This is an extract of our Remedies document, which we sell as part of our Trusts Notes collection written by the top tier of Monash 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:
Beneficiary to elect which remedy at the time of judgment Tang Man Sit No double recovery
1. Personal RemediesAccount (for the trust fund) o B can ask the T to render account to him/her at any time
? Doesn't necessarily have to be a breach of trust
? The T must produce accounts showing receipts and disbursements "account in the common form"
? It is suggested that the order of account suffices as a remedy in many cases where the T's actions have caused loss. However, in cases where account is no longer practical (e.g. there is no trust asset involves, trust has come to an end) the remedy of EC is used o Once the account is made the B can either accept, surcharge, or falsify the account
? If the B accepts it, they agree the B has acted properly
? If they "surcharge" the trust, the B indicates dissatisfaction with the T's management. The T must then account for the trust fund as if it were properly managed
? The B "falsifies" the account where he or she believes that some of the trust fund has been misapplied. The T must then account for the full amount of the misapplied funds o If there is a breach, or potential breach:
? Court will order account "on basis of wilful default"
? Trustee must determine the extent the fund has been depleted, ascertain what would have been earned if the trust had been properly administered, and pay the B that amountEquitable compensation for breach of trust (only for loss) o Sought where a trustee's breach of trust has resulted in a loss to the trust (you find this out through account of the trust fund) o If equitable compensation is awarded, the trustee must restore the trust fund as if the breach had not occurred Re Dawson
? It is not payable to beneficiaries personally Permanent v Perpetual UNLESS there is no point e.g. trust is wound up Youyang o Common sense 'but for' test of causation Canson
? Foreseeability/remoteness questions do not arise as we are simply looking at the figure Re Dawson; Youyang (Have they breached? Yes. Reconstitute)
? However causation may be more relevant if it is a breach of the conflict rule, as there must be a causal link between breach and loss o Damages to be assed at the date of judgment Re Dawson per Street J
? However, another assessment date may be indicated if the fund would have stood at a higher level prior to judgment
o Other factors that might/might not apply:
? Contributory negligence not a defence at equity, particularly as the B's are often in a very week position and can't influence the outcome Alexander v Perpetual Trustees
? BUT, consider Wrongs Act s 23A: Contribution can be recovered
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