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The cost of being wrong

The case of Unkovich v Clapham provides an excellent example of the difficult decisions trustees must make when seeking to uphold decisions made by them in the face of opposition.  It is useful to first consider the principles that apply to trustee decision making, which are set out at [47] and [48] as follows:

[47] While simply stated, the application of this principle, and the judicial control of trustee decisions, has not been entirely coherent.  A trustee’s discretion is not, however, as unfettered as the principle suggests.  In Wrightson, Fisher J observed that a trustee decision may be set aside:

(a) for improper motive;

(b) where the trustee has considered the wrong question or misinterpreted the trust deed;  

(c) where the trustee has considered irrelevant considerations or failed to consider relevant considerations, which extends to the appreciation of significant facts and their relevance to the problem at hand (though a Court will not intervene if the trustee’s decision might or would have been the same in any event); and

(d) where the trustee has reached a decision that is perverse or capricious.

[48] More recently, the Supreme Court of the United Kingdom had cause to revisit the law as it relates to the reviewability of trustee decisions in Pitt.  The principles stated therein were cited with apparent approval by Mander J in Masters, as well as van Bohemen J in Clement.  In Pitt, Lord Walker (speaking for the Court) confirmed an observation previously expressed by him: 

Certain points are clear beyond argument. Trustees must act in good faith, responsibly and reasonably. They must inform themselves, before making a decision, of matters which are relevant to the decision. These matters may not be limited to simple matters of fact but will, on occasion (indeed, quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever. It is, however for advisers to advise and for trustees to decide: trustees may not (except in so far as they are authorised to do so) delegate the exercise of their discretion, even to experts.

To put the relevant considerations into context, it is necessary to summarise the background to Unkovich v Clapham. Lara, the minor beneficiary of a will trust was an excellent tennis player with aspirations of a professional tennis career.  The trustee declined a request to advance Lara’s inheritance for the purposes of giving her the opportunity to improve her national tennis ranking and possibly gain a scholarship to an American university.

The analysis in the case largely related to whether there was inadequacy of deliberation that was (objectively) of sufficient magnitude to amount to a breach of trust.  As noted at [50] and [51]:

If the trustee has in accordance with his duty identified the relevant considerations and used all proper care and diligence to obtain relevant information, the trustee cannot be in breach of that duty merely because that information turns out to be incorrect.

Breach of duty is essential (in the fullest sense of that word) because it is only a breach of duty on the part of trustees that entitles the court to intervene (apart from special cases of powers of maintenance of minor beneficiaries) … It is not enough to show that the trustees’ deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention. 

The matters for consideration, and the proper approach by the trustee are set out at [65] and [66] as follows:

[65] Margaret was clearly troubled throughout with the proposed use of the monies to further Lara’s professional tennis aspirations.  Ms Bruton complains that this unduly narrow focus meant that Margaret misunderstood the true purpose to which the funds would be put, namely, to assist Lara in obtaining a scholarship to study at a prestigious US university.  I agree.  Lara needed the funds to help her obtain a university scholarship.  Tennis was simply a means to this end.  However, as stated in Mr Molloy’s letter, Margaret considered the professional tennis path to be very risky and a reason to refuse advancing the entirety of the fund.  

[66] I am satisfied therefore that Margaret erred insofar as she misunderstood the purpose of the advance and therefore failed to have regard to a relevant consideration, namely its core educational purpose.  This error was material as it can be said that, objectively assessed, a trustee properly appraised of that purpose and the educational opportunity in fact open to Lara, would or might have advanced the funds in their entirety. 

While the judge dismissed allegations of ill will towards Lara’s parents the view was formed that Margaret breached the fiduciary duties owed due to her failure to correctly consider whether the requested payments would be for Lara’s benefit.  This, and the consequences of this failure are set out at [71] and [72] as follows:

[71] To elaborate, Margaret cut herself off from the correct evaluation by wrongly focusing on the risks associated with a professional tennis career and an erroneous assumption about Lara’s parent financial imprudence.  Furthermore, on the evidence available to me, she did not use all proper care and diligence in obtaining all relevant information, especially relating to the financial stability and prudence of Lara’s parents.  It appears she may have relied on anecdotal information supplied by her brother, Peter, but did not enquire further.  And, problematically, she did not respond to the request by Simpson Grierson made in its letter dated 12 October 2018 for evidence of this imprudence.  Lara was thus justified in commencing this litigation to obtain a decision based on the correct information.  In addition, Margaret did not provide evidence to support her assumption.  I am therefore driven to the conclusion that she failed to use the requisite care expected of trustees when she exercised her discretionary power and refused to advance all of the Trust funds to Lara. 

[72] Finally, Margaret appears to have relied heavily on her legal advice.  That advice reinforced the need for caution.  Unfortunately, the advice appears to have relied on Margaret’s instructions that, among other things, Lara’s parents were financially imprudent.

This is where the real crux of the matter arises.  Margaret’s costs were set out at [78] as follows:

(a) $13,000 in the twelve-month period between 21 December 2017 and 20 December 2018;

(b) $2,531.58 for outstanding invoices from her solicitors, together with $785 for work in progress; and

(c) At least $57,845 (GST inclusive) for counsel’s fees in respect of these proceedings (which does not include hearing attendances).   


  • Unkovich v Clapham [2020] NZHC 952



One thought on “The cost of being wrong

  1. This seems to me to be a ridiculous decision. Why were they spending such an enormous amount of money on litigation over a $65,000 fund, particularly when Margaret had agreed to pay over some of the funds? When I 1st started reading about the case, I thought it was going to be a claim by Lara against the trustee for paying out the money to her parents.
    If I had been a trustee, I wouldn’t have been at all happy at about paying the whole of the trust fund to the parents bank account at their request for them to spend. in fact, I would probably have said that if the parents thought that was an appropriate thing to do they should fund it themselves. I would certainly have wanted some figures on what the exercise was going to cost and how much the parents were going to contribute.also, some advice on the chances of success.
    I don’t believe the trustees are bound to pay out a trust fund at the request of the parents of an infant beneficiary, just because they think it is a good idea.

    Posted by Peter Ellis | June 23, 2020, 6:05 pm

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