Cutner v Green and Trustees of Marc Bolan Charitable Trust

JurisdictionJersey
CourtCourt of Appeal
Judge(Wilmers, Davies and Clyde, JJ.A.):
Judgment Date11 December 1980
Date11 December 1980
COURT OF APPEAL
(Wilmers, Davies and Clyde, JJ.A.):

P.R. Le Cras for the appellant;

J.A. Clyde-Smith for the respondents.

Civil Procedureappealsappeals against exercise of discretionin exercising powers of Superior Number under Court of Appeal (Jersey) Law 1961, art. 15 and Court of Appeal (Jersey) Rules 1964, r.12/2, will not interfere with lower court's exercise of discretion in interlocutory matter except on grounds of law or if injustice otherwise causedif appeal against final order, hearing de novo strictly limited to same material considered in lower court

Trustsliabilities of trusteesrestoration of losstrustee in breach of trust to restore trust fund and income it should have earnedinterest calculated according to rates available in Jersey during relevant investment periodsuch order of restitution not caught by Interest on Debts and Damages (Jersey) Law 1971

WILMERS, J.A.: The judgment which I am about to give is the judgment of the Court.

In this case Mr. Lewis Cutner appeals to this Court against the refusal of the Royal Court to set aside a judgment in default of appearance entered against him on the 9th February, 1979. The material facts can be stated shortly in simplified form. In 1973 the late Mr. Feld set up a trust in Jersey of which, in circumstances which do not matter, Mr. Cutner became one of the trustees. Mr. Cutner is an English solicitor practising in England. The trust deed contained a provision which required Mr. Feld's prior written approval to investment of trust monies. The trust funds were banked with Wallace Brothers Bank of Jersey. In December, 1973, a sum of 430,000 was transferred from that bank to Lloyds Bank Limited in England. The whole of it was received at the Great Portland Street branch in London of Lloyds Bank. This was Mr. Cutner's bank and branch. Some 400,000 went into Mr. Cutner's client account. The balance of 30,000 went to another account. Lloyds Bank, by letter dated the 6th February, 1980, have stated that this was done "on the instructions of their customer", that is to say Mr. Cutner. In another letter dated the 30th April, 1980, Lloyds Bank have said that they "can trace no written evidence from Messrs. Lewis Cutner as to why 30,000 was paid into the account of Warrior Music Projects Limited". These letters, in our view, are not inconsistent with each other. They appear to say that not only 400,000, but 430,000 of the trust money was received at Mr. Cutner's bank; that 400,000 of this found its way into Mr. Cutner's client account, and that the other 30,000 was transferred on the oral instructions of Mr. Cutner or his agents into another account. There is no suggestion that this other account in any way belonged to the cestui que trust, or that by causing money to be paid to it Mr. Cutner, in his capacity as trustee, discharged some duty under the trust. The 400,000 was then used for a disastrous speculation in pictures, and much of it has been lost. It is conceded that none of the transfer of any of the 430,000 from Jersey was ever authorised by Mr. Feld.

In this action, the plaintiffs, as the present trustees, claim against a number of persons, including Mr. Cutner, in respect of these unauthorised transfers, and the losses which have thereby occurred to the trust funds. Mr. Cutner concedes liability in respect of the 400,000, which went into his client account, and thence into the picture speculation, but he says (a) that he knows nothing of the 30,000 and (b) that he should not be held liable in respect of the interest lost. Mr. Cutner was regularly served with the Order of Justice in this case. Upon the advice of counsel he deliberately chose not to enter an appearance, and allowed judgment against him to go by default. It is clear that he did so because, on advice, he thought that such judgment could not be...

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17 cases
  • Le Mière (Née Rennell) v Le Mière
    • Jersey
    • Court of Appeal
    • 24 January 1996
    ...1 FLR 377. Bassett v. Bassett, [1975] 1 All E.R. 513. Clarke v. Gledhill, Royal Ct., December 10th, 1991, unreported. Cutner v. Green, 1980 J.J. 269. Elsworth v. Elsworth (1980), FLR 245. Howard (née Fox) v. Howard, Royal Ct., October 21st, 1993, unreported. A v. B, 1994 JLR N-9. Myers v. M......
  • West v Lazard Bros and Company (Jersey) Ltd
    • Jersey
    • Royal Court
    • 18 October 1993
    ...Sol. Jo. 580. (9) Colquhoun of Luss v. Pirunica Trustees (Jersey) Ltd., Royal Ct., October 6th, 1986, unreported. (10) Cutner v. Green, 1980 J.J. 269, applied. (11) Dawson, Re, Union Fidelity Trustee Co. Ltd. v. Perpetual Trustee Co. Ltd., [1966] 2 N.S.W.R. 211; (1966), 84 W.N. (Pt. 1) (N.S......
  • Arya Holdings Ltd v Minories Finance Ltd
    • Jersey
    • Royal Court
    • 10 July 1995
    ...Ltd. v. John Wilson & Co. (Official Assignee), [1983] A.C. 181. Cooper v. Resch (formerly Cooper), 1987-88 JLR 428. Cutner v. Green, 1980 J.J. 269. D.S.V. Silo-und Verwaltungsgesellschaft G.m.b.H. v. Sennar (Owners), [1985] 1 W.L.R. 490. Davis v. Radcliffe, [1990] 1 W.L.R. 821. Désastre Ove......
  • Mesch and Mesch (Née Rivett) v Housing Committee
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    • Royal Court
    • 4 October 1990
    ...(2) Coated Steel of Europe Ltd. v. Housing Cttee., 1962 J.J. 179. (3) Cottignies v. Housing Cttee., 1969 J.J. 1149. (4) Cutner v. Green, 1980 J.J. 269, considered. (5) Dash, In re, ex p. Australian Sporting Club (1947), 47 S.R. (N.S.W.) 283. (6) Fraser (D.R.) & Co. Ltd. v. Minister of Natl.......
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