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Supreme CourtĪs an initial point, the Court disagreed with the Court of Appeal that its jurisdiction was limited to the grounds of review of a discretionary decision. That is, the Court should not intervene unless satisfied the trustee erred in law or principle, overlooked a relevant point, factored in an irrelevant point or made a decision that is plainly wrong. The Court held that, as disclosure requires an exercise of the trustees’ discretion, the Court should apply the well-established principles governing review by a court of a discretionary decision. In particular, the Court considered “whether to disclose, and, if so, the extent of disclosure, are discretionary decisions for the trustee”. However, the Court of Appeal found that Courtney J did not err in her finding on disclosure. The Court of Appeal disagreed with the High Court’s finding on standing and determined that, as a beneficiary, Ivan had standing to request trust documents. In assessing the circumstances, Her Honour found that, even if Ivan had standing, she would have exercised her discretion against requiring disclosure. Relevant factors in this case included Michael’s desire for confidentiality and the ramifications for family relations if disclosure was made. In relation to the Court’s discretion to order disclosure, Courtney J held that the trustee’s decision whether to make disclosure involves consideration of all the relevant circumstances.
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Courtney J determined that his interests in the trusts fell within the definition of “property” under the Insolvency Act 2006 and vested in the Official Assignee on his bankruptcy. In the High Court, Courtney J held that Ivan Erceg had no standing to request disclosure of trust documents. Although he was discharged from bankruptcy on, he was bankrupt when the trusts were wound up. Ivan was adjudicated bankrupt on 2 February 2010. However, the trusts were wound up in December 2010 without any distribution being made to Ivan. Ivan was within the class of both discretionary and final beneficiaries of each trust. BackgroundĮrceg v Erceg concerned an application by Ivan Erceg, the late Michael Erceg’s brother, for disclosure of trust documents relating to two trusts settled by Michael. The Supreme Court held that “the greater the scope of the request and the remoter the interest of the beneficiary, the more room there will be for argument about the appropriateness of disclosure”. The recent Supreme Court decision Erceg v Erceg NZSC 28 provides helpful guidance for trustees when faced with such a request and sets out the factors to consider when balancing the differing interests of the beneficiaries.Īlthough the Supreme Court declined to order disclosure in Erceg, the Court considered the case for disclosure “will be compelling” if there is no other way for the beneficiaries to monitor the trustee’s compliance with the trust deed in administering the trust.
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Remoter issue trust deed how to#
An issue frequently arising for trustees is how to approach a request by a beneficiary for trust documents.