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Breach Of Trust Notes

Law Notes > Trusts Notes

This is an extract of our Breach Of Trust document, which we sell as part of our Trusts Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Trusts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
















BREACH OF
TRUST


















TRUSTS | PAGE 30 WHEN IS A TRUST BREACHED?
* *
* * A "breach of trust" is:
A trustee acting, or omitting to act, in contravention of their trust duties
o Ranging from fraudulent activity, to the innocent misappropriation
of trust property.
SS? Including (but not limited to): Failure to keep accounts as
required, careless investment, investment on insufficient
security, breach of fiduciary duties.
SS? Important to consider how it arises, and on what basis.
o According to the trust deed
o According to the duties attached to the office of trustee
SS? General & Other duties (see Week 4 Notes for specific
duties)
Acting in bad faith or for ulterior purposes
A trustee acting in excess of their powers, or omitting to exercise their
powers
o "Trust powers" vs "mere powers" - this distinction is significant.
o Not necessarily a breach if a trustee fails to exercise a 'mere power'

"Trust powers" vs. "Mere powers" * Did the settlor intend the holder of the power to be under a duty to
exercise it?
o Yes = trust power
o No = mere power * Does settlor use language that suggests exercise of power is mandatory?
o Yes = trust power
o No = mere power * Person with trust power is under
o a duty to consider how to distribute
o a duty to distribute * Trustee with a mere power has duty to consider the exercise of the power
from time to time
o Discretionary trust - does person have to exercise their discretion
or not?










TRUSTS | PAGE 31 WHO CAN SUE?
*
Standing to sue:
o Co--trustees
o Beneficiaries
o Beneficiaries' successors in title
Lidden v Composite Buyers Ltd (1996) 139 ALR 549
o Issue: where a trustee is unwilling to instigate proceedings on
the beneficiaries behalf, can the beneficiary
o Held: Yes, but only where the relief sought is in the equitable
jurisdiction of the court and where the circumstances are
exceptional.
SS? But all beneficiaries must be joined in the action.

Who can be sued? * Trustees * Co--trustees * Beneficiaries * Third party recipients of trust property * Proprietary claims

What to sue for? * Removal or replacement of trustee(s) * Declaration about administration of trust or distribution of property * Directing or compelling trustee(s) to adopt a particular course of action * Recovery of trust property * Compensation
o ... and so on















TRUSTS | PAGE 32

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