Author: Christopher Cant (2002)

Christopher Cant sets out some of the less obvious, but potentially risky, areas of concern for nominee directors and trustees
(taken from Issue No 18  –  January 2002)

In re Lucking¹ one of the submissions made was that the Court should look through the company in which the trust held shares and treat the company’s business as belonging directly to the trust. Had this submission been accepted the position regarding controlling interests in a company held as trust assets would be much simpler. Unsurprisingly it was not. There is a clear distinction drawn between assets or a business held by trustees and the same assets or business held by a company in which the trust has a controlling interest (whether by virtue of ownership of all the company’s shares or a majority holding). In consequence a different analysis is needed when considering issues such as breach of trust and defences to such claims.