Trust & trustee

In deciding whether particular arrangements involved the creation of a trust, and with it the retention by the paying party of beneficial control of the money, proper account needed to be taken of the structure of the arrangements and the contractual mechanisms involved. It was necessary to be satisfied, not merely that the money when paid was not at the free disposal of the payee, but that, objectively examined, the contractual or other arrangements properly construed were intended to provide for the preservation of the payor’s rights and the control or use of the money through the medium of a trust. Critically, that involved the court being satisfied that the intention of the parties was that the money transferred by the payor should not become the absolute property of the payee but continued to belong beneficially to the payor unless and until the conditions attached to their release were complied with.