Trust
[2024]JRC093
Royal Court
(Samedi)
19 April 2024
Before :
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R. J. MacRae, Esq., Deputy Bailiff, and
Jurats Austin-Vautier and Cornish
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IN THE MATTER OF THE REPRESENTATION OF B
AND IN THE MATTER OF THE AUGUSTA TRUST
AND IN THE MATTER OF ARTICLES 51 AND 53
OF THE TRUSTS (JERSEY) LAW (AS AMENDED)
Advocate A. Kistler for the Representor.
ex tempore judgment
the deputy bailiff:
1.
We have
before us the Representation of B who lives in the property in Menton, France
which is the principal asset of the Augusta Trust ("the
Trust"). The Representor is
also the sole beneficiary of this trust which is now a Jersey Law discretionary
trust. The trust was established in
June 2006 by the initial trustee Olexco Trust Company Limited
("Olexco") of Port
Louis, Mauritius. The Trust has
been subsequently amended by a deed of variation in 2007 and a deed of change
of proper law in 2014 which changed the governing law to the laws of Jersey.
2.
Olexco
was, as we will detail in a little more in a moment, struck off by the
Mauritian Register of Companies in September 2020 on the basis that it had
ceased to carry out business in Mauritius and accordingly the Trust now lacks a
trustee. The Representor has
identified a company willing to accept the trusteeship of the Trust and an
affidavit has been sworn on behalf of that company.
3.
The Trust
was settled by the Representor's late father who died in October 2011
and, as we have said, she is the sole beneficiary of the trust. There was a protector, an individual who
was replaced as protector by a corporate entity, a BVI company in 2007 but
pursuant to the variation instrument the protector provisions were effectively
removed including the removal of the need for protector consent for the
appointment of new or additional trustees, and pursuant to the variation
instrument the corporate protector resigned its protectorship and the trust has
not had a protector since.
4.
Pursuant
to clause 19 of the Trust, the power to appoint a new or additional trustee
vests in the Trustee alone. No
provision is made for a trustee successor in title such as a liquidator as
anticipated by Article 17(1A) of the Trusts (Jersey) Law 1984 ("the
Law"), but of course the Court has a power to appoint a trustee under
Article 51 of the Law.
5.
The
circumstances of the dissolution of Olexco it is not necessary to set out in
this judgment, however the Trust as we have noted retains a valuable asset
namely the home of the Representor and it is imperative that a new Trustee is
appointed as a matter of some urgency as there are French taxes due in relation
to that property which is majority owned by the Trust and which is the family
home of the Representor and her mother.
6.
As to the
replacement trustee, that is a Mauritian service provider called Tri-Pro
Administrators Limited and an affidavit has been sworn by Hemlata Kulpoo who is
a senior manager employed by Tri-Pro.
In the affidavit sworn in support of these proceedings she deposes to the
fact that Tri-Pro is regulated by the Mauritius Financial Services Commission
under the Mauritius Financial Services Act 2007 to provide trusteeship services
to trusts established under the laws of Mauritius and other jurisdictions
insofar as the laws of those other jurisdictions permit the same.
7.
Ms Kulpoo
speaks to the historic relationship between Tri-Pro and Olexco in her affidavit
which does not give rise to any conflict but is indicative of knowledge on her
part as to the circumstances in which Olexco effectively ceased to exist.
8.
It is
clear that officers from Tri-Pro attempted to contact the Representor when
Tri-Pro came to know of the striking off of Olexco, which were initially
unsuccessful until lawyers representing the Representor made contact with them. Tri-Pro has a degree of historical
knowledge of and background to the Trust having provided administrative as well
as directorial services to Olexco previously and is content to act as new
trustee, accepting as it does that the Representor's ultimate wish is
that the Trust be dissolved with the assets appointed out to her. In any event Ms Kulpoo expressly says
that Tri-Pro is willing and ready to accept this appointment as trustee of the
Trust.
9.
Today's
hearing was to have been a convening hearing but the convening order had the sole
purpose of convening Tri-Pro and the now defunct former trustee Olexco. In the circumstances we accepted the
submission of counsel for the Representor that we could deal with the matter
today and this we do and we make the orders in accordance with the draft before
us namely:-
(i)
For the
avoidance of doubt the initial trustee of the Trust Olexco Trust Company be
removed as trustee.
(ii) Tri-Pro Administrators Limited, of the address
given in the draft order, be appointed as trustee of the Trust with effect from
the date of this order.
(iii) This order be served by post and if possible,
by email on Tri-Pro at its registered office and on Olexco at its former
registered office.
(iv) The Representor shall be entitled to her costs
of and incidental to the Representation on the indemnity basis, to be assessed
if not agreed from out of the assets of the Trust.
(v) There shall be liberty to apply.
10. We also make the usual order that this judgment
shall be redacted so as to remove any reference to the identity of the
beneficiaries - for these purposes that is the Representor.
Authorities
Trusts (Jersey) Law 1984.