Abacus Trust Company (Isle of Man) & Anor v Barr & Ors [2003] EWHC 114 (Ch) (06 February 2003)

Abacus Trust Company (Isle of Man) & Anor v Barr & Ors [2003] EWHC 114 (Ch) (06 February 2003)

The Appointment is voidable, not void, because the Trustee's failure to ascertain the Settlor's true wishes constituted a breach of fiduciary duty, bringing the Rule in Hastings-Bass into play, but the appropriate remedy is equitable and discretionary, not automatic nullity.

Source-derived case information.

Citation
[2003] EWHC 114 (Ch)
Parties
Claimant: Abacus Trust Company (Isle of Man); Claimant: Colyb Limited; Defendant: Andrew Barr; Defendant: Brian J Barr; Defendant: Russell Barr
Jurisdiction
England and Wales
Judgment Date
06 February 2003
Procedural Posture
Chancery Division Application / Judgment on Application for Determination of Validity of Deed of Appointment
Outcome
Appointment held voidable, not void; further hearing adjourned to determine whether to set aside the Appointment and on what terms.
Legal Topics
Rule in Hastings Bass, Exercise of Trustee Powers, Fiduciary Duty, Void Vs Voidable Appointments, Mistake in Trust Administration
Trusts and Equity Rule in Hastings Bass Exercise of Trustee Powers Fiduciary Duty Void Vs Voidable Appointments Mistake in Trust Administration

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Parties

Abacus Trust Company (Isle of Man)

Claimant

Colyb Limited

Claimant

Andrew Barr

Defendant

Brian J Barr

Defendant

Russell Barr

Defendant

Procedural Posture

Chancery Division Application / Judgment on Application for Determination of Validity of Deed of Appointment

Legal Issues

  1. 1 Whether a trustee's mistaken exercise of a power of appointment, not attributable to breach of fiduciary duty, is open to challenge under the Rule in Hastings-Bass
  2. 2 Whether a decision challenged under the Rule in Hastings-Bass is void or voidable

Ratio Decidendi

The Appointment is voidable, not void, because the Trustee's failure to ascertain the Settlor's true wishes constituted a breach of fiduciary duty, bringing the Rule in Hastings-Bass into play, but the appropriate remedy is equitable and discretionary, not automatic nullity.

Court Disposition

Appointment held voidable, not void; further hearing adjourned to determine whether to set aside the Appointment and on what terms.

Orders

  • Adjournment for further submissions and evidence on whether the Appointment should be avoided and on what terms.