REMEDIES for breach of trust - personal

Question 1

what aree examples remedies in trust

Answer 1

1. termination of the trust
2. perosnal remedy agisnt the brecahing trsutee
3. perosnal remedy agaunst 3rd parties who hgave assisted breach or knwoingly recvieved trust
4. propietray remedy

Question 2

practical perosnal remedies for breaching trustee

Answer 2

1. compel performance
2. order an injuction to stop the breach
3. replace trustee

Question 3

perosn remedies is they have lost or trustee has benefitted

Answer 3

1. account of profits of the gains made by the trustee
2. ask for compensation for the loss suffered

Question 4

account of profits

Answer 4

trustees must account for profit created form a) conflict of interest or b) advantage taken from knowledge or opputunity as they are trustee ) chirside v fay

Question 5

phillips v boardman

Answer 5

• the trustee may reeive a geenrous allowance for work and skill it it would b unjst not to do so

Question 6

compensation for loss

Answer 6

trustee must account for the moeny lost to trsut property caused by their breach

Question 7

chirnside v fay

Answer 7

c and f developing land, c left and starting developing alone, psuhed f out and profited all to himself, court ordered c to pay account of profits minus an allowance for himself, c was allowed some as he had done all the work despite being dishonest

Question 8

spencer v spencer

Answer 8

Mr. S and two others were trustees of a family trust set up for Mr. S’s children. The trust eventually ran out of funds and couldn’t pay an allowance to Mr. S’s disabled son. This financial loss was due to the trustees’ failures, including not recovering debts owed to the trust, missing rent payments, and paying excessive fees to Mr. S. As a result, they were ordered to compensate for the loss, calculated based on what should have been in the trust fund. Despite Mr. S’s personal fault, all trustees are jointly liable.
- EXLCUSION CLAUSE FOR LIABLITY UNLESS DISHOENST

Question 9

things that limit trustees laibilty

Answer 9

1. exclsuon clause in trust deed
2. throigh statute, 131 132 trsyst act

Question 10

exlcusion clauses

Answer 10

• there may be an exlcusion clasue in the trust deed that excludes liabilty for those duties that are not mandatory

Question 11

southland hospital board

Answer 11

• affirms the contra preferentem rule, clasue to be interpreted agisnt the trustee

Question 12

spencier and spencer two limb disnhoensty test

Answer 12

1. what did the trsut know of the deed and beleive abt action (subj)
2. what an honets and reoable perosn knowing what the trustee knew, have acted in the same way

Question 13

S40

Answer 13

no EXPEMPTION clause may exclude trustee liabilty for any breach arising from trustees dishonesty, wilful conduct or goprss negligec

Question 14

s44

Answer 14

when court is deciding whether gross neglignece has occured, they must consider
- circumtsnaces, knowldge, skill, nature of breach, purpose or trustee appiontment andof the trust itself

Question 15

statutory protection

Answer 15

131- releive trustee if acted hoenstly (sp v sp test)
132- If a trustee breaches trust at a beneficiary’s request, the trustee can recover losses from that beneficiary’s share.

Question 16

QUESTIONS TO ASK IN A BREAVH OF TRUST SITUATION

Answer 16

1. Is there an express trust ( 3 certaintys)
2. who are trustees
3. what duties so they owe (mandatory v defalut)
4. did the trustee prima facies breach a duty ( case law)
5. trustee to prove otherwsie , can they rely on exl clause or stat prov
6. if not waht remedy is appropriate