High Court of Australia

Fischer v Nemeske Pty Ltd [2016] HCA 11

6 Apr 2016

Case Number: S223/2015


French CJ, Kiefel, Bell, Gageler, Gordon JJ


Trusts – 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.

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