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Endnotes

^[1] The Law Commission Trustees' Powers and Duties (Law Com No 260) (London, The Stationery Office), para 4.6. (The Scottish Law Commission was a party to one part of the report, but we will not be referring to that part.)

^[2] Above n 1, para 4.9.

^[3] Above n 1. Annotation of clause 11(2)(d) of the draft statute, 103.

^[4] 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.

^[5]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).

^[6] Armitage v Nurse [1998] Ch 241.

^[7] Armitage v Nurse, above n 6, 253_254.

^[8] Armitage v Nurse, above n 6, 256

^[9] The existence of this provision provides one answer to the suggestion that restricting the effectiveness of exculpation provisions would result in "trustee chill", a refusal by professionals to take on trusteeships.

^[10] Ontario Law Reform Commission Report on the Law of Trusts (Ontario,

1984), 40.

^[11] Bartlett v Barclays Trust Co (No 1) [1980] 1 Ch 515, 534, Brightman J.

^[12] Report on Exculpation Clauses in Trust Instruments (2002). At the time of our preparing this report the British Columbia report of which we have been provided a copy in manuscript form had yet to be printed and published, so that we are unable to provide the usual bibliographical details.

^[13] 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.

^[14] Morris v Templeton (2000) 14 PRNZ 397 (CA).

^[15] New Zealand Law Commission Some Problems in the Law of Trusts nzlc pp48 (Wellington, 2002), para 14.

^[16] 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.

^[17] Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589 followed in British Coal Corp v British Coal Staff Superannuation Scheme Trustees Ltd [1995] 1 All ER 912, 928.

^[18] Above n 1, para 6.8.

^[19] RP Meagher and WMC Gummow Jacob's Law of Trusts in Australia (Butterworths, Sydney, 6th ed 1997), 69.

^[20]A useful illustrative case is Karger v Paul [1984] VR 161.

^[21]Re Londonderry's Settlement [1965] Ch 918.

^[22]Richard Brady Franks Ltd v Price (1937) 58 CLR 112, 135, Latham CJ.

^[23]PD Finn Fiduciary Obligations (The Law Book Company Limited, Sydney, 1977), 42.

^[24]Scott v National Trust [1998] 2 All ER 705, 719.

^[25] Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 419.

^[26] Above n 25, 437.

^[27] Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601, 604.

^[28] In Australian English Aussie battler is a precise term used as a commendatory description of an Australian of humble station who struggles against life's misfortunes to survive or perhaps to better his or her lot.

^[29] Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd, above n 17, 597.

Cited with approval in Re UEB Industries Ltd Pension Plan [1992] 1 NZLR 294, 298 (CA).

^[30] Craddock v Crowhen (1995) 1 NZSC 40331, 40337.

^[31] Brackstone v Whitney & Brackstone (1998) HC, Auckland, M983/97, Judgment 12 May 1998.

^[32] Wrightson Ltd v Fletcher Challenge Nominees Ltd (1998) HC, Auckland, CP129/96, Judgment 12 May 1998. The issue was not discussed in these terms at later stages of the litigation.

^[33] Blair v Vallely (1999) HC, Wanganui, CP8/98, Judgment 23 April 1999.

^[34] Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896 (HL).

^[35] Attorney-General v Brackler (1999) 197 CLR 83.

^[36] Scott v National Trust, above n 24, 718.

^[37] IJ Hardingham and R Baxt Discretionary Trusts (Butterworths, Sydney, 1984, 2nd ed), para 515.

^[38] Authorities on the definition of the boundaries of a trustee's duty are Hawksley v May [1956] 1 QB 304, Miller v Stapleton [1996] 2 All ER 449 and the unreported judgment of Collins J referred to at page 463 of the latter case.