It is generally accepted that the beneficiaries of a trust have the right to bring an action when they consider there has been a breach of trust. However, what happens when a beneficiary seeks to take action against a third party only because of a refusal to do so by the Trustee? Just as the NSW Supreme Court recently had cause to discover, there are many nuanced questions lawyers must consider when dealing with such claims, including:

• What exactly is the source of power for such action and how does this affect the crafting of the Plaintiff’s claim?
• When is a beneficiary derivative application made ‘in equity’ and what needs to be proved to be successful?
• What is the impact of the abolition of common-law derivative actions under the Corporations Act on trust-law derivative actions?
• How Gillespie and other recent decisions have impacted how beneficiary derivative claims should now be run