SHELEY YEUNG LAI MING ALDRED AND ANOTHER v. ELYSIUM LTD

HCMP 597/2024

[2026] HKCFI 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 597 OF 2024

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  On 10 April 2024, the 1^st Applicant (“Sheley”) and the 2^nd Applicant (“Anton”) issued the Originating Summons herein (“the OS”), seeking reliefs against the Respondent (“Elysium”). On 17 June 2024, the OS was amended with leave granted by the Court on 12 June 2024. By the Amended OS, the Applicants are seeking the following:

(1) a declaration the powers of the Appointor of the Compass Trust (“the Trust”) are fiduciary;

(2) a declaration that Elysium has a potential or actual conflict of interest in acting or continuing to act as Appointor of the Trust; and

(3) an order to remove Elysium as Appointor and appoint International Fiduciaries Limited (“IFL”) as its replacement.

2.  This is the trial of the Amended OS.

3.  The Interested Party (“Castle”) is the trustee of the Trust (“the “Trustee”). By the Order of DHCJ Jonathan Wong dated 2 July 2025, attendance of the Interested Party in the trial has been excused.

4.  In this trial, Mr Charles Hollander and Mr Stefano Mariani represent the Applicants. Mr Simon Westbrook SC and Mr Kerby Lau represent Elysium.

B. BACKGROUND[1]

5.  There is a dispute between two camps of beneficiaries of the Trust. The dispute concerns the administration of the Trust and the ownership of the assets of a business known as the “Cementaid Business”, which are held in the fund of the Trust (“the Trust Fund”). The two camps of beneficiaries are as follows:

(1) Group A, consisting of: (a) the late Michael Aldred (“Michael”)’s three surviving brothers (“the Surviving Brothers”, ie John Lindsay Aldred (“Lindsay”), Anthony Damien Aldred (“Anton”) and Russell John Aldred (“Russell”) (Michael and the Surviving Brothers are collectively designated as the “Brothers”), (b) the respective families of the Surviving Brothers (Sheley is Lindsay’s wife), and (c) the Brothers’ half-siblings and their respective families. There are currently nine beneficiaries in Group A.

(2) Group B, consisting of: (a) Pamela Aldred (“Pamela”, Michael’s widow), (b) her daughters, Amber and Aiden (“the Daughters”), and (c) Amber’s husband. There are currently three (or four) beneficiaries in Group B.[2]

6.  The Cementaid Business was founded by the father of the Brothers, Peter Aldred (“the Father”), in or around 1954. It has since become a multinational undertaking. It owes its success in large part to the Father’s discovery of certain chemical substances, which improve the properties of concrete.

7.  The Father died in 2013. Around that time, the Brothers began to plan for the future of the Cementaid Business. They agreed that the Cementaid Business should be sold to a third-party purchaser and that the proceeds should be distributed to the Aldred family. The Brothers engaged Mr Peter Timothy Trace (“Mr Trace”), who was a trusted acquaintance of Michael with extensive experience in the trust and wealth management industries, to assist with that project. Mr Trace recommended that the Cementaid Business be consolidated under a single holding company, with its shares held on trust with a view to facilitating the sale of the Cementaid Business on a turnkey basis whilst providing the asset protection benefits inherent to a trust.

8.  On 4 July 2014, the Trust, a discretionary trust, was set up pursuant to the Deed of Trust dated 4 July 2014 (“the Trust Deed”) with Lindsay as the settlor, Winterbotham Trust Company (Hong Kong) Limited (“Winterbotham”) as the original trustee and Elysium as the Appointor. Winterbotham was replaced by Castle as the Trustee on or around 30 September 2019. The sole shareholder and director of Castle is a Jimmy Pun (“Mr Pun”), while its company secretary was Tempio Limited (“Tempio”, a Hong Kong company, who was also the registered shareholder of all the Elysium shares). This structure and the named individuals were all set up on the advice and guidance of Mr Trace.

9.  The designated holding company of the Trust was Cementaid International Holdings Limited (“CAIHL”), a company incorporated in Hong Kong, which was and remains the principal holding company of the Cementaid Business. The entire issued share capital of CAIHL was held on trust by the Trustee.

10.  The features of the Trust include the following:

(1) The Trust was and is governed by Hong Kong law.

(2) Pursuant to Schedule 2 of the Trust Deed, the discretionary objects/beneficiaries of the Trust as the following:

(a) The Settlor

(b) Each of the brothers and sisters (including half-brothers and half sisters) of the Settlor;

(c) The children of the Settlor and of the brothers and sisters (Including half-brothers and half-sisters of the Settlor);

(d) Their respective remote issue, whenever born; and

(e) The lawfully married spouses of any of the persons mentioned in the above “while they remain as such and are not separated, whether informally or by judicial separation”.

(3) The main assets of the Trust are the shares of CAIHL and the shares in Wrightway Trading Limited (“Wrightway”) (which name was changed into International Concrete Research and Development Limited after Michael’s passing).

11.  Elysium was a corporate vehicle incorporated for the purpose of acting as the Appointor of the Trust since the inception of the Trust. A Dominic Sum (“Mr Sum”) was Elysium’s director until 21 March 2022. Mr Sum was and is the sole director and shareholder of Tempio.

12.  Under the Trust Deed:

(1) The Appointor’s powers and functions include inter alia (a) the right to receive full information in regard to the Trust on demand (Clause 13.4(a)); (b) right to remove the Trustee and appoint a replacement (Clauses 14.4 and 14.5); (c) right to hold office until the Appointor resigns from office or (if an individual) becomes incapable of acting (Clause 15.1 as amended on 5 December 2014); (d) right to appoint additional Appointor(s) or Successor Appointor and the right to revoke the latter with notice to the Trustee (Clause 15.3); (e) rights and remunerations for its services similar to the Trustee (Clauses 15.5 and 17); (f) right to be indemnified out of the Trust Fund against liabilities incurred by it (Clause 15.7); (g) right to “Prior Notice” by the Trustee before significant decisions are made by the latter, including but not limited to distributions of the Trust Fund and revocation or variation of the Trust (Clauses 7.1, 8.1, 9.1, 12.2, 12.4, 15.8, 19).

(2) The Appointor cannot be removed by the Settlor or the beneficiaries; instead only the Appointor can name the Successor Appointor (or another appointor upon its resignation).

(3) Prior to 17 January 2022, Clause 15.6 (“the Original Clause 15.6”) was as follows:

“For the avoidance of doubt, the powers conferred upon the Appointor hereunder are not intended to be fiduciary in nature and in the exercise of such powers neither the Appointor nor any person associated or in any way connected with the Appointor shall be liable for any loss to the Trust Fund arising in consequence of or by reason of any mistake or omission made or action taken in good faith or of any failure to act or of any other matter or thing whatsoever except willful and individual fraud or wrongdoing on the part of the person who is sought to be made liable.” (Emphasis added)

(4) The Trustee’s powers and functions include inter alia (a) the right to administer the assets of the Trust as though it were the beneficial owner thereof (Clause 1 and Schedule 4); (b) the right to distribute the income and/or capital of the Trust Fund at such times and in such amounts and on such terms as it in its discretion sees fit (Clauses 7 and 8); (c) the right to vary the terms of the Trust (Clause 19), including exercising the power to declare a person an “Excluded Person”, who is categorically excluded from any benefit from the Trust Fund (Clause 12.2); (d) the right to terminate the Trust (Clause 9.1.2) and so to make a terminal distribution of the net assets held in the Trust Fund (Clause 10.1).

13.  There is no dispute that the Trust was constituted as a discretionary settlement governed by the laws of Hong Kong. No beneficiary in the Trust has any beneficial interest in possession in any property comprised in the Trust Fund.[3] The Trustee may, “in its absolute discretion”, transfer all or part of the income, or all or part of the capital, of the Trust Fund to any one or more of the beneficiaries of the Trust.[4]

14.  The following clauses of the Trust Deed are of particular relevance in these proceedings:

“14.4 The Appointor shall have power exercisable at any time during [the period from the date of the Trust Deed until the end of the Trust] by notice given in accordance with Clause 14.5 to remove any person as a Trustee, provided that if upon removal of that person as a Trustee there shall be no continuing Trustee the Appointor shall appoint another person or persons to be Trustee and that other person or persons so appointed shall become Trustee upon the removal of the person whom or which it is desired to remove.

14.5 Any notice by the Appointor removing a person as Trustee:

(a) shall be in writing, signed by or on behalf of the Appointor; and

(b) shall be given not less than 60 days in advance of the date upon which such removal is to take effect unless it is stated to be given in consequence of the wilful default, gross negligence or fraud of the Trustee, in which case it may be expressed to take immediate effect.

……

15.3 The Appointor shall have power at any time and from time to time:

(a) to appoint an additional person or persons (who may be natural persons or corporations) to act as an additional Appointor or additional Appointors, or as its nominee or representative for all or any purposes hereof either jointly or severally;

(b) in the case of a sole Appointor, to appoint any other person (who may be natural person or corporation) to act as a Successor Appointor hereunder; and

(c) to revoke the appointment of any existing Successor Appointor,

but no such appointment shall take effect unless and until the Appointor shall have notified the Trustee in writing of such appointment, ,and shall have furnished the Trustee with such evidence thereof as the Trustee may reasonably require of the agreement of such person to act.” (Emphasis added)

15.  The power to remove the trustee of the Trust conferred on the Appointor by the aforesaid clauses may be exercised by the Appointor at any time without any cause. Thus, a person controlling the Appointor may cause the Appointor to revoke the appointment of Castle at any time, and to appoint a new trustee as that person deems fit. In other words, the person controlling the Appointor would be able to choose a new trustee replacing Castle, and through the new trustee would be able to exercise complete control over the Trust Fund and all aspects of the administration of the Trust.

16.  On the same day as the creation of the Trust, Lindsay became the sole beneficial owner of the shares of Elysium pursuant to a declaration of trust dated 4 July 2014 entered into between Tempio and Lindsay.

17.  On 21 April 2015, the beneficial interest in the shares of Elysium were transferred to Michael pursuant to the Declaration of Trust entered into between Tempio and Michael (“the Elysium Share Transfer”). Since then, the shares in Elysium were, at all material times prior to 21 March 2022, held by Tempio on trust for Michael, and after Michael’s death, for his estate (“the Estate”).

18.  Michael passed away on 3 June 2021 in New South Wales, Australia, without a will. Elysium’s case is that under the law of New South Wales, Australia, which is the applicable law of Michael’s domicile, Pamela is the only beneficiary of the Estate.

19.  Mr Ip Woon Shun (“Mr Ip”) is a practicing solicitor in Hong Kong, who has been granted letters of administration of the Estate in Hong Kong. Mr Ip is a partner in Messrs Hugull & Ip, the law firm representing Elysium in these proceedings until 4 March 2025.

20.  There is no dispute that since Pamela is the sole beneficiary of the Estate, Elysium has been under the de facto control of Pamela after Michael’s death.

21.  On 31 December 2021, Elysium resigned from being the Appointor of the Trust in favour of WHA Nominees Limited (“WHA”), a trust service provider. According to Elysium, that move was caused by Mr Sum without the knowledge of and approval from Pamela.

22.  On or around 17 January 2022, while WHA was the Appointor, the Original Clause 15.6 was amended and replaced by a new Clause 15.6 (“the New Clause 15.6”), which is as follows:

“For the avoidance of doubt, it is expressly provided that the role of the Appointor with regard to the Trust is that of a fiduciary and all the powers of the Appointor provided by the trust are fiduciary in nature and, subject to the provisions of Clause 15.7 of the Trust, with consequent responsibility for the Appointor and any person or persons associated or connected with the Appointor with regard to the exercise of any such power.” (Emphasis added) (“the 2022 Amendment”)

23.  The 2022 Amendment was made by Castle by exercising the power conferred on the Trustee by Clause 19 of the Trust Deed, which is as follows:

“After giving Prior Notice, the Trustee may by instrument revoke, vary or supplement the Trust administratively (but not dispositively) in such manner in all respects as the Trustee may determine, and in particular (without limitation) for the purposes of ensuring that at all times there should be a Trustee, or that the Trust Fund shall be effectively vested in or under the control of the Trustee, or that the Trust shall be enforceable or for the better administration of the Trust Fund.”

24.  On 21 March 2022, Mr Ip, in the capacity of the administrator of the Estate in Hong Kong, acquired the shares in Elysium from Tempio. On the same day, Mr Ip was appointed as the director of Elysium.

25.  On 3 May 2022, the Estate and Elysium commenced proceedings against Mr Sum, WHA and Tempio in HCA 502/2022 (“the “Appointor Action”). The Appointor Action was settled before trial, with WHA agreeing to retire as Appointor in favour of Elysium. There was no admission of breach of any duty by the defendants in that case in the settlement, and there was no finding by the Court to that effect. After the settlement, Elysium has been restored to the Appointorship and can exercise all the powers conferred on the Appointor in the Trust Deed.

26.  Also in 2022, Pamela (in her personal capacity and on behalf of the beneficiaries of the Trust) and Mr Ip (in his capacity as the administrator of the Estate) (collectively, “the TA Plaintiffs”) commenced proceedings against Castle and Lindsay (collectively, “the TA Defendants”) in HCA 643/2022 (“the Trustee Action”). In that case, three summonses were heard by Cheng J on 23 February 2023, and the learned judge handed down a written decision on 23 May 2023 (“the 2023 Decision”).[5] The three summonses are (a) the Injunction Summons, (b) the Striking-Out Summons and (c) the Joinder Summons as set out in [1] of the 2023 Decision. The Joinder Summons was taken out by the TA Plaintiffs and not opposed by the TA Defendants. The learned judge made rulings on the Injunction Summons and the Striking-Out Summons in the 2023 Decision.

27.  By the Injunction Summons in the Trustee Action, the TA Plaintiffs sought an interlocutory injunction against Castle, restraining Castle from dealing with assets of the Trust. The TA Plaintiffs made several complaints against Castle (“the Complaints”), saying that Castle had acted in breach of fiduciary duties and in breach of the Trust. The complaints made by the plaintiffs are as follows:

(1) Alleged dissipation of CAIHL Shares and Wrightway Shares[6]

(a) On or around 7 April 2022, Castle executed a deed of transfer and indemnity to transfer all of the CAIHL Shares and the shares in Wrightway (“the Wrightway Shares”) from the Trust to the Augustus Trust at a nominal consideration of $1. The TA Plaintiffs allege that this is an unjustified dissipation of assets of the Trust.

(b) The Augustus Trust is a discretionary trust constituted in December 2017 under Part VIII of the Cayman Islands Special Trusts – Alternative Regime in the Trusts Act. According to Mr Pun, he was told that it was originally constituted for the protection of certain intellectual property rights in relation to the Cementaid Business. In April 2022, Castle decided to resettle the companies comprised in the Cementaid Business into the Augustus Trust. The beneficiaries under the Augustus Trust are same as the beneficiaries under the Trust.

(2) Alleged dissipation of trust funds by the Loan Agreement and Loan Assignment[7]

(a) On or around 27 October 2021, a loan of US$34m (“the Loan”), comprising substantially all of the liquid assets of the Trust, was made by the Trust to Lindsay (“the Loan Agreement”). On 3 May 2022, Castle served a Prior Notice on WHA (the Appointor at that time) that the Trustee intended to assign the entitlement to repayment of the Loan to the Augustus Trust. As shown in the draft deed of transfer, no valuable consideration was to be given for the assignment.

(b) The trustee of the Augustus Trust is ITA Global Trust Limited, a Cayman Islands company. The TA Plaintiffs’ case is that the effect of the transfer would be to take the rights to repayment of the Loan entirely out of the Trust and beyond the supervision of the Appointor.

(3) Alleged derogation of duty by allowing Lindsay to control distributions and misuse of trust funds[8]

(a) According to the TA Plaintiffs, the Trustee acted irrationally, capriciously and wrongfully in making distributions solely to Lindsay in the mere hope that Lindsay would then make distributions to other beneficiaries. Contrary to the expectation, funds were misused, without Castle exercising any supervision.

(b) According to Mr Pun, all along the Brothers (including Michael) trusted Lindsay to act as a conduit for distributions from the Trust, and Castle continued this practice after it was appointed, on the basis that it was tax-efficient and therefore safeguarded the value of the Trust Fund for the benefit of all Beneficiaries

(4) Other matters[9]

(a) The TA Plaintiffs complained that Castle failed to take action to stop the repeated wrongful attempts by Lindsay to deprive Elysium (or the Estate) of the Appointorship, without Pamela’s knowledge.

(i) On 10 June 2021, a week after Michael’s death, Lindsay (in his capacity of the Settlor of the Trust) notified Elysium that it would be removed as Appointor pursuant to Clause 15.1 of the Trust Deed. The attempted removal was not successful, for Mr Sum told Lindsay that Clause 15.1 had been amended and the Settlor’s power to remove the Appointor had been removed by the amendment.

(ii) In August 2021, Tempio applied to the Companies Registry to have Elysium deregistered, on the basis that the sole member of Elysium agreed, although the sole beneficial owner of the shares in Elysium was the Estate. Pamela said that this was done at Lindsay’s request. Pamela happened to discover the attempt of deregistration and halted this by writing to the Companies Registry.

(iii) In December 2021, Mr Sum signed a written resolution as sole director of Elysium to cause Elysium to resign as Appointor of the Compass Trust, and to appoint WHA instead, pursuant to Clause 15.3 of the Trust Deed.

(b) The TA Plaintiffs also complained that Castle allowed the Surviving Brothers to deal with Aldred & Co Pty Ltd[10] and Werribree Pty Ltd[11] (which were wholly or majority owned by CAIHL) by restructuring or seizing control of them, or disposing of their assets, thereby damaging the interests of the Estate.

(5) Refusal to provide accounts and information[12]

(a) The TA Plaintiffs complained that Castle had refused to provide accounts and information to them.

(b) Mr Pun said that Castle declined to provide the information because it was satisfied that Pamela had no right to ask for it. Furthermore, he did consider the request, but by the time of her first request in August 2021, Pamela had already made known her belief that the vast majority of the Trust Fund belonged to her, and was disruptive and hostile, so the Trustee concluded that the request should be declined. Providing her with the information would facilitate her seizing control of the Trust Fund to the detriment of other beneficiaries and intermeddling with the Trust Fund.

28.  As to the Complaints raised by the TA Plaintiffs in the Trustee Action, the TA Defendants had offered some explanations. It would not be necessary for me to set out the details of the Complaints raised by the TA Plaintiffs and the explanations offered by the TA Defendants in the Trustee Action.[13] Suffice to say that at the end, Cheng J held that in respect of those matters, there were serious issues to be tried. The Court granted the injunction sought by the TA Plaintiffs.

29.  As to the Striking-Out Summons in the Trustee Action:

(1) Castle’s stance is that Pamela is not a beneficiary of the Trust, and hence has no locus to bring the Trustee Action against the Trustee (“the Locus Challenge”). According to Castle, the marriage between Michael and Pamela was dissolved by operation of law upon Michael’s death, and hence Pamela could no longer be regarded as the lawfully married spouse of Michael.

(2) The TA Plaintiffs argued that the description of “lawfully married spouses” in Schedule 2 of the Trust Deed would cover “widows” or “surviving spouses”.

(3) After hearing the parties’ respective submissions, Cheng J held that the Locus Challenge could not be summarily determined and dismissed the Striking-Out Summons. The Locus Challenge would be argued and determined at the trial in the Trustee Action.

30.  On 10 April 2024, the Applicants commenced these proceedings. The affidavits and affirmation filed by the parties relating to the substantive issues in these proceedings are as follows:

(1) Anton’s affidavit dated 10 April 2024

(2) Anton’s 2^nd Affidavit dated 20 May 2024

(3) Mr Ip’s Affirmation dated 27 August 2024 (“Ip’s Affirmation”)

(4) Anton’s 3^rd Affidavit dated 17 October 2024

(5) Lindsay’s Affidavit dated 17 October 2024

31.  Ip’s Affirmation is the only affirmation in opposition filed by Elysium in these proceedings. In the case management conference held on 9 September 2025, the Applicants accepted that Ip’s Affirmation could be admissible evidence in the trial. However, the Applicants said that no or little weight should be given to the matters stated in that affirmation in respect of which Mr Ip would have no personal knowledge thereof, including the genesis of the Trust.

32.  On 19 April 2024, in the hearing before DHCJ Reyes SC, Elysium offered an undertaking that pending the determination of a summons filed by the Applicants on 16 April 2024 (“the Summons”), in Elysium’s exercise of its powers as Appointor under Clause 14.5 of the Trust Deed to remove the Trustee, Elysium shall give at least 14 days’ notice to the Applicants of the date upon the removal of the Trustee is to take effect (“the April 2024 Undertaking”).

33.  On 3 June 2024, in the hearing before DHCJ Jonathan Wong, Elysium offered an undertaking that pending determination of the OS, in the Elysium’s exercise of is powers as Appointor under Clause 14 of the Trust Deed to remove the trustee of the Trust, Elysium shall give at least 14 days’ notice to the Applicants of the date upon which the removal of the trustee is to take effect (“the June 2024 Undertaking”). By consent, upon the June 2024 Undertaking, the Court made no order on the Summons and discharged the April 2024 Undertaking.

34.  On or around 4 March 2025: (a) Mr Ip’s firm was replaced as Elysium’s solicitors by Messrs Gall, who currently acts for Elysium in this case; and (2) Mr Ip was replaced as: (a) administrator of the Estate and (b) sole shareholder of Elysium, in each case by Pamela herself.

35.  On 9 September 2025, in the Case Management Conference, the following summonses were before me:

(1) the Applicants’ summons filed on 25 August 2025 for an order that the deponents of the affidavits and affirmation filed in these proceedings do give oral evidence at the trial in these proceedings;

(2) Elysium’s summons filed on 4 September 2025 for an order that this case be heard together in the trial of the Trustee Action.

After some exchanges between the bench and the bar table, the parties agreed to withdraw their respective summonses, and leave to withdraw each summons was granted accordingly.

36.  Accordingly, the trial of the Amended OS proceeds on the basis of the affidavit(s)/affirmation filed by the parties in these proceedings.

37.  During the trial, Elysium offered the following undertakings to the Court:

(1) “To give notice to [Castle] and all beneficiaries of [the Trust] of not less than 14 days in advance of the date upon which the removal is to take effect in the event that [Elysium] exercises its power to remove [Castle] as the [Trustee], on the grounds of “willful default, gross negligence or fraud” or at all.” (“Undertaking No 1”) (Emphasis added)

(2) “Not to exercise its power to remove [Castle] as [the Trustee] until the final determination of [the Locus Challenge in the Trustee Action].” (“Undertaking No 2”)

C. THE PARTIES’ RESPECTIVE CASES

38.  The parties’ respective cases in these proceedings are as follows.

C1. Applicants’ case

39.  The Applicants’ submissions made in this case is without prejudice to the Locus Challenge in the Trustee Action.[14]

40.  The Applicants’ case is that Lindsay, not Michael, was the true economic settlor of the Trust. According to the Applicants:

(1) Cementaid Business was founded by Father. Each of the Brothers has, at various stages and in different capacities, collaborated in the Cementaid Business. Some brothers were more involved in the day-to-day management of the Cementaid Business than others. Russell has, by choice, never been very actively involved in the management or operation of the Cementaid Business. Michael, Lindsay, and Anton devoted their working lives in pursuit of the success of the Cementaid Business. Their style of management (and that of Father) was collegiate and informal. There has never been any assertions of paramount status by any of the Brothers.

(2) Certain companies comprised in the Cementaid Business (and now subsidiaries of CAIHL) used to be owned by Father, and some were owned by Michael. For tax reasons, Father and Michael transferred ownership of the companies of which they were the ultimate beneficial owners to Lindsay in or around 1990. From around the time Lindsay started to reside in Hong Kong in 1985, newly incorporated companies in the Cementaid Group (which are the majority of those still in existence) were as a general rule incorporated with Lindsay as the sole ultimate beneficial owner. Father and the other Brothers never objected to this, trusting Lindsay implicitly with the full legal and beneficial ownership of those companies. Lindsay owned and managed all the non-Australian companies in the Cementaid Group. Father continued to manage the Australian arm of the Cementaid Business and, thereafter, that role fell to Michael until his death, and then Anton took over.

(3) The long-term trajectory of the Cementaid Business was a matter that began to preoccupy the Brothers in or around mid-2013. Father was by then very unwell and it became clear that he would no longer be able to continue in his role as founder of the Cementaid Business and mentor to the Brothers. It was around that time that Michael approached Mr Trace seeking advice on how to structure the Cementaid Business with a view, ultimately, to selling it as a going concern. The Brothers agreed that Mr Trace was a suitable professional guiding them on trust-related matters. The Brothers then decided that the Cementaid Business should be re-organised in contemplation of a possible future sale.

(4) On Mr Trace’s advice, the Brothers concluded that it might be beneficial for them to set up a trust in Hong Kong to hold the assets of the Cementaid Business. Once the assets had been consolidated and sold, the proceeds thereof could be held in a trust and distributed to members of the Aldred family when the time was right. Up until that point (ie 2013), approximately 98 per cent by net asset value of the Cementaid Business was comprised in companies that were beneficially owned by Lindsay. That state of affairs was primarily due to Australian tax reasons, as Lindsay was at that time the only brother resident in Hong Kong. Lindsay became a Hong Kong Permanent Resident in 1985.

(5) The Trust was not set up for Australian tax reasons. The Cementaid Business had already achieved tax efficiency. The Trust would not provide any further Australian tax advantages, albeit it might provide better asset protection.

(6) The Trust was first constituted by Lindsay as settlor on 4 July 2014. Lindsay was the settlor because he was the absolute legal and beneficial owner of the majority of the companies comprised in the Cementaid Business, both by number and by value.

(7) The settlement of the Cementaid Business onto the Trust occurred in the following way. CAIHL was incorporated around five months after the constitution of the Trust and held by Winterbotham (then the trustee) in the Trust Fund. CAIHL then purchased the Cementaid Business companies incorporated outside Australia, which had previously been owned, directly or indirectly, by Lindsay. Finally, CAIHL purchased each of the Australian subsidiaries (save for some minor, residuary participations) in the Cementaid Business from the Father’s estate, such that it became the global holding company of the Cementaid Group, and the Cementaid Business was thereby, in effect, wholly settled on the Trust.

(8) Each such purchase of Cementaid companies from Lindsay and from the Father’s estate was for market value. Lindsay settled the proceeds of each such sale onto the Trust. Consequently, Lindsay did not obtain any financial benefit as a result of settling the Cementaid Business on trust.

41.  The Applicants’ case is that the powers of the Appointor, especially its power to remove a Trustee and appoint its successor, are fiduciary. Even if they are not properly described as fiduciary, they are not beneficially owned by Elysium (or by Pamela) and so must be exercised with proper regard for the terms of the Trust Deed and the interests of all the beneficiaries as a class and not in the factional interest of any or all of the Group B beneficiaries.

42.  The Applicants submit that Pamela has asserted that the powers of the Appointor are to be exercised in her personal interest and for her benefit, and this amounts to a claim on her part that the powers of the Appointor are beneficial instead of fiduciary and that she or Elysium are entitled to exercise those powers selfishly. The Applicants have legitimate concerns that Pamela has both the motive and the opportunity to exploit the powers of the Appointor for her own personal benefit and to their prejudice.

43.  The Applicants further submits that unless Elysium can satisfy this Court that Pamela is correct in her contention that the powers as Appointor are beneficially owned by it (or by Pamela) and so can be exercised in Pamela’s interest to the prejudice of any other beneficiary under the Trust, the Applicants’ application should be granted. That is because if the powers of the Appointor are not beneficially owned by any person (and there is no evidence at all for any different conclusion), then Elysium and Pamela are inappropriate persons to, respectively, act as and control the Appointor, and so should be replaced by a neutral third-party.

44.  The Applicants also say that the replacement proposed by them, IFL, is administered by Ms Carolyn Butler (“Ms Butler”), who is an experienced trusts practitioner and has been Chairman of the Hong Kong Trustees’ Association. No one has suggested she is not fit and proper to take up the office of Appointor. The Applicants invite this Court to appoint IFL to replace Elysium as the Appointor.

45.  In their written submissions[15], the Applicants stated that the reliefs sought by them are the following:

(1) a declaration the powers of the Appointor of the Trust are fiduciary or, if not fiduciary, that they are not beneficially owned by Elysium, or the beneficial owner of Elysium (“the Declaratory Relief”); and

(2) removal of Elysium as Appointor and its replacement by IFL (“the Removal Order”).

46.  I note that the wording of the Declaratory Relief sought by the Applicants in their written submissions is slightly different form the wording of the declaratory relief as set out the Amended OS. However, Elysium does not take issue on this. Accordingly, I would consider whether (a) the Declaratory Relief; and/or (b) the Removal Order now proposed by the Applicants should be granted.

C2. Elysium’s case

47.  There is no dispute that Elysium is now under the de facto control of Pamela. Hence, Elysium’s contentions in this case in fact are Pamela’s contentions.

48.  Elysium, by Ip’s Affirmation, says that Michael was the true settlor of the Trust and intended Pamela and her daughters to have the majority benefit of the Trust. Elysium’s case is as follows:

(1) The Trust was created at the behest of Michael, under the advice and with the assistance of Mr Trace, who was the former financial and tax adviser to Michael. The idea behind the Trust was to place all of Cementaid’s assets, businesses and operating companies under the ownership of CAIHL and for the shares of CAIHL to be held by the Trust.

(2) CAIHL was established as a holding company around the same time as the Trust, and it acquired the overseas companies which shares were owned by Lindsay in name only and some of the shares in Aldred & Co and Werribree.

(3) During Michael’s lifetime, Michael (by himself and through his control of Elysium) had effective control, oversight and supervision over the Trust, and this was repeatedly acknowledged by Mr Trace and the other participants of the Trust. Michael was the real de facto settlor of the Trust.

(4) During Michael’ lifetime, Michael made it clear that he intended his immediate family (ie Pamela and their 2 daughters) to have the majority benefit of the Trust while his 3 Brothers would share the rest. As shown in a confidential memorandum dated 7 October 2018 sent by Mr Trace to Michael, Michael did tell Mr Trace that he intended 60% of the assets in the Trust to be given to his immediate family, and the remaining 40% to his wider family.

49.  Elysium repeats the Complaints made in the Trustee Action in this case. Elysium also says that Castle had ignored a request for information made by Elysium by a letter on 9 May 2024.

50.  Elysium submits that the 2022 Amendment is invalid, for the purpose that Clause 19 of the Trust Deed would not include passing such an amendment.

51.  Elysium submits that the Declaratory Relief sought by the Applicants should not be granted. The factual disputes between the Surviving Brothers on the one hand and Pamela on the other hand cannot be summarily resolved. It is unnecessary to determine the nature of the Appointorship and its powers in this case. Further, with the undertakings offered by Elysium, there is no real necessity or utility to resolve the fiduciary or non-fiduciary question determinatively at this juncture in these proceedings.

52.  Elysium also submits that the Removal Order sought by the Applicants should not be granted.

(1) The Applicants have no right to interfere with the appointment or replacement of the Appointor or to nominate the replacement candidate.

(2) The application for the removal order is wholly premature. The OS was issued on the very same day as the order made in the Appointor Action restoring the Appointorship to Elysium and confirming it as the Appointor. In other words, Elysium, under the control of the Estate (as opposed to under the control of Michael during his lifetime), had not even yet had the opportunity to consider or exercise any of its powers as Appointor. It is simply jumping the gun to say that Elysium should be removed when it had not even begun to act as the Appointor.

(3) The application for the Removal Order is based upon multiple levels of speculation. It is entirely speculative that Elysium may, in future, act blindly in accordance with Pamela’s instructions to appoint a biased or puppet trustee who will only abide by Pamela’s wishes. The Appointor does not have any positive or distributive powers. It does not have the power to make distributions or deal with the assets of the Trust directly, or even to make amendments to who should be the objects/beneficiaries of the Trust. There can therefore be no suggestion that Elysium or the Estate could somehow pocket the entire assets of the Trust for the sole benefit of Pamela or her daughters. Further, it is also speculative that (a) Elysium (whose sole director, Mr Ip, is a solicitor of this Court) will act blindly to appoint a biased or “puppet” trustee, as opposed to a professional, if Elysium decides to replace Castle; and (b) the yet-to-be appointed/proposed trustee, who will indisputably owe fiduciary duties, will necessarily abrogate those responsibilities and act as mere puppet without independent judgment.

(4) At all material times, Pamela had no issues with allowing the Surviving Brothers to benefit from the distribution of the Trust, in line with the wishes of Michael. Pamela had never attempted to ask for the entirety of the trust assets, or to exclude the Surviving Brothers or their families from benefitting from the Trust. That Pamela and her daughters would get the majority share (60%) of the Trust’s assets is something intended by both Michael and Lindsay.[16] Against this background, any accusation of “hostility” are merely incidents where, viewed objectively, Pamela expressed her great disappointment and frustration towards the Surviving Brothers for their blatant and concerted attempts to undermine Michael’s wishes and to immediately usurp the trust structure and arrangement when Michael had only just passed away, without the knowledge or approval of Pamela.

(5) The Removal Order would unnecessarily increase costs and expenses, while there are not much liquid assets in the Trust.

D. DISCUSSION

D1. My approach

53.  For the purpose of this case, I am of the view the following issues would not affect the outcome of these proceedings in any event, and there is no need to resolve those issues in this case.

(1) the Complaints made by the TA Plaintiffs and the explanations given by the TA Defendants in the Trustee Action;

(2) the genesis of the Trust, including who was the de facto settlor of the Trust;

(3) the Locus Challenge in the Trustee Action; and

(4) the validity of the 2022 Amendment.

For the reasons appear below, even assuming all these issues in favour of Elysium (and Pamela), both the Declaratory Relief and the Removal Order should be granted.

54.  Without prejudice to the above, as to the issues set out in [53(1)], [53(2)] and [53(3)], since those issues are the live issues in the Trustee Action, those issues would and should be resolved at the trial in the Trustee Action, not in these proceedings.

D2. Nature of the Appointor’s powers under the Trust Deed

55.  The central issue in this case is the nature of the Appointor’s powers under the Trust Deed. The different kinds of powers have been explained in Lewin on Trusts (20^th Edition):

“Beneficial powers, limited powers and fiduciary powers

28-015 Powers may also be classified according to the constraints or duties, if any, affecting the donee of the power. There is a threefold division, into beneficial, limited and fiduciary powers. The classification applies to both dispositive and administrative powers.

Beneficial powers

28-016 Some powers, by their nature or their express terms, may be exercised in any way for the benefit or purposes of the donee, as he wishes and without restriction. They may be called beneficial powers. ……

Limited powers

28-017 Limited or restricted powers must be exercised in good faith for the purposes for which they are given, which in this case are restricted. They differ from beneficial powers in that they are conferred for the benefit of one or more beneficiaries other than the donee. …… The constraints on the exercise of a limited power are expressed in the doctrine of a fraud on a power: an exercise of the power can be impeached if (i) it was made for a corrupt purpose, such as the benefit of the donee himself, (ii) it was made pursuant to a previous agreement between the donee and the appointee for a person who was not an object to receive a benefit or (iii) it was made for a purpose foreign to the power, even if not communicated to the appointee. ……

Fiduciary powers

28-018 Fiduciary powers are a class of limited powers. Ordinarily a fiduciary obligation connotes a duty of loyalty. In this context, the significance of the fiduciary obligation is that the donee of a fiduciary power owes a duty to the objects of the power to consider from time to time whether and how to exercise it and they have various remedies open to them if the donee does not or cannot do so. He is not bound to exercise it merely by virtue of its being a fiduciary power: the duty is to consider its exercise, though in the case of what is called a trust power he is bound to exercise it. If he does exercise it, the donee is subject to the doctrine of a fraud on a power in the same way as the donee of a non-fiduciary limited power. Generally, a fiduciary power cannot be exercised, or be left unexercised, by the donee for his own benefit, even if he is one of the objects of the power. ……” (Emphasis added)

56.  There is no dispute that the term “Appointor” is not a term of art in trust law. An appointor, like a “protector”, is an officeholder of a trust whose role is to act as a check and balance on the powers of the trustee with the power to remove the trustee and appoint its successor. As stated in Lewin on Trusts (20^th Edition):

“Protectors

28-044 A protector … is typically the holder of a group of powers or requirements of consent. The word is not a term of art and sometimes the only power vested in a person called a protector is that of appointing, or of appointing and removing, trustees. It may occasionally be used simply as a convenient name for a given person but more commonly it refers to an office created by the trust instrument, with provisions for a succession of persons to fill it.”

57.  In considering the nature of the Appointor’s powers, I adopt the approach as set out in [53] above.

58.  As to the true nature of the powers granted to the Appointor under the Trust Deed, this is a matter of construction. As said in Snell’s Equity (35^th Edition) at §10-009, “[t]he question is always one of construction: what was intended by the grant of the particular power in question”.

59.  It is true that in the Original Clause 15.6, it is stated that the powers conferred upon the Appointor are not intended to be fiduciary in nature. However, that does not mean that those powers would be beneficial powers.

60.  The general rule is that if the donee of a power holds an office under the trust, it will ordinarily be impossible to construe its powers as beneficial. See Lewin on Trusts (20^th Edition):

“28-045 If the protector holds an office under the trust, it will ordinarily be impossible to construe the power or powers as beneficial: the protector will be there for the protection of the beneficiaries and his powers will be fiduciary.”

61.  Reading the Trust Deed as a whole, it is plain that the purpose of having the Appointor in the Trust is for the protection of the Trust and the beneficiaries as a whole, by empowering the Appointor to act as a final check and balance on the otherwise unfettered powers of the Trustee. In my view, the Original Clause 15.6 does not have the effect of showing that the Appointor may exercise the powers conferred upon the Appointor for personal benefit or for the benefit of a sub-set of the beneficiaries and to the prejudice of the other beneficiaries. Even if the nature of the Appointor’s powers is not fiduciary by reason of the Original Clause 15.6, there is nothing in the Trust Deed showing that the powers conferred upon the Appointor are not limited powers.

62.  Further, as submitted by the Applicants, I agree that the following matters also show that the powers vested in the Appointor under the trust are not beneficial in nature:

(1) The powers of the Appointor vested in Elysium, not in the beneficial owner(s) of Elysium. The beneficial owner(s) of Elysium are not the donees of any powers. Elysium cannot contend that it was intended that it owns such powers beneficially in its personal capacity, for Elysium is incapable of benefiting from the Trust and is not the object of any power under the Trust (save for the power to appoint its successor).

(2) Pamela cannot be the owner of such powers beneficially. Pamela is not the donee of any power under the Trust Deed.

(3) There is no evidence that during his lifetime, Michael owned the powers of the Appointor beneficially. It was Lindsay who voluntarily transferred his beneficial ownership of Elysium to Michael pursuant to the Elysium Share Transfer. Before that transfer, Michael did not have any role or interest in the Trust or in any office of the Trust, save as a beneficiary.

(4) Both Lindsay and Michael had never been directors of Elysium. The director of Elysium was, until Michael’s death, a third party Mr Sum. That would mean that the powers of the Appointor would be exercised by Elysium upon Mr Sum’s instructions. That arrangement is a clear indication that it was envisaged by both Lindsay and Michael that the powers of the Appointor were to be exercised impartially and for the benefit of all the beneficiaries as a class, not for any sub-set of the beneficiaries.

(5) Even assuming that Michael did have a paramount role in the Cementaid Business and the Trust during his lifetime as claimed in Ip’s Aff, it would not follow that: (a) Michael intended those roles to pass upon his death to Pamela to the exclusion of the Surviving Brothers; and (b) his ‘paramountcy’ was property that was capable of devolving to Pamela upon his death, and which Pamela can now enforce against third parties.

63.  For the reasons above, in my judgment, the powers of the Appointor of the Trust are not beneficially owned by Elysium or by the beneficial owner of Elysium.

D3. Declaratory Relief

64.  In my view, it is necessary to grant the Declaratory Relief sought by the Applicants.

65.  I agree with the Applicants that Elysium is now treating the Appointor’s powers in its hands as powers beneficially owned by it. In fact, this point is not disputed by Elysium. In Elysium’s skeleton submissions, it is stated that Elysium has “rightful entitlement” to the office of Appointor[17], and can exercise “proper and legitimate supervision” over the Trust[18]. Elysium has clearly and unequivocally endorsed Pamela’s claim for 60% of the Trust Fund.[19] Based upon the evidence before me and having considered Elysium’s submissions, in my view, it would be fair to say that Elysium (under Pamela’s control) is treating the Appointor’s powers in its hands as beneficial powers, and is prepared to exercise such powers in a way to make sure that Pamela herself and the Daughters would get the majority (ie 60%) of the Trust Fund.

66.  Even with the assumptions in [53] above, I would have no difficulty to conclude that the Appointor’s powers are not beneficially owned by Elysium. In order to right the wrong, I am of the view that it is necessary to grant the Declaratory Relief sought by the Applicants. Further, it is necessary to clarify the true nature of the Appointor’s powers under the Trust, for that would be important for the protection of the Trust and the interests of all the beneficiaries. With the Declaratory Relief, there would be no misunderstanding of the true nature of the Appointor’s powers, no matter who would be the Appointor in future.

67.  The undertakings offered by Elysium would not be a reason for not making the declaration.

(1) The June 2024 Undertaking would cease to have effect after the handing down of this judgment.

(2) The combining effect of Undertaking No 1 and Undertaking No 2 is that Elysium has undertook that it would not remove Castle as the Trustee pending the final determination of the Locus Challenge in the Trustee Action. If Elysium is minded to exercise the power to remove Castle as the Trustee, Elysium would give notice of not less than 14 days to Castle and to the beneficiaries. The problems of these undertakings are as follows:

(a) No matter what is the outcome of the Locus Challenge, Pamela may cause Elysium to remove Castle as the Trustee after the final determination of that issue in the Trustee Action, even if Pamela loses in that challenge.

(b) Once the Locus Challenge is finally determined in the Trustee Action, Pamela may immediately cause Elysium to remove Castle after giving notice of not less than 14 days to Castle and to the beneficiaries. Bearing in mind that Undertaking No 1 is ended with the words “or at all”, Pamela may cause Elysium to remove Castle not only on the grounds of “willful default, gross negligence or fraud”. In fact, in accordance with that undertaking, Pamela may cause Elysium to remove Castle on any other ground, or even without any ground.

(c) Once Pamela causes Elysium to do so, the nature of the Appointor’s powers in Elysium’s hands would need to be argued in the Court again.

68.  There is no reason to defer the determination on the nature of the Appointor’s powers. In my view, it is necessary to give a declaratory judgment on the question so that the issue is determined once and for all. I would make a declaration that the powers of the Appointor of the Trust are not beneficially owned by the Appointor.

D4. Removal Order

69.  There is no dispute that this Court may remove the Appointor of the Trust for good cause pursuant to the Court’s inherent jurisdiction. The power is prophylactic. The Court may exercise that power before the officeholder (trustee or protector/appointor) has actually committed a breach of trust or a fraud on a power. As shown in Re The K.S. Shahani Trust[20], the Court has exercised this power to remove a trustee whilst there had not yet been any default on the part of the trustee, but a reasonable man might legitimately query whether there was a real risk of a conflict of interest arising.

70.  Where there has been a fundamental breakdown in trust and communications between the officeholder of a trust and one or more persons to whom it owes its duties, it would be proper for the officeholder to resign in the circumstances. If the officeholder does not do so, the Court may remove him from the office. In Letterstedt v Broers & Anor, the Privy Council said[21]:

“It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances … is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.

……if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him ……

In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any genera rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on details often of great nicety. ……” (Emphasis added)

71.  The following are undeniable facts:

(1) There has been a fundamental breakdown in trust and communications between the Surviving Brothers on the one hand and Pamela on the other hand.

(2) There are numerous disputes between the two camps, which would probably need to be resolved through various litigations in the near future.

(3) Elysium is under Pamela’s control. Pamela has the power to change the constitution of the board of Elysium at any time. Realistically, Elysium would act in accordance with Pamela’s will.

(4) One of the contentious issue between the Surviving Brothers on the one hand and Pamela on the other hand is whether the majority (60%) of the Trust Fund should be given to Pamela and the Daughters. The Surviving Brothers say that this should not be the case. Pamela’s view is that this is her entitlement. Elysium endorses Pamela’s view without any reservation.

(5) Pamela’s stance is that Elysium may exercise the Appointor’s powers in a way beneficial to Group B beneficiaries and prejudicial to Group A beneficiaries.

72.  Bearing the aforesaid in mind, in order to safeguard the Trust and to protect the interests of all the beneficiaries in the Trust, I am of the view that the prudent and fair arrangement should be replacing Elysium by an independent third party as the Appointor, so that the decision of exercising or not exercise a certain power vested in the Appointor would be made by an independent and impartial third party. In my view, this arrangement would be in the interest of every beneficiary in the Trust, including Pamela.

73.  In the Amended OS, the Applicants propose to appoint IFL as the new appointor. IFL is willing to undertake the role. IFL is administered by Ms Butler. Having considered the evidence adduced by the Applicants, I am satisfied that Ms Butler is a professional having the relevant knowledge and experience, and under Ms Butler’s management, IFL would be able to satisfactorily handle the powers in the Appointor’s hands.

74.  Elysium opposes the proposal on the ground that the proposed appointment would unnecessarily increase costs and expenses of the Trust. Elysium submits that according to a letter from Castle’s solicitors dated 12 July 2024 (“the 2024 Letter”), the Trust had around US$1.5 million cash in the remaining Trust Fund at that time. In the same letter, Castle further sought consent to spend HK$100,000 per week in legal fees to defend the Trustee Action, which would serve to deplete the remaining Trust Fund in just over 2 years. Ms Butler proposes to charge US$350-700 per hour, on top of a base sum of US$15,000 per annum, with no definitive cap. The expected cost of IFL and/or Ms Butler remains uncertain, and could deplete all the remaining Trust Fund before any distribution can be made to the beneficiaries.

75.  In my judgment, the points raised by Elysium cannot constitute any valid objection to the proposed appointment.

(1) Since I have concluded that to safeguard the Trust and the interests of the beneficiaries, Elysium ought to be removed and replaced by a new appointee, it is inevitable that some costs and expenses would be incurred in retaining a new appointee to act as the Appointor in the Trust.

(2) In the 2024 Letter, Castle’s solicitors were seeking the TA Plaintiffs’ consent to vary an injunction order made in the Trustee Action, so that Castle would be allowed to spend not more than HK$100,000 per week in legal fees to defend the Trustee Action. Consent was not given, and the injunction order was not varied. Hence, there would be no such expenses from the Trust Fund.

(3) Unlike the Trustee, the Appointor in the Trust would have no need to frequently consider and manage the matters concerning the Trust. The works to be done by the new Appointor would be limited. With around US$1.5 million in hands, it can be reasonably expected that the Trust would be able to pay the fees to IFL (being the new Appointor) for quite a number of years. It is likely that within a few years, the disputes between the Surviving Brothers on the one hand and Pamela on the other hand would be resolved by litigations or by some other means. Once those disputes are resolved, the assets in the Trust could be distributed to the beneficiaries and the Trust would come to an end.

76.  It is necessary to point out the Elysium has not disputed the competence and/or the integrity of Ms Butler. In other words, there is no allegation that IFL, administered by Ms Butler, would not be a competent and impartial Appointor if IFL is given that role.

77.  Elysium submits that if this Court is of the view that a new Appointor should be appointed, leave should be given to Elysium to put in evidence to nominate some candidate(s) for the Court’s consideration.

78.  I refuse to accede to this request. In the circumstances of this case, I do not regard Elysium’s request as the right approach. In June 2024, by the Amended OS, the Applicants have raised the issue that the new Appointor should be IFL. Thereafter, Elysium has an opportunity to put in evidence to oppose the Amended OS. Elysium did put in the evidence in opposition by filing Ip’s Affirmation on 27 August 2024. Before this trial, Elysium has never sought, and the Court has never made, an order for a split trial so that some issues would be resolved first, and the remaining issues would be resolved at a later time. In these circumstances, if Elysium intends to propose some other candidate(s) as the new Appointor, Elysium should file the relevant evidence before this trial. As a matter of principle, it would not be right to defer the determination of the identity of the new Appointor because Elysium has failed to adduce evidence in this aspect.[22]

79.  I am of the view that IFL is a suitable candidate, and I would appoint IFL as the new Appointor to replace Elysium. I would make an order to remove Elysium as the Appointor of the Trust and to appoint IFL as its replacement.

E. DISPOSITION

80.  I grant the Declaratory Relief as set out in [68] above, and make the Removal Order as set out in [79] above.

81.  Costs should follow the event. There be a costs order nisi that costs of these proceedings (including costs reserved) be paid by Elysium to the Applicants with a certificate for two counsel, to be taxed if not agreed. Unless there is an application made by an inter partes summons for variation of the costs order nisi within 14 days, the costs order nisi shall become absolute without a further hearing.

82.  Lastly, it remains for me to thank all counsel and solicitor-advocate for the very helpful assistance provided to the Court.