Lloyd's Maritime and Commercial Law Quarterly
TOWARDS A MORE CONSTRUCTIVE CLASSIFICATION OF TRUSTS
Charles Rickett*
Ross Grantham†
Restitution scholarship has highlighted two issues of major importance in the law of trusts. The first is the large order question of the proper classification of trusts. The second is the issue of the rationale for, and nature of, the constructive trust. In this article, we analyse the recent decision of a five judge bench of the New Zealand Court of Appeal in Fortex Group Ltd (in receivership and liquidation) and The Trustees Executors and Agency Company of New Zealand Ltd v. Macintosh and Others,1
which, almost despite itself, provides considerable food for further reflections on both issues.
The facts
The plaintiffs were employees of the Fortex group of companies. They were voluntary members of a superannuation scheme (“the scheme”), of which Fortex Group Ltd (“Fortex”) was the participating employer. Fortex was also trustee of the fund established under the scheme. Colonial Mutual Life Assurance Society Ltd (“CML”) was the scheme manager. The employee members contributed to the scheme, and Fortex supplemented those contributions. Payments to which the respondents were otherwise entitled by way of salary or wages were, on each relevant occasion, reduced by the amount which they had agreed to contribute to the scheme. For approximately a year before the collapse of Fortex, no payments in respect of those reductions were made by Fortex to the scheme, and Fortex itself did not make the employer contributions it had contracted to pay.
The Deed constituting the scheme required all contributions to be paid “to the Trustees” on a monthly basis. Fortex had developed the practice, however, of paying the total contributions directly to CML on an annual basis. The evidence indicated that Fortex had intended to make the annual payment for the 1993-1994 year, although no separate fund had been set up in respect of the unpaid contributions. However, on 23 March 1994 receivers were appointed to Fortex by The Trustees Executors and Agency Company of New Zealand Ltd (“Trustees Executors”) as trustee for Fortex’s secured debenture stockholders.
Fortex banked with the Bank of New Zealand (“BNZ”). Although separate records were kept by BNZ in respect of Fortex’s Head Office and its various plants, the trial judge,
* Professor of Commercial Law, The University of Auckland. Professor Rickett acted as a consultant to the receivers of Fortex and Trustees Executors in connection with both the High Court and Court of Appeal proceedings.
† Associate Professor of Commercial Law, The University of Auckland.
1. [1998] 3 N.Z.L.R. 171. Three judgments were given. Tipping, J., gave a judgment for himself, Gault and Keith, JJ. Henry and Blanchard, JJ., gave concurring judgments.
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