Trustees' powers of advancement

I've spoken recently on Litigation involving Trustees for the City of Sydney Law Society, and then shot a Benchmark TV production on the same topic.  That led to writing a case note for Bar News on Fischer v Nemeske Pty Ltd [2016] HCA 11.  The dissenting judgment of Kiefel J provides some guidance to practitioners seeking to draft a resolution of a corporate trustee that validly engages a power of advancement.  In finding that it had not been validly engaged in the case in question, her Honour stated that the advance  was not authorised because it did not identify:

a.    The source of power to make an advance ([51]-[52]); 
b.    That the distribution was made for the “advancement in life or benefit” of the beneficiaries ([52]); 
c.    Whether the distribution was made from capital or income ([53]). 

Further, Kiefel J held that no capital or income had actually been advanced to the beneficiaries:

“[64] (…) for a conclusion that capital was applied, there should be a corresponding reduction in the capital of the Trust.”

The judgment of majority (French CJ, Bell and Gageler JJ) found that the power of advancement had been engaged by reference to the specific power in the trust deed in question.  When drafting any resolution in which an advance is made, careful reference to the trust deed should be made to ensure that the advance is indeed capable of being authorised.