Michelakis v Kalumic Pty Ltd as trustee of the Michelakis Family Trust

Section 86A of the Trustee Act 1925 (NSW) (the Trustee Act) confers upon the Court the power to approve any arrangement to vary or revoke all or any of a trust which holds property under an instrument at the instance of a person who may become entitled, directly or indirectly, to an interest under the trust contingent upon a future event that has not occurred. [1]

The Plaintiff, Pauline Cornelia Michelakis (Mrs Michelakis), is a primary beneficiary (together with her husband John Michelakis and their lineal descendants, of which there are two – daughters) under a discretionary trust (the Trust) established by a trust deed (the Deed) which I am satisfied was made in November 1987 and was in the form of an instrument which is Annexure C to the affidavit of Mrs Michelakis affirmed 19 November 2025 and read on this application. This gives her standing to apply for approval of an arrangement varying the trust under s 86A(2)(b) of the Trustee Act: Application of Nyasa No 19 Pty Ltd [2023] NSWSC 578.

The Trustee is named as “BADCARY PTY LIMITED”. It changed its name to Kalumic Pty Ltd on 29 August 2016.

Page 1 of the instrument contains provision for the insertion of the date of the Deed in the form “THIS DEED made the ... day of ... 198 ...”. The details have not been filled in.

The frontispiece identifies the Trust as “THE MICHELAKIS FAMILY TRUST”. The preamble to the Deed identifies the Settlor as Joseph Paul Grech, Chartered Accountant, whom Mrs Michelakis instructed to establish the Trust. He in turn, by letter dated 15 October 1987, instructed a solicitor, Mr G Solomon of H G Solomon & Co, to form the Trust. The letter identifies the name of the Trust as “Michelakis Family Trust”, the Trustee as “Badcary Pty Limited”, the primary beneficiaries as Pauline and John Michelakis and the Settlor as Joseph Paul Grech.

The letter does not identify an Appointor, but the Deed makes provision for the appointment of an Appointor and has a place to name the Appointor in cl 1(p), which includes the words ‘“Appointor” shall mean ...’. An Appointor has not been inserted.

Clause 1(r) states “The settlement and trusts created by this Deed shall be known as ...”. The name is left blank. But it is clear from the frontispiece and the letter of instruction earlier referred to that the Trust was to be named, and is named, “The Michelakis Family Trust”.

A secondary named beneficiary is the “Royal NSW Institute for Deaf & Blind Children”, which has since changed its name to NextSense. Under cl 6(c) the secondary beneficiary takes in the event of no person being able to take pursuant to cls 5(a) and (b), which give the Trustee the absolute discretion to pay the whole or any part of the income to the beneficiaries.

Clause 22 confers on the Appointor powers to remove the Trustee, appoint a new trustee and vary or amend the provisions of the Deed other than the name of the Trust or the vesting date. It follows that once appointed as Appointor, Mrs Michelakis can exercise those powers.

Mrs Michelakis says that one copy of the Deed was dated and stamped but it cannot be found. There has been a subsequent stamping.

By Amended Summons filed on 5 March 2026, Mrs Michelakis seeks orders:

I gave the Plaintiff leave to amend the Amended Summons by seeking further or other orders which will facilitate the making by the Court of the declarations to which I will refer in a moment.

Mrs Michelakis’ affidavit merely says that the Appointor was not named in the Deed. She does not say that there was any intention that she be the Appointor. She consents to being so appointed and so do the other primary beneficiaries. She is plainly an appropriate person to be appointed Appointor.

I am satisfied that it was always intended that the Trust be named “The Michelakis Family Trust” and that the omission in cl 1(r) of a reference to that name is a mere omission.

I am also sufficiently satisfied, on the probabilities, that the Deed was entered into on 5 November 1987 and will make a declaration to that effect.

The insertion of the date or the name of the Trust does not fall into the ambit of the powers conferred on the Court under s 86A of the Trustee Act because variation of the Trust is not sought, nor does it fall into the category of errors necessitating rectification because there is no error as to the date or the name. These matters are properly the subject of declarations to be made. As I have said earlier, once appointed, Mrs Michelakis can exercise the powers conferred on the Appointor under the Deed.

I am also satisfied, subject to the secondary beneficiary being given adequate notice (which it has not) to enable it to be heard should it wish to be, that the Court should approve the arrangement to vary the Deed by appointing Mrs Michelakis as the Appointor.

The Court: