Equity Trust (Jersey) Ltd v E (in his capacity as Executor of the Estate of C)

JurisdictionJersey
CourtCourt of Appeal
JudgeMartin JA
Judgment Date23 September 2019
Neutral Citation[2019] JCA 188
Date23 September 2019

[2019] JCA 188

Court of Appeal

Before:

Sir William Bailhache, Bailiff of Jersey, President;

John Martin, Q.C; and

Sir Michael Birt.

Between
Equity Trust (Jersey) Limited
Appellant
and
E (in his capacity as Executor of the Estate of C)
Respondent
Authorities

Rawlinson & Hunter Trustees SA v Chiddicks and others [2019] JCA 106.

Parish of St Helier v Minister for Infrastructure [2017] JCA 076.

Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd [2019] AC 271.

Judicial Committee (Appellate Jurisdiction) Rules 2009.

Court of Appeal (Jersey) Law 1961.

Botas v Tepe [2016] JCA 199D.

Court of Appeal — leave to appeal — costs.

JUDGMENT ON THE PAPERS
Martin JA
1

On 28 June 2019 the Court gave judgment ( Rawlinson & Hunter Trustees SA v Chiddicks and others [2019] JCA 106) allowing the appeal of Equity Trust in this matter. The background is comprehensively set out in that judgment, and we do not repeat it here. The parties are described in the same way as in that judgment.

2

The Executor, the unsuccessful respondent to the appeal, now applies for leave to appeal to the Judicial Committee of the Privy Council (“the JCPC”). Equity Trust makes a cross-application for security for the costs of the appeal to the JCPC if leave is granted. This is the decision of the Court on those applications, which we have determined on the papers with the benefit of extensive written submissions on both sides.

3

The Court's conclusion is that leave should be granted unconditionally.

Leave
4

Leave will not be granted unless the projected appeal raises an arguable point of law of general public importance which ought to be considered by the JCPC at this time: see Parish of St Helier v Minister for Infrastructure [2017] JCA 076. The same case also indicates that in normal circumstances it will be left to the JCPC to decide whether or not leave should be given. The circumstances where this Court may be more sympathetic to an application for leave are those where it is more easily able perhaps than the JCPC to form a view about the public importance of the issue in question to Jersey.

5

We consider that this case raises at least two arguable points of law of general public importance. The first is the correct method of dealing with the liabilities of a trust whose assets are insufficient to meet the claims on it. Although such cases are still rare, when they do arise they cause practical and conceptual problems that are novel. There is no authority in this jurisdiction, in England or elsewhere apart from our decision that directly deals with the issues. We think the point is of general importance to this jurisdiction and more widely. The second point is the status of a trustee's lien in Jersey law. The JCPC's conclusion in Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd [2019] AC 271 at [59] that the existence of a trustee's non-possessory lien securing his right of indemnity was one of the principles of English law that must be regarded as having been part of the law of Jersey prior to the enactment of the Trusts (Jersey) Law was fundamental to this Court's decision; but, as both the Bailiff and Martin JA pointed out, a non-possessory lien was on the face of it not something that was recognised by Jersey customary law. Further consideration of this issue is of general public importance to Jersey, in particular because of the necessity to uphold the Island's customs and to recognise the separate origins of its law.

6

We consider that both these issues need to be considered by the JCPC at this time. It is important that the proper way of dealing...

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2 cases
  • Geneva Trust Company (GTC) SA v Equity Trust (Jersey) Ltd
    • Jersey
    • Royal Court
    • 26 March 2020
    ...below against the Estate. 5 On 23 rd September, 2019, Equity Trust (Jersey) Limited v E (in his capacity as Executor of the Estate of C [2019] JCA 188, the Court of Appeal gave Mr E as executor unconditional leave to appeal the decision of the Court of Appeal, finding that there were two ar......
  • Energy Investments Global Ltd v Albion Energy Ltd
    • Jersey
    • Court of Appeal
    • 22 December 2020
    ...JCA 258. Court of Appeal (Jersey) Law 1961. Boru Hatlari Ile Petrol Tasima SA v Tepe Insaat Sanayii [2016] (2) JLR 511. Equity Trust v E [2019] JCA 188. Albion Energy Limited v Energy Investments Global Limited and Heritage Oil Limited [2020] JRC 160 Companies — consequential orders followi......
1 firm's commentaries
  • The Z Trusts Equation ' Z2 + Z3 = 1T + IP
    • Jersey
    • Mondaq Jersey
    • 7 August 2020
    ...trust assets on a winding up. Recognising the seminal importance of this decision, the Court of Appeal in Equity Trust (Jersey) Ltd v E [2019] JCA 188 very unusually leave to appeal to the Judicial Committee of the Privy Council. In the interim, the ZIII Trust had become cash flow insolvent......

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