JOHN CONTI ESQ

KATZ WILL TRUST

NOTE ON PRIVY COUNCIL DECISION

9. It would thus appear that, as a matter of tactics, it would be wise to continue to argue that Mr Moore did not validly retire in October 1983, as well as putting, in the alternative, the argument that he retired in breach of trust. If the goal is to "soften up" the Respondent with a view to a settlement, there is much to be said for making clear to them now that we would in any event argue that the indemnity was not operable, either because on its construction it did not cover the breach of trust in question or because it is unenforceable on the grounds of public policy.

10. One result of their Lordship's decision is that the trial of the second preliminary issue at this point does not make much sense. It seems to be accepted that if Mr Moore did not validly resign as a trustee, then the indenmity is not effective or valid as a defence of the claims against Mr Moore. Technically, one could argue that argument on the second preliminary issue is premature. Alternatively, one could argue that, in order to determine it, one has to raise the whole question of whether Mr Moore did indeed validly retire as a trustee and, moreover, retire without any breach of trust on his part.