# TRUST DEED ANALYSIS — G & G TRUST

**MATTER:** Quilter & Richards v Gandfors Pty Ltd & Anor — BS 1849/26
**DATE:** 1 May 2026
**AUTHOR:** BossLawyerAI
**STATUS:** Privileged & Confidential

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## 1. DEED IDENTIFICATION

| Field | Detail |
|-------|--------|
| Trust Name | The G & G Trust |
| Date | 28 April 2003 |
| Settlor | David Coomber (the accountant) — Level 1, 481 Logan Road, Stones Corner QLD 4120 |
| Trustee | Gandfors Pty Ltd ACN 104 477 250 — same address |
| Appointor | Alf Evert Roger Gandfors — 36 Swan Terrace, Windsor QLD 4030 |
| Settled Sum | $10.00 |
| Proper Law | Common law (unless Trustee determines otherwise) |
| Vesting Date | Earlier of: (i) 79th anniversary of deed (28 April 2082); (ii) 21 years after death of last survivor of lineal descendants of King George VI born before 28 April 2003; (iii) such earlier date as Trustee appoints |
| Stamp Duty | "Queensland Duty Not Payable" — stamped 7 May 2003 |

**Note:** The Settlor is David Coomber — the SAME accountant who prepared the trust returns and plaintiffs' personal returns. This is significant.

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## 2. BENEFICIARIES (Schedule 2)

### Income Beneficiaries AND Corpus Beneficiaries (identical lists):

| Item | Category | Who |
|------|----------|-----|
| 1 | Named persons | Alf Evert Roger Gandfors; Megan Anne Gandfors |
| 2 | Spouse | Any spouse of persons in item 1 |
| 3 | **Child** | **Any child of a person referred to in 1 or 2** |
| 4 | Lineal issue | Any lineal issue living at distribution date of person in item 3 |
| 5 | Other relatives | Any sibling or parent of person in 1 or 2 |
| 6 | Company | Any company in which a share is held by persons above |
| 7 | Trusts | Any trust under which persons above have an interest |
| 8 | Trustee | Gandfors Pty Ltd |

**The Plaintiffs' status:**
- Louisa Quilter and Michael Richards are children of Megan (item 1 named person)
- They fall under **item 3** — "Any child of a person referred to in 1"
- The SOC says "item 2 of the first page to Schedule 2" — this is INCORRECT. Item 2 is "Spouse". The plaintiffs are item 3 persons.
- However, they are undeniably beneficiaries under the deed. This is not a viable point of challenge.

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## 3. INCOME DISTRIBUTION MECHANISM (Clause 3) — THE CRITICAL CLAUSE

### 3.1 How income is distributed

**Cl 3(a):** The Trustee shall each financial year (or within two months thereafter) distribute the whole of the Income to Income Beneficiaries, BUT the Trustee has **absolute discretion** as to the proportion/amount to each beneficiary.

**Cl 3(g):** The Trustee must prepare a **list** which:
- (i) names each Income Beneficiary
- (ii) specifies the proportion/amount to each
- (iii) specifies the financial year
- (iv) **must be signed and dated by the Trustee**
- (v) must apportion all income not being accumulated

**Cl 3(h)(i):** Particulars of the list must be entered in the **Minute Book**.
**Cl 3(h)(ii):** If the Trustee fails to enter in the Minute Book, **entries in the books of account shall be sufficient**.

### 3.2 THE DEFAULT CLAUSE — cl 3(i) ⭐

> *"In the event of a Trustee failing to prepare the list or to distribute the whole of the income (less any income to be accumulated in accordance with paragraph 5) of the Trust to the Income Beneficiaries then* ***no Income Beneficiary shall be entitled to any of the said income by way of such failure*** *and the rights of Income Beneficiaries shall be limited to the commencement of legal proceedings to compel the Trustee to comply with the provisions of this paragraph."*

### 3.3 Analysis — What cl 3(i) means for the defence

**This clause is GOOD for the defence.** It is NOT a default vesting clause. It expressly provides:

1. If the Trustee fails to prepare the list → **NO beneficiary is entitled to income by reason of that failure**
2. The beneficiaries' remedy is limited to **suing to compel compliance** — i.e., to force the Trustee to prepare the list and make the distribution
3. There is no automatic vesting of income in any beneficiary upon default

**However — cl 3(h)(ii) is a trap:**

The deed says if the Trustee fails to enter particulars in the Minute Book, "entries in the books of account of the Trust shall be sufficient." This means:
- A formal Minute Book resolution is NOT required
- Entries in the **books of account** are sufficient to constitute a valid distribution
- The question becomes: **do the tax returns constitute "entries in the books of account"?**

**The argument each way:**

**FOR the defence (entries in books ≠ tax returns):**
- Tax returns are ATO lodgements, not the trust's own books of account
- The accountant's working papers ≠ the trust's accounting records
- The deed requires a "list" that is "signed and dated by the Trustee" (cl 3(g)(iv)) — a tax return is not signed by the Trustee as Trustee
- *Re BPTC Ltd (in liq) (No 3)* (1992) 7 ACSR 291 — accounting entries are not a substitute for trustee action
- *Vacuum Oil Co Pty Ltd v Wiltshire* (1945) 72 CLR 319 — entries in books do not bind absent substantive transactions

**AGAINST the defence (tax returns may evidence a determination):**
- The accountant prepared both the trust return AND the personal returns on the basis of present entitlement
- The trust return itself lists the beneficiaries and amounts — it functions as a de facto "list"
- The trust return was lodged by or on behalf of the Trustee — it is arguably an entry in the trust's records
- A court may find that the practical operation of the trust treated these as valid distributions
- *FCT v Bamford* (2010) 240 CLR 481 — the High Court looked at practical operation, not just formal compliance

### 3.4 The "distribute" definition — IMPORTANT

**Schedule 4(h):** "Distribute" includes pay, transfer, assign, set aside and **in relation to a Beneficiary includes placing a sum to the credit of a Beneficiary in the books of account of the Trust** or by otherwise appropriating such sum to a Beneficiary.

This is significant. "Distribute" does NOT require actual payment of cash. It includes:
- Placing a sum to the credit of a beneficiary in the books of account
- "Otherwise appropriating" a sum to a beneficiary

**Risk:** If the trust's books of account (or the accountant's working papers) showed amounts credited to the plaintiffs' names, that may constitute a "distribution" under this definition even without cash payment. The plaintiffs would then argue they were "presently entitled" because sums were distributed (credited) to them, even though never paid.

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## 4. CORPUS DISTRIBUTION (Clause 4)

Cl 4 mirrors cl 3 for Corpus:
- Trustee has absolute discretion (cl 4(a))
- Must prepare a list (cl 4(c)) — signed and dated
- **Cl 4(h) — same default provision:** if Trustee fails to prepare list or distribute, "no Corpus Beneficiary shall be entitled to any of the Corpus by way of such failure" — remedy limited to compelling compliance

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## 5. ACCUMULATION POWER (Clause 5)

Cl 5(a): Trustee may in absolute discretion accumulate all or any part of income for such period as it thinks fit (but not greater than permitted by law) — notwithstanding cl 3.

This means the Trustee had the power NOT to distribute income in any given year. If no list was prepared and no distribution made, the income could have been accumulated.

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## 6. TRUSTEE LIABILITY (Clause 14)

> *"The Trustee shall not be liable to any Beneficiary...for any failure of the Trustee to exercise its discretion or power or in respect of any other default or neglect in carrying out the trusts hereof nor shall it be liable for any loss or damage or otherwise* ***except in the case of the Trustee's wilful default."***

**This is VERY helpful.** The Trustee is only liable for "wilful default" — a high threshold. This parallels the *Armitage v Nurse* dishonesty standard. If the failure to distribute was negligent or careless (but not wilful), the Trustee has a contractual defence under the deed itself.

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## 7. INDEMNITY (Clause 21)

Trustee indemnified out of Trust Fund except for "Trustee's own dishonesty."

Again confirms: only dishonesty triggers liability — strengthens the limitation/fraud argument.

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## 8. VARIATION POWER (Clause 18)

Trustee (with Appointor's written consent) may vary the deed including adding or removing beneficiaries. BUT cannot:
- (ii) vary the appointor power (cl 8(a)(i)) or this clause or cl 9(b)
- (iii) divest or modify the interest of any beneficiary who has become **"presently, indefeasibly and absolutely entitled"**

**Significance:** cl 18(b)(iii) protects only beneficiaries who have become "presently, indefeasibly and absolutely entitled." If the plaintiffs never became presently entitled (because no valid list was prepared under cl 3(g)), their interests COULD have been varied or removed at any time.

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## 9. KEY FINDINGS & DEFENCE IMPLICATIONS

### 9.1 "No Valid Determination" Defence — REVISED STRENGTH: 7-8/10

The deed REQUIRES:
- A list prepared by the Trustee (cl 3(g))
- Signed and dated by the Trustee (cl 3(g)(iv))
- Specifying each beneficiary and their proportion

No such list has been found for any year 2004-2013. The tax returns were prepared by the accountant (who was also the Settlor), not by the Trustee qua Trustee.

**cl 3(i) expressly provides that failure to prepare the list means NO beneficiary is entitled by reason of that failure.** Their only remedy is to compel compliance.

**HOWEVER — the two risks are:**
1. cl 3(h)(ii): entries in books of account may be "sufficient" — do tax returns/working papers qualify?
2. Schedule 4(h): "distribute" includes crediting in books of account — was income credited to the plaintiffs in the trust's books?

**What we need from Alf:** Did the trust have separate books of account (a ledger, MYOB records, anything) that showed amounts credited to the plaintiffs? Or were the only records the tax returns prepared by Coomber?

### 9.2 Limitation Defence — Trust Deed Supports It

- cl 14 limits liability to "wilful default" only
- cl 21 indemnifies except for "dishonesty"
- These parallel the *Armitage v Nurse* fraud threshold
- Even the DEED contemplates that ordinary breach/neglect does NOT attract liability

### 9.3 The Plaintiffs' Claim Should Be Re-characterised

Under cl 3(i), the plaintiffs' remedy (if no valid distribution was made) is NOT equitable compensation for unpaid distributions. It is an action to **compel the Trustee to comply** with cl 3 — i.e., to prepare the list and make a distribution.

But:
- That's a prospective remedy, not a retrospective one
- They can't compel distributions for financial years that ended 13-22 years ago
- The Trustee's absolute discretion means it could distribute $0 to them in any year
- Laches and delay would apply to an order for specific performance

### 9.4 Coomber as Settlor

David Coomber settled this trust. He designed the distribution mechanism. He then (as accountant) failed to ensure the Trustee complied with the mechanism he designed. This is relevant to:
- Alf's reliance on Coomber (Coomber should have known what was required)
- Any contribution claim against Coomber
- The characterisation of the arrangement as accountant-driven

### 9.5 Cl 9(b) — Settlor/Trustee Not to Benefit

cl 9(b)(i) provides that "neither the Settlor nor Trustee...shall be entitled to any interest in or benefit in or arising from the Trust Fund by resulting trust or otherwise." However, this is "provided that this paragraph shall not affect any entitlement of a Beneficiary who is an original Trustee appointed upon the establishment of the Trust."

Gandfors Pty Ltd (the Trustee) IS an original Trustee AND is listed as a beneficiary (Schedule 2, item 8). So the Trustee can benefit — this proviso saves it. But Alf personally is NOT the Trustee — he's a named beneficiary (item 1). This doesn't directly affect the defence but is worth noting for completeness.

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## 10. REVISED DEFENCE STRATEGY

### Primary Defence: No Valid Determination (cl 3(g)/(i))
No list was prepared. No resolutions exist. cl 3(i) says no beneficiary is entitled by reason of that failure. The plaintiffs were never presently entitled.

### Secondary Defence: Limitation (s 27(2) LAA)
Even if distributions WERE validly made, the 6-year period has expired. The fraud risk under s 27(1)(a) remains real but is mitigated by cl 14 (liability only for wilful default) and the accountant-driven nature of the arrangement.

### Tertiary Defence: Laches
13-22 year delay. Megan dead. Coomber unreachable. Records destroyed. Forensic prejudice acute.

### Critical Question for Alf
**Did the trust have its own books of account (ledger, MYOB, spreadsheets) separate from the tax returns?** If NO — the only "records" were Coomber's tax workpapers — our cl 3(g)/(i) defence is very strong. If YES — we need to see what they say.

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*End of Trust Deed Analysis.*

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## 11. IMPACT OF THE TRUSTS ACT 2025 (QLD)

The Trusts Act 2025 (Qld) commenced 28 April 2026 — just 2 days before the SOC was filed. It repealed the Trusts Act 1973 (Qld). The key question: does the new Act change anything for this case?

### 11.1 Transitional Provisions — Breach Before Commencement

**s 278:** "Section 155 applies in relation to a breach of trust whether the breach was committed before or after the commencement."

This means the new court relief provision (s 155) applies to the 2004-2013 breaches alleged here. s 155 provides:
- Court may relieve trustee wholly or partly from personal liability for breach of trust
- If the court is satisfied: (a) the trustee has acted honestly and reasonably; AND (b) the trustee ought fairly to be excused

This is materially identical to the old s 76 Trusts Act 1973 — but its express application to pre-commencement breaches via s 278 means we can invoke it even though the breaches are 13-22 years old. File this as a tertiary defence.

**s 279:** Section 156 (power of court to make beneficiary indemnify for breach) also applies to pre-commencement breaches. If the plaintiffs instigated, requested, or consented in writing to the breach, the court can indemnify the trustee out of their interest. Relevance: the plaintiffs SIGNED tax returns. Did they "consent"? Weak argument but worth noting.

### 11.2 Duty to Keep Accounts (s 64)

New s 64 imposes a duty on trustees to:
- Keep accurate accounts and records for the trust
- Keep them for at least 3 years after termination of the trust

This is a statutory duty that didn't exist in the 1973 Act. However:
- It commenced 28 April 2026 — it doesn't apply retrospectively to the 2004-2013 period
- But the general equitable duty to keep accounts existed at common law
- The failure to maintain proper records (no resolutions, no financial statements, MYOB disposed) may be characterised by the court as a breach of the trustee's duty to account — separate from the distribution issue

### 11.3 Beneficiary's Right to Information (s 65)

New s 65 gives beneficiaries a statutory right to:
- Inspect trust accounts on request
- Obtain copies of trust accounts

Note the expanded definition: "beneficiary" includes "a person in whose favour a power to distribute the trust property may be exercised" (s 65(4)). This confirms the plaintiffs have standing as discretionary objects.

Impact: This ASSISTS the plaintiffs. They now have a statutory right to demand the trust accounts (to the extent they exist). But the practical impact is limited since the accounts for 2004-2013 don't exist.

### 11.4 s 70(3) — Exculpation Clauses Preserved

s 70(3): "A rule or principle of law or equity relating to a provision in a trust instrument that purports to exempt, limit the liability of, or indemnify a trustee in relation to a breach of trust continues to apply."

This preserves the common law position on exculpation clauses. Clause 14 of the G & G Trust Deed (liability only for "wilful default") and clause 21 (indemnity except for "dishonesty") remain valid and enforceable under the new Act.

Crucially, the new Act did NOT follow the English approach in Armitage v Nurse of limiting exculpation clauses. The QLD legislature left the common law in place. This is GOOD for us — cl 14 and cl 21 continue to protect the trustee for anything below wilful default/dishonesty.

### 11.5 Investment Duties (Part 6 — ss 66-71)

The new Act codifies trustee investment duties with a statutory standard of care. Section 67 applies a higher duty to "professional investors." Section 70 preserves general equitable investment duties.

Impact on our case: Limited. The claim is not about investment — it's about distribution. But the codified duty framework may be relevant if the plaintiffs argue the trustee breached a duty of care in managing the trust generally.

### 11.6 Power to Vary (s 82 — General Powers)

s 82(1): "A trustee has, in relation to the trust property, all the powers of an absolute owner of the property."

This is broader than the old Act. However, the trust deed's own variation power (cl 18) and the deed's specific distribution mechanism (cl 3) would override the general statutory power to the extent of any inconsistency.

### 11.7 No Change to Limitation

The Trusts Act 2025 does NOT contain its own limitation provisions. Limitation continues to be governed by the Limitation of Actions Act 1974 (Qld), s 27. The new Act does not alter the s 27 framework.

### 11.8 Wave Air / Appointor Question (Matter 262176)

Note for Mark: the new Act's provisions on appointment and removal of trustees (Part 3) may be relevant to the Wave Air trust matter (matter 262176) regarding appointment of Nick's wife as appointor. Sections 20-29 deal with appointment/replacement of trustees. However, the appointor role is not directly addressed by the statutory framework — it remains a creature of the trust deed. The court's power under s 155 and its inherent jurisdiction to supervise trusts may be relevant if the deed's appointor mechanism has failed.

### 11.9 Summary — Trusts Act 2025 Impact

| Provision | Impact on Gandfors | For/Against |
|-----------|-------------------|-------------|
| s 155 (relief from liability) via s 278 | Applies to 2004-2013 breaches. Can seek relief if acted honestly and reasonably | FOR — tertiary defence |
| s 156 (beneficiary indemnify) via s 279 | If plaintiffs consented to breach (signed tax returns?) | Marginal — FOR |
| s 64 (duty to keep accounts) | New statutory duty but not retrospective | NEUTRAL |
| s 65 (right to information) | Plaintiffs have statutory right to demand accounts | AGAINST — assists plaintiffs |
| s 70(3) (exculpation preserved) | Cl 14 and cl 21 of deed remain valid | FOR — protects trustee |
| Limitation | No change — LAA s 27 still governs | NEUTRAL |

**Bottom line: The Trusts Act 2025 does not fundamentally change the defence position. The most useful provision is s 155 (via s 278) — court relief for honest and reasonable conduct — which we should plead as a tertiary defence. The preservation of exculpation clauses under s 70(3) is also helpful. The new beneficiary information rights (s 65) assist the plaintiffs but have limited practical impact given the absence of records.**