Case involving defective trust deed offers important lessons for advisors
What happened
A NSW Supreme Court decision found a trust deed was inadequately drafted and created interpretation and variation problems for trustees and beneficiaries. The judgment (Deemhire Pty Limited as trustee of the Vartuli Family Trust v No Defendant NSWSC 318) highlights specific clauses and fiduciary roles that advisers commonly mis-specify, making this operationally real for any firm that drafts or administers discretionary trusts. Watch whether suppliers and firms publish updated precedent clauses or shift fee and remediation wording in engagement documents
Buyer takeaway
Treat this ruling as a concrete trigger to tighten engagement and remediation language for trust and estate work
Cost / money
Expect increased legal or supplier billings for corrective drafting and for higher-touch senior resource involvement on disputed matters
Supplier / commercial
Suppliers will likely require clearer scopes, express remediation pricing or higher senior approvals on trust matters to manage liability
Safety / operations
Operational impact includes audits, beneficiary communications and corrective drafting that will draw cross-functional resources
What to watch
Watch for supplier contract clauses that attempt to push remediation liability back to buyers or add narrow exclusions
Key facts
- NSW Supreme Court decision: Deemhire Pty Limited v No Defendant ( NSWSC 318)
- Judgment highlights multiple interpretation and variation risks in trust deed clauses
Source excerpts
The decision is comprehensive, particularly in considering the inherent and statutory rights of the court to amend trust instruments. The judgement also makes the following comments in relation to the interpretation of the trust deed, all of which are likely relevant for trust advisers: 1
The court approved some of the changes requested to the trust deed, including the appointment of new appointors (which in theory would allow the trustee to then make, with appointor consent, other changes). The decision is comprehensive, particularly in considering the inherent and statutory rights of the court to amend trust instruments
The decision in Deemhire Pty Limited as trustee of the Vartuli Family Trust v No Defendant [2026] NSWSC 318 is another in the ever-lengthening list of cases resulting directly from (with the aid of hindsight) inadequately drafted trust deeds
