Australia: Released or not? Informed release required for breaches of trust

This week’s TGIF considers Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316, where the Victorian Court of Appeal held that a release for breach of trust was ineffective because the beneficiary was not fully informed about the facts of the breach.

WHAT HAPPENED

An investor was invited by his (once) close friend, a property developer, to invest in a 43-apartment development in Essendon, Victoria.  The investor put in around $600,000 by subscribing for 600,000 units in a unit trust that held the development’s assets.

Other investors also subscribed for units in the unit trust.  These other investors included companies controlled by the developer, his family members, his solicitor and his real estate agent, all of whom subscribed for 600,000 units each.

Unbeknown to the initial investor, a number of these unitholders acquired their units at a very substantial discount.  Contrary to the trust deed and unitholders agreement, they paid only $65,000 for the same 600,000 units – or around 11% of what the initial investor paid for the same rights. 

Once the developed properties were sold, the trustee proposed a “finalisation agreement” to redeem the units and conclude the affairs of the unit trust.  All of the unitholders except the initial investor supported the finalisation agreement.  By this point, the initial investor had discovered that the discounted units had been issued and had not been given a satisfactory explanation as to what happened.

THE DISPUTE

The initial investor sued the developer and other unitholders for breach of trust and breach of fiduciary duty.  The initial investor sought equitable compensation that would give him a share of the development profits that disregarded the discounted units.

A key defence relied upon by the developer and unitholders was that the initial investor had released them from all claims under the terms of the finalisation agreement.

The initial investor denied that the finalisation agreement existed or, alternatively, that it was unenforceable because it purported to release equitable claims for breach of trust and fiduciary duty where:

  • the investor had not been fully informed of the facts and circumstances about the discounted units; and
  • the developer had deliberately misrepresented facts, frustrating the investor’s attempts to acquire that knowledge.

THE OUTCOME

The Court of Appeal held that, as a matter of fact, the finalisation agreement (including the release) did exist and that the investor had agreed to be bound it.

However, the Court then held that the release was unenforceable because the investor did not have full knowledge of the circumstances giving rise to his claims for breach of trust and fiduciary duty.

It is a long-established rule of equity that, because a trustee owes strict duties to beneficiaries, a defaulting trustee cannot rely on a release unless the beneficiary had full knowledge of the circumstances constituting the breach of trust, and of the rights and claims they had against the trustee.  Furthermore, the trustee bears the onus of proving that the beneficiary had that knowledge.1  This principle also applies to fiduciaries (such as the co-unitholders in the unit trust) and those who knowingly assist a breach of trust or duty.

In other words, it is not enough to show the beneficiary gave a release – for a release to be effective, the trustee must prove that the beneficiary gave an informed release.

In this case, the Court held that the initial investor had been deliberately lied to in an attempt to deflect inquiries about why the discounted units had been issued.  So, even though the investor knew the discounted units had been issued, the developer’s lies meant that the investor lacked the knowledge required to give an informed (and effective) release.

In those circumstances, the Court held that the investor was able to sue for breach of trust and fiduciary duty which, on the facts of the case, were clearly made out.

COMMENT

The position of trustee carries with it strict duties to beneficiaries that cannot be easily overcome by a release.  A release that would be effective in other commercial arrangements may not suffice in a trust or fiduciary arrangement – the requirement for informed release for breaches of trust and fiduciary duty means that you may have to go behind the release and inquire closely into the circumstances in which it was given.

This is particularly important to insolvency practitioners tasked with appointments involving trustee companies and individuals.  They may be presented with releases that look complete and comprehensive on their face – but ascertaining the true position will require further investigation and analysis.

Footnote

1 Farrant v Blanchford (1863) 46 ER 42.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions