Disclosure of trust information: discretionary or principle-based jurisdiction?

Abstract

In Erceg v Erceg [2017] NZSC 28, the Supreme Court of New Zealand (Elias CJ, William Young, Glazebrook, Arnold, and O’Regan JJ) considered the vexed issues surrounding the disclosure of information relating to a trust. In a unanimous judgment delivered by O’Regan J, the court approved the decision of the Privy Council in Schmidt v Rosewood Trust Ltd [2003] 2 AC 709, and set out in detail the correct approach to be adopted in determining whether to order trustees to disclose trust information to beneficiaries. However, contrary to what is arguably the orthodox view, the court rejected the notion that the inherent supervisory jurisdiction to order disclosure involves the exercise of discretion. Rather it was ‘better seen as a jurisdiction that must be exercised in accordance with principle, after careful assessment of the factors relevant to the disclosure sought by the particular beneficiary’.