Settlor, grantor, trustees of the cestui que trusts

Response to this request is delayed. By law, Attorney-General's Department should normally have responded promptly and by (details)

Dear Attorney-General's Department,
My recent FOI request for specific Settlor information of an individual's cestui que trust was removed because individual's details can not be published.
Modified request:

Given existing legislation, the existence of the cestui que trust has been confirmed.
ie:
https://www.titlesqld.com.au/manual-guid... (page url)
"Part 51 – Trusts
[51-0100]

Trusts Generally
The only instruments or documents that may be registered to record trustees are:
• Form 5 or 5A – Transmissions by Death (as personal representatives);
• Form 1 – Transfer to Trustees;
• Form 14 – General Request.
The Form 14 may record a transmission by bankruptcy or a vesting that gives effect to an order made under the Trusts Act 1973 (or another Act).
Generally, there are three parties to any trust instrument or document. They are the settlor, the trustee and the beneficiary.
The settlor is the person who creates the trust. The trustee is the person in whom the legal estate vests. The beneficiary (also called the cestui que trust) is the person for whose benefit the trustee holds the property. The beneficiary holds the beneficial interest in the property."

"[51-0210]

The Beneficiary
The beneficiary under a trust (also called the cestui que trust) is the person for whose benefit the trustee holds the legal estate. The beneficiary can be a minor, an adult, an organisation such as a sporting body or a corporation.
When using a Form 20 – Trust Details Form for a schedule of trusts, if a beneficiary is a minor the date of birth must be shown in Item 2 Schedule of Trusts Details in the Form 20 – Trust Details Form.
There can be several beneficiaries at once, either as joint tenants or as tenants in common, but if they are created by separate deeds of settlement, Items in the Form 1 – Transfer to Trustees must identify the trust instruments or documents by name or reference. A trustee may also be one of the beneficiaries, but a sole trustee cannot be the sole beneficiary. There is no trust where there is a sole trustee who is the sole beneficiary because there is no separation of the legal and equitable interests. If a sole trustee becomes the sole beneficiary of a trust, then the legal and equitable interests merge, the trust no longer exists, and the beneficiary holds the property absolutely.
The beneficiary does not have an immediate right in relation to the property (except in the case referred to in the preceding paragraph) although he/she may have rights as against the trustee."

and,

SUPREME COURT CIVIL PROCEDURE ACT 1932 – SECT 11
(Tasmania) https://classic.austlii.edu.au/au/legis/...

" Miscellaneous rules of law
(1) . . . . . . . .
(2) Except as provided by the Trustee Act 1898 , no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations."

and,

IMPERIAL ACTS APPLICATION ACT Act No. 30, 1969
https://legislation.nsw.gov.au/view/whol...

" DIVISION 13.—Recovery of Property on Determination of a Life or Lives.
18 and 19 Charles I I c. 11—The Cestui que Vie Act, 1666. 6 Anne c. 72 (or c. 1 8 ) — T h e Cestui que Vie Act, 1707.

38. ( 1 ) Every person having any estate or interest in any property determinable upon a life or lives who, after the determination of such life or lives without the express consent of the person next immediately entitled upon or after such determination, holds over or continues in possession of such property estate or interest, or of the rents, profits or income thereof, shall be liable in damages or to an account for such rents and profits, or both, to the person entitled to such property, estate, interest, rents, profits or income after the determination of such life or lives."

and,

Paper presented at the Western Australian Bar Association CPD Conference
15 October 2011
Two fundamental questions for the law of trusts by The Hon Justice James Edelman
Supreme Court of Western Australia
Page 7
"c. In The Law of Trusts in New South Wales (1961) p 7, Jacobs also focuses upon the trustee’s duties in relation to the trust rights he or she holds, describing the trust as existing when the ‘holder of a legal or equitable interest in certain property is bound by an equitable obligation to hold his interest in that property not for his own exclusive benefit but for the benefit…of another person or persons…’ Unfortunately, years later, as a Justice of the High Court of Australia, Jacobs J saw ‘no difficulty’ in describing a trust as involving a beneficiary as ‘the beneficial owner of the estate of which the vendor is the legal owner’: Chang v Registrar of Titles.20
d. Finally, by far the best, and clearest, description of the trust was that given by F W Maitland (see reference below), in his lectures at Cambridge21
“Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here. Had there been a conflict here the Judicature Act would have abolished the whole law of trusts.[22] Common law says that A is the owner, equity says that B is the owner, but equity is to prevail, therefore B is the owner and A has no right or duty of any sort or kind in or about the land. Of course the Judicature Act has not acted in this way; it has left the law of trusts just where it stood, because it found no conflict, no variance even, between the rules of the common law and the rules of equity.”
This approach to understanding a beneficiary’s interest as involving an interest which relates to the rights that the trustee holds, rather than being an interest in the trust assets themselves has also gained significant academic support in recent years.23"

Documentation requested:
Provide the name of the document, Act or instrument that stipulates the appointment of, or the "mechanics" of creating the appointment of: the settlor (the person creating the trust); the trustee(s) (who hold legal title to the trust property); and the beneficiaries (the cestui que trust who have an equitable interest).

If no documentation exists, there will be no conflict with my own trust deeds, just needing the clarification.

Regards,

Jillian,
Beneficiary
Conditionally, without waiver of any rights under the Commonwealth

AGD FOI Requests, Attorney-General's Department

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AGD FOI Requests, Attorney-General's Department

OFFICIAL
OFFICIAL
Dear Jillian

Thank you for your email, which was received by the Attorney-General's Department (the department) Freedom of Information (FOI) section on 2 May 2024.

It appears that you are asking for information about the operation of trustee laws in Australia. Unfortunately, we are unable to provide legal advice, nor offer interpretation of the “mechanics” of the law. The FOI scheme is not an appropriate means of commissioning legal research of this nature. Your questions may best be answered by seeking independent legal advice.

All Australian legislation is available on the Federal Register of Legislation here: https://www.legislation.gov.au/.

At this stage we are unable to process your request for the reasons stated above. Please let us know if we have misunderstood your request and we will endeavour to assist you. If we do not hear from you by Friday 10 May 2024 we will take no further action in relation to your request.

Kind regards

Freedom of Information & Privacy
Attorney-General’s Department
Phone: (02) 6141 6666 | Email: [AGD request email]

OFFICIAL
OFFICIAL

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Dear AGD FOI Requests,

"It appears that you are asking for information about the operation of trustee laws in Australia."
Incorrect, I was asking for the actual laws, the documents or instruments that held the instructions, stipulations, rules of administering the cestui que trusts within Australia.

If there are no laws within Australian law that do govern the creation or administration of those trusts within Australia, it must be concluded that the trusts are implied, a construct with no basis in law, and only exist in equity (when/if expressed), and that a beneficiary can in fact, express the trust to hold the equitable interest in the trust then established.

If the Attorney-General confirms no such laws exist, and that no documentation for its creation or administration exists, then it doesn't exist and documentation to the contrary will hold precedence.

Yours sincerely,

Jillian,
Beneficiary

AGD FOI Requests, Attorney-General's Department

OFFICIAL
Dear Jillian

Thank you for your email. As we have advised, all Commonwealth legislation is available on the Federal Register of Legislation. If the legislation you describe exists, you will be able to access it there: https://www.legislation.gov.au/. You may also wish to check your local state government Register of Legislation.

The FOI team is unable to provide legal advice, analysis, or conduct research on your behalf. If you have further questions, we suggest seeking your own independent legal advice.

We will now consider this matter to be closed.

Kind regards

Freedom of Information & Privacy
Attorney-General’s Department
Phone: (02) 6141 6666 | Email: [AGD request email]
OFFICIAL

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Dear "Freedom of Information & Privacy",
Thank you for acknowledging "if the legislation you describe exists". Extensive searches indicate it does not exist, therefore the cestui que trust "structure" can only be through an implied or construed trust, enabling a written trust to take precedence.

No further response is sought.

Regards,

Jillian, Beneficiary and Grantor of the Jillian Banks cestui que trust