Distributions of trust income made within the terms of a trust deed but in breach of the duty to give real and genuine consideration are voidable, not void, following Pitt v Holt. A beneficiary must seek an order setting aside the distribution; the default trust does not automatically apply. In assessing whether a trustee has given real and genuine consideration, the court will look beyond mere opportunity for information to reach the trustee and will consider the trustee's failure to make enquiries, the pattern of distributions over time, the nature and purpose of the trust, and any elision between the interests of those controlling the trustee and the beneficiaries' interests. A trustee will be removed where there is a history of breaches, lack of impartiality, and irreconcilable breakdown in relations between beneficiaries and those controlling the trustee.
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