Where a trust deed contains a general limitation on trustee liability subject to exceptions for negligence, fraud, or breach of trust, the onus is on the claimant to establish one of the excepted matters as an element of the cause of action. However, negligence may be inferred from circumstantial evidence, including the trustee's failure to take any steps to consider its obligations after being put on notice, and the inference is strengthened by the trustee's failure to call relevant witnesses. A specific obligation in a trust deed (such as an obligation to appoint a controller during a decision period) will prevail over a general protection clause, even where both contain 'despite any other provision' language, where the two can be reconciled by treating them as addressing different situations.
The full text is available to signed-in members, including the 10 later cases that cite this judgment.