Dispute over land containing church – Association was reg’d proprietor of land. Land previously held by t/ees but transferred to Association in 1992. Claim – Association held land on trust for purposes of Church.
Macedonian Orthodox Church Association applied to court under asking was it justified: In defending proceedings; & In expending trust funds in defence of proceedings (had no money to defend proceedings). Palmer J gave qualified advice that Assn justified, but reversed by NSW CoA. HC unanimously upheld appeal.
General points about advice Inappropriate for court to read implications or limitations into statutory power to give advice. No implied limitations on power to give advice: Nothing which limits application to ‘non- adversarial’ proceedings, or proceedings other than those in which t/ee being sued for breach of trust, or proceedings other than where remedy removal of t/ee.
General points about advice Procedure is summary & intended as cheap & simple process to prevent necessity of expensive suits. Judicial advice is private & personal to t/ee – gives personal protection to t/ee (exception to judicial function of deciding adversarial disputes).
General points about advice Application for advice must be seen in context – different considerations apply to private trusts & charitable trusts. Right to seek judicial advice is necessary buttress supporting t/ee’s general ROI. T/ee may lose ROI if enters transaction beyond power. T/ee who obtains advice can proceed confidently.
General points about advice Whether advice should be given, & nature of advice, are essentially matters of discretion. No general proposition that t/ee accused of breach of trust cannot obtain advice in relation to defence of proceedings.
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 C: DUTIES OF TRUSTEES 1. To inquire 2. To obey the terms of the trust 3. Keep accounts and give information to beneficiaries 4. To pay beneficiaries correctly 5. To act gratuitously/ not to profit 6. To act impartially between beneficiaries 7. To exercise reasonable care 8. To act personally 9. To properly consider the exercise of trust powers 10. To invest
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 C: DUTIES OF TRUSTEES 1. Duty to inquire (sometimes broken up into separate duties to become acquainted with the terms of the trust and get in trust property) • Necessary for trustees to know precisely the nature of the trust property and what they are required to do with it. • Trustees need to get in trust property and ensure they have control of it ie register shares in their own name; bring actions for debts. • Turner v Turner  Ch 100 (trustee did whatever the settlor’s solicitor told them to do, not what was in trust deed – 3 transactions declared invalid); • Nestle v National Westminster Bank plc  1 All ER 118 (trustee committed numerous breaches of trust through failure to understand investment clause and never took advice).
Topic 14 – Trustees and Beneficiaries
You've reached the end of your free preview.
Want to read all 72 pages?
- One '14
- Trust law, trustees