How liable is a corporate trustee?
A key consideration in determining the arrangements of a trust has to be: how liable is a corporate trustee? A trustee who administers a trust as a private individual, appointed in the interests of the beneficiaries of the trust, will be personally liable for any breaches of the trust, including negligent administration.
The difference with a corporate trustee is that, while they are liable to the beneficiaries in much the same way, the directors of a corporate trustee are duty-bound to the corporation, rather than the members of the trust, or beneficiaries per se. There is really no material difference, although the arrangement looks different on the face of it. This is because the corporate trustee is obligated to perform duties in the interests of its members. The directors of the corporation owe a duty to that corporation. Even though it is by a distinct route, the overall effect is the same.
The material issue is when a beneficiary brings an action against the trustees of the trust. How liable is a corporate trustee will depend on whether the beneficiary can sue the directors of the corporate trustee personally, or whether it is necessary to name the independent trustee itself as the respondent in the proceedings. The most strikingly resonant point under such circumstances is that the corporate trustee will more often than not have no assets of its own, but will rather hold any assets on trust. If the corporate trustee owns nothing with which to pay damages, there is of course little point in bringing an action against the directors of a corporate trustee by attempting to sue the trustee itself.
In fact, it would be necessary to demonstrate that the directors breached their duty to the corporate trustee, such that the corporate trustee might essentially be made liable by the following route. If the corporate trustee in question is able to bring a case against the directors in their handling of trust property, a claim can be made out which is open to the beneficiaries of the scheme.
If this route seems somewhat tortuous, the courts agreed in Gregson v HAE Trustees Limited, making clear in a judgement of 2008 that an independent trustee and its directors are separate entities to the extent that it is no longer possible for the beneficiaries of a trust to reach the personal assets of the directors through the corporation. Individual trustees might of course still be sued in the same way as ever. It is crucial to note also that the corporate trustee still has a right of claim against directors who breach their fiduciary duties. Where the directors might be found responsible for failed administration of a scheme, there might still be the incentive to claim, making the corporate trustee more liable than it would at first have seemed following the Gregson case.
Essentially, all is not lost for the beneficiaries of a trust administered by an independent trustee, who feel aggrieved, but whose access to the assets to cover damages would seem to have been blocked.



