Trusts / Asset Planning
A recent Court of Appeal case has highlighted and reaffirmed three aspects of trusteeship:
- A trustee is personally liable for trust debts;
- A trustee cannot delegate his/her trustee duties; and
- A trustee should ensure there is a system in place to ensure his/her co-trustees comply with their trustee obligations.
This case involved a professional trustee. A firm of solicitors had incorporated a company (Newmarket) that acted as trustee for over 100 trusts. One of these trusts had been involved with property transactions and, as a result, had been assessed by the Inland Revenue Department for GST and income tax liability. Newmarket apparently had no knowledge of these tax assessments. It had been involved in six of the transactions but had only become aware of the trust's tax liability when the Commissioner of the IRD (Commissioner) wrote to the directors of Newmarket advising them of their liability. The directors reviewed the default IRD assessments and discovered there were ten property transactions involved.
The trust had no assets to pay the tax, the properties having all been sold. Newmarket's co-trustee was bankrupt. Newmarket in its own right did not own any assets to pay the tax. The Commissioner sought to have Newmarket placed into liquidation.
Appointment of Liquidator
In the initial High Court proceedings the Court exercised its discretion not to place Newmarket into liquidation. The Commissioner appealed against that decision. The Court of Appeal considered that an insolvent trustee company (like a bankrupt trustee) was not fit to hold office as trustee. The Court commented it would normally remove a trustee in such a position but, if a company is placed in liquidation, a liquidator is appointed to the company. The company could remain as trustee with the liquidator administering the company. New trustees could be appointed to the other trusts, and until then the liquidator had the power to administer the trusts.
The Court in coming to its conclusion was mindful that Newmarket, contrary to trust law principles, had delegated its trustee responsibilities to its co-trustees.
It also noted that neither Newmarket nor the law firm had put in place a system to ensure that all trustees complied with their obligations as trustee or for monitoring the activities of the co-trustees.
The Court agreed with the Commissioner's submission that if a liquidator was appointed it would be the liquidator's decision as to whether or not the directors of Newmarket had complied with their directors duties under the Companies Act. One of the principal duties of the liquidator is to investigate the company's affairs to protect the company's assets.
The Court commented that the liquidator should decide whether an inquiry into the conduct of the directors was required in the circumstances of the case. This was particularly in the absence of any evidence from Newmarket's directors that there was a system in place to ensure that their co-trustee complied with his/her trustee obligations or to monitor his/her activities as trustee.
Exercise of Trustee Discretion
It is normal for trusts in New Zealand to have two or three trustees with, typically, the settlor or settlors being appointed along with an independent trustee. The independent trustee may be either a professional or a family member appointed to act as a co‑trustee. Whatever the composition of the trustee group, all trustees must be involved in decision-making. It is not possible to delegate the decision-making to some of the trustees.
The role of the independent professional trustee in New Zealand has not been as highly valued as it is in other countries. It is common practice that family member trustees will operate a trust with little reference to their professional co-trustee. Many trusts are poorly administered as a result of the non-involvement of a professional trustee. This aspect is being increasingly highlighted in cases that are coming to light post GFC.
With the increasing scrutiny given to trusts by the Courts, the role of independent trustee will become more important. As a result of the comments of the Court of Appeal in the Newmarket case, it is expected that independent trustees will become more vigilant in ensuring that they are involved in all trustee decisions and will develop systems to ensure greater oversight of their co-trustees and the affairs of the trust generally.
Lessons to be learnt
1. A trust is not a legal entity and as such the trustees who are recorded as the legal owner of the trust assets are liable for any debts the trust incurs. In this case the independent trustee, Newmarket, was liable for the tax payment. As we have pointed out in previous TrustLaw publications, although it may be possible for an independent trustee (with the consent of the creditor) to limit liability for some trust debts, this is not possible for tax debts.
2. Newmarket did not have full knowledge of all the trust transactions. The directors were criticised by the Court for their lack of control over both the trust assets and their decision-making. They had enabled the co-trustee to take sole control of the decision-making. This is illustrated by the directors not knowing about all the property transactions. The directors did not turn their mind to any potential tax liabilities.
3. Newmarket had no system in place to monitor the actions of co-trustees or administer the trusts. Simple strategies such as regular trustee meetings (by phone or skype), trustee resolutions that tell the story of what is happening, bank statements sent to all trustees, signing off on annual accounts, could have ensured all trustees had the requisite level of knowledge. This would ensure that the trust records were in good order and assist in preventing claims from both creditors and beneficiaries.
Trustee duties are onerous and it is to be expected that increasingly the independent trustee will require adequate compensation for taking on this role. The professional trustee is often relied upon to ensure that correct and proper procedures are in place. The recent Law Commission review of trusts proposes that trustee duties which have been developed over hundreds of years by judge-made law, will be incorporated in a new Trustee Act. The Commission has commented that many trustees have no knowledge of what their duties are. These duties are of central importance to a trust and to the exercise of trustee discretions. Reform of the law to provide a clear statutory-based statement of trustee duties will be a welcome development.
- independent trustee services;
- advice to trustees in the exercise of trustee discretions; and
- administration of trusts and establishment of administration systems.
If you consider you need assistance in relation to any of these aspects please contact us.
The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.