Scott v Chamley relates to an application for the removal of trustees and the appointment of replacement trustees. In this case it was not disputed that the former trustees should be removed and replaced. The question for the Court related to the new trustee or trustees to be appointed. The key points can be summarised as follows:
- The settlor’s wishes regarding future administration of a trust should be taken into account. However, the weight to accord such wishes will depend on the strength of such preferences. A mere observation of a suitable trustee (in this case a statutory trustee) is not of itself binding.
- A non-resident trustee can be a suitable appointment (as was the case here) even if that may mean that the trust might be subject to an overseas tax regime where such risk is known (albeit as noted by the Court the extent of such risk was not one the Court could determine) but despite this, all of the trust’s beneficiaries support the trustee’s appointment.
- As noted at [14], the Court saw “… utility in a beneficiary, who has the informed support of the other beneficiaries, being appointed as a trustee to exercise the powers and perform the duties of that office in conjunction with two other independent and professional trustees.”
In closing, Brewer J declined to order an indemnity in favour of the Retiring Trustees in accordance with the terms of the indemnity in the trust deed and sections 41 and 81 of the Trusts Act 2019 on the basis that ” … the law is clear and the order would be otiose.”
If you are wanting to upskill regarding the appointment and removal of trustees, Vicki Ammundsen is presenting a webinar on practical aspects of Retirement and Appointment.
References
Matters of Trust 
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