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In this episode of Trusts Talk, Mark Bennett and Adam Hofri-Winogradow interview Professor Katy Barnett of Melbourne Law School about Australian trust law, the role of protectors, appointors and guardians, and the fiduciary limits on trust powers.
Professor Barnett’s recent open-access article, “Protectors and guardians: observations from Australia”, provides a useful companion to the episode. For those with access, her paper “‘Pistols at dawn’ and the powers of trustees, appointors, and guardians: who comes trumps in a dispute over a family trust?” is also available.
The conversation begins with Australia’s unusually strong equity and trusts tradition. Barnett traces this tradition back to early colonial legal history, including the 1808 Rum Rebellion, and to the Burwood Estate litigation discussed in her and Lynne Barnett’s article, “‘Equity’s Darling’ and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law”.
Barnett then turns to modern Australian trust practice. She explains how highly discretionary family trusts often use appointors, guardians or protectors to supervise corporate trustees and control succession within family wealth structures. These offices can be useful, but they can also produce intense control disputes. For recent Australian examples, see Staley v Hill Family Holdings Pty Ltd [2025] QCA 95, and Mercanti v Mercanti [2016] WASCA 206.
Barnett warns against assuming that the family patriarch, matriarch or dominant family figure is necessarily the best person to hold a control office. The episode discusses “battle of the deeds” scenarios, disputes over trustee removal powers - with reference to Cihan v Cihan [2022] NSWSC 538 and the need to specify whether particular powers are fiduciary, personal, constrained, or subject to procedural requirements.
The discussion then moves to fiduciary duties. Barnett distinguishes between the strict core of fiduciary law — especially the no-conflict and no-profit rules — and broader uses of fiduciary language that include duties of proper consideration, decision-making process and trustee deliberation.
The episode also connects protector powers to the problem of settlor control and illusory trusts. Key cases include New Zealand’s Clayton v Clayton [Vaughan Road Property Trust] [2016] NZSC 29, and the English High Court’s decision in JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch). (See also Mark's “The Illusory Trust Doctrine" )
