Setting aside trustees' decisions: How secure is the rule in Hastings-Bass?

LexisNexus Butterworths
Publication Type:
Journal Article
Australian Bar Review, 2008, 31 (1), pp. 36 - 62
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In the United Kingdom a broad principle has been developing which effectively allows trustees to impugn their own decisions by arguing that they took into account irrelevant matters or failed to take into account relevant matters. Recently three eminent commentators have foreshadowed a time when argument for the existence of the principle will be made in Australia. Against this background Barrett J has made an extra-judicial call for doctrinal analysis of the rule in the United Kingdom to determine how secure the principle is. This article responds to the call and analysis reveals some interesting patterns in the reported cases. In nearly all of the reported cases where the rule has been applied to invalidate a decision the parties have agreed both that it exists and should apply. It is submitted that this does not provide ideal conditions for the development and expansion of such a potentially powerful doctrine and caution should be exercised before relying on the UK decisions.
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