This week’s session continues the series on Commissioner of Taxation v Bendel [2026] HCA 18, picking up where last week left off. The focus this week is present entitlement and the separate trust, taken in that order.
Come prepared to discuss the following:
- Whether the right to demand payment confirmed at [21] can be reconciled with the plurality’s finding at [37] and [40] that no unconditional duty to pay arose;
- How net income can be the subject matter of a trust when income is not property, and whether the chose in action analysis at [50] resolves that difficulty;
- Whether the separate trust created by the setting aside is a trust of present or future property;
- What amounts to a call, or to an admission, for the purposes of the action for money had and received;
- And whether Fischer v Nemeske Pty Ltd is genuinely distinguished on the facts of Bendel or merely distinguishable.
Required Reading: Commissioner of Taxation v Bendel [2026] HCA 18
Recommended Reading to understand the nature of present entitlement:
The Incoherence of Accounting For Trust Distributions by Dr. Campbell Rankine
Towards a Better Accounting for Present Entitlement By Adrian Cartland