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Recent developments relating to discretionary trusts - getting money out of trusts against the wishes of the trustee & appointor paper


One of the advantages of owning assets through discretionary trusts is that control may be exercised without the controller necessarily owning any property that can be applied by creditors or other claimants. But recent case law suggests that courts may in some circumstances attribute property belonging to a discretionary trust to the controller of the trust.

This paper examines the recent cases that have considered this question and identifies the circumstances in which claimants may be able to access property in a discretionary trust. Topics covered include:

  • traditional judicial approach to discretionary trusts
  • Pope versus DRP Nominees
  • Richstar Investments
  • Kennon versus Spry
  • future judicial trends in relation to creditor and family claims.

Author profile:

Lisa Hespe CTA
Lisa was admitted as a Barrister and Solicitor of the Supreme Court of Victoria on 1 May 1995. She has practised in the field of taxation law for 14 years. Lisa was formerly a senior associate at Mallesons Stephen Jaques specialising in income tax, tax disputes and advising on mergers and acquisitions. She has advised a number of the companies in the ASX Top 200, including multinational corporations. Lisa’s legal practice has focussed on the conduct of taxation audits and disputes, including advising on the audit process, preparation of position papers, settlement negotiations and the conduct of litigation. Lisa has conducted significant litigation in the Federal Court and High Court. She has assisted in all aspects of the conduct of disputes including advising on claims for legal professional privilege and administrative law issues. Lisa has also advised on the income tax consequences of major corporate reorganisations and acquisitions, including the demutualisation of Australia’s largest general insurer, the formation of joint ventures, demergers and corporate acquisitions. She has advised on the taxation consequences of corporate distributions including the negotiation of class rulings governing capital returns by listed public companies. Current at 07 May 2009

This was presented at 17th National Tax Intensive Retreat: Extracting Value.

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Recent developments relating to discretionary trusts - getting money out of trusts against the wishes of the trustee & appointor

Author(s):  Lisa HESPE

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