The trustee’s lien and the law of insolvency: the Twain Meet in the Australian High Court: a comment on Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth

As with many things trust, the equitable rules defining a trustee’s right to an indemnity for acting as a trustee are shrouded in mystery. In particular, the issue of whether that right confers on the trustee an actual proprietary, in rem, beneficial, interest in the trust’s assets or merely an equitable right to access those assets to pay the trust’s debts in priority to the beneficiaries receiving them, has never been addressed by the highest court in any Commonwealth country. In a recent decision involving a priority claim by two creditors over the remaining surplus arising from the insolvency of a trading trust, the High Court of Australia, by a slim majority of 4-3, has held that the trustee does have a proprietary right to the trust’s assets. Joel Nitikman suggests that the majority’s reasoning and the jurisprudential basis on which it rests is either weak or ambiguous; the minority’s reasoning, to the effect that the trustee has only a preferential claim to the assets, is to be preferred.

The Practice Concerning Treaty Succession in the Commonwealth

Although a number of learned articles and even books have appeared recently on the subject of state succession, relatively little has been written about the practical problems faced by a new state seeking to establish the scope of its treaty obligations. An examination of these practical, even mundane, problems indicates that some of the current theoretical arguments are unreal, and that a shift of emphasis in discussion would be desirable.The practical problems in defining a new state’s treaty obligations are illustrated well by the cases of new Commonwealth countries.Since mid-1961, a research project at Queen’s University at Kingston, Ontario, has sought to determine which of the old British treaties continue to apply to Canada. Surprisingly enough, even an older Commonwealth country like Canada has not yet been able to reach a firm decision on this question. Thus, Professor (now Dean) Maxwell Cohen of McGill University was obliged to tell the Duke Conference on Canadian-American Treaty Relations in 1961 that existing Canadian publications were inadequate, and to urge that Canada's treaties be collected and published.

The Influence of English Law on West Africa

West Africa is a vast area consisting of many territories; of those five have come under the influence of the English law; four of these are within the Commonwealth, one is outside it. The four Commonwealth West African countries are: Gambia, Sierra Leone (which is to become independent early next year), the Republic of Ghana, and the Federation of Nigeria (which attained its independence on 1st October, 1960); the one non-Commonwealth country is the Republic of Liberia, the oldest independent state in West Africa.