Equity and trusts

Full Title
Dedication
Copyright
Foreword
Preface
Table of Cases
Table of Statutes
Table of Contents
	PART 1 THE HISTORY AND NATURE OF EQUITY
		Chapter 1 The History of Equity
			Medieval Origins
			Feoff ments to Uses — The Origin of the Modern Trust
			Definition under the Tudors and Stuarts: 1485–1714
			The Dispute between Common Law and Chancery: 1613–16
			The Emergence of the Modern Equitable Jurisdiction
			The Reception of Equity in Australia
		Chapter 2 The Relationship between Law and Equity
			The Relationship between Law and Equity Prior to the Judicature Legislation
				The common law would not recognise equitable rights, titles and interests
				Equity had no power to decide disputed legal rights and titles
				Equity had no power to award damages
				Common law courts lacked power to give interlocutory relief
				Common law courts did not have power to decree specific performance or grant injunctions
				Common law courts lacked power to make declarations
				No power existed to transfer cases from one jurisdiction to the other
			The Judicature System
				The English Judicature Act of 1873
				Fusion fallacies
				Unjust enrichment and equity
		Chapter 3 The Maxims of Equity
			Equity Will Not Suff er a Wrong Without a Remedy
			Equity Follows the Law
			When the Equities are Equal, the First in Time Prevails
			He Who Seeks Equity Must Do Equity
			He Who Comes to Equity Must Do So with Clean Hands
			Equity Assists the Diligent and Not the Tardy
			Equity is Equality
			Equity Looks to the Intent Rather than the Form
			Equity Regards as Done that Which Ought to be Done
			Equity Imputes an Intention to Fulfil an Obligation
			Equity Will Not Assist a Volunteer
			Equity Acts In Personam
	PART 2 EQUITY AND PROPERTY
		Chapter 4 Equitable Rights, Titles and Interests
			The Nature of Equitable Interests
		Chapter 5 Equitable Interests and Torrens Title
			Equitable Interests and Indefeasible Title
			The Equity of Redemption
			Co-ownership in Equity
		Chapter 6 Equitable Priorities
			The General Rule and the General Principle of Exception
			The Ten Exceptions to the General Rule
			The Rule in Dearle v Hall: Competing Equitable Assignees of Personalty
			Priority Between a Prior Legal Interest and a Later Equitable Interest
			Priorities Between Competing Corporate Charges
			The Doctrine of Bona Fide Purchaser of the Legal Estate for Value and Without Notice
		Chapter 7 The Assignment of Interests in Property in Equity
			Introduction
			The Rule in Strong v Bird
			Donationes Mortis Causa
			Assignments of Choses in Action
			Property that Cannot be Assigned
				Personal contracts
				Bare rights to sue
		Chapter 8 Voluntary Assignment of Legal Interests in Equity
			Assignments of Legal Property Assignable at Law
			The First Leg of Milroy v Lord
				Controversy over the first leg of Milroy v Lord in Australia
				Resolution of the controversy — Corin v Patton
				The first leg of Milroy v Lord in Australian law now
			The Second Leg of Milroy v Lord
			Assignments of Property not Assignable at Law
		Chapter 9 Voluntary Assignment of Equitable Interests
			The Requirement of Writing
			Dealings in the Form of Direct Assignments
			Dealings in the Form of Declarations of Trust
			Dealings in the Form of Directions to the Trustee
				Directions dealing with the equitable estate
				Directions to the trustee to deal with the legal estate
			Dealings in the Form of a Release
			Dealings in the Form of a Disclaimer
			Dealings in the Form of Nomination
		Chapter 10 Assignments of Interests in Property for Value in Equity
			Assignments for Value
			Assignments of Legal Property for Valuable Consideration
			Assignments of Equitable Property for Valuable Consideration
			Statute of Frauds cannot be used as an Instrument of Fraud
		Chapter 11 Assignments of Future Property
			The Distinction Between Present and Future Property
			The Basis for the Enforcement of Assignments of Future Property
			Future Property and Contracts for the Sale of Goods
			The Nature of the Assignee’s Right
	PART 3 EQUITABLE OBLIGATIONS
		Chapter 12 Fiduciary Duties: Identification of Fiduciary Relationships
			Introduction
			Identification of a Fiduciary Relationship
				The element of vulnerability
				The scope of the fiduciary relationship
			The Recognised Categories
				Solicitor and client
				Director and company
				Trustee and beneficiary
				Partners
				Joint venturers
				Agent and principal
				Employee and employer
				Guardian and ward
			Non-Presumptive Relationships
				Broker and client
				Parties to commercial transactions
				Manufacturer and distributor
				Doctor and patient
				Recipient of a sum of money
				Banker and customer
				Other relationships
		Chapter 13 Fiduciary Duties: Breach of Duty — Defences and Remedies for Breach
			Breach of Duty: ‘Conflict of Interest’ and ‘Improper Gain’
			Defences: The Duty of Disclosure and Informed Consent
			Remedies for Breach of Fiduciary Duty
			Secret Commissions and Equitable Debt
		Chapter 14 Confidential Information
			Introduction
			Information that is Confidential
				Loss of confidentiality
				Government secrets
			Receipt in Confidential Circumstances
				Employer and employee
				Customer lists
				Information obtained by reprehensible means
				The springboard doctrine
				Receipt of confidential information by third parties
			Breach of the Duty
			The Basis of the Doctrine
			Remedies
				Injunction
				Restitution
				Damages and equitable compensation
				Delivery up
			Defences
				Change of position
				Public interest
		Chapter 15 Undue Influence
			Introduction — The General Principle
			The Distinction between Undue Influence and Unconscionable Conduct
			Relationships in which Influence is Presumed
				Parent and child
				Solicitor and client
				Trustee and beneficiary
				Doctor and patient
				Priest and penitent, or spiritual adviser and flock
				Fiancé and fiancée
			The Influence of Husbands over Wives: The Principle in Yerkey v Jones
			Other Presumptive Relationships
			Non-presumptive Relationships
			Rebutting the Presumption — Defences to Claims Based on Undue Influence
				Adequacy of consideration
				Independent advice
			Undue Influence in the Execution of a Will
		Chapter 16 Fraud in Equity and Unconscionable Dealings
			Fraud in Equity
			Pressure as Fraud
			The Equity to Set Aside a Judgment Obtained by Fraud
			Unconscionable Transactions
				Unconscionable retention of benefit — the Muschinski-Baumgartner equity
				Statutory unconscionability
		Chapter 17 Mistake and Misrepresentation in Equity
			Mistake
				Restitution or recovery of money paid under mistake
				Defence of change of position
				Hardship and specific performance
				Rectification
				Rescission for mistake in equity
			Misrepresentation
				Legislation
				Misrepresentation in equity
				Misrepresentation and contracts for the sale of goods
				Representations and contractual terms
				Rescission of a completed contract
	PART 4 EQUITY AND CONTRACTS
		Chapter 18 Estoppel
			The Varieties of Estoppel
			Common Law Estoppel Compared to Equitable Estoppel
			Estoppels of Record
				Estoppel by deed
				Estoppel by judgment
			Common Law Estoppel
				Estoppel in pais
				Estoppel by convention
				Estoppel by representation
			Equitable Estoppel
				Proprietary estoppel
				Promissory estoppel
				The elements of equitable estoppel
			Estoppel and Statute
		Chapter 19 Penalties and Forfeiture
			Penalties
				Three stages of the inquiry
				Onus of proof
				Jurisdiction at law and in equity
				Penalties — particular categories of cases
			Forfeiture
				Forfeiture of a deposit
				Relief against forfeiture as against the Crown
	PART 5 EQUITABLE DOCTRINES
		Chapter 20 Subrogation
			Introduction — The Basis of Subrogation
			Sureties
			Insurers
			Unpaid Vendor’s Lien
			Payment out of Prior Securities
			Unauthorised and Unenforceable Borrowings
			Executors and Trustees
			Employers and Employees
			Volunteers
		Chapter 21 Contribution
			The General Principle
			Co-ordinate Liabilities
			The One Loss
			Co-ordinate Liabilities of Diff erent Quantum
			Loss of the Right to Contribution
			Contribution between Co-trustees
			Statutory Proportionate Liability Regimes
		Chapter 22 Minor Doctrines
			Marshalling
			Election
			Conversion
			Merger
			Satisfaction and Ademption
				Satisfaction of a debt by a legacy
				Satisfaction of a portions debt
	PART 6 THE NATURE OF TRUSTS
		Chapter 23 The Classification of Trusts
			The Classification of Trusts
				Discretionary trusts
				Unit trusts
				Trading trusts
				Family trusts
				Superannuation trusts
			The Distinction Between Trusts and Other Institutions
				Trusts and fiduciary obligations
				Trust and agency
				Trust and bailment
				Trust and contract
				Trust and debt
				Trust and body corporate
				Trustee and personal representative
		Chapter 24 Trusts and Powers of Appointment — Discretionary Trusts
			Trusts and Powers of Appointment
				Classification of powers
				Powers of appointment after Re Baden’s Deed Trusts
				Identification of ‘mere’ and ‘trust’ powers
			Certainty of Objects of Powers of Appointment
				Criterion certainty and administrative workability
			Powers and Testamentary Dispositions
				Horan v James
				Non-delegation rule and inter vivos trusts
				Statutory exceptions to the non-delegation rule
			Control of a Trustee’s Discretionary Power
		Chapter 25 The Creation of Trusts
			The Requirements of Certainty
			Certainty of intention to create a trust
				Quistclose trusts
				Precatory trusts
				Certainty of subject matter
				Certainty of object
			Trusts for Unincorporated Associations
			Non-Charitable Purpose Trusts
			The Constitution of a Voluntary Trust
				Transfer to trustees
				Declaration of trust
				Direction to a trustee
				The requirement of writing for express trusts
				Secret trusts
				Mutual wills
			Trusts Arising from Agreement or Common Intention
		Chapter 26 Resulting Trusts
			Introduction
			Incomplete Dispositions
				Incomplete gifts
				Failure of an express trust
				Surplus after fulfillment of original purpose
				Superannuation fund surpluses
				Loans subject to conditions
				Transactions vitiated by fraud
			Purchase in the Name of Another
				The basis of the principle
				Rebutting the presumption
				Presumption of advancement
				Joint bank accounts
			Transfers Without Any Consideration or Without Sufficient Consideration — Gratuitous Dispositions
		Chapter 27 The Variation of Trusts
			The Power of Variation
			Amendments to Superannuation Trust Deeds
		Chapter 28 Termination of Trusts
			The Failure or Setting Aside of a Trust
				Illegality or immorality of purpose
			Restraints on Alienation
			The Rule Against Perpetuities
				Initial certainty
				Vesting
				A life in being and 21 years
				Subsequent gifts
				Class closing
				Powers of appointment
				Accumulations
				Reduction in age
				The rule against perpetual trusts
				Perpetuities Act 1984 (NSW)
				Statutory reforms in other states
			Avoidance by the Settlor
			Termination by the Beneficiaries
				Appropriation of assets
			Termination by Distribution
			Winding up a Trust
			Avoidance by Third Parties
				Bankruptcy
				Family law
	PART 7 CHARITABLE TRUSTS
		Chapter 29 Charitable Trusts
			General Principles
				The meaning of ‘charitable’ at law
				The purposes in the preamble to the Elizabethan statute
				The Charities Act 2013 (Cth)
				Public benefit in charitable trusts at common law
				Public benefit and foreign charitable purposes
				Political purposes
			Trusts for the Relief of Poverty
			Trusts for the Advancement of Education
			Trusts for the Advancement of Religion
			Trusts for Purposes Beneficial to the Community
			Mixed Charitable and Non-charitable Gifts
				Compendious gifts
				Gifts that can be apportioned
				General gifts to charity
				Statutory schemes
			The Enforcement and Eff ectuation of Charitable Trusts
				Enforcement
				Eff ectuation
				General schemes
				Cy-près schemes
				Cy-près proceedings
			The Lapsing or Failure of Charitable Trusts
	PART 8 TRUSTEES
		Chapter 30 The Appointment, Retirement and Removal of Trustees and the Vesting of Trust Property
			Appointment of Trustees
				Capacity to be a trustee
				Appointment of trustees
				Appointment on the death of a sole or surviving trustee
				Disclaimer by a trustee
			Retirement of Trustees
			Removal of Trustees
			Vesting of Trust Property
		Chapter 31 Duties of Trustees
			Duties of a Trustee
				Duties on accepting the trust
				Duty of loyalty
				Duty to preserve the trust property
				Duty to insure trust property
				Duty to invest the trust fund properly
				The duty to act gratuitously
				Duty to keep accounts and supply information
				Duty to act personally
				Duty to consider
				The core duties of a trustee — the duty of honesty
				The duty to pay the trust fund to the correct beneficiaries
				Duty to act impartially between beneficiaries — capital and income — the rule in Howe v Lord Dartmouth
				Capital and income — apportionment generally
		Chapter 32 The Powers of Trustees
			Powers of Sale
			Powers of Management
			Powers of Maintenance and Advancement
			Powers to Mortgage
		Chapter 33 The Rights of Trustees
			The Right of Reimbursement or Indemnity
				The trustee’s personal liability for debts incurred in carrying out the trust
				The nature of a trustee’s right of indemnity
				Loss of the right of indemnity
				‘Proper’ expenses of the trust
			The Trustee’s Right to Indemnity for Costs Incurred in Litigation
			Right to Reimbursement from Beneficiaries
			Right to Reimbursement and Indemnity for Liabilities Incurred in Carrying on a Business on Behalf of the Trust
			Winding up a Trust
			The Right to Indemnity of a Former Trustee
			Right of Contribution from Co-trustees
			Right to Impound a Beneficiary’s Interest
			Right to Recover Overpayments from a Beneficiary
			Right to Obtain the Opinion, Advice and Direction of the Court
		Chapter 34 The Liabilities of Trustees
			Introduction
			Liability of Trustees in Breach for Interest
			The Liability of Directors of Corporate Trustees
			Relief of Trustees from Liability
			Relief of Trustees from Liability by Lapse of Time
			Release and Acquiescence
	PART 9 BENEFICIARIES
		Chapter 35 The Rights of Beneficiaries
			Rights of Beneficiaries
				Right to extinguish the trust
				Right to compel performance of the trust
				Right to restrain a breach of trust
				Right to possession of the trust property
				Right to approach the court on questions of construction
				Right to information
			Rights of Discretionary Beneficiaries
			The Rights of a Beneficiary of a Gift Subject to Engrafted Trusts
		Chapter 36 The Doctrine of Tracing
			Introduction
			Limitations on the Doctrine of Tracing
			Tracing into a Mixed Fund
			Mixing of One Lot of Trust Money with Another
			Tracing Property into the Hands of Third Parties
			Tracing Against Bankers
	PART 10 EQUITABLE DEFENCES
		Chapter 37 Laches and Acquiescence and Limitation of Actions in Equity
			Laches and Acquiescence
				Acquiescence
				Laches or delay
			Limitation of Actions
			Limitation Defences in Equity by Analogy with Statutes of Limitations
		Chapter 38 Set-off in Equity
			The Statutes of Set-off
			The Rule in Cherry v Boultbee
		Chapter 39 Minor Defences
			Release and Waiver
			Unclean Hands
	PART 11 EQUITABLE REMEDIES
		Chapter 40 Injunctions – General Principles
			General Principles
			Injunctions in the Exclusive Jurisdiction
			Injunctions in the Auxiliary Jurisdiction
			Injunctions at Common Law
			Injunctions to Enforce Negative Stipulations
			Injunctions to Protect Licences
			Injunctions Against Unincorporated Associations
			Injunctions to Enforce Statutory Rights
			Mandatory Injunctions
		Chapter 41 Interlocutory Injunctions
			Interlocutory Injunctions
				Interlocutory injunctions and defamation
				The undertaking as to damages
			‘Mareva’ Injunctions or Asset Freezing or Preservation Orders
			‘Anton Piller’ Orders or Search Orders
		Chapter 42 Specific Performance
			The Nature of Specific Performance
			Inadequacy of Relief at Common Law
			The Doctrine of Part Performance
			Contracts for Personal Services and Contracts Requiring Constant Supervision
			Mutuality
			Defences to a Suit for Specific Performance
				Mistake or misrepresentation
				Unfair conduct of the plaintiff
				Hardship
				Inequity
				Breach of contract by the plaintiff
				Where specific performance is sought of only part of a contract
				Performance that is impossible or would be futile
			Contracts where the Price is to be Determined by an Agreed Process of Valuation
		Chapter 43 Damages in Equity and Equitable Compensation
			The Sources of Power to Award ‘Damages’ in Equity
			Equitable Compensation
				Equitable compensation is diff erent from damages in tort or contract
				Matters for consideration in orders for equitable compensation
				Equitable compensation and account of profits
				Exemplary damages not available in equity
			Equity’s Power to Award Damages under Lord Cairns’ Act
			Grounds on which Lord Cairns’ Act Damages may be Awarded
			The Measure of Equitable Damages
			Equitable Damages and Equitable Obligations
		Chapter 44 Minor Remedies
			Rescission
			Restitution
			Rectification
			Account
				Wilful default
				Settled accounts
			Delivery-up and Cancellation of Documents
			Appointment of Receivers and Managers
				Appointment of receivers under the Corporations Act
		Chapter 45 Declarations
			The Origin and Nature of Declaratory Relief
				The power to make declarations
			Inconsistency with Other Legislation
				Limitation by statute
			Declarations and the Criminal Law
			Declarations as to Academic or Hypothetical Issues
			The Resolution of Issues between Parties
			Standing to Seek Declaratory Relief
			Declarations in Administrative Law
			Examples of Declaratory Relief
		Chapter 46 Constructive Trusts
			General Principles
				The constructive trust in England
				The remedial constructive trust
				The constructive trust as an ‘all-or-nothing’ remedy
				Commencement of a constructive trust
			Breach of Fiduciary Duty
				The Keech v Sandford principle
			Other Sources of Principal Liability
				Unconscionable conduct or undue influence
				Breach of confidence
				Equitable estoppel
				Common intention constructive trust
				Unconscionable retention of benefit
				Unjust enrichment and the law of constructive trusts in Australia
				Other possible sources of liability: by analogy, by induction and deduction
				The vendor as ‘constructive trustee’ for the purchaser
		Chapter 47 Third Parties as Constructive Trustees
			Third Parties as Constructive Trustees
				Trustees de son tort
			Third Parties who Receive and Become Chargeable with Trust Property
				Knowing receipt
				The required level of knowledge
			Assistance with Knowledge in a Dishonest and Fraudulent Design by the Trustee
				The knowledge requirement in England
				The required level of knowledge — Consul orthodoxy in Australia
	PART 12 TRUSTS AND TAXATION
		Chapter 48 Income Tax
			Income of a Trust
			Present Entitlement
			The Position of a Beneficiary Presently Entitled
			Beneficiary not Presently Entitled or Under Legal Disability
			Non-resident Beneficiaries
			Streaming Capital Gains and Franked Dividends
			Corporate Unit Trusts and Public Trading Trusts
		Chapter 49 Trust Losses
			Introduction
			Excepted Trusts
			Family Trusts
			Fixed Trusts
				Income injection test
			Non-fixed Trusts
				Control test
				Pattern of distributions test
			Summary Table
		Chapter 50 Capital Gains Tax and Trusts
			CGT Asset
			Cost Base
			Capital Proceeds
			Capital Gains Included in Assessable Income
			CGT Events
			Creating a Trust over a CGT Asset: CGT Event E1
			Transferring a CGT Asset to a Trust: CGT Event E2
			Converting a Trust to a Unit Trust: CGT Event E3
			Capital Payment for a Trust Interest: CGT Event E4
			Beneficiary Becoming Absolutely Entitled to a Trust Asset: CGT Event E5
			Disposal to Beneficiary to End Income Right: CGT Event E6
			Disposal to Beneficiary to End Capital Interest: CGT Event E7
			Disposal by a Beneficiary of Capital Interest: CGT Event E8
			Creating a Trust over Future Property: CGT Event E9
			Trust Stops being a Resident Trust: CGT Event I2
			Trust Becomes a Resident Trust
			Beneficiary Dealing with Right to Receive Income
			Bonus Units in Unit Trusts
			Exchange of Units in a Unit Trust
		Chapter 51 Deceased Estates
			Income Tax
			Capital Gains Tax
			Asset Passing to Tax Advantaged Entity: CGT Event K3
			Asset Passing to Non-tax Advantaged Entity
			Testamentary Trusts
			Life Tenancies
			Joint Tenants
		Chapter 52 Trusts and Tax Avoidance
			Trust Stripping
			Revocable Trusts
			Part IVA — The General Anti-avoidance Provision
			Application of the Anti-avoidance Provisions
Index