Royal Brunei Airlines Sdn Bhd v Tan

Royal Brunei Airlines Sdn Bhd v Tan
Court	Privy Council
Full case name	Royal Brunei Airlines Sdn Bbd (Appellant) v Philip Tan Kok Ming (Respondent)
Decided	24 May 1995
Citation(s)	[1995] UKPC 4, [1995] 2 AC 378
Case history
Prior action(s)	Court of Appeal of Brunei
Case opinions
Lord Nicholls
Court membership
Judge(s) sitting	Lord Goff, Lord Ackner, Lord Nicholls, Lord Steyn, Sir John May
Keywords
Breach of trust, dishonest assistance

Royal Brunei Airlines Sdn Bhd v Tan [1995] UKPC 4 is an English trusts law case, concerning breach of trust and liability for dishonest assistance.

Royal Brunei Airlines appointed Borneo Leisure Travel Sdn Bhd to be its agent for booking passenger flights and cargo transport around Sabah and Sarawak. Mr Tan was Borneo Leisure Travel’s managing director and main shareholder. It was receiving money for Royal Brunei, which was agreed to be held on trust in a separate account until passed over. But Borneo Leisure Travel, with Mr Tan’s knowledge and assistance, paid money into its current account and used it for its own business. Borneo Leisure travel failed to pay on time, the contract was terminated, and it went insolvent. Royal Brunei claimed the money back from Mr Tan.

The Judge held Mr Tan was liable as a constructive trustee to Royal Brunei. The Court of Appeal of Brunei Darussalam held that the company was not guilty of fraud or dishonesty, and so Mr Tan could not be either. The case was appealed to the Privy Council.

Giving the advice of the Privy Council, Lord Nicholls held it was the dishonest assistant’s state of mind which matters. Knowledge depends on a ‘gradually darkening spectrum’. Therefore, the test for being liable in assisting breach of trust must depend on dishonesty, which is objective. It is irrelevant what the primary trustee’s state of mind is, if the assistant is himself dishonest.

Lord Goff, Lord Ackner, Lord Steyn and Sir John May concurred.

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