The Liability of Directors of a Corporate Trustee

A Trustee is the archetype “fiduciary”, however the situation is somewhat more complicated with the Trustee is a “legal person” (ie a corporate Trustee).

The Directors of a company are in the position of a “fiduciary” with respect to the company, and when the company is a corporate Trustee, the company is in the position of a “fiduciary” with respect to the beneficiaries of the trust.

This then raise the question of the liability of a Director of a corporate Trustee.

There are six potential bases for liability of the Director of a corporate Trustee.

The first question is under what circumstances do Directors of a corporate Trustee owe a direct fiduciary duty to persons dealing with the company in its trustee capacity, whether they are beneficiaries or other parties dealing with the corporate trustee.

Secondly, there is the possibility that directors of a corporate trustee may owe a duty of care in tort that transcends the relationship with the corporate trustee and once again gives rise to a direct obligation, responsibility and liability to beneficiaries and others dealing with the trustee.

Next there is the possibility that a director of a corporate trustee may be affected by or take up liability as result of the actions of another party who procures, aids, or assists in a breach of trust and does so dishonestly. This also applies in the case of the trustee company itself and those employed by the Trustee company. This is accessorial liability under the second limb of Barnes v Addy.

Fourthly, there is the possibility of an indirect fiduciary duty or tortuous duty of care, to be contrasted with the direct fiduciary duties referred to above. In this case the duties are owed not to the parties dealing with the company but to the trustee company itself. Those duties are then enforceable by the company or by a person acting in the stead of a company such as a liquidator. Alternatively the duties may well comprise an asset of the trust so that any new trustees or beneficiaries could enforce the duties against the director rather than being confined to action against the trustee company.

Fifthly, there are well known instances in which the corporate veil may be disregarded and set to one side, leaving the parties who are to all intents and purposes the head and brains of the trustee company, to be directly and personally responsible for the company’s actions as if the company had not existed.

Lastly various statutes impose liabilities on directors including Section 57 of the Superannuation Industry (Supervision) Act 1993 . Also refer to Sections 180 to 184 of the Corporations Act 2001.

The duty of Directors of a corporate Trustee to acquaint themselves with the terms of the trust was the subject of Arakella Pty Ltd v Paton (No.2) [2004] NSWSC 605.

Arakella

The issues of the liability of the Directors of PFS Nominees Pty Ltd has been referenced in a number of letters to PFS Nominees Pty Ltd.


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