Appointment & Cessation

 

Trustee Act 1893

Powers of appointing new trustees

10.-(l) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, as aforesaid.
(2) On the appointment of a new trustee for the whole or any part of trust property-
(a) the number of trustees may be increased; and
(b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed or remain one of such separate set of trustees; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part;and
(c) it shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust; and
(d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done.
(3) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions and may in all respects act, as if he
had been originally appointed a trustee by the instrument, if any, creating the trust.
(4) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.
(5) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained.
(6) This section applies to trusts created either before or after the commencement of this Act.

Power of the Court to appoint new trustees

25.-(1)The High Court may, whenever it is expedient to appoint a new trustee or new trustees and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees either in substitution or in addition to an existing trustee or trustees, or although there is no existing trustee. In particular and without prejudice to the generality of the foregoing provision, the Court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt.
(2) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(3) Nothing in this section shall give power to appoint an executor or administrator.

 

Retirement of trustees

11. -(1) Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his co­ trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust and shall, by the deed, be discharged therefrom, under this Act, without any new trustee being appointed in his place.
(2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.
(3) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained.
(4) This section applies to trusts created either before or after the com­ mencement of this Act.

Cases

Arnott v. Arnott

(1924) 58 ILTR 145

 

MURNAGHAN J

“In this case, Sir John Alexander Arnott, a trustee and beneficiary under the will of his father Sir John Arnott, which will with four codicils was proved on April 13, 1898, and Mrs. Rosina Johnston, also a beneficiary under the said will, have invoked the aid of the Court, and seek an order removing Lady Emily Jane Fitzgerald Arnott, the widow of the deceased and stepmother of the plaintiffs, from the trusteeship of the said will and codicils. They also ask for the appointment of a new trustee in the place of Lady Fitzgerald Arnott, and for consequential relief. This action is based, not upon specific acts of personal default, but upon a course of conduct on the part of Lady Fitzgerald Arnott, said to be persistent and unjustifiable obstruction in the matter of the trust, amounting to misconduct. Lady Fitzgerald Arnott has denied these allegations and brought a number of counter-charges against Sir John Arnott, some of them dealing with matters as far back as the year 1898, which, she alleges, made it necessary for her to investigate closely the actions of her co-trustee. She, in addition, alleges that she had discovered errors in the accounts of the trust estate, which made it desirable to have these accounts investigated, and has by a counterclaim asked to have a complete account taken of all dealing with the trust estate and the income thereof from March 28, 1898, down to the present time. The action, I regret to say, is one of a family nature, which manifests the existence of difficulties too serious to be bridged over. Had it been otherwise I would at some stage of the proceedings have suggested to the parties the possibility of arriving at some method of composing their differences. As a consequence, the principal dealings with the trust estate during the period of twenty-five years have been investigated before me, and a great mass of evidence, documentary and oral, has been adduced. It is necessary, therefore, that I should state the findings of fact which I have arrived at in reference to the principal matters before I come to apply what I conceive to be the law to these findings. Under clause 18 of the will, Sir John Arnott was given full power and authority to make all necessary decisions and to act in all matters connected with the administration of the estate on his own responsibility, and Lady Fitzgerald Arnott’s formal assent alone was necessary. It is quite easy to understand that a man engaged in carrying on several large and successful business concerns foresaw the desirability of having a single head and undivided control, and whilst he was anxious to nominate his wife as executrix and trustee as a mark of his affection he did so with a qualification which enabled his son, Sir John Arnott, to continue the management of affairs with undivided control. Lady Fitzgerald Arnott alleged that she signed certain documents without knowledge and in circumstances that would amount to fraud on the part of Sir John Arnott, but her evidence was quite at variance with her letter to Sir John Arnott, dated May 28, 1898. As regards the Bristol Navigation Steamship shares, I find that they were fairly valued at £3 1Os. per share in the valuation submitted to Lady Fitzgerald Arnott, the form of appropriation of which she signed, and that in the whole transaction Sir John Arnott did nothing which fairly gave rise to criticism, much less to censure. Since 1914 the estate had greatly benefited by the enormous appreciation which the shares of this Company, in common with most Shipping Companies, had experienced. But it is as idle to make this unforeseen appreciation in value the basis of a charge of misconduct on the part of Sir John Arnott as it was to blame him, as Lady Fitzgerald Arnott did, for investing in consols in the year 1900 at 86. The flotation of the Irish Times into a limited company was in precisely the same position as the Bristol Steamship Navigation shares. Lady Fitzgerald Arnott, in May, 1898, wrote that her children would be perfectly satisfied and pleased to accept shares in the Irish Times. The defendant subsequently raised objection to the proposed amount of capital, and the formation of the company was postponed. In 1900, however, the company was formed with a capital of £450,000, divided into 55,000 preference shares of £5 each and 35,000 ordinary shares of £5 each. The ordinary shares were largely held as portions of the trust estate, and I find that the transaction was carried out with prudence and judgment by Sir John Arnott, and resulted in great benefit to the estate. It is to be remarked that in 1917 Lady Fitzgerald Arnott was pressing to have the trust moneys invested in preference shares in the Irish Times which she advocated in preference to 4 per cent tax free War Loan. [His lordship then referred to the previous litigation between the Parties to this action (Arnott, deceased; Arnott v. Arnott [1899] 1 IR 201; Arnott v. Arnott [1906] 1 IR 127.] About the beginning of 1920 an alteration was made in the Articles of Association of the Irish Times, Ltd., which was the subject-matter of complaint in paragraph 4 of the defence. This alteration of the Articles gave to the holder of preference shares, who had hitherto been excluded from voting, save in certain specified matters, voting rights after the death of Sir John Arnott, or earlier, at his option. The avowed object of this alteration was to counteract the power which Lady Fitzgerald Arnott would have as the registered owner of ordinary shares in the event of the death of Sir John Arnott. Sir John Arnott stated in his evidence that this alteration was made in the interests of the trust estate and of the shareholders of the company, and was done in the belief that it was necessary to avoid having Lady Fitzgerald Arnott in control of the paper. Lady Fitzgerald Arnott contended that such action on the part of Sir John Arnott was contrary to the terms of the will, but in my opinion Sir John Arnott was within his rights in bringing about this alteration. In the years 1920 and 1921 a series of very disagreeable incidents occurred. Lady Fitzgerald Arnott adopted the plan of sending numerous post cards, mostly unstamped, containing demands for money and payment of expenses in connection with the grave of the late Sir John Arnott. Some of them were directed to the Viceregal Lodge and other places, with a view, as Lady Fitzgerald Arnott said in the witness box, of causing hurt and annoyance. Lady Fitzgerald Arnott, I believe realizes how improper her actions were in this respect and suggests that she acted under great provocation. It is evident that all chance of harmonious working together was rendered impossible. In the years 1922 and 1923 there was considerable delay in the signing of cheques on the part of Lady Fitzgerald Arnott. She wished to have a voice in the selection of the charities to benefit under the trusts of the will and finally she wrote as if it were an accepted fact, that the will of the late Sir John Arnott was forged. Lady Fitzgerald Arnott refused to sign certain cheques, and on May 2, 1923, she wrote challenging the validity of the 18th clause, and stating most emphatically that the will of the late Sir John Arnott was forged and that she was prepared to prove the truth of her statement. That charge was made without any foundation, and it is difficult to know whether Lady Fitzgerald Arnott appreciated the meaning of the terms which she so often repeated, and she has now admitted that it was the language of anger and not of reason. Her feelings towards Sir John Arnott are, however, none the less bitter. In her cross-examination she stated that she was tricked by him and did not trust him and by means of misreading the judgments of Sir A. Porter in Arnott v. Arnott [1899] 1 IR 127, claimed the right to be consulted before any action was taken by Sir John Arnott and by that means to render nugatory the 18th clause in the will to which she so strongly objected. In the defendant’s counter-claim her allegation is that the accounts of the trust estate which have been furnished to her have been wholly inadequate, misleading and illusory. It has, however, been proved that the accounts have since 1898 been investigated by Messrs. Stokes Bros. & Pim, an eminent firm of chartered accountants and that each year a capital account and an income account has been prepared and furnished to Lady Fitzgerald Arnott. It is difficult to see what greater care in the preparation of the accounts could have been taken by the most zealous and scrupulous trustee. Mr. Bailey, a chartered accountant has investigated these accounts on behalf of Lady Fitzgerald Arnott, and spent over six weeks in the examination. Mr. Bailey stated that he sought to obtain certain documents. These documents were refused on the ground that Mr. Bailey was conducting an audit and not an examination, but information was offered on any matter that required examination. In my opinion Sir John Amott was justified in refusing to have the audit already made checked over a second time. As regards the item in connection with the life interest of Lady Fitzgerald Arnott in Woodlands, which was purchased by the estate for £1,500, which was paid out of income, this payment out of income was made on the advice of Messrs. Stokes Bros. & Pim, on the ground that no value was placed on the life interest and there was nothing to write off and they thought it prudent to write off against income. I cannot see that the purchase of a life interest, which must cease on Lady Fitzgerald Arnott’s death, could properly have been paid out of capital, and, personally, Lady Fitzgerald Arnott has enjoyed her share of the profits which have come to the estate by reason of the purchase of her life interest. It appeared at the trial that the revenue of the estate in respect of sales of timber was treated as income, save in the case of extraordinary sales, when tracts – e.g., of 10 to 12 acres – were sold by auctions. In this way about
£6,400 was treated as income, while £6,987 6s. was placed to capital, and it is suggested that if an exact account was taken Lady Fitzgerald Arnott would be found to have received as income sums considerably in excess of that to which she was entitled. I see no reason to have an account of the dealings with the trust estate taken in court by reason of the matters above mentioned. They are relied upon as instances justifying an order for an account, but in my opinion they fall far short of the grounds which would justify the court in re-opening at great expense long and dreary accounts which have been carefully prepared by skilled accountants. Stress was laid upon the admission of Mr. Pim that he throughout believed Lady Fitzgerald Arnott was interested in the capital – it must, I think, be that he regarded her and her children, who succeed to one-third of her residue, as having identical interests. No application has been made for an enquiry as to any specific matter which is alleged to have been erroneously dealt with. In my opinion the defendant’s counter-claim must be dismissed. I now come to the question – What is the proper decision in reference to the plaintiff’s claim for an order removing Lady Fitzgerald Arnott from the trusteeship? Her counsel have pointed out that the jurisdiction of the court to remove a trustee is a delicate one, and should be exercised with caution. It is usually resorted to when the trustee has mismanaged the trust, or has been proved to be dishonest or incompetent. But the guiding principle to which all others must be subordinate, in these matters is that laid down in Letterstedt v. Broen (1884) 9 App Cas 391 – that the main guide to the court must be the welfare of the beneficiaries. Their lordships in that case pointed out that if it appeared clear that the continuance of the trustee would be detrimental to the execution of the trusts, if for no other reason than that human infirmity would prevent those beneficially interested from working in harmony with the trustee, and there was no reason to the contrary from the intentions of the framer of the trust to give their trustee a benefit or otherwise, the court might think it proper to remove him, if, without reasonable ground, he refused to resign the trust. In that case their Lordships were dealing with a sole surviving trustee, who had differences with the beneficiary. Story in his “Equity Jurisprudence,” section 1288, suggests that the court might remove a joint trustee from a trust who wished to continue in it without any direct or positive proof of his personal default upon the mere ground that the other co-trustee would not act with him. I need not, however, go so far but found my opinion upon what I conceive to be the welfare of the beneficiaries. In my opinion the trust estate would be endangered if matters are allowed to continue in the present unsatisfactory state; in my opinion the difficulties have been brought about by the unreasonable conduct of Lady Fitzgerald Amott. It appears to be impossible to make Lady Fitzgerald Arnott realise her position in the working of the trust as defined in the 18th clause in the will, and there is a danger to the trust in the future if she is allowed to continue as trustee. Apart from all questions of conduct, the 18th clause of the will places Sir John Arnott in an exceptional position, and he is entitled to the assistance of a trustee who will co-operate with him and who will not regard every action of his with distrust. For these reasons it is my duty to make an order removing Lady Fitzgerald Amott from the further execution of the trusts created by the will. Lady Fitzgerald Amott must pay the costs of the counter-claim, which has failed. As to the costs of the action, I believe that justice will be done by directing the plaintiff’s costs to be paid out of the estate and that Lady Fitzgerald Arnott should bear her own costs. The question of the substitution of a trustee was referred to chambers.”

In re Kidd’s Trusts

Chancery Division.

17 November 1913

[1913] 47 I.L.T.R 291
Barton J.

 

This was a summons on behalf of John Dowker Rowan Kidd, the tenant-for-life under an indenture of marriage settlement, dated Aug. 31, 1897, who applied—(1) that Frederic Woodall be appointed trustee of the said indenture in place of Ernest Dalway Pentland, retiring, jointly with Donald M’Donald, the continuing trustee for all the purposes for which the said Ernest Dalway Pentland was trustee thereof, and in particular for the purposes of s. 42 of the Conveyancing and Law of Property Act, 1881; (2) that all the lands and hereditaments now subject to the trusts of the said indenture may vest in the said Frederic Woodall, jointly with the said Donald M’Donald as such trustee; and (3) that the right to call for a transfer of and to transfer into their own names all the stock and shares subject to the trusts of the said indenture and to receive the dividends now due, or to accrue due thereon, may vest in the said Donald M’Donald and Frederic Woodall as such trustees as aforesaid.

John Miley, for the applicant.—One of the trustees of the marriage settlement in question desires to retire. Under the settlement the trustees are trustees for the purposes of s. 42 of the Conveyancing and Law of Property Act, 1881, but they have not been given a power of sale. They are also trustees for the purposes of the Settled Land Act, 1882, and any Act or Acts amending the same. Under s. 10 of the Trustee Act, 1893, a continuing trustee can appoint a new trustee, but doubts had arisen as to the application of the similar powers conferred by s. 31 of the Conveyancing Act, 1881, to trustees appointed for these special purposes: In re Wilcock, 34 Ch. D. 508 (1887), and In re Kane’s Trusts, 21 L. R. Ir. 112 (1888). As regards trustees for purposes of the Settled Land Acts, all difficulty was removed by s. 17 of the Act of 1890, which has been replaced by s. 47 of the Trustee Act, 1893. Trustees for the purposes of the Conveyancing Act, 1881, s. 42, come within the same provisions if they are such by reason of a power of sale. But it seems to be otherwise if, without any power of sale, they are appointed by the settlement merely for the purposes of s. 42 (Hood and Challis’s Conveyancing, Settled Land and Trustee Acts, 7th ed., at p. 429). It is submitted that it is doubtful whether the pro *291 visions of s. 10 of the Trustee Act, 1893, apply in this case or not, and accordingly the tenant-for-life has been advised to apply to the Court to appoint a new trustee.

Barton, J.

There is some doubt as to whether the continuing trustee can appoint a new trustee under s. 10 of the Trustee Act, 1893, where the trustees are such for the purposes of the Conveyancing Act, 1881, s. 42, without any power of sale. The application is a proper one, and I shall make the appointment desired, and direct the costs to be paid out of the trust funds.

In the Matter of the estate of the Irish Land Commission (formerly Gerald More OFarrell) County Wexford and

Re; Gorey Corporation Lands

Brian Spencer, Myles Byrne, Joseph Cullen and Gorey Rangers Association Football Club v. Robert Kinsella, Michael Darcy, Denis Byrne, James Somers, Lorcan Allen, the Minister for Agriculture, Forestry and Food, Ireland and the Attorney General
in the Matter of the trust estate situate Gorey Corporation Lands, Gorey, in the County of Wexford and
in the Matter of a trust deed dated 5 August 1943
1993 No. 821 Sp

High Court

12 March 1996

[1996] 2 I.L.R.M. 401
(Barron J)

12 March 1996

BARRON J

delivered his judgment on 12 March 1996 saying: These proceedings relate to the showgrounds, Gorey. These grounds comprise an area of some eleven acres near the centre of the town. They were acquired in the 1940s under the provisions of the Land Acts. Their use is governed by the terms of a trust deed dated 5 August 1943 made pursuant to a scheme under ss. 4 and 20 of the Irish Land Act 1903, as amended by s. 69 of the Land Act 1923 and s. 33 of the Land Act 1933.

Under the terms of the deed, the grounds are vested in trustees upon trust to permit such persons, organisations or clubs as the trustees shall select in manner hereinafter appearing to use the same as a sports field, park or pleasure ground subject to such conditions as to payment or otherwise as the trustees may from time to time prescribe.

Clause 3 of the deed deals with finance. The trustees are required annually to determine how much finance will be required for:

 

(a) any Land Commission annuity;

(b) all rates and taxes;

(c) management expenses;

(d) costs of improvement and development of the property;

(e) such other purposes connected with the purposes of the scheme as the Minister for Lands may from time to time direct.

Clause 4 requires the trustees to find the necessary funds from charges made to those given the right to use the property. By the same clause those to be selected to use the property are to be persons, organisations or clubs being inhabitants of the town of Gorey or organisations or clubs comprised mainly of such inhabitants as may apply to use the property as a sports field, park or pleasure ground.

Clause 5 gives the trustees a discretion to allow the grazing of animals so as to supplement their income but not so as to interfere with the user of the lands as a sports field, park or pleasure ground. Clause 6(c) gives the trustees power to appoint a committee to be chosen from the inhabitants of the town of Gorey to manage the grounds under their direction and subject to their approval. The power of appointing new trustees and of removal is given to the minister. The trustees have a power to act by a majority of the trustees existing at a particular time.

Clause 11 provides as follows:

11. No person, organisation or club selected by the trustees as aforesaid shall enter on the trust estate to engage in games or sports or to graze animals thereon until he or they shall execute such agreement as the trustees may prescribe.

Clause 12 provides:

12. Save as provided in any agreement issued pursuant to the terms of this scheme, no person, organisation or club selected by the trustees shall have any rights or interests over or in respect of the trust estate or the rents or profits thereof or the proceeds of the sale thereof or over or in respect of any part of the same respectively.

That is the legal framework against which the grounds should have been used. Unfortunately, over the years, little or no attention seems to have been paid to these provisions. The grounds were used by various sporting clubs for varying periods. The GAA and a local rugby club used the grounds for a while, but moved on to other grounds. The athletic club did so also. The soccer club and the coursing club have remained on. Other lesser uses have been made of the grounds by other organisations.

Up to 1978, there was an annual show and the show committee appears to *405 have taken on the role of the management committee. In 1976, complaints surfaced and the Irish Land Commission became involved. A letter dated 11 October 1976 was sent by the Irish Land Commission to each of the trustees. The matters of complaint which had been raised as set out in the letter included the following:

(i) Failure to maintain in good order the surrounding walls and the dressing rooms, toilets etc. on the trust lands;

(ii) Failure to devote the proceeds of lettings of the trust lands to the improvement and proper maintenance of the trust property;

(iii) Severe damage to the surface of the playing area arising from excessive use of the trust lands for horse and pony riding, jumping etc. Such damage makes it hazardous and at times impossible to play football games on this sports field;

(iv) Complete exclusion from the trust lands of other sporting bodies for terms of up to three months each year while the coursing interests are in possession of the field, buildings etc.;

(v) Failure to cater adequately for the legitimate recreational needs of youths clubs and organisations in Gorey town.

The letter also pointed out that the right of the trustees to admit persons to graze animals existed only so long as this was done in a manner so as not to interfere with the user of the field as a sports field. The letter further pointed out that it was necessary to impress on the trustees that a major re-assessment of the entire running and management of the sports field was then unavoidable.

Little could have been done to deal with the matters contained in that letter because in 1978 proceedings were taken in the Circuit Court by in effect the football club, the athletics club, and the boys club against the show committee claiming that the latter was acting as if it owned the grounds. The result of those proceedings was that the show committee moved on but nothing else was done. The soccer club and the coursing club remained as virtually the sole users of the grounds. Their interests conflict to some extent because when the latter club uses the grounds no one else can do so nor may anyone else enter onto them. This use has been reduced over the years and whereas the grounds were originally used by the coursing club for seven weeks in the year this use is now down to three.

Some effort was made in 1984 to iron out problems between the two clubs and a management committee operated successfully for some months. It failed however, because the trustees maintained that any matters in contention were for them to decide.

Over the years little was done to the grounds or its perimeter walls or buildings. As a result the walls deteriorated and some rudimentary changing rooms collapsed. The latter were replaced in or around 1980 by the football club *406 at its own expense. Later with the consent of the trustees the same club spent money on repairing part of the perimeter walls. A major problem from the time the show committee left until recently was the inability of the trustees to obtain public liability insurance.

Since the collapse of the management committee, few meetings of the trustees were held and those that were involved disputes between the representatives of the two clubs.

The dispute came to a head at the beginning of 1993 when a number of complaints were made on behalf of the football club against the trustees. These are set out in a letter from its solicitor dated 30 April 1993 and are as follows:

(a) The showgrounds are presently uninsured in respect of public liability and occupiers liability or at all.

(b) The perimeter walls are decaying and falling down and are a hazard and a source of danger.

(c) The playing surface of the football pitches is being damaged by overgrazing by sheep.

(d) No written agreements as to user of the trust lands have ever been executed.

(e) The trustees have refused to permit users of the trust lands to effect improvements to the playing surfaces of the football pitches.

(f) Wexford County Council has been obliged to serve a derelict site notice on the trustees in respect of the dangerous condition of parts of the trust lands.

(g) The trustees have held only six meetings in the last eight years.

(h) The trustees have failed to consider the proper funding of the trust lands, the income to be derived therefrom or the necessity to maintain the trust lands from such funding or income.

(i) The trustees have permitted the grazing of sheep on the said lands to continue at ridiculously low rentals and to be arranged on a personal basis between one trustee and the owner of the grazing animals without any written agreement.

(j) The trustees have sought from the funds of Gorey Rangers AFC payment in advance in lieu of rent so as to fund the rebuilding of the perimeter walls found to be in the worst condition which said rent is now paid up until 1999/2000.

(k) The trustees have compelled the majority of users of the trust land to vacate same so as to permit the exclusive user of them by Gorey Coursing Club for a period of three weeks in every year and it is understood that it is proposed to enlarge this period of time of exclusive user.

(l) The trustees have appointed a management committee which is ineffective and is not acting under the direction and subject to the approval of the trustees.

(m) Individual trustees have acted alone or failed to act at all in respect of their duties under the scheme.

(n) The Land Commission has failed to follow through on its proposal to take such steps as are necessary since 1977 to bring about an acceptable situation in this matter.

(o) The Land Commission and/or the Minister for Agriculture is aware or ought *407 to be aware that two newly proposed additional trustees have refused to take up their appointment as a result of the matters complained of herein.

As a result of this letter the minister became involved and his officials subsequently attended some of the meetings of the trustees. Since then the grounds have become the subject of a FAS plan and considerable work has been carried out. Boundary walls have been completely renovated. The scheme began in April this year and will be finished next April. Some 110,000 will have been spent, none of which will require to be met by the trustees.

There have been other matters of contention since. The trustees in 1993 sought to get the show committee to run its annual show on the grounds. The football club objected on the grounds that show jumping would damage the surface of the playing pitches and sought an injunction. This did not come to a hearing since the show committee decided not to come to the ground.

In 1994 there was an application by another football club to use one pitch on the grounds which was acceded to by the trustees. This was objected to by the Rangers and an interlocutory injunction was obtained to restrain the trustees from permitting such use. The club has twelve teams playing in various leagues, four adult and eight junior. This includes an extensive use of the two pitches. When the season is over it organises a seven a side competition for which three pitches are drawn out across the line of the two existing pitches. This tournament involves about 500 players and lasts throughout the month of June.

The grounds had always been grazed by sheep. In 1984 they were let following public auction at 140 a year. A public auction was held in 1985. The sheep escaped during the year owing to the bad state of the walls and the trustees lost the rent. The following year no one took the grazing. In 1987 and subsequently one of the trustees arranged privately for letting of the grazing at 100 a year. It is said that this was done without the consent of his fellow trustees.

At no time were there any agreements made in writing for the use by anyone of the grounds. The show committee used to insure the grounds for public liability but once it ceased to use the grounds this payment ceased. It was not until very recently that the trustees succeeded in obtaining insurance cover.

From this somewhat shortened version of events, it can be seen that the grounds were never administered properly in accordance with the trust. Probably this was because there were no proper source of funds. Also the show committee took over the trustees functions to some extent.

The plaintiffs seek the removal of the trustees as a body upon the grounds that they have persistently refused to act when called upon to do so. It is submitted that the welfare of the beneficiaries requires this.

The plaintiffs are supported by the second named defendant. The remaining trustees submit that they have at all times acted bona fide. They submit that the proceedings have been brought because the present trustees do not accede to the *408 interest of the plaintiffs. It is submitted that their powers are fiduciary and that their exercise of those powers should not be interfered with because the court considers that they should have been exercised differently nor unless they have acted mala fide , capriciously or outside the terms of the trust.

The minister submits that s. 69(3) of the Land Act 1923 creates the means whereby the decisions of the trustees may be challenged i.e. by way of appeal to the Circuit Court. He submits that there are a very large number of similar trusts and that he cannot be expected to exercise his powers unless matters in contention are drawn to his attention; that once this was done in the present instance his officials attended meetings of the trustees and have been involved in seeking to deal with the matters of complaint. He further submits that he cannot in any event be directed by the court to dismiss trustees.

While the lack of insurance inhibited some proposed trustees from acting, the real problems once the show committee left were caused by the lack of finance and lack of understanding of how the trust deed should be operated.

The problems today are entirely caused by this latter consideration: the matters referred to in the letter of 30 April 1993 which remain unremedied spring from this factor. Insurance has been obtained and effective repairs and rebuilding of the perimeter walls has taken place. The issue in relation to grazing has effectively been solved because it is no longer taking place. It should not have been continued for many years because the income it generated while not insignificant in terms of the rents being received, was not material to a proper administration of the trust. Allegations made against the individual trustee concerned are not well-founded. He was doing his best in the context of his understanding of the powers to the trust deeds and the requirements of the trust estate and no blame should lie on him. He understood that he was acting in the interests of the trust.

The absence of a proper appreciation of how the trust should be administered is largely a matter of history. It never got off on the right foot. The show committee ran the grounds in the early years of the trust. When a complaint was made in 1976, the Irish Land Commission did nothing to see that the terms of the trust deed and in particular clause 11 were implemented. New trustees were appointed in the early 1980s and the management committee operated for some months at the end of 1984 and the beginning of 1985. Still clause 11 was not implemented. The obvious results of this are the claims by the football club that it is being obstructed by the trustees in its plans. The situation should never have been allowed to develop where such a claim could have been made. The well-being of the grounds was a matter for trustees not the football club. The latter have in fact been prejudiced because they have spent considerable sums on improvements without any agreement and pursuant to clause 12 of the trust deed perhaps without acquiring any rights over the grounds as a result.

Clearly this state of affairs must not be allowed to continue. There must be a *409 reorganisation with or without the assistance of the court. A number of matters need to be altered.

In all cases of trust, it is a truism to say that no trustee should allow his interests to conflict with his duty. Mr Byrne assumed that in making decisions he was there to protect the interests of the coursing club. Mr Kinsella has been cast in the same role on behalf of the football club.

It is difficult in a small town to find local people who would have no affiliation with any organisation seeking to use the grounds. Clearly, trustees should be persons without such affiliations. If such people cannot be found, then persons who are not too closely identified with any such organisation must act.

The deed provides for a management committee. Its function should be to ensure the smooth working of the use of the grounds having regard to the terms upon which the clubs and other organisations are entitled to use them. It is on this committee that those closely identified with any particular club or organisation have their proper place.

Part of the fault in the present situation lies with the officials of the department who became involved in 1976 and following the letter in 1993. It must have been clear to them that the fault lay as much with the absence of implementation of clause 11 of the trust deed as with the attitude of the trustees. These proceedings have been brought to have the trustees removed. The question for determination is whether having regard to the causes of the present situation which have been identified such a course is appropriate.

In Arnott v. Arnott (1924) 58 ILTR 145, Murnaghan J accepted the guiding principle for the removal of a trustee as being the welfare of the beneficiaries. In that case there was a long and irreconcilable dispute between two members of the Arnott family. As a result it was found that there would be a danger to the trust in the future if the trustee to be removed was allowed to continue in her office. In that case the trustee had engaged in a long drawn out course of conduct which opposed all and every action of her co-trustee and would have continued to do so to the detriment of the trust.

A trust is set up for the welfare of its beneficiaries. In my view therefore before determining whether or not any trustee should be removed from his or her office it is necessary to determine whether his or her continuation in that office will be detrimental to such welfare.

In the present case the main problem lies in the failure of the trustees to execute agreements with the users of the trust. There is also the further problem that some of the trustees are too closely identified with the interests of some of those users to be regarded as being capable of being truly impartial in any decision making process involving the trustees. None of these faults have resulted from any deliberate or conscious conduct or misconduct on the part of the trustees. Nevertheless where conflict of interest arises it is doubtful that a continuation by such persons in office could be remedied.

*410

I accept the submission on behalf of the minister that it is the function of the court and not of the minister to dismiss trustees if that be the appropriate course and that the court has no function to direct the minister to exercise his powers in that regard. I do not accept however that the remedy for the present disputes lies in the operation of s. 69(3) of the Land Act 1923. The issues go beyond the reversal of the decisions of the trustees.

The welfare of the beneficiaries is being affected by the present situation. There is a conflict of interest which I have identified and it would be difficult to reorganise with such conflict on the part of some of the trustees continuing to exist. It is accordingly appropriate that such persons should step down. It will however serve no purpose if they step down, but at the same time no other reorganisation takes place.

What is needed is the appointment of trustees who are, so far as is possible, impartial as between the users of the grounds. The execution of agreements with such users and the appointment of a management committee to manage in accordance with such agreements is a further necessity.

I do not propose to exercise the powers of the court at present. It is essentially a matter for the people of Gorey and the department to reorganise the administration of the trust. Any order made by the court must, having regard to the matters in issue before it, deal only with part of what is required, which would not be satisfactory.

Accordingly the matter will be adjourned for six months to enable the administration of the trust to be placed upon a proper footing. Only if this cannot be done will the court consider how the exercise of its powers can be used to alleviate the then situation.

 

In re Broderick’s Will Trusts

Sean O’hUadhaigh v Michael O’Loinsigh

The High Court

9 April 1973

[1972 No. 86 Sp.]
[1975] 108 I.L.T.R 122
Kenny J.

 

Kenny J.:

This is a dispute between two trustees, one of whom does not want to sell and has not signed the contract I do not say the will should have been construed before the power of sale was exercised. However, having regard to the views of the deceased lady the court can only decide on oral evidence.

The summons was then adjourned for oral hearing without pleadings to the 8th December, 1972. During the intervening period the plaintiff delivered interrogatories to the defendant seeking further information concerning the grounds for the latter’s belief’s respecting the intentions of the testatrix insofar as the trespassers were concerned The defendant in his replies stated that his knowledge of the wishes of the deceased did not come from her directly but from his apprehension of her views from other sources and that these matters were not communicated to any of the trustees.

Twenty-four hours before the oral hearing on the 8th December, 1972, the former trespassers re-entered the lands.

M. P. Gaffney, S.C. (with him, Dermot Humphreys ) for the plaintiff:—

The granting of the principal ground of relief involves no reflection on the defendant. Uvedale v. Ettrick (1682) 2 Ch. Cas. 130; 22 E.R.880. The main objection of the defendant, namely, the ejectment of the trespassers so that the purchaser can obtain vacant possession can be expressed in another way; (i) persons come onto the land, (ii) these persons have no title, (iii) they are left on the land The logical conclusion is that the trespassers should be given the land now as in any event they would acquire title in course of time by adverse possession. These persons are not beneficiaries under the will. The trustees cannot go outside the will and there is no allegation of a secret trust.

In answer to the plaintiff’s interrogatories the defendant has made a full and frank disclosure of his attitude. The plaintiff says that the trustees are not entitled to give away any part of the property, and further that there is a serious likelihood that the present sale may not go through. The discretion of the trustees with respect to their power of sale which was conferred on them by the trust instrument and was subsequently exercised should not be interfered with unless the court is satisfied that its exercise was prompted by improper motives.

The defendant as a trustee has a duty to act; the present act required of him is one which he says he cannot in conscience take as being contrary to the testatrix’ intentions The plaintiff submits that he must confine himself to the will which contains no reference to any rights that are to be given to trespassers. No external considerations should be countenanced. The defendant says that his refusal to convey will be unaltered unless his concept of his duties is accepted by his co-trustee. The trustee in office for *125 the longer period decided, in concert with the defendant’s predecessor to sell and thereby entered into the contract for sale.

There have been few reported cases of removal for the reasons given by Lord Blackburn in Letterstedt v. Broer 9 App. Cas. 386.

If the court is not satisfied that there was a refusal to act then the plaintiff seeks the amendment of the summons by the interpolation of the words “or is unfit or unsuitable” between “who refuses” and “to act” in the Indorsement of Claim. The Trustee Act, 1893, and the will itself say “remove” by implication when they say “substitute”.

Storey. “Equity Jurisprudence (10th ed.) s 1287, 1288, Arnott v Arnott 58 I.L.T.R. 145; Moore v. McGlynn [1894] I.R. 74, Hanbury: “Modern Equity” (8th ed.) 1952. 275; Compton v Compton and Hussey [1960] p 201.

Patrick MacEntee for the defendant:—

The defendant feels that he has serious and real duties, he is anxious to continue in the trust. He will follow the law and his conscience and where there is a conflict the former will prevail.

M. P Gaffney, S C. in reply.—

If the court wishes to make an order for the administration of the trust estate by the court there is no representative of the castuis que trustent on the Attorney General: the identity of such representative would be dependant on the construction of the residuary clause in the will.

This is an application to remove a trustee The deceased by her will gave (using the English translation) “all the property and worldly means of every kind and in every place which I have or possess or over which I have a general power of disposition by will except only any property that is already bestowed by me by this will or in any codicil I add to this will I give in its entirety to any to the use of my trustees and to their heirs executors and administrators as they come so that my trustees or my trustee as they may themselves desire may sell the said worldly property and goods and any part of the personal estate not already in cash may take it and sell it and convert it into money.” In my opinion the trustees are clearly trustees for sale. After the payment of the annuity to Cáit, wife of Padraig Ó Breanndám the testatrix directed and empowered her executors and trustees or the majority of them to apply the residue of her estate for the benefit of the Republic in the best way in their opinion and she also directed and empowered her executors and trustees or the majority of them at any time they thought it to be necessary to sell the “Trust Fund” namely the residue of her estate and to use the proceeds of the sale in one share or in shares for the benefit of the Republicans of the time according to the objects of the Republicans as they were in the years 1919 to 1921.

It is clear to me that the property will have to be sold It is equally clear that the residuary clause will have to be considered by a court of construction. The defendant feels that to join in the conveyance after evicting the squatters would be contrary to the intentions of the testatrix, there is nothing in the will about this. The plaintiff acted as a trustee should do: he resisted any attempt to predetermine the trust objects. I do not think, however, that disagreement between trustees is a ground for removal. The defendant has undertaken to obey the court.

There will be an order that the trusts of the will of Gobnait Ní Bhruadair (The Honourable Albinia Lucy Broderick) deceased be carried out and executed under the order of this Court, that the property in Folio 4075 of the Register of Freeholders County of Kerry be sold: decree that the court approves of the contract of sale dated 10th September, 1970, to Raymond Roche and that the defendant do execute the deed of conveyance within ten days of the service of the same on his solicitor, the plaintiff to put the purchase money on deposit

The plaintiff is entitled to his costs taxed as trustee’s costs; the defendant will also be entitled to his costs out of the trust fund on a party and party scale. Liberty to all parties to apply.

Clariant AG & Anor and Clariant Plastics & Coatings (Ireland) Ltd

 

(Approved) [2020] IEHC 211 (28 April 2020)

EX TEMPORE JUDGMENT OF Mr Justice David Barniville delivered on the 28th April 2020

1. Having considered the papers, the written legal submissions and the book of authorities furnished to the Court, and having heard counsel for the Applicants, and there being no opposition to the Applicants’ claims, I am in a position to deliver an ex tempore judgment.

2. This is an application by Clariant AG and Clariant Plastics and Coating (Ireland) Ltd (“Clariant Plastics”) for orders under the Trustee Act 1893 in respect of a parcel of land in an industrial estate in Naas, County Kildare. The registered owner of the land was Clariant Specialities (Ireland) Limited (“Clariant Specialities”), another company in the Clariant Group, which has been dissolved. Part of the premises occupied by Clariant Plastics, and from which it carries on business, is on that land.

3. First, the applicants seek an order in accordance with s. 25 of the Act appointing Clariant AG as trustee, in substitution for another company in the Clariant Group, of the land. In the alternative, the applicants seek an order in accordance with s. 26 vesting the land in Clariant Plastics.

4. The proceedings were commenced on 4 March 2020. The proceedings were served on the Minister for Finance and on the Chief State Solicitor. Subsequent to commencement of the proceedings, the OPW wrote to the solicitors for the applicants and confirmed the that the State had no objection to the orders being sought. The letter further stated that the Minister would not be participating in the proceedings. I note that the solicitors for the applicants have kept the OPW updated in relation to the proceedings.

5. The proceedings were entered in the Commercial List of the High Court on foot of a written ruling, delivered on 20 April 2020, which sets out the factual background to the proceedings.

6. The facts on which the applicants rely are set out in the grounding affidavit of Andrew Locke sworn on 9 March 2010. The affidavit sets out in some detail the factual background, the history of the ownership of the two plots of land on which the premises of Clariant Plastics is constructed and the history of the Clariant Group. There is no dispute as to the facts. I am prepared to adopt and find as established the facts as set out in the affidavit of Mr Locke. I also accept as an accurate summary of the facts, the factual background set out in the helpful written submissions provided by the applicants’ counsel, Declan McGrath SC and Emily Egan McGrath BL.

7. I accept, as a matter of fact, that by reason of the agreement between the liquidator appointed to Clariant Specialities, on the one hand, and Clariant AG, on the other, for the transfer all of the assets of Clariant Specialities to Clariant AG, its sole shareholder, the land (which formed part of those assets but, through inadvertence, was not expressly transferred by the liquidator to Clariant AG) was held by Clariant Specialities on trust for Clariant AG. I also accept that this agreement was evidenced by the minutes of the Board meeting of Clariant Specialities and the EGM held by the shareholders of Clariant Specialities and the resolutions passed at those meetings in May 2013. I am satisfied that these documents constitute sufficient written evidence of the creation of a trust for the purpose of s.4 of the Statute of Frauds (Ireland) Act 1695. I also accept as good authority in this jurisdiction the judgment of Jenkins J. in the English High Court in Re. Strathblaine Estates Ltd [1948] Ch. 228

8. I am satisfied that the land at issue was not transferred by the liquidator of Clariant Specialities to Clariant AG due to inadvertence, as everyone concerned assumed that the land was owned by Clariant Plastics, which had occupied it and extended its premises onto it in 1995. Clariant Plastics carried on its business from the premises constructed in part on its own land, and on the land in question, since 1995.

9. As a consequence, the land was held under a trust and did not vest in the State in accordance with s. 28 of the State Property Act 1954. I accept that it is not now possible to void the dissolution of Clariant Specialities in accordance with s. 708 of the Companies Act 2014, as a period of more than 2 years has elapsed since the company was dissolved.

10. I also accept that the trustee of the land “cannot be found” within the meaning of that term in s. 26 of the Trustee Act 1893. In that regard, I follow the judgment of Costello J. in the High Court in Re. Kavanagh and Cantwell Unreported, High Court, Costello J, 23 November 1984, the English case cited by Costello J in that case, Re. No. 9 Bomore Road [1906] 1 Ch 359, and the subsequent judgment of Laffoy J. in the High Court in Re Heidelstone Company Limited and Courtview Management Company [2007] 4 IR 175.

11. The consequence of all of these findings of fact and law is that the court does have the power to make an order appointing a new trustee in accordance with s. 25 of the Trustee Act 1893, or an order vesting the land in accordance with s. 26 of that Act. I am satisfied that this is a case in which the trustee cannot be found. That situation is provided for in s. 26(ii)(c) of the Trustee Act 1893, which provides that the court may make an order vesting the land in any such person, in any such manner and for any such estate as the court may direct.

12. I accept that it would be much more convenient, and would make more sense, and cut out unnecessary conveyancing steps out of the procedure, for the land to be vested directly in Clariant Plastics, rather than first appointing Clariant AG as the new trustee, so that the land could then be vested by Clariant AG in Clariant Plastics. It seems to me that it is not necessary for me to require Clariant AG and Clariant Plastics to go through these additional steps. I accept that the court has jurisdiction to make an order vesting the land directly in Clariant Plastics under s. 26 of the Trustee Act 1893 and that it appropriate for me in the circumstances of this case that I make an order in those terms.

13. Accordingly, I will make an order pursuant to s. 26 of the Trustee Act 1893 vesting the leasehold interest in the property comprised in Folio KE4566L County Kildare, and any other estate, right, title or interest held by Clariant Specialities on the date of its dissolution, in Clariant Plastics.

14. I will make an order in the terms of the draft order helpfully provided by the applicants and also grant liberty to apply.

 

Result: The orders sought here were granted.

 

Dully v Athlone Town Stadium Ltd & anor

(Approved) [2018] IEHC 209 (12 April 2018)
URL: http://www.bailii.org/ie/cases/IEHC/2018/2018IEHC209.html
Cite as: [2018] IEHC 209
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Page 1 ⇓BETWEENTHE HIGH COURTDAVID DULLYANDATHLONE TOWN STADIUM LIMITEDANDFOOTBALL ASSOCIATION OF IRELAND(No. 1)[2018] IEHC 209[2017 252 S.P.]PLAINTIFFDEFENDANTNOTICE PARTYJUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of April, 20181. This case illustrates several questions relating to trust law, particularly the question of removal of trustees. The case involves anumber of inter-related interests:(i) Firstly, Athlone Town Athletic Football Club, an unincorporated association which has existed since 1887. The club, andtherefore the members of the club, are the beneficiaries of the trust.(ii) Secondly, David Dully, the plaintiff who sues as the appointed nominee of those beneficiaries nominated in that behalfby the executive committee of the club prior to the commencement of the proceedings and in his own right. He was alsoappointed as a trustee of the club itself in 2014.(iii) Thirdly, Athlone Town AFC Company limited by guarantee, a company set up by the members of the club in 2015 as avehicle for them to act in a legal capacity.(iv) Fourthly, Athlone Town Stadium Ltd., the trustee of the trust.2. I have been assisted by Mr. John Paul Shortt S.C., and Mr. Martin Durack B.L. who addressed the court for the plaintiff, and Mr.Michael Forde S.C. and Mr. Laurence Masterson B.L. who addressed the court for the defendant. There was no appearance at thehearing by the Football Association of Ireland, the notice party.General findings of fact3. The Athlone Town Football Club was founded in 1887. It the oldest soccer club in Ireland. From 1927 onwards, St. Mel’s Park hadbeen the home of the club. Mr. Dully avers that St. Mel’s had been home to many exciting games down through the years, the mostfamous of which was the visit of A.C. Milan in 1975. The club also prosecuted two successful league campaigns in 1981 and 1983. Asof 2004, new FAI licensing regulations imposed by UEFA meant that a new stadium was required. In 2004, the defendant companywas incorporated to facilitate that. The last surviving trustee of the club, Mr. Johnny Keena, now deceased, executed a transfer ofthe St. Mel’s ground to the trustee company, the defendant, who transferred the property to Westmeath County Council in exchangefor an 8.5-acre site at Lissywollen, Folio 30190F Co. Westmeath, which is the property in question in these proceedings. The equity inthe defendant company is currently held as to 97% by Mr. Declan Molloy and as to 3% by Mr. Kieran Temple and Mr. Paddy McCaul.The company has no assets other than the trust property. It appears that the cost of the stadium was something in the order of €4.5million, funded by lottery monies in the amount of €2.5 million approximately and donations and payments in the amount ofapproximately €2 million, which includes whatever sum was put in by Mr. Molloy into the defendant company which he says is around€665,000. The stadium was completed in 2007 and the first match was played in that year. I accept the evidence on behalf of theplaintiff that it was widely reported that a “mystery donor” had cleared off the debts of the club, that everyone knew about it, thatit was widely reported in national media, social media and local media and was always discussed in terms of being a gift.4. On 23rd February, 2007 a purported lease was entered into between an officer of the club, Mr. Paddy McCaul, and the defendant.Certain provisions of this lease were contrary to the club’s de facto position regarding use of the stadium and no rent payments wereactually made. A further proposed memorandum of agreement was entered into in 2012 but no executed copy has been found. Mr.Dully believes and I accept that it was never acted upon. Mr. Dully says and I accept that the intention was that two leases were ofno legal purport and did not create a leasehold interest in favour of the club. He said that the club was incentivised into entering thelease at the request of the defendant to facilitate the defendant reclaiming VAT on the building. He says and again I accept that noaccount was ever forwarded to the plaintiff in respect of VAT repayment.5. In December, 2012 Mr. John Hayden was appointed as chairman of the club. He was concerned with the standard of maintenanceof the grounds by the defendant. Mr. Dully avers and I accept that the defendant had neglected to carry out maintenance, allowingthe stadium to fall into a state of disrepair. After the property was subjected to a flood, no reinstatement work had been undertaken.On 18th January, 2013 a letter was sent to Mr. Tom Burke, project manager of the defendant, raising some of these concerns. Theresponse was that the defendant owned the property. There was therefore a failure to acknowledge the trust. Following thecorrespondence, the club became understandably concerned as to the status of ownership of the stadium. Mr. Dully averred that theclub became concerned that Mr. Molloy had claimed a right to sell the stadium without resort to the club in early 2013. He was notchallenged on that averment. On 8th December, 2014 the club appointed Mr. Dully as a trustee.6. On 23rd April, 2015 a deed of trust was entered into, an important document in the context of these proceedings. It was executedby John Hayden and David Dully as the executive committee of the club and by the defendant. The recitals to the declarationprovided at para. B that the legal title to the property has at all times been held by the defendant on trust for the executivecommittee of the club as beneficial owner. It goes on to recite at para. C that all funding required for the development of theproperty was provided for and onto the use of the beneficial owner. The declaration then provided at para. 1 that the trusteedeclares that it holds the title on trust for the beneficial owner and will deal with the property at all times only as directed by thebeneficial owner and on behalf of the beneficial owner and will at the request of the beneficial owner convey the property to suchPage 2 ⇓persons at such times and in such a manner as the beneficial owner shall direct. Clause 2 provided that the beneficial ownercovenants “to indemnify the defendant company in respect of all present and future liabilities, actions, proceedings, claims,demands, duties and taxes and all associated interests, penalties and costs and all other costs and expenses whatsoever in respectof the property”. On the same date a 35-year lease between the parties was entered into with effect from 1st January, 2014 at arent of €10,000 per year. The plaintiff’s evidence, which I accept, is that the landlord’s outlays in respect of the stadium were thebasis upon which the rent was agreed.7. On the 20th July, 2015 the club formed a company, Athlone Town AFC Co. limited by guarantee, to which I have referred.8. On 25th April, 2016 Mr. Hayden wrote to the defendant setting out various failures of the defendant to deal with matters andrespond to correspondence and stated that the letter terminated the relationship between the defendant and the beneficial ownersand called upon the defendant to convey the property to Mr. Hayden and Mr. Dully as trustees of the club. That was not done. Aninitial payment was made of €2,500 towards building insurance by the club. On 16th October, 2016 the defendant solicitors wrotesaying that insurance had not been put in place. Correspondence was then issued to the defendant solicitors in relation to thatmatter and seeking copies of quotations and policies. That correspondence remains unanswered. On 9th February, 2017, furthercorrespondence was issued on behalf of the club calling on the solicitors for the defendant to draw up all documentation necessaryfor the purpose of terminating the trust and executing the conveyance in favour of the trustees of Athlone Town AFC. On 27th April,2017 a further letter was sent pointing out the failure of the defendant to act on that request and pointing out that therefore legalproceedings would be necessary.9. The club has secured capital sports ground funding in the amount of €200,000 for the provision of an Astroturf facility. Works hadto be completed by the end of October, 2017 to enable the drawdown (later extended to the end of September, 2018). An issuearose because the plaintiff’s interest in the property was not capable of being registered in the property registration authority andwas therefore incapable of holding a charge as was a requirement of the grant funding. Efforts between the parties to resolve thatdispute were not successful. The defendant as trustee failed to take all necessary steps to facilitate the securing of the grant. On19th May, 2017 the plaintiff was authorised by the executive committee of the club to bring the present proceedings.Procedural history10. The special summons was issued on 19th June, 2017 seeking to remove the defendant as a trustee and replacing it with anothertrustee, the company set up by the members. On 28th June, 2017 an AGM was held and passed a resolution transferring the clubaffairs to the AFC company. An application was then made to Binchy J. on 23rd August, 2017 who allowed short service of a motiondated the same date seeking an order dispensing with the requirement for the consent of the defendant as registered freehold titleowner for the registration of the lease. That led to an agreement between the parties on 30th August, 2017 that the defendantconsented to the lease being registered but that consent would not prejudice its indemnity and that it would not be estopped fromdisputing the locus standi of the plaintiff. It turns out however that the lease could not be registered and would have to be re-executed. The defendant refused to agree to re-executing the lease.11. On 12th September, 2017, O’Connor J. allowed re-entry of the matter and a motion was then issued, filed on 12th September,2017, of which only an undated copy has been included in the Book of Pleadings furnished to me, seeking to relist the motion and“clarify” the consent order. That was adjourned to the 13th and then the 15th and ultimately the 25th September, 2017. On the 25thSeptember, 2017 the motion was, according to the note on the perfected order, “adjourned” to allow the plaintiff to specify whatprecise clarifications were required and liberty was given to issue a notice of motion returnable for the Chancery list on 4th October,2017. Also liberty was given to the defendant to issue a motion but that does not seem to have been taken up and it is not clear atthis stage what that referred to.12. My intention in dealing with the matter on 25th September, 2017 was that the original motion was to be struck out in favour ofthe more detailed motion that was to be issued, although that was not in fact stated in a formal order at that time.13. The plaintiff then issued a further more detailed motion dated 28th September, 2017 seeking “such order as is deemed necessaryto provide clarification in respect of the terms of the consent order”. I dismissed that application on 6th November, 2017 because itseemed to me that (a) it went beyond the previous order made on consent so it was not a question of clarifying that order (b) itpossibly went beyond the pleadings as they then stood and (c) there was an element of substantive relief being sought in the motionrather than interlocutory relief. However, I gave the plaintiff liberty to amend the pleadings. The plaintiff then brought a motion onthe 18th December, 2017 under O.15 r.9 seeking a representative order in favour of the plaintiff. However, at the hearing of thatmotion, the plaintiff did not ultimately pursue that. In lieu of that, I made an order on 29th January, 2018 allowing a furtheramendment. The formal order on the latter date did not specifically dispose of that motion but my intention was that it be struck out.An amended special summons was then delivered dated 2nd February, 2018. The defendant then brought a motion dated 8th March,2018 seeking dismissal of the proceedings, security for costs and a pre-emptive costs order. It is agreed that I would adjourn thatmotion to the hearing of the action. On the 20th March, 2018 I gave short service to the defendant to bring a motion which wasbrought returnable for that Friday seeking discovery and particulars and seeking a vacation of the trial date. On 23rd March, 2018, onhearing that motion, I gave liberty to the defendant to cross-examine the plaintiff on his affidavit of discovery and gave liberty to thedefendant to file a further affidavit.Matters before the court14. What is before the court are the reliefs sought in the special summons and Mr. Forde’s motion to strike out the proceedings. Thetwo previous motions that I have referred to brought by the plaintiffs that were disposed of but not formally struck out so shouldperhaps be struck out now for formal purposes to clarify matters.Defendant’s preliminary objections15. After the opening of the case on 10th April, 2018 the defendant made a number of preliminary applications.16. Firstly, Mr. Forde referred to the claim at para. 1(i) of the defendant’s motion of 8th March, 2018 seeking dismissal of theproceedings because of the lack of a verifying affidavit but he indicated this was not now being pursued.17. Secondly, he objected to what he said were the plaintiff’s late affidavits, said was seeking an adjournment of the trial and that ifthey were being allowed he wanted to rely on the replying affidavits of Declan Molloy filed on 9th April, 2018 and an unfiled one swornon 10th April, 2018 and wanted liberty to file any further affidavits in the course of the trial itself “to mend my hand” as was put byMr. Forde. After some discussion it was agreed by consent that the trial would not be adjourned. The plaintiff would be allowed torely on the affidavits delivered in March and April, 2018 that the defendant could file the affidavit of 10th April, 2018 and rely on thataffidavit and the one of 9th April, 2018. It was also clarified that the defendant could cross-examine all the plaintiff’s witnesses on allof their affidavits and vice versa.Page 3 ⇓18. Finally, as regards the other objections in the defendant’s preliminary motion it was agreed that those be adjourned to the closeof the plaintiff’s case.Plaintiff’s witnesses19. Three witnesses were tendered on behalf of the plaintiff: the plaintiff himself Mr. David Dully, Mr. John Hayden and Mr. DamienMilton.David Dully20. Mr. Dully averred that he was authorised to take the proceedings as nominee of the club pursuant to resolution of themanagement committee of the 19th May, 2017 and was a trustee of the club having been appointed by deed of appointment on 8thDecember, 2014. Mr. Dully said that the club was not insolvent. He said that when Mr. Hayden came in as chair and when he came inas secretary they found that the club was insolvent but that was no longer the case. He said that the summons was correct in everyrespect. He said that he represented all the members of the club, of which there were 45 at the time of the proceedings. Since thena number of members had written letters claiming they were lifelong members. He had no information that any of them were members.Individual authority for the members was not required. He was unable to give details of members’ occupations with limited exceptions,as the club rules do not provide for recording occupations. As regards a group of seven additional people alleged to be members, hesaid that if they were members of the club then they were being represented by him. He said that honorary members are membersand therefore he represented them. The procedure in the club constitution is rule 26, that a complaint by a member should be madeand considered by the executive committee but that no such objectors had invoked this procedure. He said that if such peopleconsidered he was not acting in the best interest of the club he would be shocked. Notification of the AGM of 28th June, 2017 wasgiven on the club website and social media. It was made clear that the defendant was being sued but that was not put to a vote,there were no dissenting voices. Two of the alleged objectors were present and did not dissent. The brief minutes were not a fullreflection of a long meeting. The meeting did not pass a resolution formally authorising him to bring the proceedings as such. It wasinformed that he had already been authorised, this was discussed and nobody objected. He said that the club had been informed thatif the grant was not drawn down by September, 2018 it could be 30 years before the club could be eligible for another grant. Whenasked where was the authority for him to bring proceedings on behalf of the club he referred to rule 15 which allows business andaffairs of the club to be managed by the executive committee, rule 27 that the executive has all powers of general management, andrule 41 which allows the executive committee to deal with all matters not specifically provided for. Decisions on interpretation can beappealed to a general meeting of the club but not a court. The alleged dissenters did not so challenge the executive committeedecision. He explained convincingly why the club did not respond to a particular letter by the defendant seeking transfer to it of thegrant monies. He was cross-examined as to differences between versions of leases which were suggested removed “protections” forthe defendant as landlord and his reply was essentially that he was acting on legal advices. Mr. Dully was not challenged on a numberof fairly central matters deposed to on behalf of the plaintiff. I will come back later to his evidence in relation to the question of theindemnity. I find that he was an impressive and precise witness and having seen and heard his evidence I accept that evidence,including his affidavit evidence, in full.Damien Milton21. Mr. Milton was not cross-examined on his affidavit, and therefore I accept his affidavit in full.John Hayden22. Mr. Hayden is chairman of the club. The action is brought on behalf of all members. He again referred to the procedure under theclub constitution to raise complaints under rule 26. The club was not aware that there were complaints being made about the presentproceedings. He said it seemed extraordinary that Mr. Molloy was approached by a number of people at the same time with the samecomplaint. He said Mr. Dully was in charge of membership but neither he nor Mr. Dully were aware that there were these allegedhonorary members and had no evidence that they are. He said the costs of the proceedings duly authorised would fall on themembers including the persons who had come forward identifying themselves as honorary members, if they were members. As regardsthe alleged expenditure by Mr. Molloy, he understood that Mr. Molloy was approached by Mr. Martin Egan solicitor and asked topurchase the company. At that point the company was representing that they owned the stadium without reference to the club. Hewas not privy to what went on and is a stranger as to how the company made expenditures. He said that the affidavits submitted onbehalf of the defendant were contaminated by matters personal to Mr. Molloy. His involvement in the whole affair as with theinvolvement of other members of the club was not to get something for himself but for the children of the area and children into thefuture. Again Mr. Hayden was not challenged on a number of fairly central matters deposed to. I will come back later to his evidencein relation to the indemnity and as with Mr. Dully, I find him to be an impressive and precise witness and having seen and heard him inthe witness box I accept his evidence including his affidavit evidence in full.Defendant’s objections at the close of the plaintiff’s case23. At the close of the plaintiff’s case, Mr. Forde moved on paras. 1(ii) to 1(v) of his notice of motion of 8th March, 2018. He agreedto postpone the issue of para. 2 to a later and more appropriate stage of the proceedings if it arose. I rejected the objection havingheard his submission at that point and found that the plaintiff had authority to bring the proceedings and declined to dismiss theproceedings at the close of the plaintiff’s case and I now give reasons for doing so.Application to dismiss due to failure of the plaintiff to disclose the identities of the members or because not all membershave consented or because of a lack of a representative order.24. The entire argument challenging the beneficiaries’ entitlement to sue is in my view inconsistent with the defendant’s status as atrustee. Therefore it seems to me the very conduct of the litigation itself amounts to a failure by the defendant to act in theinterests of the beneficiaries and therefore amounts to grounds for removal or to a breach of trust. Nonetheless I will put that pointto one side for now and consider the objection on the merits such as they are.25. Mr. Forde submits that the appropriate procedure is O. 4 r. 9, that if the plaintiff sues in a representative capacity theendorsement on the summons shall show in what capacity he or she sues. However, here there is no issue under that headingbecause the plaintiff sets out his capacity in para. 2 of the special summons. Thus the type of issue that arose in Hickey v. McGowan[2017] IESC 6 [2017] 1 I.L.R.M. 293 [2017] 2 I.R. 196 where it was held that there was no basis to conclude that the first defendantwas sued in a representative capacity does not arise here.26. Mr. Forde’s submission assumes that one cannot have a representative capacity without a specific representative order under O.15 r. 9. That is not so. Where an unincorporated body sues by its trustees or management committee it is not necessary for there tobe a representative order under O. 15 r. 9. The entitlement to bring the proceedings arises from the club constitution and rules whichhave the legal status of a contract between the members.27. That is reinforced by Andrew’s English Civil Procedure (Oxford University Press, 2003) p. 990, where it notes that representativeproceedings can be commenced without the court’s permission. While that may, of course, reflect specific English law, the authorPage 4 ⇓notes that English law has allowed representative proceedings over a “long history” (p. 987).28. Mr. Forde submits that there was no authority by the members directly. That is not necessary. It is clear that the rules entrustmanagement of the club to the committee and that was a lawful decision of the committee in that regard. As a basic principle ofcontract law the committee can lawfully act on behalf of the entire membership if the rules so permit, which is the case here on thecorrect interpretation of those rules.29. Even if there was some defect in the plaintiff’s authority, a proposition which I reject, this is clearly a question of indoormanagement and the defendant has no standing to question it. I conclude that there is no defect in the plaintiff’s entitlement to sue.30. The question of setting out details of the members, of their addresses and occupations, does not arise in the absence of arequirement for a representative order. In any event, the defendant is not prejudiced by not having a list of the members nor is itprejudiced by not having descriptions of the members – in fact the defendant already has a list of the members’ names and addresses.So the point is a pettifogging and legalistic one.31. Mr. Forde relied on Zuckerman on Civil Procedure: Principles of Practice (Sweet & Maxwell, 2013) para. 13.49, to the effect that itcould be unfair on defendants if membership of the class of plaintiffs is dependent on the success of the claim. Nothing like that ariseshere. We know the class – members of the club. The defendant even has a list of the names and addresses. There is simply nothingto the point made.32. Even if there is a defect in the representative capacity of the plaintiff, which I reject, he is a beneficiary himself and he also suesin that capacity.33. Mr. Forde suggested that because he had been nominated to sue, he could not also sue on his own behalf. That does not followand is indeed entirely illogical. Here he sues in both capacities.34. Even if I am wrong about all the foregoing, I would exercise my power under O. 15, r. 13 to rectify matters in any event.Application to dismiss because of a “pattern of vexatious proceedings”35. The defendant’s notice of motion contends that the proceedings should be dismissed because of an alleged “pattern of vexatiousproceedings” by the plaintiff. There is no such pattern. The point being made is absurd. No submissions were, in fact, made tosupport the notice of motion under this heading. For the foregoing reasons, I dismissed the defence objection at the close of theplaintiff’s case.Defendant’s witnesses36. The defendant put forward two deponents, Mr. Neil McNelis, Solicitor, on purely formal matters, who was not cross-examined, andMr. Declan Molloy, the principal of the defendant company.Declan Molloy37. Mr. Molloy, Mr. Ciaran Temple and Mr. Paddy McCaul are directors of the defendant company. In his first affidavit of 23rd August,2017, he denied that the property had been held in trust for the club. But he had signed a deed of trust in April, 2015, to that effect.The only explanation he could offer under cross-examination was the totally unsatisfactory comment that “the trust was signed undercertain conditions which were never honoured”. No such conditions were set out or established.38. He entered into a strange arrangement which he was unable to clearly explain whereby he says he paid the company €665,445which was described in a document prepared by himself as “payments of share capital”. In return for this, he presumably got€665,445 worth of share capital as his own document suggests. He then stated under cross-examination, not given in his affidavit,that anything over €450,000 was “put down as a loan”. This presumably was an attempt to explain why the company then paid him€121,445, although this was described in his own document as “part repayment of share capital”.39. A further strange story was offered about the destination of a VAT repayment. The VAT was repaid on the basis that theRevenue were persuaded that the company was “entirely separate” from the club. This was a strange contention given that it isacknowledged that the land was held in trust for the club.40. The Revenue paid €312,000 on 7th March, 2012, on that basis. There was then a further strange arrangement with DeloitteTouche that it was paid half of this. The other half seems to have made its way to Mr. Molloy. He was not entirely clear in cross-examination about that but in re-examination he said he did get this. At other times, he said he only got the €121,000.41. On re-examination he said he put €665,000 into the company and €450,000 was share capital. When asked by his own counsel ifthe €215,000 was a gift to the company, he said that was correct and he would only expect to get it back if he sold the company.He then changed his evidence and said he did not know the exact term, that it was put in as a loan and he would get it back at somestage.42. On his own handwritten note, he got back €121,445 but as I say, he also said at a different point that he got back half the VATwhich would have been over €150,000.43. He said he had been approached by Martin Egan, Solicitor, who knew he had €1m to “invest”. Mr. Egan was aware of his businessdealings because Mr. Egan had represented Mr. Molloy when he came into the €1m.44. Remarkably, he said he invested in a company where the extent of the company’s indebtedness was not explained to him. Mr.Egan asked him if he had an interest in buying the stadium. €800,000 was Mr. Egan’s estimate of the company’s liabilities but he didnot go into it. Mr. Molloy thought the stadium was worth that.45. He said in his last minute affidavit sworn on Day 2 of the hearing that the stadium committee agreed with the arrangement thathe would pay the company, would be repaid in turn and that this arrangement was not reduced to writing as he trusted the stadiumc ommit t ee.46. He denied under cross-examination that any arrangements were on the basis that the stadium company was holding the lands intrust for the club and said there was no such thing. He denied that he threatened to sell the land but then admitted that he did andsaid it was a casual remark. That it seems to me is an implausible explanation. A threat by a trustee to sell property over the head ofthe beneficiary cannot be regarded as casual.Page 5 ⇓47. He then gave a further contradictory story about a personal loan to the club which was not then a personal loan because it wasmade as a director of the company and then under further cross-examination said “it would be done in a personal capacity”.48. He swore an affidavit on 12th March, 2018, para. 4 of which denies ever having claimed a right to sell the property without resort.He accepted in cross-examination that this was very different to his oral evidence and that he did so threaten but was provoked.Then in re-examination he seemed to try to wriggle out of the contradiction which he previously acknowledged under cross-examination. Having seen and heard Mr. Molloy, I find that he is an unreliable witness, that his evidence was unsatisfactory, confusedand in certain respects evasive, was riddled with contradiction, complication and unexplained or implausible propositions.49. Given that the land was held in trust, the shares in the state and company are not worth anything because the company has noassets in its own right. Clearly, Mr. Molloy’s motivation in terms of the present proceedings is that despite the fact that the land isheld in trust, he has decided that his shares and alleged loans are an investment that he wants to get back. The incompatibility ofthose two propositions has led to a great deal of the confusion and contradiction in his evidence.50. Having seen and heard him in the witness box, I reject his evidence both orally and on affidavit generally and in particular where itconflicts with that by and on behalf of the plaintiff.Defendant’s objection at the close of evidence51. Notwithstanding having objected unsuccessfully to the plaintiff’s capacity to bring proceedings at an earlier stage, Mr. Fordesubmitted that at the close of evidence that because some of the alleged beneficiaries, that is the club members, are allegedlyobjecting to the proceedings, a trustee of the club should not be allowed to obtain relief in the manner in which the present plaintiffhas brought proceedings.52. I cannot see any substantial difference between that and the objection rejected at the half-time stage, although Mr. Forde saysthere is a “vital difference in principle” and submits that if the plaintiff has locus standi, it puts the court in an impossible position ifonly one beneficiary is making the complaint.53. Unfortunately, I cannot accept that submission. This plaintiff is authorised by the club’s executive committee. If it was the casethat an individual beneficiary brought proceedings to resolve trust questions independently of an executive committee of a club, thecourt could direct notice to be given to the executive committee; but that is not a problem here.54. Whether a claim for removal of a trustee or interpretation of a trust is brought by a majority, a minority or just one of thebeneficiaries, the court can manage the proceedings and ensure any necessary parties are brought in. Here no such problems arisebecause the proceedings were authorised on behalf of the club.Defendant’s status as a trustee55. I make the following findings of fact and law in relation to the defendant’s position as a trustee. Mr. Forde suggests that I shouldfocus on the defendant’s conduct from the issuing of the proceedings to date and not on any matters before then. That is not asustainable submission. In deciding whether a trustee should be removed, regard must be had to all relevant circumstances includingconduct of the defendant prior to the proceedings.56. Mr. Dully avers that the defendant was aware at all times that it was acting as trustee for the beneficial owners. He was notcross-examined to the contrary. The declaration of trust is by its own very terms declaratory of the pre-existing position. It is clearfirstly, that there have been multiple breaches of trust and secondly, that independently of that it is in the beneficiary’s interest tohave the defendant removed as a trustee.57. The defendant denied the validity of the trust on affidavit. That amounts to a fundamental breach of trust. The defendant failedto honour the declaration of trust by failing to convey the interest in the property as required having been called upon to do so inaccordance with the declaration of trust.58. It made a threat to sell the stadium without recourse to the club. As I have said, that averment on beheld of the plaintiff was notspecifically challenged in cross-examination; such a threat is a fundamental breach of trustee’s obligations in circumstances such asthese. I find that the defendant allowed the stadium to fall into disrepair, failed to deal with the correspondence in relation toinsurance and as Mr. Dully avers placed locks upon the gates to the premises, thereby restricting the entrance for use by clubmembers.59. I accept Mr. Dully’s evidence under cross-examination that Mr. Molloy showed up at the club and “told young kids to stop trainingand put a lock on the gate”, as it was put. Mr. Dully said that the defendant forwarded correspondence to the facilities manager ofthe FAI, the purpose of which was to adversely affect the licence held by the club to participate in League of Ireland competitionsand I accept that evidence which again amounts to a breach of trust.60. Furthermore, correspondence with AP Wireless Ltd. was brought to the club’s attention whereby its interest was expressed inlocating a telecoms mast within the stadium. That was ignored by the defendant, again amounting to a breach of trust.61. I also take into account the manner in which the present proceedings were defended. It seems to me that the approach ofquerying the beneficiaries entitlement to assert their rights under the trust is not an approach that is open to a trustee and speaksvolumes about the defendant’s failure to appreciate its role as a trustee.62. The defendant’s whole approach has been obstructive and it has acted an antagonist and not a trustee in relation to a range ofmatters. It failed to facilitate the proposed development which possibly could have avoided the proceedings. I also consider themanner of the conduct of the proceedings was generally obstructive notwithstanding occasional flashes of co-operation such as theconsent order.63. One particular item in the prosecution of the proceedings which stands out is that in the course of cross-examination, Mr. Fordesuggested to the plaintiff that his house and pension were at risk of costs. It seems to me that was a gratuitous point which wasvery much of a piece with the defendant’s approach overall.64. This is clearly a case where the existing trustee must be removed. Biehler on Equity and the Law of Trusts in Ireland (Round Hall,2016) at p. 477, indicates that “the court also has an inherent jurisdiction to remove trustees where they act dishonestly orincompetently or even where their conduct is deliberately obstructive”. The discussion cites Arnott v. Arnott (1924) 58 I.L.T.R.145,where Murnaghan J. said that the power to remove a trustee should be exercised if the welfare of the beneficiaries demanded it, evenPage 6 ⇓without incompetence. A trustee may also be removed when driven by self-interest; Kirby v. Barden [1999] IEHC 129, per Carroll J.65. Reliance was placed by Mr. Forde on a single proposal put by the defendant but Mr. Dully said that was considered and havingreceived legal advice, the offer was not responded to because the trust between the company and the club had broken down. Also,there was a huge difficulty with transferring a grant given to the club to another entity. The proposal was considered, but he said heexpected the defendant to engage with the plaintiff long before and it seems to me that was an entirely reasonable conclusion.66. This offer by the defendant company goes nowhere near establishing its bona fides as a trustee. Mr. Forde put it that the club“declined to engage”. I entirely reject that characterisation. The “offer” was a non-runner and the club’s non-reply must be put in thecontext of multiple failures by the defendant in duties as a trustee.67. Mr. Forde then suggested that his client was entitled to be regarded as co-operative by agreeing to short service and agreeing tothe consent order and an adjournment. Those were absolutely minor steps in the overall context. The defendant’s obstruction isfundamental to the difficulties that have arisen in this case.68. When asked to give one reason why his company should not be removed as a trustee Mr. Molloy said “because we are the honestpeople in this case and doing what is right, holding on to what we paid for and stopping it being stolen from us”. That is clearlytotally irrelevant to the issue of removal of the trustee and involves a fundamental misunderstanding of the role of trustee. It is clearthat the trustee has allowed Mr. Molloy’s own financial regrets to influence it in the exercise of its trust functions. That is a conflictof interest apart from anything else. See Spencer v. Kinsella [1996] 2 I.L.R.M. 401, per Barron J.Indemnity Issue69. I make the following findings of fact and law in relation to the indemnity. The deed of trust states that the beneficial ownercovenants with the company to indemnify it in respect of all present and future liabilities and all other costs and expenses whatsoeverin respect of the property.70. Mr. Molloy claims this covers an alleged agreement by the company to repay him €665,000.00 approximately which was eitherallegedly loaned (although I would reject the proposition that it was in fact loaned) or invested in the company to buy shares. Hisargument is that the company has a liability to him and that that liability of the company is covered by the indemnity on behalf of thec lub.71. The difficulty with this argument is that having heard evidence from both sides I reject the argument that there was any suchagreement or liability. I reject this for a series of reasons:(i) This is contradicted on the face of the deed of trust which recites at recital C that all funding required for thedevelopment of the property was provided for and on to the use of the beneficial owner. That, it seems to me, is aconclusive answer to Mr. Forde’s case.(ii) He who asserts must prove; the defendant has not proved that there was any such agreement to repay monies paidby him and therefore the entire factual basis for his contention under this heading does not arise.(iii) I reject Mr. Molloy’s evidence generally.(iv) None of the many people who could have testified to this alleged agreement were brought forward. Mr. Egan did notput in an affidavit; the other directors did not swear affidavits.(v) I do not accept that there was any alleged loan. It seems to me that Mr. Molloy’s evidence on this point wassomewhat contradictory and contrived. He said that his purchase of shares was “put down as a loan”, a form of wordsthat suggests retrospective or at the very least artificial characterisation of it as a loan. In my view Mr. Molloy’s evidencein this regard is a reconstruction and does not reflect the reality which on the balance of probabilities was that hepurchased shares in the company and either subsequently or artificially decided to characterise some of those sharepurchases as a loan. That would be of a par with the strange and artificial way that the VAT issue dealt with.(vi) If I am wrong about that and if there was any such agreement between Mr. Molloy and the company and/or anyalleged loan, the words of the indemnity used in their context in terms of the relevant circumstances any alleged liability“in respect of the property” does not on the proper interpretation include the purchase of shares by Mr. Molloy in respectof the company or any alleged loans by him to the company.(vii) It would have been a fundamental issue if the club had taken on a liability of two thirds of a million euro. It wouldhave been unthinkable that the club would have committed to such a fundamental matter without it being specificallydiscussed and agreed.(viii) Insofar as evidence of the circumstances of entering into the declaration of trust are relevant, such mattersreinforce the conclusion I would have arrived at independently. I accept the evidence on behalf of the plaintiff that thisissue was never raised and the discussion of the declaration of trust and that the indemnity was to deal with the ongoingcosts of operation if in excess of the rent payment received. Mr. Dully said he was there when the declaration was agreedand it is to cover anything above the €10,000 rent per year. Reference was made to correspondence of 23rd June, 2016from Hugh J. Campbell solicitors regarding payment of €17,356.73. It was suggested that that was inconsistent with hiscase but it seems to me it is not inconsistent insofar as it is limited to this specific issue of the costs of the transfer.Regarding the deed of trust, Mr. Hayden’s affidavit says that at the time of the declaration of trust the recitals were “atno time … understood or referred to or purported to refer to monies of which the club had no knowledge … and inparticular the sums which are now being alleged as due and owing by the defendant which said sums are dubious”. Mr.Hayden avers specifically that the indemnity was intended to cover operational expenses. He said that the claims inrelation to Mr. Molloy’s purchase of shares or alleged loans were never discussed when the deed of trust was enteredinto. Mr. Hayden was the person who drafted the deed of trust presented to the defendant’s solicitors for approval andwas involved in meetings to discuss it. When asked if it included historical debts that the stadium may have had, theanswer was no. The reason it was put in was firstly a rates bill and secondly other charges, for example from WestmeathCounty Council. Insofar as it was historical that was for what was known and represented at the time. It is clear from Mr.Hayden’s evidence, which I accept, that it was never intended to cover costs of construction or the other claims nowbeing made. It was not put to him in cross-examination what it was so intended.Page 7 ⇓(ix) These conclusions reinforced by the fact that I accept Mr. Hayden’s evidence that the club was never formally calledupon to meet any such liabilities.(x) The plaintiff’s witnesses were not cross-examined on the premise that they agreed to the indemnity on the basis itwould cover the defendant’s purchase of the share capital or loans to the company.(xi) The unchallenged evidence of Mr. Milton that the company’s payment was publicly reported as “an amazing act ofgenerosity” does not advance its position.(xii) It also does not assist its case when one puts the contribution of €665,000 in the context of the overallapproximately €4.5 million costs, the rest of which was either grant-in-aid from the State or donations from the public. Itwould be surprising if Mr. Molloy and Mr. Molloy alone were to have some form of legal recourse to be repaid hiscontribution. Mr. Forde then falls back on general equitable and legal principles that the trustee has a right to paymentfrom the trust property for expenses properly incurred. All other things being equal I would broadly accept the propositionthat the trustee has a right to reclaim expenses properly incurred from a beneficiary unless ousted by agreement. Itseems to me that the intention of the declaration of trust was to be comprehensive and to oust any other impliedequitable or statutory right to indemnification. If I am wrong about that, the various points I made in relation to thedeclaration apply mutatis mutandis to the point under this heading. Assuming I am wrong about all of that, on the basisof Mr. Forde’s argument the company could have asserted an intention to reclaim the liabilities from the club but themajor liabilities in respect of the construction of the stadium were incurred ten or more years ago prior to 2007 and issuesof laches and limitation will arise. No such proceedings however were ever taken by the company. The rule in Hendersonv. Henderson (1843) 3 Hare 100; 67 E.R. 313 would imply that the company’s failure in these proceedings to establishthat there is any such liability is determinative. Mr. Molloy’s position can be put in the context of para. 31 of his firstaffidavit where he says that the “purported deed of trust is ineffective and a sham” and claims that €630,000 is owing tohim and says no repayments have been made by the defendant or the club. Yet in oral evidence he accepted that he goteither half the VAT which would have been €150,000 plus or €121,000 approximately, depending on which version of hisinconsistent evidence one was to accept. It seems to me that his credibility is in tatters. The situation here calls to mindthe observation of Tomlinson L.J. in Thevarajah v. Riordan [2015] EWCA Civ 41 where he referred to the situation asraised in that case: “By an order of 21st March, 2014 Mr. David Donaldson QC, sitting as a Deputy Judge of the ChanceryDivision, to use his own language at paragraph 20 of his judgment giving his reasons therefor, ordered “implementationof an arrangement lacking (as pleaded, and perhaps in fact) agreement of an important element”. In consequence heattributed to the Appellant … and to the first, second and fourth respondents, respectively … an agreement which,demonstrably, they had not made. The question which arises on this appeal is whether he was right to do so. There issomething very wrong with our legal system if the answer to that question is yes.” Similarly here, in considering thequestion of whether the club has any liability to the trustee in relation to any alleged liabilities that the defendantcompany has to repay Mr. Molloy money which he either used to buy shares in the company or allegedly lent to thecompany, to interpret an indemnity clause as covering such alleged liabilities would be to attribute to the parties anagreement which they did not make. There would be something very wrong with our legal system if the answer toquestion I have just posed is yes.Pre-emptive Order regarding costs72. As the defence fails, the point raised in para. 2 of the defendant’s notice of motion of 8th March, 2018 does not arise.Order73. Accordingly, the order will be:(i) That the plaintiff’s motion of 12th September, 2017 be formally struck out; that was my intention when dealing with iton 24th September, 2017 but no formal order to that effect was made.(ii) That the plaintiff’s motion of 18th December, 2017 be formally struck out; again that was my intention when dealingwith it on 29th January, 2018 although no formal order was made.(iii) That the defendant’s motion dated 8th March, 2018 be dismissed.(iv) That there be an order under the inherent jurisdiction of the court and/or s. 25 of the Trustee Act 1893 and/or s. 22of the Land Law and Conveyancing Reform Act 2009 that the defendant be removed as a trustee and replaced withAthlone Town A.F.C. Co. Limited by guarantee with immediate effect.(v) That there be an order under the inherent jurisdiction of the court and/or s. 22 of the Land Law and ConveyancingReform Act 2009 directing the defendant to execute an assignment or assignments of all of its interest in Folio 30190Fand entitlements under lease and any other entitlements in connection with the property such as the benefit of anymobile mass assessments or insurance policies in a form prepared by the plaintiff; and I will discuss with counsel thetimescale and mechanism for this.(vi) That there be a declaration pursuant to the inherent jurisdiction of the court and/or s. 22 of the Land Law andConveyancing Reform Act 2009 that the indemnity in favour of the defendant covers liabilities incurred at the time of itsexecution and into the future in respect of the trust property and does not cover any alleged liabilities of the companytowards Mr. Molloy to repay him any sums allegedly paid by him to acquire shares in the company or advanced by way ofalleged loans to the company.(vii) I will hear the parties further on whether the claim of an account for profits or damages is appropriate and as towhat further or other reliefs are appropriate or as regards any other consequential matters.Postscript74. By way of postscript, during the delivery of the foregoing judgment Mr. Molloy left court and thereafter was uncontactable bytelephone. Mr. Shortt suggested that this in itself was a contemptuous act, a matter in relation to which I make no finding at thepresent time. Having heard the parties, albeit recognising that Mr. Forde is thereby handicapped in his instructions, by thePage 8 ⇓defendant’s own actions, I will make further orders as follows:(i) I will order that the plaintiff present all necessary documents to the defendant by serving them by email on Mr. McNelisby 5pm on Friday 13th April, 2018, for the assignment of the defendants’ legal interest in the lands, the benefit of thelease and benefit of any other rights in connection with the property, such as insurance, mobile phone masts or any otherrights whatsoever in connection with the property; and that the defendant shall either execute the documents by 2pm on16th April, 2018 or apply to the court at that time for an order to the contrary and I will further direct that the directorsMr. Declan Molloy, Mr. Kieran Temple and Mr. Paddy McCaul do co-operate with that order.(ii) I note that the plaintiff is opting to pursue the damages claim and will adjourn that claim for further mention.(iii) I will make a mandatory order that the defendant, its directors, Mr. Declan Molloy, Mr. Kieran Temple and Mr. PaddyMcCaul, its officers, servants and agents hand over all keys at 8pm on 12th April, 2018 at the Stadium in Athlone andattend in court 24 at 12.50pm on Friday, 13th April, 2018 with all documents of title.(iv) I will make an order restraining the defendant, its directors, Mr. Declan Molloy, Mr. Kieran Temple and Mr. PaddyMcCaul, its officers, servants and agents from entering the premises prior to 8pm on 12th April, 2018 or thereafter withoutthe consent of the plaintiff or from taking any further steps in relation to the property save as specifically requested bythe plaintiff.(v) I will put the matter in for mention at 12.50pm on Friday, 13th April, 2018 to confirm compliance with the foregoing.(vi) I will give liberty to give notice of the order by phone, text message or similar message.(vii) I will adjourn the question of costs until Monday 16th April, 2018.

In re G. H. L. and the Trustee Acts.

Kennedy C.J.
[1928] IR 541

 

The facts of this case are similar to those of the case in which I have just delivered judgment ( In the Matter of J. J. D., A Person of Unsound Mind (2)), save as regards the nature of the trust property. There, I was dealing with a case of an estate or interest in realty situate in the Saorstat, vested in a person domiciled in the Saorstat; here, I am dealing with pure personalty outside the Saorstat, of which a person domiciled in the Saorstat is joint legal owner.
By an indenture of settlement made on the 21st January, 1904, in contemplation of his marriage, the husband assigned two policies of insurance on his life to two trustees upon trust, to receive the moneys to become payable thereunder, and to invest the same, and to hold such moneys or investments upon the trusts therein declared, for the benefit of the husband, the wife, and the children of the marriage respectively.
By a deed made on the 30th September, 1916, under the power of appointing new trustees contained in the settlement, one of the original trustees having gone abroad, and remained away for more than twelve months, the patient was duly appointed to be a new trustee in his place, to act jointly with the other of the original trustees, and the deed contained a declaration vesting in the patient and the continuing trustee the settled policies, and all moneys payable thereunder, upon the trusts of the settlement.
One of the two settled policies matured in the month of January, 1917, and the other in the month of January, 1919, and the proceeds thereof came to the hands of the patient and his co-trustee, by whom the moneys were duly invested, pursuant to the settlement, in certain stocks and securities, comprising (1) a sum of New Zealand 3 per cent. Inscribed Stock, 1945; (2) a sum of 5 per cent. War Stock, 1929-1947; (3) a sum of 31/2 per cent. New Zealand Stock; and (4) certain first mortgage debentures of Canadian Vickers, Limited. These four investments now constitute the settled trust property, and stand in the names of the patient and his co-trustee.
The patient was by an order of the Chief Justice of Ireland, dated the 2nd May, 1924, declared to be of unsound mind, and incapable of managing his person or property.
By a deed made on the 27th February, 1928, pursuant to the power of appointing new trustees contained in the settlement, one W. R. P. was duly appointed to be a trustee of the settlement in the place of the patient, and to act jointly with the continuing trustee for all the purposes of the settlement. The deed contained a vesting declaration.
The present petition has been preferred by the husband (who is tenant for life under the settlement) and the wife, praying for an order that the right to call for a transfer of, and to transfer into their own names the several stocks held upon the trusts of the settlement, and the dividends thereon, and to receive the principal moneys and interest of the mortgage debentures (which are about to be paid off), may vest in the new trustee jointly with the continuing trustee, subject to the trusts of the settlement.
In my opinion, the Court has not such jurisdiction as would authorise or empower the making of an effective mandatory order which would oblige the authorities in control of the stocks and securities, not being Saorstat stocks or securities, to register the name of the new trustee in the place of the patient as joint owner with the continuing trustee of such stocks and securities. This is a matter upon which it would be very desirable to negotiate reciprocal legislation, particularly with Great Britain, in whose public companies many patients hold various stocks, shares, and securities.
The Court can, however, make an order of obligation upon the individual trustees who are subject to its jurisdiction, requiring them to take all necessary and proper steps to procure a transfer of the stocks and securities into their own names.
The case of British War Stock inscribed in the Bank of Ireland in Dublin presents no difficulty. The form of order approved by the English Court of Appeal in the case of In re C. M. G., Spinster (a person of unsound mind not so found (1)), is applicable, and is readily adaptable to a case of a new trustee appointed in the place of a person of unsound mind to act along with a continuing trustee. Although that case was decided after the passing of the English Lunacy Act, 1890, it is a valuable authority, because of the exposition of the practice under the Trustee Act, 1850, which has remained in operation in this country. Unfortunately, owing to the destruction of our records, I have been unable to refer to any precedents of orders made here under the Trustee Act, 1850.
The real difficulty in this case arises with regard to the New Zealand Stock. It is, of course, pure personalty, legally vested in two persons as joint ownersone of whom is the patient, a citizen of, and domiciled in, the Saorstat, whose property is under the care and management and, generally speaking, dominion of this Court; and the other of whom appears and submits to the jurisdiction of this Court. It is proved by the evidence adduced by the petitioners that the right to the joint interest of the patient has become, by virtue of the deed of the 27th February, 1928, vested in equity in W. R. P. (the new trustee), and that, so far as our law is concerned, W. R. P. is entitled to have his title legally completed by having the stock legally transferred into his name jointly with that of A. R. D. (the continuing trustee). In these circumstances, I am empowered by the Trustee Act, 1850, to order that the right to call for a transfer of, and to transfer into their own names, the New Zealand Stock do vest in A. R. D. (the continuing trustee) and W. R. P. (the new trustee); and, as a corollary to that order, and to the fact of their being trustees, to order that they do transfer the stock into their names accordingly, to hold upon the trusts applicable thereto. Such, in my opinion, is the appropriate form of order to make. I am not informed as to any special legal requirements governing transfers of stock in New Zealand, but I do not think that the order I am making can violate any international amenities, because it only defines the legal rights in this country as regards this purely personal property, but the perfection of the legal title is subject to the laws of that Dominion, and to any special conditions legally attached to the stock when issued, matters upon which I do not presume to intrude by my order. The effect of the direction to transfer will be to require the continuing trustee and the new trustee to comply with any applicable legal requirements for procuring and perfecting a transfer of the stock into their own names.
The debentures of Canadian Vickers, Limited, would be in a like position but for the fact that they are being paid off, and, apparently, an actual transfer may not be required, so that here we have a case of a chose in action, i.e., a debt payable by a debtor in Canada to a creditor in Ireland. The application of the provisions of the Trustee Act, 1850, relating to choses in action, to the case of these debentures does not present any difficulty, in my opinion, though, to meet any contingency arising out of the facts, I will also make an order in this case vesting the right to transfer.
I will make an order under the powers of the Trustee Act, 1850, providing for the cost of all parties, and for raising them out of the trust property.
I have settled a draft of the order which I propose to make, as follows:
Draft Order.
Upon reading the petition filed the 1st day of March, 1928, preferred by J. R. D., of ________, tenant for life under the settlement, dated the 21st day of January, 1904, therein recited, and H. G. D., his wife, and upon reading the documents and orders in the said petition mentioned, and the joint affidavit of the said J. R. D. and H. G. D. verifying the said petition, and notice of motion, dated the 2nd day of March, 1928, and upon hearing, on the 9th March, 1928, what was urged by Mr. T. G. Marnan of counsel for the petitioner, and A. R. D. (name of continuing trustee), one of the trustees of the said settlement, appearing by his solicitor in support of the said petition, and ____________, the committee of the said G. H. L. (name of patient), a person of unsound mind, appearing by his solicitor to consent to the prayer of the said petition, the Chief Justice of the Irish Free State doth order, and it is hereby ordered and declared, as follows:
1. That the right to call for a transfer of and to transfer into their own names:
(a) The sum of £1,004 10s. 1d. New Zealand 5 per cent. Inscribed Stock (1945) standing in the names of A. R. D. (name of continuing trustee), of _____________, and G. H. L. (name of patient), of ____________; and
(b) The sum of £200 31/2 per cent. New Zealand Stock standing in the names of A. D., of _____________ (being the same person as A. R. D. [name of continuing trustee]), and G. H. L. (name of patient), of _______________; and
(c) The sum of £526 6s. 3d. 5 per cent. War Stock, 1929-1947, standing in the names of A. D., of _____________ (being the same person as A. R. D. [name of continuing trustee]), and G. H. L. (name of patient), of _____________,
and to receive the interest or dividends due, and to accrue due, thereon respectively, do vest in the said A. R. D. (name of continuing trustee), of ___________, together with W. R. P. (name of new trustee), of _____________, and that the said A. R. D. (name of continuing trustee) and W. R. P. (name of new trustee) do transfer the same respectively into their own names accordingly, to be held by them upon the trusts applicable thereto.
2. That the right to call for a transfer of and to transfer into their own names, and the right to sue for and recover, and to receive the principal moneys and premium, or premiums, payable under or on foot of
Five first mortgage debentures for £100 each of Canadian Vickers, Limited, standing in the names of A. D., of ____________ (being the same person as A. R. D. [name of continuing trustee]), and G. H. L. (name of patient), of _____________,
and all interest due and to accrue thereon do vest in the said A. R. D. (name of continuing trustee), of __________, together with W. R. P. (name of new trustee), of _____________, to be held by them upon the trusts applicable thereto.
3. That the costs and expenses of the petitioners of and relating to the said petition and this order, and any transfer made in pursuance hereof, be referred to the proper officer for taxation; and that the amount thereof, when taxed and ascertained, be paid and raised out of and from the stocks and securities, the subject of the petition herein, or any moneys to be paid on foot thereof; and that the petitioners shall pay to the said A. R. D. his costs of appearing on the hearing of the said petition; and that the petitioners be at liberty to add the same to their claim for costs and expenses of the said petition.

 

KENNEDY C.J. :

In re J. J. D. and the Trustee Acts.

[1928] IR 540
Kennedy C.J.

This matter comes before me on the petition of R. G. D., one of the trustees of a marriage settlement made by a deed of the 17th August, 1864, whereby certain moneys were vested in two trustees upon the trusts there declared. The settlement contained a power of appointing new trustees.
In the year 1889 the then trustees of the settlement invested the sum of £1,000 (one thousand pounds) out of the settled trust moneys upon a mortgage created by a deed of mortgage of certain freehold lands in the County of Meath, made in the year 1855, to secure payment of a sum of one thousand pounds, with interest. The mortgage debt and the mortgaged hereditaments were respectively assigned and conveyed to the then trustees of the settlement by a deed of the 20th August, 1889, which did not disclose the trusts affecting the consideration money.
The petitioner and the patient were, by a deed of the 7th August, 1905, made under the power in the settlement, appointed to be new trustees of the settlement in place of the former trustees, both of whom had died.
By a deed of transfer of mortgage of the same date (7th August, 1905), the mortgage debt and the mortgaged hereditaments (representing the investment of the sum of one thousand pounds) were respectively assigned and conveyed to the petitioner and the patient as joint tenants. This deed, of course, contained no reference to the settlement or the trusts affecting the moneys secured by the mortgage.
By an order made by the Lord Chancellor of Ireland on the 26th November, 1917, the patient was declared to be a person of unsound mind, and the petitioner was appointed to be his committee. The patient has since continued to be under the care of the Court, both as to his person and as to his property.
By a deed made on the 25th January, 1928, the petitioner, in exercise of the power contained in the settlement of 1864, appointed one S. S. to be a new trustee of the settlement in the place of the patient, become of unsound mind, to act jointly with the petitioner. The deed does not purport to transfer the mortgage debt or security.
The lands comprised in the mortgage are being sold through the Land Commission, and it is anticipated that the mortgage debt will shortly be paid off on the distribution of the purchase moneys in that Court.
The petitioner now prays for an order vesting the mortgage debt and the mortgaged hereditaments in him (the petitioner) and the new trustee appointed by the deed of 25th January, 1928, jointly as trustees of the settlement of 1864.
I should not have had any doubt as to the proper form of order in the circumstances were it not for the careful argument of Mr. Christopher Roche, who urged that both debt and lands should be vested merely by the order, and that the order should not contemplate a subsequent deed of transfer. It is necessary, therefore, to refer to the authorities cited.
The Trustee Act, 1850 (13 & 14 Vict. c. 60), as amended by the Trustee Act, 1852 (15 & 16 Vict. c. 55), has been, by sect. 51 of the Trustee Act, 1893, kept in force in Ireland so far as relates to Courts exercising jurisdiction in lunacy in Ireland. The Acts of 1850 and 1852 have been superseded in England since 1890 by other legislation.
Mr. Roche referred to several cases, one of which was In re Vicat (1). That was a case of freeholds, and mortgaged freeholds and leaseholds, and stocks and shares of companies, devised and bequeathed upon trust to three persons, one of whom became of unsound mind. Another had previously died. The survivor, in exercise of a power in the will, appointed by deed two new trustees in place of the deceased trustee and the lunatic trustee. The Court of Appeal in England held, upon a petition presented by the continuing and the new trustees for a vesting declaration, that the proper order to make was to appoint a person to convey in the place of the lunatic. They accordingly appointed the continuing trustee in the place of the lunatic to convey and assign the mortgaged hereditaments for the estate of himself and the lunatic to himself and the two new trustees upon the trusts of the will, and ordered that the right to sue for and recover the mortgage debts might vest in the continuing trustee and the two new trustees.
In the case of In re Jones (1), the English Court of Appeal held that sect. 3 of the Trustee Act, 1850, was not limited to cases of a lunatic solely seised or possessed of land on trust or by way of mortgage, which had been questioned, but that that section, and consequently also sect. 20 of the same Act, applied equally to the case of a lunatic who was one of several trustees or mortgagees, and, therefore, that they could appoint a person to convey the estate and interest of such a trustee in lands.
In re Dewhirst’s Trusts (2) was also referred to by Mr. Roche. There a new trustee of a will was duly appointed by deed in place of a trustee who, though not a lunatic, had become incapable of acting in the trusts by reason of mental and physical infirmity. The English Court of Appeal refused to make an order reappointing the trustee (already appointed by deed) for the purpose of making a vesting order of mortgaged property and mortgage debts, but made an order, presumably under sect. 20 of the Trustee Act, 1850 (the section is not specifically mentioned), for transferring the estate to the new and continuing trustees.
In re Batho (3) was also a decision of the Court of Appeal in England; but it is difficult to follow in the very brief report, from which it does not appear that the previous decisions of the Court were cited. It is not directly in point in the present case, because it turned on the special fact of one trustee being a lunatic, and the other resident out of the jurisdiction.
There is also an Irish case of Supple’s Trusts (4), where however, the relevant authorities do not appear, from the rather unsatisfactory report, to have been cited to the Lord Chancellor, nor is the form of order made precisely stated.
The present case is one of a settlement of moneys which have been invested upon a purchase of an existing mortgage of freehold lands. The mortgage was transferred to the trustees of the settlement after the usual method for keeping the trusts of the settlement off the title to the mortgaged lands. Upon the appointment of a new trustee in the place of the patient it was not possible under the Trustee Act, 1893, to transfer the mortgaged lands by means of a vesting declaration in the deed of appointment, an exception from the operation of vesting declarations which is almost certainly due to the practice of keeping trusts off the title of mortgaged lands.
The procedure to be adopted in a case like the present should, so far as possible, be so framed as not to bring the trusts affecting the moneys secured by the mortgage upon the title to the lands.
In my opinion, the proper order to make in these circumstances is an order under sect. 20 of the Trustee Act, 1850, on the lines of the order made in the case of In re Vicat (1). I will, therefore, appoint the continuing trustee in the place of the patient to convey the mortgaged hereditaments for the estate and interest of himself and the patient to himself and the new trustee, subject to the subsisting equity of redemption, and I will order that the right to sue for, recover, and receive the mortgage debt and the interest thereon shall vest in the continuing trustee and the new trustee upon a joint account, to be held by them, of course, upon the trusts of the settlement, which will enable the deed of transfer of mortgage to recite the title to the mortgage in the form usual in the case of transfers to new trustees.
It is to be remembered that if we were not dealing with the case of a trustee of unsound mind, but with a trustee retiring from the trusts in ordinary circumstances, such a deed of transfer of the mortgage would be in the normal course.
The relevant part of the order made was as follows:
It is ordered by the Chief Justice of Saorstat Éireann that R.G.D. of _________________, the said petitioner, be and is hereby appointed in the place of J.J.D. in the title hereof named, to convey the hereditaments comprised in the indenture of mortgage of the lands of M., dated the 9th day of December, 1855, and made between R.G.D. of the one part and J.H. of the other part for the estate of himself (the petitioner) and J.J.D. to himself (the petitioner) and S.S. as joint tenants, subject to the equity of redemption subsisting under the mortgage. And it is further ordered that the right to sue for, recover, and receive the mortgage debt and interest do vest in R.G.D. (the petitioner) and S.S. on a joint account. And the Chief Justice is pleased to declare the petitioner entitled to the costs of his said petition, this order hereon, and the said proceedings thereunder, when taxed and ascertained, to be paid out of the trust property.

UK Cases

Re Tempest

[1860] 1 Ch App 485

SIR G. J. TURNER LJ: … the discretion which the Court has and exercises in making such appointments, is not, as I conceive, a mere arbitrary discretion, but a discretion in the exercise of which the Court is, and ought to be, guided by some general rules and principles, and, in my opinion, the difficulty which the Court has to encounter in these cases lies not so much in ascertaining the rules and principles by which it ought to be guided, as in applying those rules and principles to the varying circumstances of each particular case. The following rules and principles may, I think, safely be laid down as applying to all cases of appointments by the Court of new trustees.
First, the Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it. I think this rule may be safely laid down, because if the author of the trust has in terms declared that a particular person, or a person filling a particular character, should not be a trustee of the instrument, there cannot, as I appre­ hend, be the least doubt that the Court would not appoint to the office a person whose appointment was so prohibited, and I do not think that upon a question of this description any distinction can be drawn between express declarations and demonstrated intention. The analogy of the course which the Court pursues in the appointment of guardians affords, I think, some support to this rule. The Court in those cases attends to the wishes of the parents, however informally they may be expressed.
Another rule which may, I think, safely be laid down is this-that the Court will not appoint a person to be trustee with a view to the interest of some of the persons interested under the trust,in opposition either to the wishes of the testator or to the interests of others of the cestuis que trusts. I think so for this reason, that it is of the essence of the duty of every trustee to hold an even hand between the par­
ties interested under the trust. Every trustee is in duty bound to look to the interests of all, and not of any particular member or class of members of his cestuis que trusts. A third rule which, I think, may safely be laid down, is,-that the Court in appointing a trustee will have regard to the question, whether his appointment will promote or impede the execution of the trust, for the very purpose of the
appointment is that the trust may be better carried into execution ..
…but, on the other hand, if the continuing or surviving trustee refuses to act with a trustee who may be proposed to be appointed-and I make this observation with reference to what appears to have been said by Mr Fleming, as to Mr Petre having come forward in opposition to his wishes-I think it would be going too far to say that the Court ought, on that ground alone, to refuse to appoint the pro­ posed trustee; for this would, as suggested in the argument, be to give the continuing or surviving trustee a veto upon the appointment of the new trustee. In such a case,I think it must be the duty of the Court to inquire and ascertain whether the objection of the surviving or continuing trustee is well founded or not,and to act or refuse to act upon it accordingly.If the surviving or continuing trustee has improperly refused to act with the proposed trustee, it might be a ground for removing him from the trust. Upon the facts of this case, however, it seems to me that the objections taken by Mr Fleming to the appointment of Mr Petre were and are well founded, and upon the whole case, therefore, my opin­ ion is, that the order under appeal, so far as it appoints Mr Petre, ought to be discharged.

 

Re May’s WT

[1941] 1 Ch 109,

CROSSMAN J: I feel that there is some danger in declaring that the plaintiffs, as continuing trustees, have power, pursuant to the Trustee Act 1925, to appoint a new trustee of the will in the place of the widow. Especially do I feel that there is danger in laying down any rule, as a rule may well be susceptible of misuse. I cannot come to any conclusion covering more than this particular case. I can find no evi­ dence that the lady is really ‘incapable of acting’ within the meaning of s. 36, sub-s. 1.
The case seems to be one in which the right course is for the Court to appoint a new trustee.The evi­ dence is enough to justify the Court’s doing so under s. 41, sub-s. 1. Therefore, subject to the produc­ tion of the proper affidavit of fitness, I will appoint the person whom the summons asks may be appointed to be a trustee in the place of the widow, and will make the necessary vesting orders. I will dispense with service of this application on the widow.

 

Re Lord and Fullerton’s Contract

[1896] 1 Ch 228

LINDLEY LJ: … Treating this, therefore, as a partial disclaimer-as a disclaimer of the offices of trustee and executor so far as the property in this country is concerned-the point is reduced to this: Will that enable the three trustees who are the vendors to make a good title? Now, although the point, so far as I know, is new in species, I think the purchaser is right-that is to say, that according to our law it is not competent for a trustee to execute or to rely on a partial disclaimer of the office either of executor or of trustee, or of the property devised to him. Let us consider what his position is in this case. It is to be observed that he is executor as well as trustee. What would be the position under this document if he remitted personal estate from America to this country? Would not he be responsible for it? Would this disclaimer by him affect him in any way? I should say, obviously not. He would be clearly responsible for the property in respect of his office if he accepts the office at all-in other words, from a purchaser’s point of view, if he is not proved not to have accepted he must be deemed to have accepted the office of the trust; and then the ordinary principle applies, that it is not competent for a man to do that partially: he must either do it altogether or not at all …