Question
FACT SCENARIO (SET IN NSW): Jen Liew owns shares in various publicly listed companies including Apple, Westpac, Sony and Netflix. Jen also owns a significant
FACT SCENARIO (SET IN NSW):
Jen Liew owns shares in various publicly listed companies including Apple, Westpac, Sony and Netflix. Jen also owns a significant collection of paintings and valuable jewellery. Her painting 'The Hunter' by Monet has been authenticated by experts, as has her painting 'The Nightingales' by Picasso. On 1 February Jen also has $900,000 held in account no # 135798 at Sydney Bank BSB 456 988 (Account Name Jen Liew).
On 1 February 2019 Jen Liew executes a document entitled 'Deed of Trust' which includes the following terms.
[Clause 1]I Jen Liew declare that I hold the assets listed in clause 3 on trust for the beneficiaries identified in clause 2 pursuant to the terms of this Deed of Trust.
[Clause 2]The beneficiaries are my children Vicki Liew (25 years) and Song Liew (26 years).
[Clause 3] (a) the balance of my account from time to time in account no # 135798 at Sydney Bank BSB 456 988 (Account Name Jen Liew);
(b) 20% of my share investment portfolio; and
(c) my painting 'The Hunter' by Monet.
[Clause 4]The trustee may, in their absolute discretion, appoint up to $20,000 per annum to a beneficiary if that beneficiary requires financial assistance to complete higher education or vocational training or to pay childcare expenses.
[Clause 5] On the tenth anniversary of the execution of this Deed, the trustee must distribute the trust property to the beneficiaries in equal shares.
[Clause 10] The trustee may sell any real or personal property.
On 1 April 2019 Jen arranges for necessary restoration work to the paintings. Jen pays Robert the restorer from her personal funds for his restoration work on The Hunter ($20,000) and pays for his restoration work on The Nightingales ($30,000) from account no # 135798 at Sydney Bank.
On 1 May 2019 Jen transfers $50,000 from account no # 135798 at Sydney Bank to Song's personal bank account which has an opening balance of $10,000. Jen remarks as she does so: 'Song has been such a dutiful child and looks after me very well. Song deserves this money!' Song is surprised but delighted as she had thought, on reading the Deed of Trust, that trust funds were only to be used to abate childcare expenses or the costs of education or training. However, deciding that 'I must have been wrong!' Song immediately goes on a spending spree:
(a) 2 May 2019 paying overdue utility bills for $5,000;
(b) 3 May 2019 purchasing a bicycle for $10,000;
(c) 4 May 2019 doing necessary home repairs on her apartment ($30,000); and
(d) 5 May 2019 $15,000 on purchasing shares in Bridge Limited.
On 1 June 2019 Jen lends $10,000 fromaccount no # 135798 at Sydney Bank to her friend Peppa (who does not know about the trust). The parties agree the following terms in writing: funds are to be repaid by 1 June 2020, interest free loan, total amount to be repaid is $10,000.
On 1 December 2019 Jen says to Vicki: 'I am assigning to you the debt owed by Peppa!'
On 30 May 2020 Peppa transfers $10,000 to Jen in repayment of Peppa's debt.
Song's shares in Bridge Limited are now worth $50,000.
QUESTION: I just wanted some help advising JEN, VICKI AND SONG regarding the following questions:
(a) as to whether there is a validly constituted express trust of which Jen is trustee,
(b) whether Jen, Vicki or Song have any equitable personal or equitable proprietary claims and equitable personal or proprietary remedies against any relevant party; and
(c) whether Peppa may obtain a good discharge of her debt and why.
I just wanted some assistance in how to answer and go about answering these questions! Thank you so much! Really appreciate your help :)
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