1 The only mention of arbitration in the Trustee Act 1956 is in section 20(d), which empowers any trustee to ‘compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the trust or to the trust property’. This provision is of use in dealing with external claims against the trust estate but is of no use in respect of internal problems of trust administration.
2 Law Commission, Review of the Law of Trusts: Preferred Approach, Issues Paper 31 (November 2012) para 1.3, n 8.
3 Law Commission, Review of the Law of Trusts: A Trusts Act for New Zealand, Report 130 (August 2013) para 5.
4 Former Chief Justice of Ireland Ronan Keane writes:
Professor Frances Moran, the formidable lady who for many years lectured on equity to the students of King’s Inns, used to tell her (in those days) nearly all male classes: ‘There are three roads to ruin in life, wine, women and becoming a trustee. The first two are at least enjoyable.’ This was not merely cynicism. The office of trustee is one which generally offers few advantages, material or otherwise. It can be time consuming, tedious and, where the beneficiaries are difficult, importunate or quarrelsome, as they frequently are, positively distasteful. And, on top of all this, it may involve the holder in legal liability and that in circumstances where he or she has done nothing remotely dishonourable.
Ronan Keane, Equity and the Law of Trusts in the Republic of Ireland (2nd edn, Bloomsbury Professional 2011) para 9.01.
5 Internal trust disputes relate to the inner workings of a trust and involve the settlor(s), trustee(s), protector(s), and/or beneficiary(ies).
6 Law Commission, Review of the Law of Trusts: Fifth Issues Paper: Court Jurisdiction, Trading Trusts, and Other Issues, Issues Paper 28 (December 2011) para 5.3.
7 Max Rashbrooke, Wealth and New Zealand (Bridget Williams Books 2015) 62.
8 Richard Aikens, ‘“With a View to Dispatch and the Saving of Expense”: How the Commercial Court Has Attempted to Meet the Demands of the Business Community for Efficient and Cost-Effective Litigation Procedures’ in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford University Press 2009) 563, 568–69. Even today there are great judges who deprecate the ‘unwisdom of consenting to arbitration’. Michael Wilson & Partners Limited v Nicholls  HCA 48  (Heydon J) (High Court of Australia).
9 Unreported, Queen’s Bench Division of the England and Wales High Court, Lawrance J, 12 November 1891, reproduced in VV Veeder ‘Mr Justice Lawrance: The “True Begetter” of the English Commercial Court’ (1994) 110 Law Quarterly Review 292, 299, affirmed in Rose v The Bank of Australasia  AC 687.
11 ibid. See also Veeder (n 9) 292.
12 Fantasy is the only word for it. Consider, for example, the far-out-of-his-depth judgment of the judge in the New Zealand trust case discussed in Tony Molloy, ‘Still More on Settlor Control: The 18 September 2008 Reserved Decision of the New Zealand High Court in Harrison v Harrison CIV 2008-404-001270’ (2010) 16 Trusts and Trustees 73. See also Donovan Waters, ‘Settlor Control—What Kind of a Problem Is It?’ (2009) 15 Trusts and Trustees 12. As in so many similar cases, this appalling judgment was the inevitable outcome of a fine judge being required to operate well outside his comfort zone.
13 RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (4th edn, LexisNexis Butterworths 2002) xi.
15 Waters (n 12) 15 (writing that the New Zealand judge ‘took what can only be described as a most unorthodox line in reaching the conclusion that, if necessary, it could invade the trust ….’).
16 Charles Rickett, ‘Cry “Equity”—It Works!’  New Zealand Law Journal 25, 28 (discussing two New Zealand trust judgments that displayed ‘overweening self assurance and readiness to pronounce on matters of law and justice with little deeper reflection’ and writing that ‘Abracadbra law does us all a disservice. A little more scholarship in answering legal problems would do us all a lot of good’).
17 Matthew Conaglen, Fiduciary Loyalty (Hart Publishing 2010) 25–26. Others have expressed similar views about New Zealand trust judgments. See eg Jessica Palmer, ‘Attempting Clarification of Constructive Trusts’ (2010) 24 New Zealand University Law Review 113; Jessica Palmer, ‘Controlling the Trust’ (2011) 12 Otago Law Review 473; Jessica Palmer, ‘Equity and Trusts’  New Zealand Law Review 141; Nicola Peart, Mark Henaghan, and Greg Kelly, ‘Trusts and Relationship Property in New Zealand’ (2011) 17 Trusts and Trustees 866; Charles Rickett and Jessica Palmer, ‘Trusts Jurisprudence in the High Court’  New Zealand Law Journal 353.
18 Earl of Oxford’s Case (1615) 21 ER 485. See also Senior Courts Act 1981 (UK) s 49(1).
19 That can, of course, also happen when courts do specialize, but not enough. In an interview a year after he resigned in protest from the Chancery Division, Sir Hugh Laddie deprecated having been required to sit on cases outside areas of practice in which he was acknowledged to be skilled and experienced. A newspaper reported that he believed that:
[h]ad he taken a case outside his field at the Bar, he’d have left himself open to a negligence action…. But the moment he was a judge he was expected to do just that. ‘It was challenging—like high-wire walking—but I didn’t think it fair for clients to be learning at their expense.’ Most worrying were the cases involving unrepresented litigants, with applications ‘in an area of law that I knew nothing about’.
Frances Gibbs, ‘Definitely No Regrets: There is Life Beyond the High Court’ The Times
(16 May 2006) (quoting Sir Hugh Laddie).
20 Jenni McManus, ‘Litigants Turn Their Backs on Courts’ The Independent (26 June 2008) 6.
21 ibid. See also The Chambers Dictionary (10th edn, Chambers Harrap 2006) 1408 (defining ‘to shaft’ as a slang expression meaning ‘[t]o dupe, swindle, treat unfairly’).
22 McManus (n 20) 6. Concerns about the lack of precedent are particularly pressing, since development of the law relies on public and reported decisions by competent judges who shall have formed their ideas with:
the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law. This is as true today as it was in 1409 when Hankford J said: ‘Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi diceret, le ley per bon disputacion serra bien conus’ (YB 11 Hen 4, Mich, fo 37)…. Today, as of old, by good disputing shall the law be well known.
Cordell v Second Clanfield Properties Ltd  2 Ch 9, 16–17 (Megarry J).
23 Law Commission, Review of the Law of Trusts: Fifth Issues Paper: Court Jurisdiction, Trading Trusts, and Other Issues, Issues Paper 28 (December 2011) para 5.3.
26 Rinehart v Welker  NSWCA 95  (Bathurst CJ) (describing the effect of the decision of the court below, Welker v Rinehart (No 2)  NSWSC 1238 (Brereton J)).
27 See also ibid  (McColl JA).
28 See also ibid  (McColl JA).
Section 42(f) of the Trustee Act is the New South Wales counterpart of section 20(g) of the New Zealand Trustee Act 1956, which empowers a trustee to:
30 Rinehart,  NSWCA at 95.
33 ibid. For more on Rinehart, see Daniel Clarry, ‘The Removal of Trustees by Arbitration in England and Australia’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 11.01–11.80.
34 Arbitration Act 1996 s 4.
36 Raukura Moana Fisheries Ltd v The Ship ‘Irina Zharkikh’  2 NZLR 801  (Young J).
37 Arbitration Act 1996 s 10(1).
38 ibid s 2 (emphasis omitted). See also ibid Schedule 1, art 7(1) (‘An arbitration agreement may be made orally or in writing.’).
39 Rinehart,  NSWCA 95 at .
40 ibid  (Bathurst CJ).
41 ibid – (Bathurst CJ).
42 For more on commercial trusts, see Mark Kantor, ‘The Use of Trusts in Financing Transactions: Special Issues Relating to Arbitration of Commercial Trusts’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 2.01–2.101.
43 Rinehart,  NSWCA 95 at –.
45 Bruno Boesch, ‘The ICC Initiative’ (2012) 18 Trusts and Trustees 316, 322; SI Strong, ‘Institutional Approaches to Trust Arbitration: Comparing the AAA, ACTEC, ICC, and DIS Trust Arbitration Regimes’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 5.01–5.135.
46 Matthew Conaglen, ‘The Enforceability of Arbitration Clauses in Trusts’ (2015) 74 Cambridge Law Journal 450–79. Cf Mark Herbert, ‘Trust Arbitration in England and Wales: The Trust Law Committee’ in SI Strong (ed), Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press 2016) paras 10.01–10.103.
51 ibid 465 (emphasis added).
52 ibid 476. See also Nicholas Le Poidevin, ‘Arbitration and Trusts: Can It Be Done?’ (2012) 18 Trusts and Trustees 307, 309.
53 Welker & Ors v Rinehart & Anor (No 2)  NSWSC 1238 –, ; Rinehart v Welker  NSWCA 95 –. See also Conaglen (n 46) 476, 479.
54 Helen Dervan, ‘Trusts Law Reform: Do We Need A Statutory Straightjacket?’ (2014) 20 Trusts and Trustees 673–91.
56 Law Commission, Review of the Law of Trusts: A Trusts Act for New Zealand, Report 130 (August 2013) 43–44 (Recommendation 42) 197–99 (ch 14).
58 Frederick William Maitland, Equity, Also the Forms of Action at Common Law (Cambridge University Press 1909) 25.