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Published: 25 November 2013
Pages: 52 

Introduction

Writing at the beginning of the twentieth century, Frederic Maitland observed that to English society the trust “seems … almost essential to civilisation”.¹ Looking at the prevalence of trusts in New Zealand society today, he might well make that very same comment about our use of trusts. New Zealanders like using trusts to hold property. Their specific reasons for doing so are diverse and changeable, depending on many factors from concerns about succession, to creditor protection, to taxation and social policy.² The Law Commission, as part of its current review of the Trustee Act 1956, states that there are indications that the number of trusts per head of population here may be considerably greater than that of England, Australia and Canada³ and it notes that our trusts culture has been described as “viral”. A particular concern raised by the Commission is the extent to which many trustees understand their duties⁴ and it is proposing that the duties of trustees should be set out in a new Trusts Act in a way that “summarises and restates wellaccepted principles of trust law and would not preclude recourse to rules of equity to add detail and shades of meaning”.⁵

What are those well-accepted principles of trust law relating to the role of trustees? And, how do they operate in New Zealand law and, in particular, in a domestic (rather than a commercial/financing) context? These are the issues that will be discussed in this paper, specifically as they relate to:

• what a trust is;
• what the key duties of trustees are;
• how risks of breaching duties can be minimised by trustees;
• how trustees contract and how they can protect themselves from undue liability;
• the extent to which trustees are indemnified from trust assets
• how trustees can be removed and when trustees should 'step out'; and
• how these principles apply to charitable trusts (briefly).

There will be a specific focus in this paper on recent case law and the way in which New Zealand judges are currently applying, often, centuries’ old principles.

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¹ F W Maitland, Equity, A course of Lectures, 23 (1909), revised by John Brunyate, (Cambridge at the University Press, 1936).
² Law Commission Review of Trust Law in New Zealand: Introductory Issues Paper (NZLC IP19, 2013) at [2.37] – [2.47] and W M Patterson “Structuring Trusts to Deflect Attack” (paper presented to the STEP “Structuring Trusts to Deflect Attach” Mini Conference, Auckland 24 October 2013). See also Law Commission Review of Trust Law in New Zealand: Preferred Approach (NZLC IP31, 2012) at [1.20].
³ See NZLC IP19, above n 2, at [1.13] – [1.14].
⁴ See NZLC IP31, above n 2, at [3.6].
⁵ Law Commission Review of Trust Law in New Zealand: A Trusts Act for New Zealand Summary (NZLC IP 130, 2013) at [22] and Law Commission Review of Trust Law in New Zealand: A Trusts Act for New Zealand (NZLC IP 130, 2013) at chapter 5.

Course outline

• What is a Trust?
• What Are the Fundamental Duties of a Trustee?
• Minimising Risks for Trustees – Lessons from Recent Case Law
• Trustee Contracting
• Trustees and Third Parties
  • Limiting Liability – Rights of Indemnity and Recoupment
  • Limiting Liability – Limitation Clauses
  • Limiting Liability – The Corporate Trustee
  • Enforcement by Third Parties Against Trustees Contracting
  • Trustees' Right to Indemnity
  • The Importance of The Right to Indemnity and Subrogation
• Trustees Against Third Parties
  • Beneficiaries and Third Parties
• Limitation of Liability by Trustees
  • The Corporate Trustee
  • Trustee Exemption Clauses
  • Section 73 Of the Trustee Act 1956
• Removal of Trustees
  • Recent Case Law
• Trustees of Charitable Trusts