Weakly fiduciary

Cooper v Pinney is a second appeal and cross-appeal, by leave, from a decision of the Family Court that ascertained relationship and separate property following a relationship break down. At the heart of the matter was the treatment of a discretionary trust settled during the relationship to receive property by way of resettlement from a trust settled by the trustees of one of the partner’s parents. The view of the prior courts is set out at [2] and [3] as follows:

The majority of the Court of Appeal upheld the decision of the High Court. The reason for this is summarised at [106] as follows:

The minority judgment delivered by Miller J considered the terms of the trust settled during the relationship as follows:

Further at [84] to [86] Miller J observed that:

As noted at [72]:

The proposition that fiduciary powers can be considered weakly fiduciary warrants consideration. While the classes of fiduciary relationships are not closed (see Chirnside v Fay) a duty is fiduciary, or it is not.

It is useful to consider this by reference to [75]:

Trust validity, as with fiduciary duties is binary. Where duties are breached the trustees can be liable for the breach. Where personally held trust powers constitute property this proprietary interest can be measured for relationship property or creditor purposes. However, a trust is valid, or not. A duty is fiduciary or not.

References

• Cooper v Pinney [2023] NZCA 62
• Cooper v Pinney [2018] NZFC 9120 [Family Court judgment].
• Paul Matthews and others Underhill and Hayton Law of Trusts and Trustees (20th ed, LexisNexis,
• London, 2022) at [75.7].
• Re the Marriage of Goodwin (1990) 101 FLR 386 (FamCAFC).
• Kennon v Spry [2008] HCA 56, (2008) 238 CLR 366
• In the Marriage of Ashton (1986) 11 Fam LR 457 (FamCAFC).
• Law Commission Review of Trust Law in New Zealand: Introductory Issues Paper (NZLC IP19,2010) at 6
• Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433