Cayman Islands: Representation Of Centre Trustees [2009] JRC 109

Protector's Conflict of Interests Facts

Mr Pabst and Mr Van Rooyen entered into a joint venture to develop mines in South Africa through a company known as Terret Limited (the "Company"), of which Mr Pabst was a director. The Company was owned 50% by the trustee of the VR Family Trust, settled by Mr Van Rooyen for his family, and 50% by the trustee of the Africa Trust, settled by Mr Pabst.

Centre Trustees (C.I.) Limited ("Centre") was the trustee of the VR Family Trust. Mr Pabst was Protector and Appointor of the VR Family Trust. Mr Van Rooyen was later killed in a helicopter accident, leaving minor beneficiaries of the VR Family Trust. Centre became concerned that the Africa Trust was receiving greater benefits out of the Company than the VR Family Trust. Mr Pabst also offered to purchase the VR Family Trust's share in the Company at a substantial undervalue and he was also involved in the sending of letters demanding repayment of certain loans from the Company and the VR Family Trust, of which Centre was either unaware or had believed to be shareholder distributions.

In 2007, Mr Pabst used his powers under the VR Family Trust to appoint Langtry Trust Company (Channel Islands) Limited ("Langtry") as co-trustee with Centre (together, the "Co-Trustees"). This appointment was made without prior notice to Centre, and Centre were concerned that this was an attempt by Mr Pabst to strengthen his position with regards to the claims against the VR Family Trust. At this stage, Mr Pabst's lawyer provided a statement of the claims against the VR Family Trust which had been previously set out in the letters referred to above. These claims were rejected by both of the Co-Trustees.

Centre was concerned that Mr Pabst was preventing proper communication between the beneficiaries of the VR Family Trust and the trustees of that Trust, that he was exercising his powers for his own benefit and that he had a conflict of interests. The Co-Trustees made an application to Court seeking the removal of Mr Pabst from his positions as Protector and Appointor of the VR Family Trust.


Once an application to the Court had been made by the Co-Trustees for Mr Pabst's removal, Mr Pabst did not oppose such removal from either office. However, the Court was critical of Mr Pabst's failure to resign from both offices in a timely manner and accordingly, awarded costs against him.

It was accepted that Mr Pabst's powers under the VR Family Trust must be exercised in good faith and were not beneficial powers that could be exercised in the interests of Mr Pabst. The Court explained that the clause in the trust instrument which provided that no power vested in the Protector was a fiduciary power, merely had the effect of removing Mr Pabst's obligation to consider the exercise of such powers. It did not have the affect of removing the overriding obligation on the Protector that such power be exercised for the benefit of one or more of the beneficiaries in the event that the power is exercised at all. The Court agreed that just as beneficiaries are entitled to require that decisions taken by their trustees are made with no regard to any private interests or competing duty, so the beneficiaries are entitled to require and expect the same from a Protector or Appointor.

When faced with a conflict of interest, the Court, in summary, provided the following guidance in managing such a conflict:

1 the Protector must disclose the conflict to either the trustee and/or the beneficiaries;

2 how the conflict is managed will depend on the powers that the Protector has. The Court held that in certain instances the Protector may be able to remain in office if to do so would be in the best interests of the beneficiaries provided he honestly and reasonably believes that he can discharge his duties in their interests. If the Protector chooses to continue in his office, despite a conflict, he must be able to justify any decisions or actions taken; and

3 if the Protector cannot manage the conflict sufficiently, the Court stated that his duty is to resign. Failure to do so will result in the trustee having a duty to apply to the Court for the Protector's removal.

In this instance, the Court held that the conflict of interest was pervasive and it could not envisage any circumstances in which Mr Pabst could reasonably contemplate remaining in office. It was held that Mr Pabst had a duty to resign from the moment it was contemplated that claims in which he had an interest would be advanced against the VR Family Trust. As he had failed to do so, certain cost orders were made against Mr Pabst.


This case clearly demonstrates the high standards expected of Protectors when facing a conflict of interest and that there is a positive duty to actively manage this. It is clear that in many cases a conflict of interest will require the Protector to resign.

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.

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

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

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
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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 (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

To Use 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.


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.


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