Equity and trusts 4th Edition by Bradley L Jones, Michael Brookes Evans, Theresa M Power ISBN 0409338346 9780409338348

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ISBN 10: 0409338346
ISBN 13: 9780409338348
Author: Bradley L Jones, Michael Brookes Evans, Theresa M Power

Equity and trusts 4th Edition 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

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