s 42 Liability for breach of trust
(1) Subject to the provisions of this Act and to the terms of the trust, a trustee who commits or concurs in a breach of trust shall, without prejudice to any other liability, be liable for— (a) any loss or depreciation in value of the trust property resulting from the breach; and (b) any profit which would have accrued to the trust had there been no such breach. (2) In the case of a breach of trust committed or concurred in by a trust company acting as trustee, every person who, at the time of the breach, was a director of the trust company shall, subject to subsection (3), be deemed to be a guarantor of the trust company in respect of any damages and costs that may be awarded by the Court against the trust company in respect of the breach. (3) The Court may relieve a director either in whole or in part from his personal liability as a guarantor if he satisfies the Court that he ought fairly to be so relieved because— (a) he was not aware of the breach of trust or of the intention to commit it and, in being not so aware, was neither reckless nor negligent; or (b) he expressly objected, and exercised such rights as he had by way of voting power or otherwise as a shareholder or director or other officer of the company, so as to try to prevent the breach of trust. (4) A trustee shall not be liable for a breach of trust committed prior to his appointment, if such breach of trust was committed by some other person, but the trustee shall take all reasonable steps to remedy the consequences or any loss arising from such breach. (5) A trustee shall not be liable for breach of trust committed by a co-trustee unless— (a) he becomes or ought to have become aware of the breach or the intention of the co-trustee to the breach; and (b) he actively conceals such breach or such intention or fails within a reasonable time to take proper steps to protect or restore the trust property or prevent such breach. (6) Subject to the terms of the trust, a trustee shall not be liable— (a) for the default of a co-trustee unless he— (i) concurs in the default of that trustee; or (ii) fails to take reasonable care to prevent it; (b) for any loss to the trust property, unless such loss is due to— (i) his wilful default, act or concurrence; or (ii) his neglect or failure to exercise reasonable care to prevent such loss. (7) Where there are two or more breaches of trust, a trustee shall not set off a gain from one breach of trust against a loss resulting from another breach of trust. (8) Where two or more trustees are liable in respect of a breach of trust, their liability shall be joint and several. (9) A beneficiary may, in respect of a liability to him for a breach of trust already committed, relieve a trustee of, or indemnify him against, such liability, if the beneficiary— (a) has legal capacity; (b) has full knowledge of all material facts; and (c) has not been improperly induced by the trustee to give the relief or indemnity. (10) The Court may relieve the trustee either in whole or in part from liability for a breach of trust if it is satisfied that the trustee has acted honestly and reasonably and ought in fairness to be excused in the circumstances. (11) For the purposes of this section— “director” means any person occupying the position of director of a company, by whatever name called, and includes a person who acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act, and an alternate or substitute director, notwithstanding any defect in the appointment or qualification of such person; “officer” in relation to a company includes— (a) any director, secretary or employee of the company; (b) a receiver and manager of any part of the undertaking of the company appointed under a power contained in any instrument; and (c) any liquidator of a company appointed in a voluntary winding up, but does not include— (i) any receiver who is not also a manager; (ii) any receiver and manager appointed by the Court; or (iii) any liquidator appointed by the Court or by the creditors.