Jersey Unreported Judgments

Trust

[2024]JRC093

Royal Court

(Samedi)

19 April 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Austin-Vautier and Cornish

 

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.