Right of Access to the Deeds

Once a strict trust has been properly constituted, the beneficiaries have important legal rights including the right to have access to non-exempt “Trust Documents” which include the original Trust Deed that established the trust as well as in other instruments that purport to vary the terms of the original Trust Deed.

Palmer J in Chang v Tjiong & Ors [2009] NSWSC 122 stated at [45] {Link}. :

“ It is the duty of a trustee to ensure that beneficiaries are made aware of their rights: see In re Emmet’s Estate (1881) 17 Ch D 142, at 149; Hawkesley v May [1956] 1 QB 304, at 322. A trustee can hardly comply with this duty unless he or she keeps the terms of the trust readily available so that they may be explained, or produced, to beneficiaries and made known to successor trustees: see Ford & Lee Principles of the Law of Trusts [9150].”

G.E. Dal Pont and D.R.C Chalmers in Equity and Trusts in Australia (4th Edition -Lawbook Co 2007) state at [20.50]:

“Beneficiaries are entitled to names of all past and present trustees, and their dates of appointment, retirement or resignation, including copies of any deeds or documents effecting these changes. Beneficiaries are also entitled to any deeds or documents constituting or varying the terms of the trust {Foreman v Kingston [2004] 1 NZLR 841 at [101] (HC)}

The New South Wales Court of Appeal in Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 made the following comments at [422A] in relation to the beneficiary’s right to have access to “trust documents”:

“Access should not be limited to documents in which a proprietary right may be established. Such rights may be sufficient; but they are not necessary to a right of access which the courts will enforce to uphold the cestui que trust’s entitlement to a reasonable assurance of the manifest integrity of the administration of the trust by the trustees.”

The Court noted at [419E]:

“The actions of trustees have validity only so far as they further the purposes of the trust and are lawful.”

Kirby P in Hartigan stated at [414C]:

…it has been generally accepted by the courts over a long period that a beneficiary of a trust is entitled to have access to the trust documents, which include the trust deed and the documents concerned with the financial management of the trust.”

Kirby P in Hartigan then stated at [419B]:

No one would dispute that the beneficiary could have access to the trust deed itself.”

Sheller JA in Hartigan stated at [445C]:

It should be observed that there could be no debate that the trustees are bound to disclose the deed of the trust, the trust accounts and as Harman LJ acknowledged (at 932) counsel’s advice, ante litem motam, to trustees as to their rights and duties.”

More information of the right of access to “trust documents” under the general law of trusts can be found here.

Statutory Provisions

More information of the right of access to prescribed “trust documents” pursuant the Trustee Act 1936 (SA) can be found here.

More information on the right of access to prescribed documents and information pursuant to Section 1017C of the Corporations Act 2001 (Cth) can be found here.

Trustee Refuses Access to original Trust Deed

In Bugden v Tylee 21 Beav 545 the Court had to consider the beneficiary’s right of access to the original Trust Deed in the following circumstances.

The Settlor settled property on trust for the plaintiff and others in a deed dated 1838, but he reserved a power of revocation to defeat the appointment. The plaintiff alleged that the trusts had been partially defeated by a subsequent deed dated 9 September 1853, and called upon the trustee to produce the original 1838 trust Deed. The trustee in his answer stated that the plaintiff’s interest had been totally defeated and therefore the trustee was not obliged to disclose the original trust deed on the basis that the plaintiffs had no interest in the trust property and therefore they had no right to have the deeds produced.

Romilly MR ruled:

“I am of the opinion, that the plaintiffs are entitled to see the deed, to ascertain whether the statement made of it by the trustee is correct and accurate. Undoubtedly it may turn out to be such as stated; but a person, originally a cestuis que trust, and taking a benefit, and interest under a deed, and who alleges that it has been partially and not wholly exhausted by a subsequent deed, is entitled to see the original deed creating the trust, which is stated by him to be partially, and by the trustee wholly exhausted, by a subsequent deed.”

This case was cited by North J in In re Cowin, Cowin v Gravett (1886) 33 Ch D 179 who ruled:

” In my opinion the Plaintiff has a prima facie right to inspect the deeds, and for this reason, that cestuis que trust are the beneficial owners of the trust property I think there is clear authority for so holding. The proposition is thus stated in Lewin on Trusts {8th Ed p975}:’All documents held by the trustee in that character must be produced by him to the cestuis que trust, who in equity are the true owners.'”

The Deeds of The Provident Fund

The declaration of trust on the 23 December 1913 in the State of South Australia was witnessed by a legal document known as a “Deed“.

This was the “Trust Deed which included the Regulations for the administration of the trust and associated Trust Fund

.

Regulation 35 required the original Deed to be “deposited and kept” at the head office of the company and for certified copies to be sent to the branch offices and to be made available for inspection by the “members of the fund”.

The terms of the trust (the Regulations) could only be amended by another Deed (Regulation 28) and these Deeds, known as Deeds of Variation were to be treated in a like manner to the original Deed that witnessed the declaration of trust..

Regulation 35

(35) “This Deed shall be deposited and kept at the head office of the Company and shall where practicable be executed by all officers: and the Trustees are hereby  empowered by the Board of Directors to call upon all officers to execute these presents or a copy thereof as hereinafter provided but notwithstanding the non-execution hereof or any copy hereof by any officer he shall from the mere fact of his being or becoming a contributor to the fund be bound  by these presents and the provisions contained therein or any future amendments thereof or additions hereto as fully as if he had executed these presents or a copy hereof. A copy hereof may be sent to any branch office of the Company and the execution of such a copy shall to all intents and purposes be as binding and effectual upon the party executing the same as if he had executed the original. In case of any additions made thereto as hereinbefore provided, each deed whereby such alterations and or additions shall be made shall be deposited and kept along with this Deed at the head office of the Company and shall be open at reasonable times to inspection by all persons affected hereby. Each copy of this Deed so sent to any branch office as aforesaid shall be certified in writing by at least two of the Trustees to be a correct copy and such certificate shall be conclusive evidence of its correctness. Notice in writing of any alteration or addition shall so far as reasonably practicable be given to all persons affected thereby

Furthermore it was the practice before 1980 to provide copies of the Regulations to the “Members of the Fund” such was the case in 1931 after the first Deed of Variation dated 7 October 1931.

 

It is a requirement under the common law for beneficiaries of a strict trust to be able to have access to the founding Trust Deed and all Deeds of Variation

.

These are the document that determine the beneficiary’s legal entitlements under the trust.

It is a requirement under Section 84B of the Trustee Act 1936 (SA) that a trustee produce the Trust Deed and Deeds of Variation as prescribed by the Trustee Regulations 2011.

In the case of Government Regulated Superannuation Funds Trustees are required to provide copies of the founding Trust Deed and copies of all Deeds of Variation “free-of-charge” to a Member or a Beneficiary of the Fund pursuant to subsection 1017C(5) of the Corporations Act 2001 and Regulation 7.9.45 of the Corporations Regulations 2001.

It is an indictable offence for a Responsible Officer to contravene subsection 1017C(5) of the Corporations Act 2001

The founding Trust Deed and all Deeds of Variation dated before 26 August 1986 have been deliberately concealed from the Members and Beneficiaries of the trust declared on 23 December 1913 by Responsible Officers of the purported sole Trustee.

Victorian Law

The beneficiary’s right to have access to the original Trust Deed and instruments that purport to vary the terms of the trust are included in Section 84B of the Trustee Act 1936 (SA).

There is no similar statutory provision in the Victorian Trustee Act {Trustee Act 1958 (Vic)}, however the general law upholds such a right where a trustee comes under the jurisdiction of the Supreme Court of Victoria.

Re Fairbairn

 
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This tab updated on 31 July 2015