac Pty Ltd v Garrick E Fay; [81] and Rankine v Rankine. [82]
3. Counsel for Ms Segelov did not argue against the proposition that a clause in the trust deed may validly exempt the trustee from obligations and liabilities other than those contained in that irreducible core of a trustee's obligation - namely, to act honestly and in good faith. Nor was it disputed that it is not contrary to public policy to exclude a trustee's liability even for gross negligence, but it is to exclude liability for dishonesty or bad faith.
4. As already mentioned, dishonesty or lack of bona fides was not raised here. Nonetheless, Ms Segelov contended that the asserted duty to inform is a minimum duty which cannot be excluded by a trustee exemption clause. This contention, for which no authority was cited, must be rejected.
5. It is sufficient to observe that, even if there was a free-standing duty to inform, this duty would not form part of the core obligations to perform the trusts honestly and in good faith for the beneficiaries. Counsel for Ms Segelov did not point to any reason why it would be repugnant to the trust concept if there was no duty to inform. Such a duty is not required to create the fundamental trust obligation.

(2) Quantification of loss

1. One final matter should be mentioned. Counsel for Ms Segelov did not ultimately press any submission that Ms Segelov had not received a benefit of at least $51,625 out of the St George account. [86] That concession was properly made.

Conclusion and orders

1. The appeal has failed on the primary issues which have been argued concerning the alleged duty of notification owed by EYS to Ms Segelov and the alleged breaches of trust by EYS. I propose the following orders. 1. Appeal dismissed. 2. Appellant to pay the respondent's costs.
2. LEEMING JA: I agree with Gleeson JA.

Endnotes

1. See generally El Sayed v El Hawach [2015] NSWCA 26; 317 ALR 771 at [13]-[14].
2. Segelov v Ernst & Young Services Pty Ltd [2014] NSWSC 283 (Judgment), [72]-[73].
3. Judgment at [2].
4. Judgment at [19].
5. AT 23/04/15, 7 at lines 32-39.
6. Judgment at [35].
7. Judgment at [39].
8. Judgment at [41].
9. Judgment at [40].
10. Judgment at [42].
11. Judgment at [43]; Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484 at [32]; J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) at [1704].
12. Judgment at [58].
13. [1936] HCA 34; 55 CLR 440 at 448 (Starke J) and at 450-451 (Dixon and Evatt JJ).
14. (1992) 29 NSWLR 405 at 431.
15. At 431.
16. [2011] NSWCA 408; 285 ALR 623 at [148]-[149].
17. Judgment at [63].
18. Judgment at [65].
19. Judgment at [64].
20. Judgment at [67].
21. [1956] 1 QB 304.
22. Judgment at [69].
23. At [98]-[99] (McColl JA).
24. [1988] HCA 15; 164 CLR 539 at 553-554 (Brennan J).
25. At 432 (Mahoney JA).
26. At [70].
27. At [71].
28. AT 23/3/15, 19 at lines 20-25.
29. AT 23/3/15, 5 at lines 31-36.
30. AT 23/3/15, 8 at lines 19-35.
31. AT 23/3/15, 5 at line 31 - 6 at line 22.
32. AT 23/3/15, 26 at lines 47-49.
33. AT 23/3/15, 26 at lines 16-21.
34. [1989] ATC 5,274 at 5,278.
35. [1991] ATC 4,213 at 4,215.
36. See the analogous principle in the context of statutory interpretation: Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; 141 CLR 672 at 679 (Mason J).
37. [2011] HCA 26; 243 CLR 253 at [102]-[105] (Heydon and Crennan JJ). See also Sayden Pty Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 111; 83 NSWLR 700 at [39] (Gzell J; Meagher JA and Tobias AJA agreeing).
38. (1995) 56 FCR 236 at 266-267 (Gummow J).

Amendments 09 June 2015 - Complete judgment 10 June 2015 - corrected import error in paragraphs [109] and [110] 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: 10 June 2015