Personal Remedies against Trustee

Question 1

Standing

Answer 1

Do you actually have standing to get a remedy?

Question 2

Specific Performance

Answer 2

Compel performance of primary obligations of trustee/fiduciary.

Trustee’s key duty is to administer trust in line with trust instrument and general law. This can be done 3 ways:
Direct performance
Injunction to stop trustee’s actions
Declaration on how they should act

Question 3

Taking of an Account

Answer 3

Assessment the trust fund.

Question 4

Remedial functions

Answer 4

Compensation of Loss, put back to where they were prior to the loss

Restitution/Disgorgement of Gain

Unwinding transactions

Penal

Question 5

Trustee Reconstituting the Trust Fund

Answer 5

If they have misappropriated trust assets then obligation to remedy breach. When proprietary remedy unavailable, then personal remedy for trustee to compensate trust for loss can be sought. Account of fund taken - court will erase transaction following unsatisfactory explanation of what happened to assets by trustee and trustee treated as having funded misappropriation himself:falsification

Question 6

Reparation of Trust Fund

Answer 6

Trust suffers loss where trustee misses an investment opportunity, thereby failing to increase value of trust fund. There needs to be causation (Fry v Fry), but for omission it would have never happened and it needs to be reasonably foreseeable

It is not possible for a profit made on one transaction be set against the loss made by a failure to dispose of trust property. (Dime v Scott) This offset can work in the same transactions but challenge is to argue that it is one transaction. (Fletcher v Green)

Question 7

Equitable Compensation

Answer 7

This is available when restitution and account are not appropriate. It may not be possible or practicable to pay money into the trust. Need compensation to compensate for it, provided there is a loss and there is a breach. They get returned to position prior to breach.

Question 8

Account for profits

Answer 8

Time can be significant, Defendant pays the net profit and gives it to the claimant
Blanina v Grave - Highest value of shares
Reasonable connection
Could get equitable allowance back

Question 9

Interest

Answer 9

Whether compensating a breach of giving up a gain
AG v Alford - When trustee gets interest
Presumed they did
Ought to have got interest

Question 10

Election of remedies

Answer 10

Must choose which remedy, loss or gain based, once decision made that’s it

Question 11

Dishonest Assistance and Unconscionable Receipt

Answer 11

DA - Compensatory, equitable compensation or disgorgement
When defendant hasn’t profited it will be compensatory
UR - Defendant received property which claimant had a proprietary interest in. Must account for value of property