Von Knieriem v Bermuda Trust Company Ltd
| Jurisdiction | Bermuda |
| Judgment Date | 13 July 1994 |
| Date | 13 July 1994 |
| Docket Number | Civil Jurisdiction 1994 No. 154 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
In the Supreme Court of Bermuda
In the Supreme Court of Bermuda
Meerabux, J
Meerabux, J
Civil Jurisdiction 1994 No. 154
Civil Jurisdiction 1994 No. 162
Civil Jurisdiction 1994 No. 154
Civil Jurisdiction 1994 No. 162
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Mr. N. Patten Q.C. and Mr. I. Kawaley for Jurgen Von Knieriem
Mr. R. Walker Q.C. and Mr. A. Martin for Bermuda Trust Company Limited
Mr. J. Cooper for Grosvenor Trust Company Limited
Mr. D. Lowe Q.C. and Mr. D. Duncan for Kurt Engelhorn
Re HayWLR [1982] 1 WLR 202
In re Skeats' SettlementELR (1889) 42 ChD 522
Re SomesELR [1896] 1 Ch 250
Re GreavesELR [1954] 1 Ch 434
Mettoy Pension Trustees v EvansWLR [1990] 1 WLR 1587
British Coal Corp v British Coal Staff Superannuation Scheme Trustees [1993] PLR 303
Rawson Trust v Perlman, Supreme Court of Bahamas, 25 April 1990
Gathright's Trustee v Gaut (1939) 276 Ky 562
Lord Hinchingbroke v SeymourENR (1789) 1 Bro CC 395
Jackson v Jackson (1840) 7 Ci v Fin 977
Vane v Lord Dungamon (1804) 2 Sch and Lef 118
Originating summons — Trusts — Seeking order in respect of shares — Valid exercise of trustee powers — Trust protector
This morning I promised to give my determination of this consolidated matter and not the reasons for the determination. I will give the reasons later.
In Originating Summons 1994 No. 154 the Plaintiff sought an ‘order directing the First Defendant forthwith to transfer to the Second Defendant the shares in Corange Limited specified in the Schedule hereto which it holds as trustee under the Star I (Revised) and Star II (Revised) Settlements and forthwith to deliver up to the Second Defendant the share certificates in respect of the aforesaid shares and to take such other steps as may be necessary to effect the transfer of the aforesaid shares to the Second Defendant pursuant to the Bye-Laws of Corange Limited.
Alternatively an Order pursuant to Section 42 of the Trustees Act 1975 that the right to call for a transfer of and to transfer the shares specified in the Schedule hereto and to receive any dividends now due and to accrue thereon shall vest in the Second Defendant and that the Second Defendant shall forthwith transfer the said shares into its own name to be held by it upon the trusts of the Star I (Revised) and Star II (Revised) Settlements aforesaid.
Such further declaratory or other relief as may be just or appropriate.
8,550 shares—Certificate number 23
20,750 shares—Certificate numbers 30 and 37’.
The Second Defendant, Grosvenor Trust Company Limited, by notice of 27th April 1994 sought an Order ‘declaring that it has been duly appointed as trustee under the Star I (Revised) and Star II (Revised) Settlements by deeds of appointment made by the Plaintiff on the 20th April, 1994, and that the First Defendant shall, in relation to the shares specified in the Schedule to the Originating Summons, do or cause to be done any and all things or acts as the Second Defendant may direct, and in particular, that in the event of notice being given of a meeting of the members of Corange Limited, the First Defendant shall issue such form of proxy in relation to the aforesaid shares naming such person or persons proxy-holder as the Second Defendant may direct.’
In Originating Summons 1994 No. 162 the Plaintiff. Bermuda Trust Company Limited, claimed against the Defendants and/or sought the determination of the Court of the following questions namely:
‘1. That it may be determined whether the powers of appointing and removing trustees contained in clause 38 of each of the Settlements are fiduciary;
2.If the answer to question 1 is that the said powers are fiduciary, that it may be determined whether BTCL has been removed as trustee of the Settlements and whether BTCL remains the sole trustee of the Settlements;
3. If the answer to question 1 is that the said powers are fiduciary, and the answer to question 2 is that BTCL remains the sole trustee of the Settlements, an injunction restraining the first Defendant as protector of the Settlements and whether by himself his appointees delegates or agents or otherwise howsoever until the later of:
(i) the day following the next annual general meeting of Corange Limited; and
(ii) leave of the Court
from exercising the powers of removal and appointment of trustees contained in clause 38 of the Settlements or any other power enabling him in that behalf;
4. That it maybe determined whether the power of the protector to withhold ‘the Necessary Consent’ in clause 23(2) (a) of the Settlements is fiduciary;
5. If the answer to question 4 is that the said power is fiduciary, that it may be determined whether the first Defendant is entitled to withhold the Necessary Consent so as to veto the exercise by BTCL of its discretion under clause 23(2) (a) of the Settlements as regards the question of the eighth Defendant's membership of the Board of Corange Limited;
6. If the answer to question 5 is in the negative, an injunction restraining the first Defendant as protector of the Settlements and whether by himself his appointees delegates or agents or otherwise howsoever until the later of;
(i) the day following the next annual general meeting of Corange Limited; and
(ii) leave of the Court
from exercising the power to withhold ‘the Necessary Consent’ so as to veto the exercise by BTCL of its discretion under clause 23 (2) (a) of the Settlements as regards the question of the eighth Defendant's membership of the Board of Corange Limited;
7. If the relief sought in paragraph 3 and/or paragraph 6 is granted then, an injunction restraining the eighth Defendant as settlor of the Settlements and whether by himself his appointees, delegates or agents or otherwise howsoever until the later of:
(i) the day following the next annual general meeting of Corange Limited; and
(ii) leave of the Court
from exercising the power to appoint a protector of the Settlements contained in clause 42 of the Settlements;
8. Further or other relief;
9. Costs.’
In order to make an order in the terms of the Plaintiff in Originating Summons 1994 No. 154, I have to determine whether the Plaintiff validly exercised the power of appointing Grovesnor as the sole trustee for the Settlements and also validly exercised the power of removing the First Defendant as trustee for the Settlements on the 20 April 1994 and the 9 May 1994.
I have heard the arguments, considered the evidence and am of view that the First Defendant has not satisfied the Court that the exercise of such powers by the Plaintiff is invalid.
In the circumstances the Court makes the following Orders:
An Order declaring that Grosvenor has been duly appointed trustee under Star I (Revised) and Star II (Revised) Settlements by deeds of appointment made by the Plaintiff on 20 April 1994.
An Order declaring that Grosvenor has been duly appointed trustee under Star I (Revised) and Star II (Revised) Settlements by deeds of appointment made by the Plaintiff on 9 May 1994.
An Order directing the First Defendant to issue such form of proxy in relation to the shares specified in the Schedule to the Originating Summons 1994 : No. 154 in favour of Mr. Gordon Howard of Grosvenor.
An Order pursuant to section 42 of the Trustee Act 1975 that the right to call for a transfer of and to transfer the shares specified in the Schedule to the Originating Summons 1994 : No. 154 and to receive dividends now due and to accrue thereon shall vest in the Second Defendant and that the Second Defendant shall forthwith transfer the said shares into its own name to be held by it upon the trusts of Star I (Revised) and Star II (Revised) Settlements.
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