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appointment and removal of trustees, Appointor; power of appointment, Beddoe Order, Beneficiaries, Beneficiary rights, breach of trust, Contracting with trustees, Corporate trustee, Costs, Deed of Trust, Directions, indemnity, inherent jurisdiction, Removal of trustees, trust, Trustee liability, Trustees, Trusts

Balance of convenience is best interest of beneficiaries


The proceedings in McLaughlin v McLaughlin relate to a dispute between the beneficiaries and trustees of the Ashley Trust (the Trust) and whether there should be an interim injunction to prevent the trustees from proceeding with the next stage of a development of trust property.

By way of background see A little light on Beddoe applications and To Beddoe or not?? 

Also see [2] and [3] of the current decision, which sets out the background as follows:

[2] The Trust was settled in February 2004 by the late Jim McLaughlin and his wife Edna. Its only asset was a large block of farm land situated in Stoke, Nelson (the Trust property). The settlors’ wishes, as expressed in the Trust Deed, was that the trustees should “realise the value of the farm property by way of subdivision into individual or lifestyle allotments to better benefit the discretionary beneficiaries”.

[3] The plaintiffs are two of the four sons of the McLaughlins and are beneficiaries of the Trust. They have expressed concerns about the way current and former trustees, including their brother John, have managed the Trust Property. They filed proceedings seeking removal of the current trustees and damages from the trustees for alleged breaches of their duties as trustees.

The plaintiff beneficiary now seek “… an interim injunction to restrain the trustees from proceeding with the next stage of development of the Trust Property, including signing contracts with a prospective purchaser of lots within that development … until a new trustee is installed to replace Glasglow Harley Trustee Ltd (Glasgow Harley).”

The Trust was settled in circumstances where the health of one settlor was deteriorating and the settlors “… wanted to keep the land safe for the family and to ensure that Jim’s subdivision wishes would be carried through”. As noted at [9] this is reflected in cl 9.2 of the deed for the Trust that states:

9.2 It is declared as the further wish of the Settlor that the Trustees shall realise the value of the farm property by way of subdivision into individual or lifestyle allotments to better benefit the discretionary beneficiaries.

In 2018, the trustees made a Beddoe application to authorise payment of their legal and associated costs incurred in responding to and defending the substantive proceedings from the assets of the Ashley Trust, provided such costs were approved in advance by senior counsel as reasonable and legitimate.  As noted at [21]:

That application was heard by Thomas J and a decision issued on 6 December 2018 granting the Beddoe application in respect of the reasonable and proportionate legal and associated costs of defending the second cause of action (being the application for directions as to the management and distribution of the Trust property).5 However, in respect of the claims against the trustees for alleged breaches of trust and fiduciary duty, she determined costs would need to await the outcome of the proceedings. If the trustees’ actions were upheld, then they would likely be entitled to an indemnity from the Ashley Trust, but if the trustees were found to have breached their duties, then it would have been inappropriate to use Trust’s assets to conduct their defence.

In the current case it was noted at [64] that “Neither party focused on the relative strength of their cases in submissions. The plaintiffs simply submitted that “from the documents provided, and the analysis of causes of action set out in submission that the plaintiffs’ case is strong”. Equally, though, the defendants assert that the allegations of breach of trust are unfounded and should not halt the trustees making day to day decisions on the Trust’s business activities.”

That said, the focus of the court was not on the relative strength of the opposing parties’ cases in the substantive proceedings but rather  the consequences for the Trust (and ultimately the beneficiaries) if the injunction is granted.

The practical considerations are set out at [65] with the relative weight given to these:

[65] In my view, the defendants’ evidence is compelling as to the merits of the current course of action in terms of maintaining the value of the Trust property. The plaintiffs’ concerns that a new trustee should not be fettered by the commitment to develop Stage 1 is, in my view, overstated. First, the timeframe in which a new trustee could be appointed, then acquaint themselves with the activities of the Trust and come to a reasoned view on whether the Trust should continue with subdividing the Trust property or divest itself of some or all of the land, will be considerable. The email sent by Mr Gary Fitzpatrick from Comac Trustees Ltd, the prospective new trustee, says “it would take some time for me to be in a position to make an informed decision taking all matters into account”. Given that it may take several months before the new trustee is in a position to decide what direction the Trust should take, and Mr Sewell’s advice that development of Stage 1 only commits the Trust over a 12 to 18 month timeframe, the plaintiffs’ concern that the trustees’ discretion will be fettered for a long period of time is overstated. I balance that with the risks identified to Mr Sewell if the Stage 1 development is not progressed, which includes to the saleability of the Trust property should that be the trustees’ decision, and I am satisfied by some margin that the defendants’ position on the current issue is the stronger one.

The result was that that the court was “satisfied that the balance of convenience favours declining the application for interim injunction”  The reason given was that this course of action best protected the value of the assets of the Trust but would also allow an incoming trustee  the option to continue the subdivision or to sell some or all of the Trust property within a timeframe that is still meaningful to the Trust’s beneficiaries.  The reasons for the decision were set out at [69] to [73]:

[69] In respect of the plaintiffs’ submissions on this issue, I make the following observations. I accept that allegations of financial mismanagement have been levelledagainst the trustees. However, they relate to the Chings Block development and are strongly contested, with supporting evidence. Granting the injunction would not alter that and the present actions of the trustees have been taken with the advice of well-qualified independent consultants.

[70] The concern that the current trustees will bind any new trustee to a long term contract are, in my view, overstated given the timeframes actually involved and are countered in any event, by the financial benefits to the Trust of continuing on the current path.

[71] The alleged hostility by the trustees towards the beneficiaries is an allegation that pre-dates the events that give rise to this application and, while it is clearly relevant to the question of whether new trustees should be appointed, it has no material bearing on this application. Similarly, the allegation that John has substantial conflicts of interests is an allegation made in the substantive proceedings rather than a matter which has an immediate bearing on whether, in the interests of justice, the application for interim injunction should be granted.

[72] Finally, the plaintiffs’ claim that the trustees have “artificially contrive[d] a situation of urgency, to justify the refusal of the injunction” has had no bearing on my decision. My decision has been made on what the evidence indicates is the best course of action to maintain the value of the Trust property for the benefit of the beneficiaries.



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