Moore v Houlihan [2021] 5 WLUK 336 – Trustee removal: cost consequences of failing to cooperate with other party

Judgment was handed down in the unusual case of Moore v Houlihan on 24 May 2021. This case concerned a professional trustee of a discretionary trust, who sought to set aside the costs order after she was removed as a trustee.

The applicant in this case previously worked for the respondent law firm and had been appointed as a trustee for a number of discretionary trusts. The discretionary trust in question included a number of properties, which the beneficiaries wished to sell. The applicant, however, would not cooperate in the sale and wished to be removed and indemnified. The the respondent sought to have the applicant removed as trustee, pursuant to S.36 Trustee Act 1925. The removal of her as trustee was sought on the basis that she was unfit to act. The applicant was not happy with this ground as a basis for her removal and she contested the application to have her removed as trustee. The respondents then informed the applicant that they would be drafting proceedings against her, and gave her the option to remove the objections which she had raised with the Land Registry. She did not, the respondent made an application and was subsequently successful in obtaining an order to have her removed as trustee. The court dealt with the matter on the papers and ordered that the applicant who had been removed as trustee should pay the respondent’s costs, as she had failed to reach an agreement with them in relation to her removal.

Application to set aside costs:

Having been removed as a trustee and ordered to pay costs, the applicant sought to set aside this costs order, on the basis that she had actually offered to resign as trustee, but was not willing to do so on the basis that she was ‘unfit.’ The court was subsequently shown correspondence where the applicant had offered to resign if the formal application against her was withdrawn, as she did not agree with the basis of such. The applicant was successful in her submissions and the costs order against her was set aside.

Significance:

This matter could have quite easily been resolved without the need for court proceedings; both parties agreed the trustee should be removed, it was the means of the removal that was not agreed. It is important for litigants to adopt a pragmatic approach, understand each other’s position, look at the bigger picture and work together to resolve matters. If a matter is left in the hands of the court, there is a costs risk.