Part III Modernity, 4 Administration »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter examines the first three aspects of the supervisory jurisdiction over trust administration, all of which come closest to the Court actually performing the trust. The first aspect is the general and partial administration of trusts, which is a continuation of the traditional means by which the Court facilitated the performance of trusts in Equity. In the second aspect, judicial advice and directions is given as to the duties and powers of trustees, which facilitates the due performance of trusts without the need for general or partial administration. Finally, in the third aspect, the Court exercises a trustee’s discretion that is surrendered to it by a trustee, thereby facilitating the performance of a trust by actually exercising the trustee’s discretion.
Part V Conclusion, 10 Conclusion »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This concluding chapter reflects on the claims and themes developed throughout the chapters but also explores the implications that this work holds for the development of trust law, especially with regards to recent trends in contemporary trust law and practice toward extrajudicial mechanisms to supervise trust administration — this includes alternative dispute resolution and the attachment of supernumerary office holders to trust administration, such as enforcers and protectors. The chapter also examines the broader implications for private law and public law, highlighting areas for further analysis and to stimulate debate, as well as to consider the future trajectory of the supervisory jurisdiction over trust administration, in light of some of the future challenges.
Dedication »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
Part IV Remedies, 8 Equitable Compensation for Breach of Trust »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter deals with ‘equitable compensation’ for breach of trust — one of the central areas of judicial intervention in trust administration that is dependent upon, and responsive to, a breach of trust. The Court will not allow a trust to fail for maladministration, arguing that a trust cannot be reduced to a principle of ‘pay or perform’. The principles that justify and unify the supervisory jurisdiction over trust administration in facilitating the ongoing performance of trusts as their central focus permeate through the judicial function in fixing liability to compensate for breach of trust and the restoration of trust property, so that a trust can continue to be performed above and beyond breach of trust or maladministration.
Part II History, 3 Evolution »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter focuses on how the mould of the Chancery procedure needed to be broken, despite its basic principles of performance and protection being sound. Legislative intervention and a number of revolutionaries were required. The advent of summary procedures to enliven the supervisory jurisdiction for targeted intervention in trust administration was transformative. The statutory reforms in the mid- to late 19th century fragmented the superintendence of trusts by the Court into routine aspects that could be exercised more expediently to alleviate and overcome difficulties in the performance of trusts, without paralysing trust administration in the process. Impacted by modern standards, those reforms form the basis for the supervisory jurisdiction over trust administration in modern times.
Part I Introduction, 1 Introduction »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This introductory chapter discusses the administrative and protective jurisdiction of the Court to supervise and intervene in trust administration to facilitate the due performance of trusts within what is called ‘the supervisory jurisdiction over trust administration’. The principle that justifies the constituent aspects of the supervisory jurisdiction over trust administration is that the Court acts to facilitate the performance of trusts and thereby reasonably ensure their due administration. The chapter then offers an outline of each succeeding chapter to support the claim about the importance of performance as a unifying principle within this area of trust law. It also presents ancillary principles that guide the exercise of the supervisory jurisdiction for the benefit of, or in the best interests of, the beneficiaries.
Part IV Remedies, 9 Judicial Review of Trustee Decision-Making »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter looks at how judicial review of trustee decision-making also tests the scope of the supervisory jurisdiction over trust administration and, in turn, the principles that define, and unify, that jurisdiction as distinct from remedial powers that the Court exercises in relation to trusts. The chapter analyses whether the judicial review of trustee decision-making is properly regarded as an aspect of the supervisory jurisdiction over trust administration. This analysis highlights the central principles that guide judicial review of trustee decision-making, which are heavily influenced by procedural mechanisms to enliven that jurisdiction, especially whether a breach of trust (or ‘fiduciary duty’) is essential to justify intervention.
Part II History, 2 Origins »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter talks about the origins of the supervisory jurisdiction over trust administration. The foundations of this jurisdiction began to take shape in the mid- to late 16th century, brought upon by two key enactments relating to uses and wills, after which time the Court oversaw the administration of active trusts. The ground was laid for supervisory powers to develop in the Court to overcome practical difficulties arising in trust administration even as trusts became increasingly complex and were deployed to fulfil a range of purposes. The chapter shows how the evolution of judicial supervision of trust administration was spurred on by the broader use of trusts for private and public endeavours that needed to be performed by trustees over a plane of time, as opposed to trusts being used for simple conveyancing.
Part III Modernity, 5 Regulating the Office of Trustee »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter explores how the office of trustee is the central administrative cog that exists above and beyond any person who assumes that office for the time being until such time as the trust is performed. Given its centrality to trust administration, the Court’s power to regulate the office of trustee is an important part of the supervisory jurisdiction over trust administration. This process can be dissected into three main aspects: appointment of trustees; removal and retirement of trustees; and fixing the remuneration of trustees. As administrative and protective functions that regulate the office of trustee to facilitate the performance of trusts, these functions are key aspects of the supervisory jurisdiction over trust administration.
III Trust Arbitration as a Matter of National Law, 11 The Removal of Trustees by Arbitration: Australia and England »
Daniel Clarry
From: Arbitration of Trust Disputes: Issues in National and International Law
Edited By: SI Strong, Tony Molloy (Consultant Editor)
This chapter analyzes the supervisory function of the court in trust litigation and describes the extent to which that role can be fulfilled by arbitrators. It uses the Rinehart case as an example, in which a family feud over a trust holding assets valued at upwards of AU$9 billion generated a dispute regarding the removal of Gina Rinehart as trustee in which issues arose as to the applicability and validity of an alternative dispute resolution (ADR) clause. It argues that disputes concerning the removal of trustees can be submitted to arbitration whilst preserving the Court’s distinct supervisory jurisdictions over arbitration and trust administration as means to different ends. Whilst a supervisory jurisdiction is attached to arbitration, thereby facilitating the enforcement of arbitral awards, a distinct supervisory jurisdiction over trust administration is preserved that facilitates the ongoing performance of the trust above and beyond arbitration.
Part III Modernity, 6 Supervising Due Administration »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter examines how the Court facilitates the ongoing performance of trusts by supervising internal matters of trust administration. Traditionally, the Court undertook the general administration of trusts in Equity by receiving trust property and directing accounts to be taken before a Chancery Master, with a report issued thereafter and further judicial intervention in trust administration as required. Whilst the Court still supervises the taking of accounts in trust administration where necessary, the disclosure of trust information has evolved as a prominent aspect of the supervisory jurisdiction over trust administration that is expedient in enabling extrajudicial auditing of trust administration, thereby facilitating the performance of trusts without paralysing trust administration in the process or causing unnecessary delay and expense.
Part III Modernity, 7 Supervising Non-Performance »
From: The Supervisory Jurisdiction Over Trust Administration (1st Edition)Daniel Clarry
This chapter argues that a fundamental duty of trustees is to perform the trust upon assuming the office of trustee. But the duty to adhere strictly to the settled terms of a trust occasionally conflicts with the broader purpose of the trust, especially when the trust must be performed over a lengthy amount of time. Rather than bluntly resolving that tension in favour of strict performance according to the settled terms, the Court exercises its supervisory jurisdiction over trust administration by enlarging the powers of trustees and sanctioning breaches of trust, both prospectively and retrospectively, and authorising variations and terminations. These aspects of the supervisory jurisdiction over trust administration exhibit that trusts are not simple accounting relationships, but become autonomous legal institutions that require continuous supervision.
