This is a paper that is focusing on the breach of trust by reliance of the Trustee Act clause. The paper also provides the guidance to use in writing the assignment paper.
The breach of trust by reliance of the Trustee Act clause
INSTRUCTIONS TO CANDIDATES:
Your work should be in double-line spacing.
The main body of your submission should be written using the Aerial font and be in 12 point size. Your footnotes should be written using Arial font and be in 10 point size.
You must include a bibliography containing all of the material cited (cases, statutes, books, academic journal articles etc).
The word limit is 1,500 words plus 10%.
You must include a word count that is net of case names, headings, footnotes and bibliography.
Question – BREACH OF TRUST
A trustee, who has not acted dishonestly, may avoid or reduce liability for an act or omission that is in breach of trust by reliance on the Trustee Act, s.61 or an exclusion/exemption clause. Explain, with reference to the relevant case law, how these defences operate and how it might be argued that one affords a greater degree of protection than the other.
End of Paper
Guidance for essay:
The best way to approach this question is to split it into 4 parts: Introduction, S.61, Exemption Clauses and a Discussion/Conclusion.
In the introduction you need to explain the serious nature of being a trustee, how easy it is to be in breach of trust and the serious consequences that follow.
In regard to s.61, you need to explain how it operates, particularly in regard to the two-stage test. You need to illustrate the difficulties in satisfying the first stage by reference to the decided cases.
In regard to exemption clauses, you need to explain what they are and what they cover. You need to explain the differing approaches taken in the leading cases of Armitage and of Walker. You then need to explain which approach appears to be by the courts.
In your Discussion/Conclusion you need to provide an answer to the question as to which defence works is more efficacious. Is there a problem with one of the defences? Is one too restrictive? Does one of the defences appear to cover a wide range of breaches that the other does not?
