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Endnotes

[1] New Zealand Law Commission A New Property Law Act: NZLC R 29 (Wellington, 1994).

[2] Malcolm Clarke Doubts from the Dark Side _ The Case Against Codes [2001] JBL 605, 613.

[3] The Law Commission and the Scottish Law Commission Trustees' Powers and Duties (Law Com No 260, Scot Law Com No 170, 172) (London, The Stationary Office, 1999), para 4.6.

[4] The Law Commission and the Scottish Law Commission, above n 3, Part IV.

[5] The matter is expressed in the Restatement in these terms:

To the extent to which a provision relieving the trustee of liability for breaches of trust is inserted in the trust instrument as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor such provision is ineffective. (American Law Institute 2 Restatement of the Law Trusts 2D St Paul, Minnesota, 1959, para 222(3).)

And see AW Scott and WF Fratcher III The Law of Trusts (Little Brown and Company, Boston, 4th ed, 1988), para 222.4.

[6] Paul Matthews "The Efficacy of Trustee Exemption Clauses in English Law" [1989] Conv 42. The decision of the Alberta Surrogate Court in Re Poche (1984) 6 DLR (4th) 40 is to the same effect. In the one New Zealand case on the topic the Court of Appeal avoided this trap (Robertson v Howden (1892) 10 NZLR 609).

[7] Armitage v Nurse [1998] Ch 241.

[8] Armitage v Nurse, above n 7, 253_254.

[9] Armitage v Nurse, above n 7, 256.

[10] Ontario Law Reform Commission Report on the Law of Trusts (Ontario 1984), 40.

[11] Ontario Law Reform Commission, above n 10, 41_42.

[12] British Columbia Law Institute Consultation Paper on Exculpation Clauses in Trust Instruments (Vancouver 2000), 13.

[13] And note the concluding words of s 13F.

[14] It seems that such a limitation will be given effect to (Wilkins v Hogg (1861) 3 Giff 115, 66 ER 346; Hayim v Citibank [1987] AC 730 (PC)), provided that it falls short of being repugnant to any trust relationship. We will need to return to this question when later in this paper we come to consider protectors.

[15] The phrase used by the Law Commissions recommending the reform was "the safeguard of collective scrutiny", The Law Commission and the Scottish Law Commission Trustees' Powers and Duties Law Com No 260, Scot Law Com No 172 (London, The Stationary Office, 1999), para 7.11).

[16] Trustee Act 2000 (UK), ss 29(2) and (4).

[17] In which event there is an entitlement to remuneration under the Maori Trustee Act 1953 s 48 and the Maori Trust Office Regulations 1954 (SR 1954/46).

[18] Te Ture Whenua Maori Act 1993 s 237.

[19] Professor Walters, whose essay "The Protector: New Wine in Old Bottles" in AJ Oakley (ed) Trends in Contemporary Trust Law (Clarendon Press, Oxford, 1996), 63 discusses the topic at length, points out that protectors received no mention in the fourteenth edition of Underhill and Hayton published in 1987 and appeared for the first time in the fifteenth edition in 1995.

[20] See above n 3, para 6.8.

[21] RP Meagher and WMC Gummow Jacob's Law of Trusts in Australia (Butterworths, Sydney, 6th ed 1997), 69.

[22] A useful illustrative case is Karger v Paul [1984] VR 161.

[23] Re Londonderry's Settlement [1965] Ch 918.

[24] Richard Brady Franks Ltd v Price (1937) 58 CLR 112, 135 per Latham CJ.

[25] PD Finn Fiduciary Obligations (The Law Book Company Limited, Sydney, 1977), 42.

[26] Scott v National Trust [1998] 2 All ER 705, 719.

[27] IJ Hardingham and R Baxt Discretionary Trusts (Butterworths, Sydney, 1984, 2nd ed), para 515.

[28] Craddock v Crowhen (1995) 1 NZSC 40331, 40337.

[29] HAJ Ford and WA Lee Principles of the Law of Trusts (The Law Book Company Limited, Sydney, 1983), 409. This sentence is not repeated in the current (third) edition (LBC Information Services, Sydney, 1996), para 912D.

[30] Hawksley v May [1956] 1 QB 304.

[31] Compare the observations of Ford and Lee that it is arguable that trustees have a general duty to inform beneficiaries of their relevant rights (set out in a passage preceding the excerpt quoted in the text at n 29) and the less tentative statement in the third edition and the conclusion expressed by Alec Samuels ("Must the trustees tell the beneficiary about Saunders v Vautier" (1970) 34 Conv 29) that if Hawksley v May is authority to the contrary effect it is wrongly decided with, on the other hand, the trenchant rejection of Ford and Lee's view expressed in RP Meagher and WMC Gummow Jacobs' Law of Trusts in Australia 6th ed (Butterworths, Sydney, 1997), para 1716.

[32] David Hayton "The Irreducible Core Content of Trusteeship" in AJ Oakley (ed) Trends in Contemporary Trust Law (Clarendon Press, Oxford, 1996), 47, 49.

[33] Vita Food Products v Unus Shipping Co [1939] AC 277, 290.