Background
Asdew Pty Ltd was trustee of the Wise Discretionary Trust, a family trust settled in New South Wales in 1976. The original trust deed had been lost, although a photocopy bearing relevant signatures, the company seal, witnessing and stamp-duty material was available. The deed contained no general governing-law or amendment power and provided for the trust to vest on 9 July 2026.
The trust’s business and assets had since become entirely Queensland-based. Its family beneficiaries supported an extension of the vesting date, which would allow the family hotel business and 12 properties to remain in the trust and avoid the substantial tax, duty and transaction costs expected on vesting. The trustee also sought to clarify corporate-beneficiary provisions, nominate Queensland law, and correct two beneficiaries’ mistakenly transposed middle names.
The Court’s Holding
Treston J held that the Supreme Court had power to make orders under the Trusts Act 2025 (Qld), because the trust was administered in Queensland or because the trustee was subject to the Court’s in personam jurisdiction. Although the trust’s proper law at settlement was New South Wales law, the Court did not explore the outer limits of that jurisdictional issue because it was not fully argued and there was no contradictor.
The Court declared that the photocopy was a true copy of the lost deed and that the trustee was justified in administering the trust on that basis. Under s 179(3), it authorised amendments extending the vesting date to 8 July 2101, expressly allowing distributions to eligible companies, limiting the corporate-beneficiary class to family-connected companies, changing the trustee-appointment reference from New South Wales to Queensland, and adding a Queensland governing-law clause. It also rectified the deed to correct Barry and Craig Wise’s middle names, and ordered that costs be paid from trust assets.
Key Takeaways
- A court may confer a power to amend a trust deed under s 179 where the amendment is expedient for trust management or administration and the trustee lacks that power.
- Extending a discretionary trust’s vesting date was appropriate where beneficiaries supported it and imminent vesting would disrupt an operating family business and trigger substantial costs.
- Clear evidence may justify administration under a photocopy where the original trust deed has been lost.
Why It Matters
The decision applies the new Queensland statutory management-power regime to a practical suite of amendments for an older family trust deed lacking a variation clause. It confirms that amendments which improve the trust’s administration without altering its substratum may be authorised, including a vesting-date extension and a governing-law provision.
It also illustrates the importance of reviewing old trust deeds before their vesting dates, particularly where the trust’s operations have moved interstate and original records are unavailable.