Sofer v Swissindependent Trustees SA

Sofer v Swissindependent Trustees SA

The claimant’s pleadings did not sufficiently allege or particularise dishonesty or fraudulent breach of trust to overcome the trustee exoneration clause. The deeds of indemnity executed by the claimant estopped him by convention from denying the payments were loans and operated as a waiver and consent to the payments made up to and including the further AUS$9.5 million. Accordingly, the claim was struck out, and, in the alternative, summary judgment would have been entered for the defendant for all payments covered by the deeds of indemnity. Claims relating to subsequent payments would not be summarily dismissed and would proceed to trial.

Parties
Claimant/respondent: Robert Sofer; Defendant/applicant: SwissIndependent Trustees SA
Jurisdiction
England and Wales
Judgment Date
02 August 2019
Procedural Posture
Civil Trusts / Ruling on Applications to Strike Out, for Summary Judgment, and for Permission to Amend Pleadings
Outcome
Claim struck out; summary judgment for defendant on payments covered by indemnity; claim may proceed to trial for subsequent payments not covered by indemnity.
Legal Topics
Trustee Exoneration Clauses, Breach of Trust, Summary Judgment, Estoppel, Indemnity, Pleading Standards
Trust Law Equity Civil Procedure Trustee Exoneration Clauses Breach of Trust Summary Judgment Estoppel Indemnity +1 more

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Parties

Robert Sofer

Claimant/respondent

SwissIndependent Trustees SA

Defendant/applicant

Procedural Posture

Civil Trusts / Ruling on Applications to Strike Out, for Summary Judgment, and for Permission to Amend Pleadings

Legal Issues

  1. 1 Whether the claim discloses a cause of action not barred by the trustee exoneration clause
  2. 2 Whether the claimant’s pleadings sufficiently allege dishonesty or fraudulent breach of trust
  3. 3 Whether the deeds of indemnity bar or estop the claimant’s claim

Ratio Decidendi

The claimant’s pleadings did not sufficiently allege or particularise dishonesty or fraudulent breach of trust to overcome the trustee exoneration clause. The deeds of indemnity executed by the claimant estopped him by convention from denying the payments were loans and operated as a waiver and consent to the payments made up to and including the further AUS$9.5 million. Accordingly, the claim was struck out, and, in the alternative, summary judgment would have been entered for the defendant for all payments covered by the deeds of indemnity. Claims relating to subsequent payments would not be summarily dismissed and would proceed to trial.

Court Disposition

Claim struck out; summary judgment for defendant on payments covered by indemnity; claim may proceed to trial for subsequent payments not covered by indemnity.

Orders

  • Claim struck out under CPR 3.4(2) for failure to plead a cause of action not barred by the exoneration clause.
  • Permission to amend particulars of claim refused.