Another useful case in this area is the decision in University of Adelaide v Attorney-General (SA) [2018] SASC 82.
Relevantly, the court confirmed that:
- Where a power of amendment has been included in a trust deed, there must be compliance with any procedural or substantive restrictions on its exercise.
- As a general principle of construction of trust deeds, a 'trustee cannot utilise its power of amendment of the trust deed to remove restrictions on its power of amendment' (see Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121).
- Even in the absence of express restrictions, it would seem implicit that a power of amendment cannot be exercised to amend itself (see a case featured in a number of previous posts, namely Jenkins v Ellett [2007] QSC 154).
This was on the basis that where there is an extremely wide power of amendment in a trust deed it should be read and interpreted according to its natural meaning, notwithstanding what might otherwise be a general principle of construction.
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** For the trainspotters, the title of today's post riffed from The Who and the song 'I Can't Explain'.
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