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MAK -v- JUVENTUS PTY LTD [2024] WASC 409 (5 November 2024)

Last Updated: 5 November 2024

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MAK -v- JUVENTUS PTY LTD [2024] WASC 409

CORAM : LUNDBERG J

HEARD : 5 NOVEMBER 2024

DELIVERED : 5 NOVEMBER 2024

FILE NO/S : CIV 1630 of 2024

BETWEEN : HAY-MAN MAK

Plaintiff

AND

JUVENTUS PTY LTD

Defendant

Trusts - Discretionary trust - Declarations sought as to the proper construction of trust deed - Whether death of one of the jointly appointed Guardians had the effect that there ceased to be a Guardian - Whether powers annexed to the office, virtute officii, or to individuals themselves - Long standing trust in which reserved powers and restricted powers have been exercised by trustee in circumstances in which office of Guardian assumed to have continued - Turns on own facts

Equity - Principles applicable to the grant of declaratory relief - Whether proper contradictor present - Whether declaration has foreseeable consequences - Discretion exercised to grant relief

Legislation:

Rules of the Supreme Court 1971 (WA), O 58 r 2 and O 58 r 10

Result:

Declaratory relief granted

Category: B

Representation:

Counsel:

Plaintiff	:	R J Nash
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Jackson McDonald
Defendant	:	Kershaw Legal

Case(s) referred to in decision(s):

Table of Contents

LUNDBERG J:

(This decision was delivered ex temporaneously on 5 November 2024 and has been edited to correct matters of grammar, add headings, and include complete references.)

A. Introduction The nature of the proceedings

The Manly Trust was constituted by a deed of settlement made in December 1983.[1] The trust was established by the plaintiff and his wife as a family discretionary trust, the beneficiaries of which are the plaintiff and his wife, their children, and future generations of their family.
The plaintiff and his wife were appointed as both the Guardian and as the Appointor of the trust. The Trust Deed precludes certain powers, which have significant roles in the trust, described as the 'reserved powers', being exercised if there ceases to be a Guardian. The Trust Deed also limits the exercise of the defined 'restricted powers' in such a circumstance.
The plaintiff's wife died unexpectedly in 1987. There is no provision in the Trust Deed which expressly allows for the appointment of a replacement Guardian on the death of a Guardian,[2] although there is a power to appoint a successor Appointor. Since the death of his wife, the plaintiff deposes that he has understood that he continues to hold the office of Guardian, as the surviving appointee, and he has acted accordingly.
Accordingly, for the past 37 years, the Manly Trust has been administered, and the foregoing powers have been exercised, on the assumption there exists an appointed Guardian holding office, being the plaintiff. Whether that is correct requires the Trust Deed to be properly construed. For this reason, the plaintiff brings this proceeding seeking declaratory relief from the Court to the effect that he validly continued in the office of Guardian following the death of his wife, with the capacity to exercise its powers.

Declarations sought

The plaintiff has initiated these proceedings by originating summons dated 28 May 2024. The first declaration which is sought is that 'on a proper construction of the Trust Deed, upon the death of Edith Mak in 1987, the plaintiff, Hay-Man Mak, as the surviving jointly appointed Guardian, thereupon continued in the office of Guardian of the Trust with the capacity to continue to exercise the powers of the Guardian of the Trust'.[3]
Consequentially upon that declaration, the plaintiff initially sought a further declaration that 'upon the death of Edith Mak, the defendant as trustee of The Manly Trust, could exercise the reserved powers and restricted powers under cl 10(3) of the Trust Deed subject to the consent of the surviving Guardian'. That declaration was not pressed by counsel at the hearing, and I record my view that the decision not to pursue that relief was appropriate in the circumstances.

The position of the trustee

The defendant to the proceedings, being the trustee of the Manly Trust, is legally represented in these proceedings, and has filed a notice of intention to abide the outcome. The defendant has taken no active part in the proceedings and did not appear today to make submissions in relation to the summons, although I was informed by counsel that the defendant's solicitor was present in court during the hearing.
The application was thus unopposed. An issue arises in this regard, which I will address in due course, as to whether the defendant is a proper contradictor.

B. Issues arising

The proceeding gives rise to three broad issues. In considering these issues, I have had the assistance of two sets of submissions from counsel for the plaintiff and the oral submissions of counsel this morning.[4]
The first issue concerns the jurisdiction of the Court to grant the declaratory relief which is sought, in the particular circumstances of this case. The sub-issues requiring some consideration in this regard are whether there is a proper contradictor to the proceedings and whether there is a justiciable controversy in the sense that the disputed question of construction has foreseeable consequences, including practical consequences.
Assuming the Court has jurisdiction, the second issue concerns the proper construction of the Trust Deed. This issue devolves to a consideration of the objective intention of the instrument, having regard to the text employed, the broader context, and the purposes of the instrument.
As to the question of construction, there is an additional marker to lay down here, cautionary in nature, arising from the description of the Manly Trust as a 'discretionary trust'. It has been observed that the term 'discretionary trust' does not have a constant, fixed normative meaning, in the absence of an applicable statutory definition. Accordingly, as explained by the plurality in CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria,[5] a priori assumptions as to the nature of such trusts under the general law and principles of equity are apt to mislead. Their Honours reinforced the statement of Tamberlin and Hely JJ in their joint judgment in Kent v SS "Maria Luisa" (No 2),[6] to the effect that 'all depends upon the terms of the particular trust'. I will return to this cautionary note in due course.
There is a third issue, as to the form of the declaratory relief which was initially sought. In particular, it is important to recognise that declarations should be drafted so as to confine their effect to the matters resolved by the instant proceedings, and no more. As it happens, this issue has largely fallen away given the plaintiff's position, as recorded at [6] above.

C. Evidence

The application is supported by two short affidavits sworn by the plaintiff.[7] As revealed by those affidavits, the factual compass of the proceeding is quite circumscribed.

Background

The Manly Trust was established, according to the plaintiff, in order to make provision for the plaintiff and his wife, their children and future generations of their family through the flexibility of a discretionary trust.[8] To this end, the schedule to the Trust Deed indicates that the plaintiff was appointed as a 'Specified Beneficiary' of the Manly Trust, together with the plaintiff's then wife, Ms Edith Mak.[9] The Trust Deed defines the term 'General Beneficiary' in the broad terms commonly employed in family discretionary trusts of this nature.[10]
The plaintiff was appointed as a 'Guardian' of the Manly Trust, jointly with his wife, Ms Edith Mak, and as 'Appointor' of the Manly Trust, also jointly with his wife.
There are statements made by the plaintiff in his affidavits as to his subjective intentions, and the subjective intentions of his late wife. The plaintiff has deposed that he and his late wife agreed, in the lead up to the creation of the Manly Trust, that:[11]

...we should both have control over the Trust in order to secure our own interests and because we trusted each other to carry out the purpose of the Trust as [a discretionary trust to make provision for them and their family] and, that whilst we both remained alive and able, we wanted to exercise that control over the Trust jointly.

The plaintiff further deposes that he can confidently say 'there was no discussion between Edith and I to the effect that if either of us died, the other would thereupon cease to have control of the Trust. That was certainly not my intention and I do not believe, from all that was said between us, that that was Edith's intention.'[12]
The plaintiff properly accepts that the subjective intentions of the plaintiff and his late wife as to what they intended as to the nature and extent of the powers conferred on them under the Trust Deed cannot inform the proper construction of the Trust Deed. However, the material within the affidavit is relied on by the plaintiff to the extent that it provides some relevant contextual background to the making of the Trust Deed. For this very limited purpose, the material may have some utility, but it cannot be deployed to inform the ultimate meaning of the instrument.
It is uncontentious that the plaintiff and his late wife were married until her death on 19 September 1987.[13] Ms Edith Mak died prematurely and I accept that her condition was not known at the time the Manly Trust was established.[14]

The Retirement Deed

Subsequently, by a Deed of Retirement and Appointment made on 21 May 1993 (Retirement Deed), Macwin Pty Ltd was replaced as the trustee of the Manly Trust by the defendant, which is Juventus Pty Ltd.[15]
Within recital C to the Retirement Deed, and in the operative terms of the deed,[16] there is a reference to the joint Appointor and joint Guardian of the Trust as being 'Dr Hay Man Mak and Michael Hay Chung Mak'.
I raised with the parties ahead of the hearing whether the circumstance by which Michael Hay Chung Mak came to be appointed as an Appointor and Guardian had any relevance to the relief sought in the summons. It is somewhat curious that there was, following the death of Ms Edith Mak, a person appointed to fulfil her role as Guardian, given the absence of any power to appoint such a person. The issue was not explained in the affidavit material prepared on behalf of the plaintiff.
The plaintiff submits that this circumstance ought not affect the relief which is sought. The plaintiff's submissions provide:[17]

[3] Dr Hay-Man Mak deposes that he has acted on the assumption that as the surviving Guardian, he could continue to exercise the powers of the office of Guardian. Depending on the Court's determination in respect of that question, it will have relevance to later actions that were taken in respect of the Trust to the extent that those actions were reliant on Dr Mak continuing to hold the office of Guardian.

[4] The plaintiff has endeavoured to keep the issues for determination as discreet and confined as possible. The starting point is whether Dr Hay-Man Mak, as the survivor of Edith Mak, continued in the office of Guardian after her death. The answer to that question will have a flow on effect and will inform whether there are other issues in relation to the past administration of the Trust that may need to be determined or resolved.

The plaintiff's assumption

As indicated in the above extract from the affidavit material, following the death of the plaintiff's wife in 1987, the plaintiff deposes that he acted on the basis that as the surviving Guardian, he could continue to exercise the powers of the Guardian of the Trust.[18] The plaintiff also deposes that he has recently had conflicting advice in respect of that question and he has been concerned to ensure that he has acted on a correct understanding as to the proper interpretation of the Trust Deed.[19] I accept these matters.
The plaintiff deposes that he continues to act as the Guardian (subject to the resolution of the above question by the Court), as Appointor, and as a Specified Beneficiary of the Manly Trust.[20]

D. Terms of the Trust Deed

I turn now to identify the provisions of the Trust Deed of particular relevance to the relief which is sought. For convenience, I will set out the full terms of the relevant provisions of the Trust Deed in Attachment A to these reasons.
The plaintiff has explained that the Trust Deed provides respectively that the Guardian and the Appointor mean 'successively the person or persons named and described as such in the Schedule'. Clauses 1(14) and 1(15) stipulate that where two or more persons are specified in the Schedule as acting 'jointly' that means 'those persons acting jointly'. Thus, where two persons are named in the Schedule as Guardians 'jointly', by operation of cl 1(14) they must act jointly and cannot act severally.
The Schedule to the Trust Deed states as follows:

Appointor: The said HAY-MAN MAK and EDITH MAK jointly

Guardian: The said HAY-MAN MAK and EDITH MAK jointly

There is no provision in the Trust Deed that expressly allows for the appointment of a replacement Guardian on the death of a Guardian.
Pursuant to cl 10(3) of the Trust Deed, when there is a Guardian, the Trustees are prevented from exercising the 'reserved powers' or the 'restricted powers' except with the consent of the Guardian.
Further, cl 10(4) of the Trust Deed provides that where a Guardian is named in the Schedule and there ceases to be a Guardian, the Trustee shall not exercise the 'reserved powers' at all, or exercise the 'restricted powers' in the circumstances set out in cl 10(4)(b) of the Trust Deed. Some explanation of the 'reserved powers' and the 'restricted powers' is thus called for.
The 'reserved powers' are explained in cl 10(7) of the Trust Deed, and include:

(a) the power to make declarations pursuant to the second proviso to cl 1(2), which is the power of the Trustee to declare that any person shall be excluded from the class of General Beneficiaries (which power is subject to cl 10);[21]
(b) the power to make declarations pursuant to the second proviso to cl 1(3), which is the power of the Trustee to declare that any person shall be a member of the excluded class of General Beneficiaries (which power is subject to cl 10);[22]
(c) the power of the Trustee to appoint a 'Vesting Day' later than the day specified as such in the Schedule to the Trust Deed;[23]
(d) the power of the Trustee to declare that any person who has not yet become Guardian but who would or might at some time become Guardian shall not become Guardian;[24]
(e) the power of the Trustee to declare that any person who has not yet become Appointor but who would or might at some time become Appointor shall not become Appointor;[25]
(f) the power of the Trustee to pay, apply, or set aside any amount to a General Beneficiary described in cl 1(2)(c) on the first occasion on which that power is exercised (including the trustees of any eligible trust, any eligible corporation, and any charity);[26]
(g) the power of the Trustee to appoint the Trust Fund pursuant to cl 4(1);[27] and
(h) the power of the trustee to revoke, add to, or vary all or any of the trusts terms and conditions in the Trust Deed (which power is subject to cl 10).[28]

The 'restricted powers' are the powers in cl 6(1), cl 6(2), cl 6(3) and cl 7(22) of the Trust Deed.[29]
The power in cl 6(1) concern the Trustees' power to pay any sums to any beneficiary for his own use and benefit, or apply the same to, or for, the maintenance, education, advancement or benefit of such beneficiary. Pursuant to cl 6(2), the Trustees are empowered to lend moneys to beneficiaries.
Pursuant to cl 6(3), the Trustees are empowered to pay or apply to, or for the benefit of, any beneficiary the whole or any part of the capital or income accrued or accumulated income to which he is either absolutely or contingently entitled, whether or not for the maintenance, education, advancement or benefit of such beneficiary.
By cl 7(22), the Trustees have the power to appoint, either in respect of the whole of the Trust Fund, or any part thereof, new trustees in any country in the world, and to transfer assign and set over the investments for the time being representing the Trust Fund, or any part thereof, to any such new trustees upon similar trusts (which may either be subject to the control of the Trustees or to the exclusion of such control).
I should also mention cl 21 and cl 23 of the Trust Deed, which are emphasised by the plaintiff in his submissions.
By cl 21, the Appointor is empowered to move any trustee, appoint any additional trustee or trustees, and to appoint a new trustee or trustees in the place of any trustee who resigns or ceases to be a trustee by operation of law. Significantly, the chapeau to cl 21 is expressed to extend to the Appointor and 'on the death of the last surviving Appointor', to 'such other person as such survivor shall have appointed to act as Appointor', and in default of such appointment, the power extends to 'his legal personal representative'. Clause 21 thus incorporates a power by which one of the Appointors may appoint a new person to the office upon the death of the other Appointor.
Finally, I should mention cl 23 of the Trust Deed. It provides that any Trustee, Guardian or Appointor and 'any person who may by succession become a Trustee, Guardian or Appointor', may resign or renounce such position by notice in writing to the Trustees. The clause includes a proviso to preclude a situation where there is no appointed trustee. The proviso states that, if there is no Appointor or other person entitled to exercise the power of appointment in cl 21, a sole surviving Trustee shall not resign except upon appointing a new Trustee or new Trustees in his place.

E. First issue - jurisdiction to grant declaratory relief

The power of a superior Court to make a declaration in the exercise of its inherent jurisdiction was described in Forster v Jododex Australia Pty Ltd[30] as 'a very wide one' and 'almost unlimited'.[31]
Nonetheless, it has consistently been said that the following rules should in general be satisfied before granting a declaration, being considerations which in effect mark out the boundaries of judicial power:[32]

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.

I did not understand the plaintiff to contest these principles. The question for these proceedings essentially focuses on the application of these principles in the present circumstances. Prior to the hearing today, I invited additional submissions on two of the principles referred to above, namely whether the question before the Court was real and not theoretical, and whether there was a proper contradictor. I will address these in turn.
The plaintiff submits that Court's determination of the construction question will have relevance to later actions that were taken in respect of the Trust and to their validity given that the plaintiff acted on the basis and assumption that he continued in the office of Guardian after Ms Edith Mak's death.[33]
The determination of that issue will also inform the question whether the plaintiff continues in the office of Guardian and can continue to exercise the powers of that office, according to the plaintiff. The plaintiff thus submits that, in these respects, the answer to the construction question will have real consequences and is not hypothetical.[34]
The requirement that there be a real question for determination by the Court essentially requires that there be a particular degree of connection between the law and the facts. This may be answered by asking whether the resolution of a disputed question of construction has foreseeable consequences, including practical consequences.[35]
I accept the plaintiff's submission that the question before the Court will have relevance to subsequent conduct undertaken in the administration of the Manly Trust. As has been seen, if it be the case that the office of Guardian ceased to exist upon the death of the plaintiff's wife, it is arguable that the 'reserved powers' could not then be exercised and the 'restricted powers' could only be exercised in limited ways.
The plaintiff has not, however, explained precisely what steps were undertaken by the defendant trustee, or by the plaintiff, in the 37 years which have passed since the plaintiff's wife died. The Court simply does not know what conduct has occurred, the validity of which may be impacted by the declarations sought. Perhaps the defendant trustee exercised the reserved power in cl 1(2) of the Trust Deed to exclude a person from the class of General Beneficiaries. Perhaps the defendant trustee exercised the reserved power in cl 28 to vary the terms of the Trust Deed.
Ultimately, it occurs to me that the Court does not need to know the precise conduct which may have been affected by the plaintiff's understanding of the continuation of the office of Guardian. The reality is that, on the evidence before the Court, the Manly Trust has been administered over the past 37 years on an understanding which may or may not be correct. If it is correct (in the sense that it accords with the Court's assessment of the proper construction), nothing turns on the declaration. If the understanding was incorrect, and the office of Guardian ceased, then any conduct on the part of the defendant trustee, or any step in the administration of the Manly Trust, which depended for its validity on the continuation of that office, will be impacted. That is sufficient for the Court to be appropriately satisfied that the declaratory relief will have practical consequences.
I am therefore satisfied the primary declaration which is sought will determine rights involving these parties that are not merely of academic interest or hypothetical. The resolution will be of practical utility.
Is the requirement for the presence of a proper contradictor satisfied? I recognise there is no active contradictor, in the sense the defendant has filed a notice of intention to abide and has made no submissions in relation to the summons, either in support or against the relief sought. Is this sufficient in the circumstances, given the principle expressed in Forster v Jododex Australia Pty Ltd?
The plaintiff submits that, in the circumstances of this case, the Court can grant the declaratory relief sought, without there being an active contradictor.[36] The plaintiff relies upon the statement of French J (as his Honour then was) in IMF (Australia) Ltd v Sons of Gwalia Ltd[37] in this regard and emphasises the court's broad supervisory jurisdiction over the administration of trusts. French J stated as follows:[38]

The requirement of a proper contradictor in a declaratory context is not merely to ensure that the court will be provided with all materials but also that absent a contradictor there is no person to be bound by the relief sought: Acs v Anderson [1975] 1 NSWLR 212 at 215 per Hutley JA citing P W Young, Declaratory Orders, 1st ed, Butterworths, Sydney, 1975, p 210. A proper contradictor, for jurisdictional purposes, in my opinion cannot be confined to the class of party who comes to court ready to oppose the relief sought. There may be a case in which a party, whether a private person or body or a statutory regulator, expresses opposition to, and an intention to oppose, a proposed course of action by another party on the basis that it is in breach of some contractual or statutory prohibition. The party opposing the conduct may however decide for any one or more of a variety of reasons not to contest declaratory proceedings about the lawfulness of the proposed conduct. So the declaration may be made by consent or may be uncontested. This does not mean that the court lacks jurisdiction or power to grant the declaration in such a case.

This statement was referred to with approval by both Edelman J and Steward J in the High Court in Unions NSW v New South Wales.[39]
Statements to a similar effect can be found in the decision of Dawson J in the High Court in Oil Basins Ltd v The Commonwealth,[40] in the decision of the Full Federal Court in Australian Competition and Consumer Commission v MSY Technology Pty Ltd,[41] and the recent decision of the New South Wales Court of Appeal in Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales.[42]
I take from these authorities the proposition that, in the context of proceedings seeking declaratory relief, a true contradictor need not be someone who actually contests the form of relief sought by the plaintiff. There is an inherent logic in this approach. The position of a party resisting the relief should not be strengthened by a failure to appear at the hearing, relative to a party who does appear and presents arguments against the relief.
Having raised the issue with counsel for the plaintiff, it seems to me that, other than making arrangements for the appointment of an amicus curiae, there is no other party who could reasonably be conscripted into the role of contradictor in the proceedings. I bear in mind in this regard the Court is here dealing with a private trust arrangement rather than a charitable trust in which the Attorney General would present as an appropriate contradictor.
Ultimately, in these circumstances, I am satisfied the absence of a party presenting arguments against the relief sought does not operate as an obstacle to the Court being satisfied that the defendant trustee, which has a true interest in the proceedings, was a proper contradictor. I also note the defendant trustee is separately represented in the proceedings, and the solicitors on the record for the defendant filed the notice of intention to abide having received the originating summons and supporting affidavit.
Importantly, the Court retains an overriding discretion whether or not to grant the declaratory relief which is sought, even if satisfied there is a proper contradictor. I will return to that discretionary issue in due course.
There is a separate and distinct issue which should be noted, as to whether the beneficiaries to the Manly Trust, or such other persons who may be affected by the relief sought, ought be joined to the proceedings or formally given notice of today's hearing. I consider it unnecessary to do so, in the circumstances of this case, and emphasise that any relief granted by the Court will be binding only on those who are joined to the proceeding.

F. Second issue - proper construction of the Trust Deed Plaintiff's submissions

The plaintiff has explained that one arguable interpretation of the Trust Deed, but not the plaintiff's preferred construction, is that upon the death of one of the two jointly named Guardians who are required by the terms of the Trust Deed to act jointly, there ceases to be a Guardian because the survivor is no longer able to act jointly.
On this construction, if, following the death of Ms Edith Mak there ceased to be a Guardian of the Trust, the reserved powers were no longer exercisable by the Trustee and the exercise of the restricted powers was circumscribed by the operation of cl 10(4)(b) of the Trust Deed.
The plaintiff ultimately contends for an alternative construction of the instrument. The plaintiff submits that the Trust Deed, properly construed, means that, upon the death of Ms Edith Mak, the plaintiff, as survivor, continued in the offices of both Guardian and Appointor. The plaintiff draws support for this construction from the absence of any express indication in the definitions of 'Guardian' and 'Appointor' that the plaintiff and his late wife must act jointly.
The plaintiff draws further support from the language of cl 21 and cl 23 of the Trust Deed, the commercial purpose of the instrument, and the principle derived from Bersel Manufacturing Co v Berry,[43] which I will address below.

Relevant principles

Before analysing the terms of the Trust Deed, the principles to be applied by the Court in construing an instrument such as the Trust Deed should be noted. The same principles which are applied to the construction of written contracts generally are to be applied where the construction of a trust instrument is at issue.[44] In Mercanti v Mercanti, Buss P explained the position:[45]

The words of a clause in a trust deed are therefore to be given their ordinary and natural meaning, read in the context of the trust deed as a whole, unless the words have a special or technical meaning.

In Vango Mining Limited v Zuleika Gold Limited,[46] the Court of Appeal recently collected the relevant authorities on the subject of contractual construction. It is unnecessary for present purposes to traverse those authorities, save to mention the following observations made by the plurality in Electricity Generation Corporation v Woodside Energy Ltd[47] in relation to ascertaining what the hypothetical reasonable businessperson would have understood by the terms of a commercial contract:[48]

[I]t will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd [[2009] EWCA Civ 636 at [28]], unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties ... intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'. (footnotes omitted)

To summarise, the proper construction of a commercial contract is thus to be determined objectively having regard to its text, context and purpose or objects. The provisions of the contract are to be understood objectively by reference to what a reasonable businessperson would have understood them to mean. The hypothetical reasonable businessperson must be placed in the position of the parties. The court considers from that perspective the circumstances surrounding the contract and the commercial purpose or objects sought to be achieved by it.
Further, the terms of a trust instrument must be construed in the context of the entire document and in such a way that renders them 'all harmonious one with another'.[49] The words of a clause in a trust deed are to be given the most appropriate meaning which they can legitimately bear.
I have earlier mentioned the cautionary observation of the High Court in CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria regarding the importance of avoiding assumptions in the construction exercise. That observation should be borne in mind when considering the offices of both 'appointor' and 'guardian', which are commonly employed in trust instruments, particularly in discretionary trusts.
An appointor is typically the person or persons within whom lies the ultimate control of the trust, in the sense the appointor has the power to remove and appoint trustees. Indeed, the trust instrument in the present case expressly affords the Appointor the power to remove any trustee, appoint any additional trustee, and appoint a new trustee or trustees in the place of any trustee who resigns or cease to be a trustee by operation of law.[50]
The concept of a guardian or a protector does not have a fixed meaning or content. Consistent with the cautionary observation referred to above, the Court of Appeal of this State has explained that the role of a guardian under a trust is defined by the governing instrument.[51] In Blenkinsop v Herbert, the Court of Appeal held:[52]

[70] ...Broadly speaking, the concept of guardian may refer to any person, distinct from the trustee, upon whom powers are conferred under a trust deed that enable some form of participation in the administration of the trust or disposition of the trust property. The rights and duties of a guardian will be greatly influenced by the particular functions and powers conferred on the guardian, as well as by the terms of the trust instrument generally.

[71] In this light, caution is needed in proposing universal propositions about guardians generally, or about limits on the court's powers in relation to guardians.

Under the Trust Deed in the present case, the Guardian's role would appear to be protective in nature, in that an absence of the Guardian (where one was initially appointed) operates to preclude the exercise of certain powers, and limit the exercise of others unless the Guardian has consented. The Guardian may also declare that the reserved and restricted powers cease to be designated as such,[53] and may also declare that the trustee is prohibited from exercising such powers.[54] Further, the Trustee is obliged to provide the annual accounting report mentioned in cl 18 of the Trust Deed to the Guardian, if requested.

Disposition

Turning to the terms of the instrument at hand, and the constructional exercise which this summons requires, I consider there are several features of the Trust Deed which provide support for the construction preferred by the plaintiff. I should also observe that the construction exercise can, and should, be undertaken without resort to the plaintiff's sworn, subjective statements and recollections, and ought proceed from the text and context of the instrument.
First, the respective definitions of 'Guardian' and 'Appointor' each provide that where two or more persons are specified in the Schedule to the instrument as 'acting jointly', the reference to 'Guardian' and 'Appointor' shall mean in each instance those persons acting jointly.
In each case, the Schedule describes the 'Guardian' and 'Appointor' in identical terms, namely 'Hay-Man Mak and Edith Mak jointly'. The description of 'Guardian' and 'Appointor' in the Schedule does not specify Hay-Man Mak and Edith Mak acting jointly, which is the language employed in the definitions of those terms in cl 1(14) and cl 1(15) of the Trust Deed.
The effect of the language in the definitions, when read with the Schedule, focuses on the manner in which the persons named as Guardian and Appointor act upon their appointment. That is, the objective intention is to ensure that, whether two, three or more persons are so appointed, they must act jointly when in office. Thus, any consent required from the Guardian under the Trust Deed, as provided in cl 10(3) in relation to the exercise of the reserved powers and restricted powers, must be a joint consent, not a majority consent.
Second, the terms of cl 1(14) empower the Trustee to declare that a person who has not yet become Guardian but who would or might become Guardian, shall be precluded from taking that appointment, even if named in the Schedule as such. This power would permit the Trustee to excise from the Schedule any person identified as a successor Guardian. That could have the effect of precluding a named successor filling a vacancy left by the death of one of the originally appointed Guardian office holders. I recognise that the Schedule to the Trust Deed does not include any successor, but that does deny the constructional effect of cl 1(14) when seeking to understand the objective intention of this instrument. In my view, the language of the provision in this regard provides support for the view that the office of Guardian may continue if an originally appointed office holder vacates the office for some reason, leaving only one appointee.
Third, cl 21 of the Trust Deed deals with the power of the Appointor to remove the trustee of the Trust and to appoint a new trustee. The power of appointment is conferred on 'The Appointor and on the death of the last surviving Appointor such other person as such survivor shall have appointed to act as Appointor and in default of appointment his legal personal representative'. The terms of cl 21 operate on the implicit assumption that the last surviving Appointor will continue to have the power of appointment until his or her death.
Adopting that same approach to the office of Guardian under the Trust Deed would, in my view, advance an interpretation that is harmonious and consistent with the terms of cl 21, given the similar roles and functions of the office of Guardian and Appointor.
Fourth, the terms of cl 23 which provide for the right of any person appointed as a Trustee, Guardian or Appointor to resign or renounce such position, provides further support for the construction that the powers of Trustee, Guardian and Appointor are attached to those offices, rather than being bare powers conferred as a personal joint confidence not exercisable by the survivor. The choice of language in cl 23 in the singular rather than the plural would seem to be deliberate, in my view.
The objective intention which is discernible from these feature of the Trust Deed is to the effect that in relation to a joint appointment to an office under the Trust, the survivor of the joint appointees is taken to continue with the powers of that office.
Fifth, an approach to the interpretation of the Trust Deed as proposed by the plaintiff finds support in the generally accepted principle (which is always subject to the proper construction of the instrument creating the power, as the plaintiff emphasised) that where a power is annexed to an office of a trust, and has been granted to two or more persons and one of the persons dies, the power remains exercisable by the survivor or survivors. This principle warrants some consideration.
In Thomas on Powers, the learned author explains that, where a power is annexed to an office, then all persons who fill the office can generally exercise the power.[55] As to whether the power is annexed to the office, it is suggested in that monograph that this may be determined by asking whether the power would have been conferred on the donees but for their office, citing Crawford v Forshaw.[56] By way of an example, referred to in Thomas on Powers, if a power is given to three executors virtute officii, and one of them renounces or dies, it remains exercisable by two of them.
By reference to the decision of the House of Lords in Bersel Manufacturing Co v Berry, Thomas on Powers records the proposition, at [7.81], that the power vests in those who act, and the consent of the one who disclaims or renounces is not necessary. As I have noted, the plaintiff places reliance on the decision of the House of Lords. And for good reason. The decision has strong similarities to the present issue before the Court.
In Bersel Manufacturing Co v Berry, the House of Lords was called on to consider the true construction of a power vested in permanent life directors of a private company by the articles of association. Article 16(H) provided that the permanent life directors 'shall have power to terminate forthwith the directorship of any of the ordinary directors by notice in writing'. The appellant and his wife had been appointed as the permanent life directors. The appellant's wife died, raising the question whether the power was exercisable by the appellant on his own. I pause to note that the powers of the permanent life directors in Bersel Manufacturing Co v Berry were not dissimilar to those of an appointor under a trust deed, in the sense of permitting the holder of the power a high degree of control over the board or trust, as the case may be.
The trial judge (Stamp J) concluded the power was exercisable by the appellant alone, a position which found favour with the dissentient in the English Court of Appeal (Danckwerts LJ). The majority of the Court of Appeal reached a contrary conclusion (Lord Denning M.R. and Diplock LJ).
In the face of this division of views, the House of Lords undertook a careful review of the applicable principles and of the 'powerful arguments' accepted by the majority in the Court of Appeal, ultimately favouring the view, unanimously, that the power was not vested in the permanent life directors as recipients of a joint confidence, but rather for the purpose of securing their joint interests. The plaintiff urges the Court to adopt the reasoning of the House of Lords, and reach the same conclusion.
The principal judgments in Bersel Manufacturing Co v Berry were that of Lords Hodson, Pearce and Wilberforce, with Lord Reid agreeing with Lord Wilberforce and Lord Morris of Borth-y-Gest agreeing generally the appeal should be allowed.
Lord Hodson noted the existence of two, long standing rules applicable to the exercise of bare powers, which could not be reconciled.[57] The first rule was that a bare power given to two or more by name cannot be executed by the survivor. The second was that, when a power is annexed to an office (for example, if it be given to executors) all persons who fill the office can exercise the power, but if the power be given to persons named officially (for example, to my executors A and B), it is in each case a question of intention whether the power is given to the person or annexed to the office.
His Lordship then held:[58]

It may be that the answer is not readily to be found simply by an attempt to apply the above rules. The first rule which was treated as applicable by the majority of the Court of Appeal [that a bare power given to two or more by name cannot be executed by the survivor] does not seem to me to solve the problem in favour of the Respondent for this reason. Mr. and Mrs. Berry were not, in my opinion, in the position of persons identified by name as being the recipients of a joint confidence. They were rather persons who were securing their own interests in the company by reserving to themselves a power which could be used to protect themselves against a majority vote of the shareholders of the company. This would apply to Mr. Berry as events have shown and would, if Mrs. Berry survived him, have been of value to her if she had found herself likewise in a minority position. The power is coupled with an interest and distinguishable from a bare power: cf. re Bacon [1907] UKLawRpCh 22; [1907] 1 Ch. 475. There are accordingly practical reasons for the continued existence of the power upon the event of either Mr. or Mrs. Berry surviving the other.

Lord Hodson did not consider the second rule could be strictly applied either. Having reviewed the nature of the office in question, noting that no other person could be appointed a permanent life director, his Lordship could not identify any reason why the power should not survive to the other when it was lost by one of two joint holders.[59]
Lord Hodson ultimately concluded that the power in question was not vested in the appellant and his wife by way of personal confidence. Rather, the power was given to them in order that it might serve their own interests in preserving their position in the company. The power survived so long as one individual held the office of permanent life director.[60]
Similar reasoning was adopted by Lord Pearce.[61]
Lord Wilberforce, with whom Lord Reid was in agreement, had concerns as to the absence of any factual context in which the instrument came to be interpreted. His Lordship complained that the issue had been presented to the court as a point of law directed to be separately tried before the trial of the action, which he described as 'unfortunate'.[62] Nonetheless, Lord Wilberforce reached a conclusion to the same effect as Lord Hodson, concluding that neither of the rules suggested by the parties was fit to answer the problem.
The conception of a joint confidence was a notion that seemed to relate to a world far removed, his Lordship held, from that of the powers of directors of a commercial private company. Lord Wilberforce held that, while the powers of the permanent life directors were to be jointly exercised, that did not imply a joint confidence:[63]

It is true, of course, that while both permanent Life Directors survive, and hold office, the power of removal must be jointly exercised. But, on analysis, this does not imply any joint confidence, or joint trust: it is simply a reflection or statement of the reality that if two holders of equal voting power disagree, no result is achieved. The necessity of agreement during their joint tenure of office is no indication that, when one office holder remains, the separate power which he previously had is come to an end

As to the argument that the powers were annexed to the office, Lord Wilberforce considered this was 'nearer to the situation' but did not precisely fit the problem before the court.[64]

The alternative, annexation to an office, though nearer to the situation, does not fit it: for, though it meets the case where an office (including in the term such positions as trustees or executors) is by its nature held by persons in succession, or, if one of several holders dies, by the survivors, here the “office”—that of permanent Life Director—can only be held by Mr. and Mrs. Berry. Certainly it can be held by the survivor of them, but then the question remains, which is the whole question in the case, whether the power to appoint or remove directors can be exercised by the survivor. There is no external principle, apart from what one finds in the Articles, to which one can appeal for an answer.

The answer was ultimately to be found, according to Lord Wilberforce, in the text of the instrument, being the articles of association. An important indicia in this regard was the fact the appointees were life directors, regardless of whether they retained their controlling shareholdings (provided they retained a nominal shareholding). Further, the text employed in the articles referred to them in the singular on occasions, pointing away from a conception of a joint power or joint position.
Further, the articles provided for the vacation of office in a number of events, with its provisions operating separately in relation to each and every director including each permanent life director. Either of the permanent life directors would be required to vacate office during his or her life, if becoming insolvent, or of unsound mind, or through absence from directors' meetings, or by resignation.
Lord Wilberforce considered there was nothing reasonable in the suggestion that, if one of the permanent life directors vacated office under one of these provisions, that the powers of the other should come to an end. Thus, if the powers were to continue in those circumstances, why would the powers not continue in the case of vacation by death.[65]
Lord Wilberforce could not find any business reason why the existence of the special powers should be conditional on the survivorship of both the permanent life directors. Indeed, he considered it would be surprising if, 'after the creation of a special right of control over the board, which right was expressed to continue even after voting control had been relinquished, one should lose his or her powers over the board the moment the other died'.[66] He reached this view regardless of whether the company was effectively founded by Mr Berry, or by Mr Berry and Mrs Berry, or by Mrs Berry,
Ultimately, Lord Wilberforce concluded that, on a construction of the articles of association, that the special power of removal conferred by the relevant article remained exercisable by Mr Berry notwithstanding the death of his wife, and allowed the appeal.
The approach adopted by the House of Lords in Bersel Manufacturing Co v Berry, and the court's conclusion, have equal application to the matter presently before this Court, in my view.

Conclusion

I am of the opinion that the proper construction of the requirement in cl 1(14) of the Trust Deed that where two or more persons are specified as acting jointly in the office of Guardian, they shall act jointly, should be interpreted to mean that the persons named cannot each act severally whilst they jointly hold the office of Guardian.
The instrument, as a whole, should not be construed to preclude the capacity of the survivor to continue to act in the office of Guardian. I do not discern from the Trust Deed a strong indication that the appointees to the office of Guardian were intended to be the recipients of a joint confidence, but rather it is more evident that the appointees were intended to provide a protective role against the exercise of the significant powers in the Trust Deed by the Trustee, for the benefit of the trust generally. In this sense, there is a practical utility in having a surviving appointee continue in the office, and fulfil the role of Guardian, following the death of the other appointee.
The contrary view has little in the way of commercial justification to commend it.
The example given by the plaintiff's counsel is apposite in this regard. If five persons had been appointed to the office of Guardian jointly and one died, the surviving four would still be required by the terms of cl 1(14) to act jointly. However, the office of Guardian would not thereby cease to be.
In all of the circumstances, it is appropriate to exercise the discretion of the Court to give declaratory relief, particularly given the practical consequences which are likely to flow from that relief. The declaration as to the continuation of the office of Guardian should be made, and I note the secondary declaration is not pressed.

G. Orders made

For the foregoing reasons, I am of the view that the construction proposed by the plaintiff is the preferable construction and relief should be granted.
I will make the following declaration and costs order, as set out in the plaintiff's minute of proposed orders handed to the Court during the hearing today:
1. Pursuant to O 58 r 2 and r 10 of the Rules of the Supreme Court 1971 (WA), it is declared that on a proper construction of the deed of settlement stamped 22 December 1983 constituting the Manly Trust (Trust), upon the death of Edith Mak in 1987, the plaintiff, Hay-Man Mak, as the surviving jointly appointed Guardian, thereupon continued in the office of Guardian of the Trust with the capacity to continue to exercise the powers of the Guardian of the Trust.
2. That the plaintiff's and the defendant's costs of the proceedings, calculated on an indemnity basis, be paid out of the assets of the Trust.

ATTACHMENT A
Relevant provisions of the Trust Deed

Clause 1

In this Deed the following expressions shall unless there is something repugnant to or inconsistent with the subject matter have the meanings hereunder set out -

(1) "Specified Beneficiary" and "Specified Beneficiaries" shall mean the person or persons named described or defined as such in the Schedule;
(2) "General Beneficiary" shall mean and include -
(a) the Specified Beneficiary or the Specified Beneficiaries (as the case may be);
(b) The brothers sisters children and grandchildren of the Specified Beneficiary and the children and grandchildren of such brothers children and grandchildren provided however that to qualify as a General Beneficiary such person must be born with the surname Mak;
(c) any of the following entities whether formed in Australia or elsewhere namely -
(i) the Trustees (in their capacity as such) of any eligible trust;
(ii) any eligible corporation;
(iii) Any other legal person at least one share or other interest in which is beneficially owned or held by any beneficiary (including the trustees of an eligible trust and an eligible corporation);
(iv) any charity;

(d) such other persons corporations and trusts (if any) as may be named described or defined in the Schedule as additional members of the class of General Beneficiaries;

PROVIDED HOWEVER that every member of the excluded class shall be excluded from the class of General Beneficiaries not- withstanding that he may otherwise be or be qualified to be included in the class of General Beneficiaries;

AND PROVIDED FURTHER that subject to clause 10 hereof the Trustees may at any time and from time to time declare in writing that any person shall be excluded from the class of General Beneficiaries notwithstanding that but for such exclusion he is or would by reason of one or more of the matters or circumstances hereinbefore referred to have been a General Beneficiary and the class of General Beneficiaries shall as from the date of the making of any such declaration be modified accordingly but so that this vower shall hot be capable of being exercised so as to derogate from any interest to which such General Beneficiary has previously become indefeasibly entitled whether in possession or in reversion or otherwise;

(3) "the excluded class" shall mean and include each of the following persons, namely -

(a) the Settlor;
(b) any notional Settlor;
(c) every person claiming under or in right of the Settlor or of any notional Settlor;
(d) the Trustees;
(e) every corporation and the trustees of every trust or settlement in or under which and any other person in which any other member of the excluded class has any interest so long as such interest continues;

PROVIDED HOWEVER that a person shall not be a member of the excluded class if his name is expressly included in the Schedule as an additional member of the class of General Beneficiaries PROVIDED FURTHER that subject to clause 10 hereof the Trustees may at any time and from time to time declare in writing that any person shall be a member of the excluded class notwithstanding that he is or might but for such declaration become a beneficiary and the excluded class shall as from the date of making any such declaration be modified accordingly but so that this power shall not be capable of being exercised so as to derogate from any interest to which such beneficiary has previously become indefeasibly entitled whether in possession or in reversion or otherwise;

...

(14) “the Guardian” shall mean successively the person or persons (if any) successively named or described as such in the Schedule and where two or more persons are therein specified as acting jointly shall mean those persons acting jointly provided that the Trustees may at any time by instrument (subject to clause 10 hereof) declare that any person who has not yet become Guardian but who would or might but for this proviso at some time become Guardian shall not become Guardian and if such declaration is so made that person shall not become Guardian notwithstanding that he is named as such in the Schedule;

(15) "the Appointor" shall mean successively the person or persons successively named described or defined as such in the Schedule or determined according to the provisions hereof and where two or more persons are specified in the Schedule as acting jointly shall mean those persons acting jointly provided that the Trustees may at any time by instrument in writing (subject to clause 10 hereof) declare that any person who has not yet become Appointor but who would or might but for this proviso at some time become Appointor shall not become Appointor and if such declaration is so made that person shall not become Appointor notwithstanding that he is named as such in the Schedule;

Clause 6

THE Trustees may -

(1) subject to clause 10 hereof at any time or times and from time to time before the Vesting Day convey or transfer the whole or any part of the Trust Fund or out of the capital of the Trust Fund but not out of any moneys referred to in sub-clause (5) of this clause pay any sum or sums (either in addition to or in substitution for any share of income) to any beneficiary for his own use and benefit or apply the same to or for the maintenance education advancement or benefit of such beneficiary in such manner as they shall think fit and for that purpose may raise any such sum or sums out of the said capital in such manner as they shall think fit;
(2) subject to clause 10 hereof at any time or times and from time to time before the Vesting Day lend any sum to any beneficiary either with or without security and upon such terms and conditions as to repayment and with or without interest as they shall think fit;
(3) subject to clause 10 hereof at any time or times and from time to time pay or apply to or for the benefit of any beneficiary the whole or any part of the capital or income or accrued or accumulated income to which he is either absolutely or contingently entitled (and notwithstanding that his interest is liable to be defeated or diminished by the exercise of any power of appointment or revocation or by reason of any other matter or circumstance) in such manner and subject to such terms and conditions as they shall think fit and without limiting the generality of the foregoing for the maintenance education advancement or benefit of such beneficiary;
(4) in the exercise of any power contained in sub-clauses (1) (2) and (3) of this clause pay or transfer any moneys or the whole or any part of the Trust Fund to any parent or guardian of any infant beneficiary in whose favour the power is exercised without being bound to see to the application thereof by such parent or guardian and at any time or times and from time to time pay or transfer any investments or money appropriated to a share of the Trust Fund to which any infant beneficiary is or becomes absolutely entitled to his parent or guardian as trustee for such infant beneficiary without being bound to see to the application thereof by such parent or guardian;
(5) invest any amount held by the Trustees on a separate trust pursuant to clause 3 (5) hereof on behalf of the person entitled thereto by investing the same and the resulting income thereof in any of the investments hereby authorised and while any such person is under any legal disability at any time or times and from time to time in their absolute discretion resort to such amount and the income thereof and pay apply or deal with the same or any part thereof in such manner as the Trustees in their absolute discretion think fit for the benefit of such person in the terms of the powers contained in sub-clause (3) and (4) of this clause;
(6) allow any beneficiary to occupy have custody of or use any immovable property or chattels for the time being forming part _of the Trust Fund on such terms or conditions as to inventories repair replacement insurance outgoings or otherwise at all as the Trustees shall think fit.

Clause 7

THE Trustees shall in addition to the powers otherwise conferred upon trustees by law have the following powers:

(1) to apply and invest all moneys at any time forming part of the Trust Fund in any such investments whether involving liabilities or not or upon personal credit with or without security and upon personal credit with or without security and upon such terms and conditions as the Trustees shall in their absolute discretion think fit and to the intent that the Trustees shall have the same powers in all respects as if they were absolute owners beneficially entitled including without diminishing the generality of the foregoing the subscription for the taking up on allotment and the purchase of any shares stocks bonds mortgages debentures obligations or securities or any government authority or company incorporated in any part of the world and the taking of and the purchase or acquisition of the whole or any part or share or interest in (including a minority part or share or interest in) any business or partnership and the goodwill and assets thereof and the purchase or acquisition of any real or personal property wheresoever situate or any part or share or interest therein and notwithstanding that the same not be income producing or be of a wasting or speculative nature and to exercise all rights and privileges and perform all duties and obligations appertaining or incidental thereto;

...

(22) subject to clause 10 hereof in any conditions or circumstances which the Trustees think expedient to appoint either in respect of the whole of the Trust Fund or any part thereof new trustees in any country in the world and to transfer assign and set over the investments for the time being representing the Trust Fund or any part thereof to any such new trustees upon similar trusts and subject to terms and conditions similar to those declared by this Deed and either subject to the control of the Trustees of this Deed or to the exclusion of such control and the Trustees of this Deed shall be indemnified and held harmless against any loss which may arise from the exercise of this power;

Clause 10

SUBJECT always to any express provision to the contrary herein contained every discretion vested in the Trustees shall be absolute and uncontrolled and every power vested in them shall be exercisable at their absolute and uncontrolled discretion PROVIDED that notwithstanding anything contained in this Deed -

(1) the Trustees may before exercising any discretion or power vested in them or making any determination hereunder consult the wishes of the Guardian (if any);
(2) the Trustees may subject to this clause by instrument in writing revocably or irrevocably wholly or partially release abandon or restrict any power conferred on them by this Deed;
(3) subject to sub-clause (5) of this clause the Trustees shall not when there is a Guardian exercise the reserved powers or the restricted powers except with the consent of the Guardian;
(4) where a Guardian is named in the Schedule and there ceases to be a Guardian the Trustees shall not -
(a) exercise the reserved powers; or
(b) exercise the restricted powers in such manner as to impair or diminish the expectations of any Specified Beneficiary or of any other person or persons upon whom in the events which happen or pursuant to any appointment validly made pursuant to clause 4 hereof the Trust Fund is to devolve on the Vesting Day;

PROVIDED NEVERTHELESS that the Trustees shall have power to make a declaration pursuant to the second provisos to clauses 1(2) or 1(3) hereof in respect of any General Beneficiary who is adult and sui juris and who requests them to do so;

(5) the Guardian may at any time by instrument in writing revocably or irrevocably declare that thenceforth all or any of the reserved powers or the restricted powers –

(a) shall cease to be reserved powers or restricted powers as the case may be and after any such declaration the Trustees shall be entitled to exercise such power or powers as though no Guardian had been named in the Schedule; or
(b) shall be prohibited to the Trustees and after any such declaration the Trustees shall not be entitled to exercise such power or powers;

(6) where no Guardian is named in the Schedule the Trustees may unless otherwise expressly provided in the Schedule exercise all the reserved powers and the restricted powers in their absolute and uncontrolled discretion and without the consent of any other person;

(7) in this clause –

(a) 'reserved powers' means –
(i) the power to make declarations pursuant to the second provisos to clause 1(2) and 1 (3) hereof;
(ii) the power pursuant to clause 1(12)(b) hereof to appoint a Vesting Day later than the day specified as the Vesting Day in the Schedule;
(iii) the power contained in the proviso to clause 1(14) hereof;
(iv) the power contained in the proviso to clause 1(15) hereof;
(v) the power pursuant to clause 3(1)(a) hereof to pay apply or set aside any amount to a General Beneficiary described in clause 1(2)(c) hereof on the first occasion on which that power is exercised;
(vi) the power to appoint the Trust Fund pursuant to clause 4(1) hereof;
(vii) the power to revoke a revocable appointment validly made pursuant to clause 4(1) hereof;
(viii) the power contained in clause 7(25) hereof;
(ix) the power contained in clause 28 hereof;
(x) the power contained in sub-clause (2) of this clause;

(b) 'restricted powers' means -
(i) the powers contained in sub-clauses (1) (2) and (3) of clause 6 hereof;
(ii) the power contained in clause 7(22) hereof;

(c) 'power' includes authority and discretion.

Clause 21

The Appointor and on the death of the last surviving Appointor such other person as such survivor shall have appointed to act as Appointor and in default of appointment his legal personal representative shall be entitled by instrument in writing at any time and from time to time -

(1) to remove any Trustee hereof;
(2) to appoint any additional Trustee or Trustees;
(3) to appoint a new Trustee or Trustees in the place of any Trustee who resigns his Trusteeship or ceases to be a Trustee by operation of law;

PROVIDED THAT

(a) if and so long as the Appointor is a beneficiary he shall not be eligible to be appointed as a Trustee hereof;
(b) if there is no Appointor named in the Schedule or if at any time there is no one entitled to exercise the power hereinbefore conferred the statutory and other rights of removing and appointing Trustees hereof may be exercised by the Trustees or by the legal personal representatives or (if the Trustee be a corporation) the liquidator of the last surviving Trustee;
(c) a person appointed to act as Appointor by an Appointor named in the Schedule hereto shall have the same right of appointing a person to act as Appointor as the person who appointed him.'

Clause 23

Any Trustee, Guardian or Appointor, and any person who may by succession become a Trustee, Guardian or Appointor, may resign or renounce such position by notice in writing to the Trustees and forthwith upon the giving of such notice the person giving the same shall for all purposes hereunder cease to be a Trustee Guardian or Appointor or to be a person who may by succession become a Trustee Guardian or Appointor (as the case may be) ... provided that if at any time there is no Appointor or other person entitled to exercise the power of appointment provided in clause 21 hereof a sole surviving Trustee shall not resign except upon appointing a new Trustee or new Trustees in his place.

Clause 28

SUBJECT to clause 10 hereof the Trustees for the time being may at any time and from time to time by deeds revocable or irrevocable revoke add to or vary all or any of the trusts terms and conditions hereinbefore contained or the trusts terms and conditions contained in any variation or alteration or addition made thereto from time to time and may in like manner declare any new or other trusts terms and conditions concerning the Trust Fund or any part or parts thereof the trusts whereof shall have been so revoked added to or varied provided that the rule known as the Rule against Perpetuities is not thereby infringed and provided that such new or other trust powers discretions alterations or variations -

(1) insofar as the beneficial interests created by this Deed are revoked added to or varied shall be for the benefit of all or any one or more of the General Beneficiaries or the next of kin of any of them; but
(2) shall not be in favour of or result in any benefit to any member of the excluded class;
(3) shall not affect the beneficial entitlement to any amount set aside for any beneficiary prior to the date of the variation alteration or addition: and
(4) shall not enlarge the number of persons capable of falling within the description "beneficiary" hereinbefore contained.

Save as provided in this clause these presents shall not be capable of being revoked added to or varied.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LM
Associate to the Honourable Justice Lundberg

5 NOVEMBER 2024

[1] The deed was a deed of settlement made between Ms Carole Anne McAlwey (as settlor) and Macwin Pty Ltd (as trustee), which was stamped on 22 December 1983, and which I will refer to as the Trust Deed.
[2] Although, as will be seen, at one point in time there appears to have been a person occupying the role of Guardian together with the plaintiff.

[3] As amended during the hearing.

[4] Plaintiff's submissions (PS) dated 26 August 2024 and Supplementary Submissions (PSS) dated 4 November 2024.
[5] CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53; (2005) 224 CLR 98 [15] (Gleeson CJ, McHugh, Gummow, Callinan & Heydon JJ).
[6] Kent v SS Maria Luisa (No 2) [2003] FCAFC 93; (2003) 130 FCR 12 [60].
[7] The first affidavit was sworn 27 May 2024 (First Affidavit) and the supplementary affidavit was sworn on 26 August 2024 (Second Affidavit).
[8] Second Affidavit [5].
[9] Trust Deed, cl 1(1) and Schedule.
[10] Trust Deed, cl 1(2) and Schedule.
[11] Second Affidavit [6].
[12] Second Affidavit [7].
[13] First Affidavit [4].
[14] Second Affidavit [8].
[15] First Affidavit [6]. The source materials indicate the company is identified as Juventas Pty Ltd, not Juventus Pty Ltd, but nothing in this proceeding turns on that distinction.
[16] Retirement Deed, cl 1 and the execution clause on pg 3.
[17] PSS [3] - [4].
[18] First Affidavit [7].
[19] First Affidavit [7].
[20] First Affidavit [8].
[21] Trust Deed, cl 10(7)(a)(i).
[22] Trust Deed, cl 10(7)(a)(i).
[23] Trust Deed, cl 10(7)(a)(ii).
[24] Trust Deed, cl 10(7)(a)(iii).
[25] Trust Deed, cl 10(7)(a)(iv).
[26] Trust Deed, cl 10(7)(a)(v).
[27] Trust Deed, cl 10(7)(a)(vi).
[28] Trust Deed, cl 10(7)(a)(ix).
[29] Trust Deed, cl 10(7)(b)(i) and (ii).
[30] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 438 (Gibbs J).
[31] As an aside, the breadth of the power led French J (as his Honour then was) in an extra-curial paper to ask rhetorically of declarations, as Homer Simpson had asked of donuts, 'is there anything they can't do?' French, Justice Robert, 'Declarations - Homer Simpson's Remedy - Is there anything they cannot do?' [2007] FedJSchol 24.
[32] Forster v Jododex Australia Pty Ltd (438) (Gibbs J), citing Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd (1921) 2 AC 438, 448. See also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[33] PSS [8] - [9].
[34] PSS [8] - [9].
[35] Edwards v Santos Limited [2011] HCA 8; (2011) 242 CLR 421 [37] (Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ agreed).
[36] PSS [10] - [19].
[37] IMF (Australia) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231.
[38] IMF (Australia) Ltd v Sons of Gwalia Ltd [47] (French J).
[39] Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627 [63] (Edelman J) and [90] (Steward J).
[40] Oil Basins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643, 648 - 650 (Dawson J).
[41] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 [30] (Greenwood, Logan and Yates JJ).
[42] Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 [26] (Leeming JA, Bell CJ and Ward P agreeing).
[43] Bersel Manufacturing Co v Berry [1968] 2 All ER 552.
[44] Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 [9] - [10] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Blenkinsop v Herbert [2017] WASCA 87 [106] (Murphy & Mitchell JJA, and Beech J); and Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495 [72] - [81] (Buss P).
[45] Mercanti v Mercanti [80] (Buss P).
[46] Vango Mining Limited v Zuleika Gold Limited [2024] WASCA 54 [39] (Buss P and Seaward J).
[47] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ).
[48] Electricity Generation Corporation v Woodside Energy Ltd [35] (French CJ, Hayne, Crennan & Kiefel JJ).
[49] Schreuders v Grandiflora Nominees Pty Ltd [2016] VSCA 93, [21].

[50] Trust Deed, cl 21.

[51] Blenkinsop v Herbert [69] - [89] (Murphy and Mitchell JJA, and Beech J).

[52] Blenkinsop v Herbert [70] – [71] (Murphy and Mitchell JJA, and Beech J).
[53] Trust Deed, cl 10(5)(a).
[54] Trust Deed, cl 10(5)(b).

[55] Thomas G, Thomas on Powers (2nd ed, 2012) [7.81].
[56] Crawford v Forshaw [1891] UKLawRpCh 66; [1891] 2 Ch 261, 266 (Lindley LJ).
[57] Bersel Manufacturing Co v Berry (554) (Lord Hodson).
[58] Bersel Manufacturing Co v Berry (554) (Lord Hodson).
[59] Bersel Manufacturing Co v Berry (555) (Lord Hodson).
[60] Bersel Manufacturing Co v Berry (555) (Lord Hodson).
[61] Bersel Manufacturing Co v Berry (556) (Lord Pearce).
[62] Bersel Manufacturing Co v Berry (557) (Lord Wilberforce).
[63] Bersel Manufacturing Co v Berry (557) (Lord Wilberforce).
[64] Bersel Manufacturing Co v Berry (557) (Lord Wilberforce).
[65] Bersel Manufacturing Co v Berry (558) (Lord Wilberforce).
[66] Bersel Manufacturing Co v Berry (558) (Lord Wilberforce).

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