28 February 2020

Legal Update

Mayer Brown Achieved Successful Outcome In High-profile Trust Dispute:Zhang Hong Li & Ors v DBS Bank (Hong Kong) Limited & Ors [2019] HKCFA 45

Hong Kong Court Of Final Appeal Clarified Duties Of Trustees And Effect Of Anti-Bartlett Clauses

Introduction The CFA’s decision came as a huge relief as anti-Bartlett clauses have long been regarded as Mayer Brown represented the appellants in the an effective tool and widely used to limit duties of long-running case of Zhang Hong Li & Ors v DBS trustees. Certainty over their effect is highly Bank (Hong Kong) Ltd & Ors, which has been important to all stakeholders in the trust world. closely followed by the trust and private wealth industry around the world as it raises important issues relating to duties of trustees and the effect Brief facts of “anti-Bartlett” clauses in trust instruments. The first and second Plaintiffs (respectively “P1” On 22 November 2019, the Hong Kong Court of and “P2”) are husband and wife. In 2004, P2 Final Appeal (CFA) handed down its judgment incorporated the fourth Plaintiff (Wise Lords), a BVI notwithstanding a post-hearing settlement company to make investments with the family’s between the parties because of the general public wealth through a private banking account with the importance of the issues involved. The CFA con- first Defendant (the “Bank”). P2 was the sole firmed the effect of the anti-Bartlett clauses in the shareholder and director of Wise Lords. case and stated that had the case not been settled, In early 2005, P1 and P2 settled a trust under it would have unanimously overturned the deci- Jersey law, appointed the second Defendant (the sions of the Court of First Instance (CFI) and the “Trustee”) as its trustee, with themselves and their Court of Appeal (CA), both of which found liability two minor sons as beneficiaries (the “Trust”). P2 against the trustee and the corporate director of transferred the sole share in Wise Lords to the the trust’s private investment company (PIC) for Trustee and herself was replaced by the fourth breach of a “high level supervisory duty”, notwith- Defendant (the “Director”) as the sole director of standing the existence of the otherwise effective Wise Lords. anti-Bartlett clauses. Despite setting up the Trust, P2 remained in Proceedings in the courts control of Wise Lords’ investments: By a Letter of Wishes to the Trustee, P1 and P2 expressed their below wish for the Trustee to consult P2 in all matters and The relationship between the parties turned sour her recommendations were final; By an Investment and the third Plaintiffs (the “New Trustees”) were Advisor Agreement, Wise Lords appointed P2 as appointed to replace the Trustee. In February 2011, its investment advisor; The Director granted P2 the P1, P2, New Trustees and Wise Lords brought authority to give investment directions to the Bank. proceedings against the Bank, the Trustee, the Importantly, the Trust Deed contained a set of Director and several other related parties. comprehensively drafted clauses, which is com- The CFI dismissed all of the Plaintiffs’ claims monly referred to as “anti-Bartlett” clauses, which against the Bank and the other defendants, but seek to define and limit the scope of the trustee’s found the Trustee and the Director liable for duties. These clauses provided, among other grossly negligent breaches of trust and things, that: duty respectively and ordered them to pay equita- • The trustees are not under any duty to interfere ble compensation to New Trustees and Wise Lords. in the business of any company in which the Specifically, the CFI found that the Trustee and the Trust is interested. They are not under any duty Director failed to discharge their “high level to supervise such company’s directors, officers supervisory duty” in allowing (i) the purchase of or other persons so long as the trustees do not USD 83 million worth of AUD between 25 July and have actual knowledge of any dishonesty. They 5 August 2008; (ii) the increase of the credit can assume the business and affairs of such facilities from USD 58 million to USD 100 million; company are being carried on competently, and (iii) the purchase of three decumulators in honestly, diligently and in the best interests of August 2008 (collectively, the “Transactions”). the trustees until such time as they have actual Both sides appealed to the CA and both appeals knowledge to the contrary. were dismissed. The CA also refused to grant leave • The trustees are not under any duty to obtain to either side to further appeal to the CFA. But the any information regarding the administration, CFA granted the Trustee and the Director leave to management or conduct of the business or appeal. affairs of any company in which the Trust is interested from the persons involved in the administration, management or control. They Key issues relating to duties can assume that such information as is supplied The key issues before the CFA were: (1) whether to them is accurate and truthful unless the the Trustee and/or the Director owed the Trust and trustees have actual knowledge to the contrary. Wise Lords respectively a “high level supervisory duty”, as found by the CFI and the CA; and (2) if so, After the Trust was settled, at the direction of P2, whether there was a grossly negligent breach of Wise Lords entered into numerous investment applicable duties which warranted an award of transactions and engaged credit facilities advanced equitable compensation. by the Bank to leverage its investments. The Trustee and the Director reviewed and/or “HIGH LEVEL SUPERVISORY DUTY” OR DUTY approved these transactions after they were TO ACT PRUDENTLY? entered. The CFA held there was no “high level supervisory When the financial crisis hit in August 2008, Wise duty” in the case. The CFA explained that such a Lords suffered significant losses from substantial duty, “which would require the trustee to query foreign currency exposure, particularly in Australian and disapprove of the transactions entered into by dollars (AUD), and heavy leverage as AUD fell Wise Lords, thereby obviously interfering with sharply against US dollars (USD). [P2]’s management of the company’s investment business which she had been duly authorised to conduct” is inconsistent with the anti-Bartlett clauses in the Trust Deed; There was no actual knowledge of dishonesty, which was the only

2 MAYER BROWN | Mayer Brown Achieved Successful Outcome In High-profile Trust Dispute: Zhang Hong Li & Ors v DBS Bank (Hong Kong) Limited & Ors [2019] HKCFA 45 exception provided in the Trust Deed requiring the The CFA also specifically noted that the purported Trustee to intervene. “residual obligation” is not to be equated with the “irreducible core of obligations”, described by In analysing the comments made by the Trial Judge Millett LJ in Armitage v Nurse [1998] Ch 241; The in the CFI Judgment, the CFA also made it clear “irreducible core obligations” consist of “[t]he duty there are no free standing duties to “act with due of the trustees to perform the trusts honestly and diligence, as would a prudent person, to the best in good faith for the benefit of the beneficiaries”, of the trustee’s ability and skill; and observe the but they do not include “the duties of skill and utmost good faith”. Such language came from care, prudence and diligence”; They also do not Articles 21(1) and (2) of the 1984 Trust (Jersey) Law. posit some broad duty for the trustees to exercise The CFA explained that these “operates to lay available powers in circumstances “where no down the standards which trustees must adhere to reasonable trustee could lawfully refrain from in executing their duties or in exercising their exercising those powers”; Importantly, they do not powers.” operate to override express terms of the Trust. Where relevant duties are disapplied by anti-Bart- lett clauses, the standards do not come into play. ASSUMPTION OF NON-DEROGABLE OBLIGATION THROUGH EXERCISE OF RESIDUAL OBLIGATIONS? POWERS? The CFA further considered the CA’s finding that At the CFA, Counsel for New Trustees and Wise the Trustee was under a non-derogable residual Lords advanced a further argument to justify the obligation to exercise available powers “where no finding of breach of trust. It was argued that by reasonable trustee could lawfully refrain from choosing to exercise the power to supervise by acting”, which the CA equated to the “high level approving Wise Lords’ investments, the Trustee supervisory duty” found by the CFI. subjected themselves to the non-derogable obligations to exercise this power in accordance The reference of “residual obligation” was made in with the standards laid down in Article 21(1) of the the evidence of one of the Jersey law experts, who 1984 Trust (Jersey) Law. The CFA rejected the commented that “there is a residual obligation cast argument. on the trustee which [the anti-Bartlett clauses] do not exclude”. Factually, the CFA held that the Trustee had not exercised any power of supervision, as the The CFA disagreed with the CA’s interpretation of so-called “approvals” only took place after the the expert’s comment, which suggested the relevant transactions had been fully executed and existence of a broad implied residual obligation did not amount to any meaningful form of supervi- arising outside of, and contradicting or overriding, sion. In addition, the CFA held that the anti-Bartlett the anti-Bartlett clauses in the Trust Deed. Instead, clauses not only relieved the Trustee of their duties, the CFA took the view that the Jersey law expert they also restricted the Trustee’s powers to inter- simply meant the anti-Bartlett clauses preserved an fere in the conduct of Wise Lords’ business. The obligation to interfere where there is actual knowl- supervisory powers contended to have been edge of dishonesty. The CFA warned that “to exercised were as a matter of fact unavailable to postulate that the parties’ chosen scheme may be the Trustee. overridden by some implied, non-derogable external duty arising in circumstances “where no The CFA made it clear that one may not rely on a reasonable trustee could refrain from exercising power, as opposed to a duty, to circumvent the otherwise excluded powers” would be to introduce anti-Bartlett clauses which relieve the trustees of an amorphous and ill-defined basis for undermin- their relevant duties. The CFA explained that “for ing a legitimate arrangement consciously adopted the exercise of a power to constitute a breach of by the parties, exposing the trustees to unantici- trust, such exercise must occur in such an improper pated risks of liability and sowing confusion as to or deficient manner as to amount to violation of a the extent of their duties”. duty on the part of the trustee. What starts off as a deficient exercise of a power must attain the status of a breach of duty if it is to found the equitable claim. Thus, on a proper analysis, the anti-Bartlett

3 MAYER BROWN | Mayer Brown Achieved Successful Outcome In High-profile Trust Dispute: Zhang Hong Li & Ors v DBS Bank (Hong Kong) Limited & Ors [2019] HKCFA 45 provisions cannot be avoided simply by asserting or care causing diminution in the value of the that the complaint relates to a grossly negligent Trust’s assets, and as such the rules of exercise of a power.” causation, foreseeability and remoteness should apply to the assessment of equitable compensa- THE DIRECTOR tion. The CFA’s analysis highlighted the importance Regarding the Director, the CFA held that it had of correctly identifying the nature of the breach in not exercised any power of supervision for the assessing equitable compensation for breach of same reason given in respect of the claim against duty. the Trustee and there was no other basis to justify a high level duty on the part of the Director. Concluding remarks However, the CFA accepted that the Director could The CFI and the CA’s findings of a “high level have been held liable if it could be shown to have supervisory duty” or “residual obligation” which failed in its fiduciary duties as a director of Wise could not be ousted by an otherwise effective Lords, which is discussed below. anti-Bartlett clause raised alarm within the trust and private wealth industry. The CFA’s decision ANY BREACH OF APPLICABLE DUTIES? confirming the effectiveness of anti-Bartlett clauses After considering the issue of existence of duty, will therefore be welcomed by the industry. the CFA moved on to consider the issue of breach. It should however be noted that the result was In relation to the Trustee, the CFA remarked that, mainly due to the specific set-up of the Trust and even if contrary to its holding, the Trustee was the existence of a set of comprehensive and well under a duty to supervise Wise Lords’ investments drafted anti-Bartlett clauses in the Trust Deed, instigated by P2, for the Plaintiffs’ claim to suc- which effectively limited and relieved the Trustee ceed, they would still have to show that the of the relevant duties. The case serves as a helpful Trustee’s breach of duty constituted gross negli- reminder to trust participants about the impor- gence, i.e. “a serious or flagrant degree of tance of respecting the arrangements consciously ”. This is because exculpatory clauses in adopted by the parties and the risk of treading the Trust Deed protected the Trustee from liability outside the boundaries of such arrangements. for any acts or omission falling short of , wilful By way of practical guidance, trustees and direc- misconduct or . Regarding the tors of a PIC, and indeed all stakeholders in trust Director, there are similar exculpatory provisions in arrangements, should pay attention to the following:- the Service Agreement exempting liability and indemnities except “in the case of gross 1. The importance of carefully drafted trust negligence”. instruments, which give effect to the intention of the parties. Trustees should ensure that well The CFA questioned the CFI and the CA’s failure to drafted anti-Bartlett provisions are in place to give reasons for their finding of gross negligence avoid uncertainty over the scope of their duties. and held instead that no basis had been shown for 2. Trustees and directors of a PIC should famil- concluding that approval of the Transactions iarise themselves with the provisions of the constituted negligence to a “serious and flagrant trust and corporate instruments, identify their degree” on the part of the Trustee and the powers and duties, ensure that applicable Director. powers and duties are properly discharged and avoid unintended assumption of duties, which Equitable compensation may not be subject to any anti-Bartlett provi- Despite their findings of absence of duty and sions. Practitioners should consider reviewing breach, the CFA still addressed the issue of relief existing practice and procedures to ensure on the basis of its importance. compliance with the above. 3. Duties owed by directors of a PIC are different The CFA disagreed with the CFI and the CA’s from duties owed by the trustees, though in approach to equitable compensation and held that practice they may perform similar functions in even if the Trustee and the Director were liable, it the operation of the PIC and execution of the was not a case of misapplication or loss of the trust trust. property. Instead, the case involved a lack of skill

4 MAYER BROWN | Mayer Brown Achieved Successful Outcome In High-profile Trust Dispute: Zhang Hong Li & Ors v DBS Bank (Hong Kong) Limited & Ors [2019] HKCFA 45 Contact Us For enquiries related to this legal update, please contact the following or your usual contact at our firm.

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