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Beneficiaries, Beneficiary rights, Right to trust information, trust, Trustees, Trusts

Beneficiaries tracing misappropriated funds


Thomas Young sued (as a trustee and as a beneficiary) the widow of the former trustee John Hunt allegeing the theft of $146,175 from the Twiss Family Grandchildren’s Trust.

The background is set out as follows at [3] to [6]:

“[3] The Trust was settled on 1 April 1991. The settlor was Mr David Barnes. Originally, there were three trustees, Mrs Margaret Twiss and her children, Mr Richard Twiss and Mrs Edith Young. The principal object of the trust was to make provision for Mrs Margaret Twiss’ grandchildren. Only Mrs Young had children. Her children are Mr Young and Mr Simon Young, the claimant and his brother. Several classes of discretionary beneficiaries were identified in the trust deed, but it is unnecessary to consider these here because the date of distribution has come and gone and Mr Young and Mr Simon Young are the final beneficiaries.

[4] The trustees changed from time to time over the years but during the period of time that is important in this case — between June 2011 and July 2015 — the trustees were Mr Young and Mr Hunt. Over that time, it is alleged, Mr Hunt took for his own benefit a total of $181,175 from the trust fund. Of that sum, $146,175 was deposited to an ANZ account owned jointly by Mr and Mrs Hunt (the ANZ 18 account). The balance was deposited to an ANZ account owned solely by Mr Hunt (the ANZ 01 account).

[5] In his statement of claim, Mr Young sues Mrs Hunt for recovery of the full amount of those funds. …

[6] For the purposes of his summary judgment application, Mr Young in his capacity as the trustee of the Trust relies on his first cause of action, unjust enrichment, and limits his claim to the $146,175 paid into the joint account owned by Mr and Mrs Hunt — the ANZ 18 account. In his capacity as a beneficiary (on behalf of himself and his brother) he relies on a proprietary tracing remedy and seeks a declaratory order and other orders that will enable him to trace the funds paid by Mr Hunt into his own account — the ANZ 01 account.”

The case sets out the jurisdictional basis of a claim for unjust enrichment and confirms this remedy’s standing as a part of New Zealand law.   See [10] to [11] and

[10] In relation to the first plaintiff’s claim, Mr Reardon’s starting point was Laws of New Zealand, which describes unjust enrichment as a restitutionary remedy the object of which is “to deprive the recipient of a gain that the law deems he or she should not keep because he or she will be unjustly enriched.

[11] He referred me to the English Court of Appeal’s judgment in Boake Allen Ltd v Commissioner for H M Revenue and Customs, where the Court referred to the underlying principle of an unjust enrichment claim as being:

… not a claim for compensation for loss, but for recovery of a benefit unjustly gained and retained by the person enriched at the expense of the claimant.

[13] Mr Reardon then referred me to a recent example of the application of these principles in this Court by Associate Judge Smith in Wellington Tenths Trust v Skiffington and the judge’s adoption in that case of the analysis set out in Equity and Trusts in New Zealand, which I too adopt:

Unjust enrichment refers to an event whereby a defendant is unjustly enriched at the plaintiff’s expense, the response to which is restitution of the enrichment to the plaintiff. What makes an enrichment unjust, in the sense that it requires restitution, has been the subject of much debate and disagreement. Traditionally, accepted instances of unjust enrichment include a mistake made by the plaintiff, lack of capacity on the part of the plaintiff, compulsion of the plaintiff, and a failure of consideration for which the transfer is made. All of these grounds suggest that unjust enrichment is concerned with otherwise effective transfers that should nevertheless be reversed because the plaintiff’s consent was, although objectively manifest, in some way substantively defective or absent.
Liability for unjust enrichment does not depend on the commission of a wrong. It is not concerned with the quality of the defendant’s conscience or his conduct. The right to restitution is triggered by the receipt of an enrichment in circumstances that put it within one of the unjust categories. Liability to make restitution is therefore strict.

Importantly Johnston AJ confirmed that in New Zealand it is not necessary to show knowledge to establish unjust enrichment stating at [23] that:

I am satisfied that the principle identified in International Longshore & Warehouse Union v Ford properly reflects the law in this country and applies to the circumstances of this case.

International Longshore & Warehouse Union v Ford  is a Canadian case relating to an organisation (International Longshore & Warehouse Union) whose arrangements with its bankers required that cheques bear two authorised signatures. Over time a practice developed whereby Mr Ford would arrange for another authorised signatory to sign a series of blank cheques so that he would have funds available to him as need arose. Using these cheques, Mr Ford misappropriated CAD 1.69 million to feed his drug and gambling addictions. He paid close to CAD 900 into a joint bank account in the name of himself and his wife, which became intermingled with their own funds and was used for general household expenditure. Mr Ford’s wife knew nothing of her husband’s defalcations.  This lack of knowledge did not negate the cause of action for money had and received.

In New Zealand that commonly one trustee may be in de facto control. See  Vervoort v Forrest at [28] where the Court of Appeal states:

“Ellis J found there was no real evidence to suggest Mr Duffy did not have an intention to create a valid trust in 1994. We respectfully agree. While, as we shall set out, Mr Duffy appears to have exercised de facto control of the Trust, at the outset he ensured a co-trustee was appointed, Trust accounts were prepared, properties were purchased in the name of the Trust, and by and large the formalities of a trust structure were put in place and retained. There was nothing to indicate a lack of intention to create a real trust, although we have no doubt Mr Duffy intended to control it. At the present stage New Zealand law does not recognise that the de facto control of a trust by a single trustee, who is also a beneficiary, creates a sham even if the other trustees are clearly not involved.”

Accordingly, the following discussion in the judgment warrants careful consideration.

[24] The second point raised by Mrs Hunt was the accusation that Mr Young, as a trustee during the period of time over which Mr Hunt stole from the trust account, was careless or negligent.

[25] As Mr Reardon submitted, this proposition must come down to a suggestion that Mr Young did not take sufficient interest in the Trust’s affairs and had he done so this would have prevented or reduced the loss.

[26] In responding to this, Mr Reardon said:
[Mr Young] has done nothing wrong. He has not contributed to the theft in any way. This was not a trading trust. It was the passive accountholder of money in a bank account. In the absence of any resolutions to assist the beneficiaries, there was nothing for Mr Young to do. If he had a fault, it perhaps lay in trusting his fellow trustee to be honest.

[27] As he submitted, in International Longshore & Warehouse Union v Ford, the British Columbian Court of Appeal dismissed a similar defence, that is to say, that the Union had enabled Mr Ford to carry out his thefts by not maintaining a proper level of supervision. At [41] of the judgment, the Court said:

In my view, this “carelessness” defence cannot succeed. First, it must be recalled that this cause of action is nearly always based on conduct of the plaintiff that is said to be mistaken. In cases of money had and received by mistake, the plaintiff nearly always bears some degree of fault, but is entitled to the return of the money because it would generally be against conscience to permit the recipient to keep money he or she was never entitled to. There is no authority for the proposition that carelessness precludes a payor from reclaiming mistakenly paid money. On the contrary, the authorities indicate that such carelessness is not a factor.


[35] In the end I am left without any real doubt or uncertainty that Mr Young has established that Mrs Hunt is not able to make out any viable defence to his claim in his capacity as a trustee or in other words that there is no real question to be tried. Mr Young is entitled to judgment for the amount transferred by Mr Hunt to the joint account.

Mr Young and his brother were then able to trace the stolen monies back to Mrs Hunt due to the Trust having vested, upon which they attained a proprietary interest in the Trust.  See [36] to [40]

Also see Protecting misdirected trust assets and $10,000 per year for contributions to trust regarding unjust enrichment.


  • Young v Hunt [2019] NZHC 2822
  • Vervoort v Forrest [2016] NZCA 375
  • Boake Allen Ltd v Commissioner for HM Revenue and Customs [2006] EWCA Civ 25
  • Wellington Tenths Trust v Skiffington [2017] NZHC 1646
  • International Longshore & Warehouse Union v Ford 2016 BCCA 226.


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