Private Law Theory

INTRODUCTION
This article concerns problems which arise in cases where trustees incur liabilities whilst executing their office, problems which recently led to appeals at the highest levels in Re Amerind, Investec 1, Investec 2, and Namaan v Jaken Properties Australia Pty Ltd. The area has vexed law reformers across jurisdictions and the Chancery Bar Association has argued that ‘[t]he present law is ill-understood and uncertain, and clarification is the least required’. This article challenges the assertion that the law in this area is unclear and unprincipled, and so questions whether reform is needed. It argues that a trustee’s right of indemnity and lien are aspects of a trustee’s right to due administration of the trust fund and consist of analytically distinct rights designed to ensure that trust assets meet trust liabilities. While unpaid ‘trust creditors’ cannot directly ‘claim’ trust assets, and have no independent right to due administration of the trust fund, they can in some cases levy execution against a trustee’s own entitlement to an indemnity. This reasoning allows us to reconcile otherwise seemingly contradictory authorities in a way consistent with orthodox axioms of trusts law …

€ (Westlaw)

Andreas Televantos, ‘Trustees and their creditors’ (2025) 141 Law Quarterly Review 561-586 (October 2025).