KENNON V SPRY PDF

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This is a case note of a family law matter involving a family trusts and property. Kennon v Spry; Spry v Kennon [] HCA 56 (“Spry”) is a particularly noteworthy. The case is Kennon and Spry. In it, the husband sets up a series of trusts for the benefit of the children of the marriage. It was the ability of the Family Court to. The decision of the High Court in Kennon v Spry () CLR ; ALR ; 83 ALJR ;. 40 Fam LR 1; [] FLC ; [] HCA 56 is one of.

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The trustees and the husband contended that since no s 85A questions had been agitated at trial, they could not be agitated on appeal. Earlier authorities in the Family Court, relied upon by the trial judge, involved a spouse who also had some capacity to benefit from the trust.

The application relevant to these proceedings was a second amended version of that application. This identified the husband as settlor and as the present trustee. The kennpn argument of the trustees and the husband summarised. It has always been a powerful spgy to stop recalcitrant spouses from diminishing the matrimonial pool.

The appeals should be dismissed. These are not propositions which the wife did or could contest.

Kennon v Spry; Spry v Kennon [2008] HCA 56

It was not in dispute that the Instrument was not a deed. Clause 7 provides that at the date of distribution which may be as late as It does not require that a settlement made prior to marriage be directed to the particular marriage at the point it is made. The end result was disastrous for the husband given the extra interest payments and costs he will have to pay and that he was ordered to pay a sum certain in a falling market of real estate and investments generally.

Accordingly the submission made by the judges of the Family Court to Parliament was correct. In reaching this conclusion, she said one must look to the individual words of the section in light of their context and purpose.

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Kennon v Spry; Spry v Kennon [] HCA 56 | Family Law Express Decisions

The purpose of s. Farwell J held that it did not, because until the appointment was made, the son had no interest in the fund other than a vested interest in default of appointment:.

It is convenient to examine these arguments in turn. Counsel for the wife attempted to distinguish them, but not convincingly.

The settlement was held to have continued in existence at the date of the orders, notwithstanding that the features which made it nuptial had been removed. The result is that upon the basis explained above the challenged orders made by the Full Court are to be supported as a proper exercise of the powers conferred by the Act.

The evidence made clear that he applied the assets and income from them as he wished and for his own benefit.

Even on the second argument the power epry appointment and the right to due consideration, absent a legal estate upon which they can operate, are meaningless. The wife submitted that: Amended notices of contention and applications for special leave to cross-appeal.

First, what was the view of the Chief Justice?

This would not involve a variation of slry Trust. The primary judge then turned to consider the impact his proposed orders would have on the children of the marriage. For particular purposes Parliament can and does create its own lexicon. How would you summarise the legal position with family trusts after the decision in Kennon and Spry?

In these conclusions her Honour was correct, with respect. It is supported by his legal title to the assets, the origins of their greater part as property acquired during the marriage, the absence of any equitable interest in them in any other party, the absence of any obligation on his part to apply all or any of the assets to any beneficiary and the contingent character of the interests of those who might be entitled to take upon a default distribution at the distribution date.

Accordingly, some further reference to legislative history is of assistance here. Counsel for the wife, attempted to distinguish them, but not convincingly.

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It can mean a right of personal enjoyment. Billington v Billington No. It followed upon the receipt of submissions, including submissions from the Family Court. Furthermore, as an object of these powers the wife had a right in equity to due administration of the Trust.

CaseWatch: Kennon v Spry and Its Implications for Third Parties in Family Law Proceedings

Her Honour relied on the provisions of section 85A. Sory on one of those occasions Mason J said:. In particular, it is of some significance that the object of s;ry bare power of appointment kenon incapable of assigning the relevant rights. In reaching this conclusion, one must look to the individual words of the section in light of their context and purpose.

It is supported by his legal title to the assets, sspry origins of their greater part as property acquired during the marriage, the absence of any equitable interest in them in any other party, the absence of any obligation on his part to apply all kwnnon any of the assets to any beneficiary and the contingent character of the interests of those who might be entitled to take upon a default distribution at the distribution date.

As noted in the preceding section the equitable entitlement of the children and other existing beneficiaries to due consideration could also be taken into account in making that judgment.

Even before the husband had no right of beneficial enjoyment in the sense of personal enjoyment until he decided to make an appointment to himself — a decision not to be made without some consideration of whether or not appointments should be made to any other member of the class of objects.

Thus a covenant to settle after-acquired property does not catch any property over which the covenantor has a general power of appointment unless and until the power is exercised in favour of the covenantor.