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[2025] NSWSC 1329
General information, not legal advice.
Supreme Court of NSW
2025-11-05
Kunc J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The application of Dhuramein Nominees Pty Ltd [2025] NSWSC 1329
Hearing dates: 5 November 2025
Date of orders: 5 November 2025
Decision date: 05 November 2025
Jurisdiction: Equity
Before: Kunc J
Decision: Arrangement to vary trust approved
Catchwords: EQUITY — Trusts and trustees — Trust instruments — Amendment of— Arrangement to replace deregistered appointor and default beneficiary — No issue of principle — Trustee Act 1925 (NSW), s 86A
Legislation Cited: Trustee Act 1925 (NSW)
Category: Principal judgment
Parties: Dhuramein Nominees Pty Ltd (Plaintiff)
Representation: Counsel: V Hartstein (Plaintiff)
Solicitors: Glowreys Law Firm (Plaintiff)
File Number(s): 2025/332406
Publication restriction: Nil
This is an application under s 86A of the Trustee Act 1925 (NSW) to vary a discretionary trust known as the R A Gorey Family Trust. Ms VA Hartstein of Counsel appears for the plaintiff, the current trustee of the Trust.
Section 86A includes:
(1) If property is held in trust under any instrument creating the trust, the Court may, if it thinks fit, by order approve any arrangement to—
(a) vary or revoke all or any of the trust, or
(b) enlarge the powers of the trustees for the purpose of managing or administering any of the property subject to the purpose of the trust.
(2) An order under this section may be made by the Court only on behalf of—
(a) any person under the trust having an interest directly or indirectly, or vested or contingent, who by reason of being a minor or other incapacity is incapable of assenting, or
(b) any person who may become entitled, directly or indirectly, to an interest under the trust, and the entitlement is contingent on a future date or event that has not occurred at the time of application for an order under this section, or
(c) any unborn person, or
(d) any person in respect of any discretionary interest of the person under protective trusts where the interest of the principal beneficiary has not failed or determined. …
The Trust was settled by a deed made on 1 July 1974. It owns farming property near Deniliquin in New South Wales. At that time, and for many years before then, particularly in the rural sector, family trusts and similar corporate arrangements were traditionally entered into for the ownership of land (sometimes paddock by paddock), with a view to minimising the effect of death duties that then applied. There is no criticism to be made of that practice, but it has left in place structures which can raise contemporary legal and accounting issues for the successors of those who put those arrangements in place. Applications in relation to such structures are not infrequently made in this Division when contemporary realities need to be met.
The original trustee of the Trust was Denilikoon Nominees (No 2) Pty Ltd. By Deed of Appointment made on 9 October 1978, it was replaced as trustee of the Trust by the plaintiff. The current trustee is controlled by Messrs Paul and Anthony Gorey, who are the sons of Mr R A Gorey.
The proposed arrangement involves variations to the Trust which make no change to its operative terms. The variations are necessary because a company named in the deed as the appointor (which has power to appoint and remove the trustee, and to vary the terms of the deed) and the default beneficiary has been deregistered for many years. As was frequently the practice at the time, the solicitors who established the Trust had shelf companies which they specified in their standard form trust deeds to perform those roles for their clients.
The original appointor and default beneficiary is Denilikoon Nominees Pty Limited. It was deregistered in 1993. The Trust continues to trade and is now operated by the sons. The Trust has a new banker, which has required that the deed be modernised. This requires there to be an appointor to make the necessary amendments. The proposed arrangement is that the sons (or their respective legal personal representatives) take up the role of appointor and that the current trustee becomes the default beneficiary.
Notice of this application has been given to all the living potential discretionary beneficiaries of the Trust. No objection has been received from any of them. Insofar as the discretionary class extends to exempt proprietary limited companies in which those persons may have shares, the Court is satisfied that there is no need for notice to be given to any such companies, because notice has been given to the natural persons who would have an interest in any such companies.
It is well-established that s 86A is a remedial provision to be interpreted beneficially. The Court is satisfied that the changes I have described fall within the statutory description of an arrangement to vary the Trust. In those circumstances, the Court thinks it fit for the purposes of s 86A of the Trustee Act to approve by order the proposed arrangement to vary the Trust in the way I have described in these reasons.
The orders of the Court are that there will be orders in accordance with paragraphs 2 and 3 of the amended summons dated 5 November 2025.
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