Fischer v Nemeske Pty Ltd

HIGH COURT OF AUSTRALIAFRENCH CJ,KIEFEL, BELL, GAGELER AND GORDON JJROBERT WILLIAM FISCHER & ORS  APPELLANTSANDNEMESKE PTY LTD & ORS  RESPONDENTSFischer v Nemeske Pty Ltd[2016] HCA 116 April 2016S223/2015ORDERAppeal dismissed with costs.On appeal from the Supreme Court of New South WalesRepresentationN C Hutley SC with A B Edington and R A Yezerski for the appellants (instructed by S Moran & Co Solicitors)Submitting appearance for the first respondentC J Birch SC with B DeBuse for the second and third respondents (instructed by Curwoods Lawyers)Submitting appearance for the fourth to twelfth respondentsNotice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSFischer v Nemeske Pty LtdTrusts – Trustees' powers – Power of advancement – Where trust property included shares in a company – Where value of shares recorded in "asset revaluation reserve" – Where trustee made resolution to distribute entire asset revaluation reserve to specified beneficiaries – Where trustee covenanted to pay specified beneficiaries on demand – Whether valid exercise of power to "advance" and "apply" trust capital or income – Whether trustee indebted to specified beneficiaries – Whether action for money had and received maintainable.Words and phrases – "advance", "apply", "pay", "pay or apply", "raise".Trustee Act 1925 (NSW), s 44.Trustee Act 1925 (UK), s 32.FRENCH CJ AND BELL J.IntroductionThis appeal, from a decision of the Court of Appeal of New South Wales[1], primarily concerns the power of the trustee of a discretionary trust to advance and apply to two designated beneficiaries,...