For many Chinese and Asian families, the family business is the main asset, and it is often owned through a trust. In Australia the shares in the operating company are commonly held by the corporate trustee of a discretionary family trust. Offshore, a Singapore, Hong Kong or BVI trust may hold a company owning a business in Malaysia, Indonesia or mainland China.
That raises questions families rarely consider. Must the trustee watch how the company is run? Who decides how much cash leaves the business? What if the same people sit on both boards? This article explains the law and governance points generally.
A hypothetical example
Consider a family whose discretionary trust, through its corporate trustee, owns all the shares in a Melbourne food import business. The founder and his eldest daughter are the directors of the trustee company. The daughter and a long-serving finance manager run the business. A younger son in Kuala Lumpur is a beneficiary with no role, and asks for larger distributions. The daughter says the company needs its cash for new warehouse leases. The son asks to see the company’s accounts, and nobody is sure who must give them to him.
The trustee’s traditional duty to monitor
Under the general law, a trustee with a controlling interest in a company cannot simply collect dividends. Two English cases, often cited in Australia, set out the traditional position.
- In Re Lucking’s Will Trusts [1968] 1 WLR 866, trustees with a controlling holding in a private company were held liable for failing to keep watch over the company, after a director took money. The court said such trustees should obtain the information a director would have, not just what an ordinary shareholder receives.
- In Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515, a professional trustee holding almost all the shares in a family company was liable for losses from a speculative property development, because it had not ensured an adequate flow of information about the board’s plans. Board representation was only one way to get that information; regular reports or management accounts could also do.
The duty is to stay reasonably informed and act when something goes wrong, not to run the business.
Anti-Bartlett clauses and their limits
Because settlors often want the family, not the trustee, to run the business, many deeds include an “anti-Bartlett clause”. Broadly, it says the trustee need not interfere in the company’s management or seek information beyond what it receives, and is not liable for management losses unless certain conditions apply.
The Hong Kong Court of Final Appeal upheld such a clause in Zhang Hong Li v DBS Bank (Hong Kong) Ltd [2019] HKCFA 45, finding that the clause excluded a claimed duty to supervise the company’s investments.
The limits are important:
- A trustee generally cannot be relieved from liability for its own fraud or dishonesty. The English Court of Appeal in Armitage v Nurse [1998] Ch 241 said a trustee’s core duty is to act honestly and in good faith for the beneficiaries.
- Courts tend to read such clauses strictly, and a clause may not protect a trustee that knows of wrongdoing and does nothing.
- Australian courts may take a different view, and there is limited Australian authority directly on these clauses.
Cash for beneficiaries or liquidity for the business
The trustee owes duties to the beneficiaries; the directors owe duties to the company. Beneficiaries may want dividends paid up for distribution. Directors must consider solvency, working capital and future plans, and under the Corporations Act 2001 (Cth) a company must not pay a dividend unless its assets exceed its liabilities immediately before, the payment is fair and reasonable to shareholders as a whole, and it does not materially prejudice its ability to pay creditors.
A written dividend and distribution policy agreed in advance, with a target payout range, a minimum cash reserve and a process for special requests, reduces this tension.
Family directors and family-office staff
When the same people are directors of the trustee company, directors of the operating company and beneficiaries, conflicts arise. In our example, the daughter decides as company director whether to pay a dividend, and as trustee director who receives it, while being a beneficiary herself. Family-office staff may owe their jobs to one branch. Such conflicts are common and not unlawful in themselves, but should be disclosed and managed, for example by abstaining or recording how they were handled.
Private trust companies
A private trust company is a company set up to act as trustee of one family’s trusts, with the family controlling it through its shareholding and board. Many Australian family trusts already work this way.
Benefits include family control, continuity and decision-makers who understand the business. Risks include weak governance, conflicts, a lack of independent judgment, and the argument that the family really controls the assets, which can matter in family law, creditor and tax contexts. Good practice includes clear ownership rules, an independent director, proper minutes and a succession plan for its shares.
Information flow
A shareholder’s rights to company information are limited unless the trustee has a board seat or a contractual right to reports. Beneficiaries generally have no direct right to the company’s records; their rights to trust information depend on the deed and the court’s supervisory jurisdiction. A reporting protocol setting out what the company gives the trustee, and what the trustee shares with beneficiaries, prevents many disputes.
Australian context: Division 7A
Where an Australian private company pays, lends or forgives a debt to a shareholder or associate, such as a family trust or its beneficiaries, Division 7A of the Income Tax Assessment Act 1936 can treat the amount as an unfranked dividend unless it is repaid or put on a complying loan agreement by the company’s lodgment day. Trust distributions left unpaid to a family company (unpaid present entitlements) raise further issues. In Commissioner of Taxation v Bendel [2026] HCA 18, the High Court held that such an unpaid entitlement is not itself a loan for Division 7A purposes, but the ATO has indicated it may look at these arrangements under other provisions. The proposed minimum tax on discretionary trusts from 1 July 2028 is not yet law (as at October 2026). Work these points through with a qualified tax adviser.
Governance checklist
- Map the chain of control: appointor, trustee company shareholders and directors, operating company shares and board.
- Check whether the deed has an anti-Bartlett clause and what it covers.
- Agree a reporting protocol: management accounts, board minutes and an annual meeting with the trustee.
- Adopt a dividend and distribution policy with a cash reserve.
- Keep a conflicts register and consider an independent director.
- Review Division 7A loans and unpaid entitlements each year with your accountant.
- Plan succession for the appointor, the trustee company’s shares and key directors.
- Set a dispute process: family meeting, facilitator, mediation, then court.
Frequently asked questions
What is an anti-Bartlett clause?
It is a deed clause that relieves the trustee from supervising or interfering in the management of a company the trust owns. It cannot protect a trustee from its own dishonesty, and its exact effect depends on the wording.
Does a trustee holding shares in a family company have to monitor the business?
Generally, a trustee with a controlling holding should take reasonable steps to stay informed and act if problems arise, unless the deed validly relieves it of that duty.
What is a private trust company?
It is a company controlled by the family that acts as trustee of the family’s trusts.
Can a beneficiary see the family company’s accounts?
Not usually as of right. A beneficiary’s rights are to trust information, subject to the deed and the court’s discretion.
How Chua Tan Associates can help
Chua Tan Associates helps families that own their business through a trust to trace the chain of control, review deeds for anti-Bartlett and conflict provisions, and put in place reporting protocols, dividend policies and shareholder agreements that fit the family. Justin Chua is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner, and an Accredited Family Business Advisor, and trained in accounting, and we work alongside the family’s accountant, recommending tax advice from a qualified tax adviser working with your lawyer. For structures with offshore trusts or companies, we work with local lawyers in Singapore, Hong Kong, Malaysia and elsewhere, and we advise in English, Mandarin and Cantonese.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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