The ‘momentous’ decision for which the approval of the Court was sought was the enforcer’s decision to instruct the trustee to exercise certain rights attached to shares held by the trustee for the benefit of the trust. The exercise of these share rights was central to the purpose of the trust.

The Court was satisfied that an enforcer has standing to apply for the Court’s blessing of a ‘momentous’ decision on the same legal basis as a trustee, having had regard to sections 48 and 102 of the Trusts Act and the inclusion of “enforcer” in the relevant Grand Court Rule (Order 85, rule 7(1)) relating to applications under section 48 of the Trusts Act. Accordingly, the Court would apply the principles established in Public Trustee v Cooper  [2001] WTLR 901 in relation to ‘Category 2’ cases where a trustee seeks the Court’s blessing for a momentous decision.

In such cases, the Court will consider the following questions:

• Does the trustee or enforcer have the power to enter into the proposed transaction?
• Is the Court satisfied that the trustee or enforcer has genuinely concluded that the proposed transaction is in the interests of the trust and the beneficiaries and/or in furtherance of its purposes?
• Is the Court satisfied that a reasonable trustee or enforcer would arrive at the relevant conclusion?
• Does the trustee or enforcer have any conflict of interests which prevents the Court form granting the approval sought?

In this case, the Court approved the enforcer’s decision, it being satisfied that:

• the enforcer clearly had the power to give the relevant instruction;
• the enforcer had genuinely decided that the proposed instruction to the trustee was in the best interests of the trust and in furtherance of the purposes for which it was established;
• a reasonable enforcer could have reached the same decision, which had not been entered into precipitously, but following careful deliberation and the receipt of appropriate legal advice; and
• the enforcer was not impeded by conflicts of interest. Importantly, the Court noted that what might be considered as potential conflicts of interest were properly identified in discharge of the duty to give full and frank disclosure of such matters when making such an application.

This case provides much welcomed confirmation of an enforcer’s standing to invoke the Court’s advisory jurisdiction and sets out clearly the questions the Court will consider in determining an application for the Court’s approval of a ‘momentous’ decision under the STAR trust regime.