Newcastle Law School

LAWS4010: Equity and Trusts

Newcastle City Precinct
Semester 1 - 2023

OVERVIEW
Course Description The course introduces the concepts and principles which have
been developed by the courts in the exercise of the equitable
jurisdiction. It examines the history of equity, the concept of the
"fusion fallacy", assignments, equitable dispositions and the
requirement of writing, confidential information, fiduciary
obligations, the concept of the trust, express trusts, charitable
trusts, resulting trusts, constructive trusts and equitable remedies.

Skills Focus Respectful discussion

Structural writing skills
Problem solving

Requisites This course is only available to students enrolled in the Bachelor

of Laws and associated combined degree programs or Bachelor
of Laws (Honours) and associated combined degree programs.

Assumed Knowledge LAWS1010, LAWS1011, LAWS1020, LAWS1021, LAWS2030,

LAWS3040, LAWS3041, LAWS4005, and LAWS4011

Contact Hours Newcastle City Precinct

Online Activity
Online
1 hour(s) per Week for Full Term starting Week 1

Seminar
Face to Face On Campus
2 hour(s) per Week for Full Term

Unit Weighting 10

Workload Students are required to spend on average 120-140 hours of

effort (contact and non-contact) including assessments per 10
unit course.

CRICOS Provider 00109J

LAWS4010: Equity and Trusts
Newcastle City Precinct Semester 1 - 2023

CONTACTS
Course Coordinator, Newcastle City Precinct
Lecturer and Tutor Dr Glen Anderson
Glen.Anderson@newcastle.edu.au
02 49215980
Consultation: Tuesday 6-7PM

Tutor Blake Pepper

Blake.Pepper@newcastle.edu.au
Consultation: TBA

School Office Newcastle Law School

5th Floor
NU Space
409 Hunter Street
Newcastle
Law-School@newcastle.edu.au
+61 2 4921 8666

SYLLABUS
Course Content Topics covered may include:
1. Introduction to Equity - Historical origins and general principles
2. Introduction to Equity - Fusion fallacy
3. Assignments
4. Equitable dispositions and the requirement of writing
5. Confidential information
6. Fiduciary obligations
7. Introduction to trusts
8. Express trusts
9. Variation and termination of trusts
10. Charitable trusts
11. Resulting trusts
12. Constructive trusts

Course Learning On successful completion of this course, students will be able to:
Outcomes 1. Demonstrate a comprehensive knowledge of the history, concepts and principles of equity
and trusts law.

2. Analyse the role of equitable interests within our legal system and evaluate the origins,
principles, and justifications for equitable rights and actions.

3. Identify the various types of equitable interest in NSW and explain how these interests are
created, transferred and extinguished.

4. Identify and apply legal principles using case law and statute to resolve practical problems
in the area of equity and trusts law.

Course Materials The prescribed text for this course is:

➢ Radan, P., and Stewart, C., Principles of Australian Equity and Trusts (LexisNexis
Butterworths, 5th ed, 2021).

In addition, students are able to freely access draft chapters of:

➢ Anderson, G., Equity and Trusts: Concepts and Doctrine (unpublished).

Access will be under a special tab on Cavass.

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Students will also find the following published text useful:

➢ Anderson, G., Property Law: Concepts and Doctrine (LexisNexis Butterworths, 2022).

The foregoing is not a set text, but reference will be made to it throughout the PowerPoints and
optional reading list as appropriate. It delves at various points into matters of equity and trusts
and provides insights into the course coordinator’s thoughts.

The following books are also recommended for general reading and reference and will be
available (mostly on closed reserve) in the Law Library:

➢ Bant, E., and Bryan, M., Principles of Proprietary Remedies (Thomson Reuters 2013).
➢ Barkehall, T. S., and Vann, V., Equity (LexisNexis Butterworths, 3rd ed., 2015).
➢ Barkehall, T. S., and Vann, V., Trusts (LexisNexis Butterworths, 3rd ed., 2016).
➢ Barnes, M., (QC), The Law of Estoppel (Bloomsbury, 2020).
➢ Birks, P., and Rose, F. (eds.), Restitution and Equity (LLP Professional Publishing,
2000).
➢ Biscoe, P., Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis
Butterworths, 2008).
➢ Bradshaw, F. M., The Law of Charitable Trusts in Australia (Butterworths, 1983).
➢ Brien, C., Equity and Trusts Guidebook (Oxford University Press, 2nd ed., 2015).
➢ Bryan, M., and Vann, V., Equity and Trusts in Australia (Cambridge University Press,
2nd ed, 2017).
➢ Butler, A. S., (ed.), Equity and Trusts in New Zealand (Thomson Reuters, 3rd ed.,
2022).
➢ Chambers, R., Resulting Trusts (Clarendon Press, 1997).
➢ Conaglen, M., Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary
Duties (Bloomsbury 2010).
➢ Cope, M., Constructive Trusts (Law book Co., 1992).
➢ Cope, M., Equitable Obligations: Duties, Defences and Remedies (Lawbook Co.,
2007).
➢ D’Angelo, N., Commercial Trusts (LexisNexis Australia, 2014).
➢ Dal Pont, G. E., and Cockburn, T., Equity and Trusts in Principle (Lawbook Co., 4th ed.,
2019).
➢ Dal Pont, G. E., Equity and Trusts in Australia (Lawbook Co, 7th ed., 2018).
➢ Dal Pont, G. E., Equity and Trusts: Commentary and Materials (Lawbook Co., 7th ed.,
2021).
➢ Dal Pont, G. E., Law of Agency (LexisNexis Butterworths, 4th ed., 2020)
➢ Dal Pont, G. E., Law of Charity (LexisNexis Butterworths, 3rd ed., 2021).
➢ Dal Pont, G. E., Law of Confidentiality (LexisNexis Butterworths, 2nd ed., 2020).
➢ Dal Pont, G. E., Law of Succession (LexisNexis Butterworths, 3rd ed., 2020).
➢ Degeling, S., and Edelman, J., (eds) Equity in Commercial Law (Lawbook Co, 2005).
➢ Douglas, R., and Knowler J., Trusts in Principle (Lawbook Co., 2012).
➢ Edwards, K., Essential Equity and Trusts (Routledge-Cavendish, 2nd ed., 2007).
➢ Edwards, R., and Stockwell, N., Trusts and Equity (Pearson, 13th ed., 2013).
➢ Evans, M., Equity and Trusts (LexisNexis Butterworths, 4rd ed., 2016).
➢ Finn, P. D., Fiduciary Obligations (Lawbook Co., 1977).
➢ Finn, P. D., Fiduciary Obligations: 40th Anniversary Republication with Additional
Essays (Federation Press, 2016).
➢ Ford, H. L., and Lee, W. A., Principles of the Law of Trusts (loose-leaf edition, LBC
Information Services, 1996+).
➢ Frankel, T., Fiduciary Law (Oxford University Press, 2011).
➢ Garton, J., Probert, R., and Bean, G., Moffat’s Trusts Law: Text and Materials
(Cambridge University Press, 7th ed., 2020).
➢ Getzler, J., (ed.), Rationalizing Property, Equity and Trusts: Essays in Honour of
Edward Burn (LexisNexisUK, 2003).
➢ Glister, J., and Lee, J., Modern Equity (Sweet and Maxwell, 22th ed., 2021).
➢ Glover, J. (ed.), Commercial Equity: Fiduciary Relationships (Butterworths, 1995).
➢ Glover, J., Equity, Restitution & Fraud (LexisNexis Butterworths, 2004).
➢ Goldberg, J. C. P., Smith, H. E., and Turner, P. G., (eds.) Equity and Law: Fusion and
Fission (Cambridge University Press, 2021).

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➢ Hepburn, S., Principles of Equity and Trusts (The Federation Press, 6th ed., 2020).
➢ Heydon, J. D., and Leeming, M., Jacob’s Law of Trusts (LexisNexis Butterworths, 8th
ed., 2016).
➢ Heydon, J. D., and Loughlan, P., Equity & Trusts: Cases & Materials (LexisNexis
Butterworths, 9th ed., 2018).
➢ Heydon, J. D., Leeming, M. J and Turner, P. G., Meagher, Gummow and Lehane’s
Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed., 2015).
➢ Hudson, A., Equity and Trusts (Routledge Cavendish, 10th ed., 2021).
➢ Jordan, F., Select Legal Papers (Legal Books Pty Ltd, 1983).
➢ Kerr, W. W., Kerr on Fraud and Mistake: Including the Law Relating to
Misrepresentation Generally, Undue Influence, Fiduciary Relations, Constructive
Notice, Specific Performance etc (Sweet and Maxwell, 1929).
➢ Kershaw, D., he Foundations of Anglo-American Corporate Fiduciary Law (Cambridge
University Press, 2018).
➢ Klinck, D. R., Conscience, Equity and the Court of Chancery in Early Modern England
(Ashgate Publishing Ltd, 2010).
➢ Liew, Y. K., Rationalising Constructive Trusts (Hart Publishing, 2017).
➢ McKendrick, Ewan (ed.), Commercial Aspects of Trusts and Fiduciary Obligations
(Oxford, 2003).
➢ Miller, Paul B., and Gold, Andrew S., Contract, Status, and Fiduciary Law (Oxford
University Press 2017).
➢ Mitchell, C. (ed.), Constructive and Resulting Trusts (Hart Publishing, 2010).
➢ Oakley, A. J., Parker and Mellows: The Modern Law of Trusts (Sweet and Maxwell, 9th
ed., 2008).
➢ Oakley, A. J., Trends in Contemporary Trust Law (Clarendon Press, 1996).
➢ Ong, D., Ong on Equity (Federation Press, 2011).
➢ Ong, D., Ong on Estoppel (federation Press, 2020).
➢ Ong, D., Trusts Law in Australia (Federation Press, 5th ed., 2018).
➢ Panesar, S., Equity and Trusts (Pearson Education Limited, 2020).
➢ Parkinson, P., (ed.), The Principles of Equity (Lawbook Co, 2nd ed., 2003).
➢ Pearce, R. A., Stevens, J., and Barr, W., The Law of Trusts and Equitable Obligations
(Butterworths, 7th ed: 2018).
➢ Penner, J. E., The Law of Trusts (Oxford University Press, 12th ed., 2022).
➢ Radan, P., Stewart C., and Vickovich, I., Principles of Australian Equity and Trusts:
Cases and Materials (LexisNexis Butterworths, 5th ed., 2021).
➢ Ramjohn, M., Text, Cases and Materials on Equity and Trusts (Abingdon, 4th ed.,
2008).
➢ Scott-Hunt, S., and Lim, H., Feminist Perspectives on Equity & Trusts (Cavendish
Publishing, 2001).
➢ Sheppard, R., Fitzgerald, I. R., and Gonski, D., Report of Inquiry into the Definition of
Charities and Related Organisations, 2001 (www.cdi.gov.au).
➢ Simpson, W. B., An Introduction to the History of the Land Law (Oxford University
Press, 1961).
➢ Smith, L., and Popovici, A., Equity and Trusts (Edward Elgar Publishing Ltd, 2019).
➢ Vout, Paul T., Unconscionable Conduct: The Laws of Australia (Lawbook Co., 3rd ed.,
2017).
➢ Virgo, G., The Principles of Equity & Trusts (Oxford University Press, 3rd ed., 2018).
➢ Waters, D., Smith, L., and Gillen, M., Waters' Law of Trusts in Canada, (Carswell, 5th
ed., 2021).
➢ Watt, G., Trusts and Equity (Oxford University Press, 9th ed., 2020).
➢ Worthington, S., Equity (Oxford University Press, 2006).
➢ Wright, D., and Hepburn, S., Remedies in Equity (Thomson Reuters 2nd ed., 2019).
➢ Young, P., Clyde, C., and Smith, L., On Equity (Lawbook Co, 2009).

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LAWS4010: Equity and Trusts
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SCHEDULE
Week Week Begins Topic Seminar
1 20 Feb Introduction to Equity – Historical origins and general principles Wk 1
2 27 Feb Introduction to Equity – The fusion fallacy? Wk 2
3 6 Mar Assignments Wk 3
4 13 Mar Equitable dispositions and the requirement of writing Wk 4
5 20 Mar Confidential information Wk 5
6 27 Mar Fiduciary obligations Wk 6
7 3 Apr Introduction to trusts Wk 7
8 24 Apr Express trusts Wk 8
9 1 May Variation and termination of trusts Wk 9
10 8 May Charitable trusts Wk 10
11 15 May Resulting trusts Wk 11
12 22 May Constructive trusts Wk 12
13 29 May No Lecture NA

ASSESSMENTS
This course has 3 assessments. Each assessment is described in more detail in the sections below.

Assessment Name Due Date Involvement Weighting Learning

Outcomes
1 Research Essay 7 April 2023 5PM Individual 40% 1, 2, 3, 4
2 Final Examination 5 June 2023 Individual 50% 1, 3
(open book)
3 Seminar Engagement NA Individual 10% 3, 4
and Participation

Late Submissions The mark for an assessment item submitted after the designated time on the due date, without
an approved extension of time, will be reduced by 10% of the possible maximum mark for
that assessment item for each day or part day that the assessment item is late. Note: this
applies equally to week and weekend days.

Assessment 1 - Research Essay

Assessment Type Research essay
Description The first assessment will be the choice of an essay question with a word limit of 1500 words.
The word limit will be strictly enforced by the examiners.

The purpose of this assessment is to allow students to explore some of the general principles
and doctrine that arise in the area of equity and trusts and to develop skills in legal research.
You may select one of the following essay questions:

1) Should Australian equity introduce fusion in the fiduciary context? Discuss.

2) Should the trustee’s equitable duty of care be fiduciary? What might the implications
be for strangers who collude with non-trustee fiduciaries acting without proper care?

3) Should Australian fiduciary law recognise non-economic interests? Discuss

through the lens of either the doctor-patient or religious leader-follower relationship.

4) Has Australian fiduciary law become inequitably ossified? Discuss.

5) Artificial intelligence in drones, planes, boats, and cars is a central part of an

information based algorithmic society. With this in mind, how could fiduciary law be
developed to capture this changing societal dynamic?

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To reiterate, students must only attempt one of these questions. Students

must type the question at the top of the first page of the essay.

These words, along with the footnotes and bibliography, will be excluded from the overall
word count. Students are advised to move beyond the course materials and undertake their
own independent research to enhance their critical analysis and argumentation.

With regards to referencing, please follow the Australian Guide to Legal Citation (fourth
edition).
Weighting 40%.
Due Date 7 April 2023 5PM
Submission Method You are required to submit your research essay to Turnitin. You may submit assignments for
self-checking any time prior to the due date. Note that Turnitin requires you to allow 24 hours
between each submission.

Please note that all other forms of submission will be disallowed under all conditions. Plenty
of advance warning has been given and no deviation from the prescribed submission method
will be permitted. For example: papers which are emailed to the co-ordinator will not be
accepted. Papers which are submitted after the specified due date or time will incur penalty
as prescribed by official university policy.

Copies of the Assignment Cover Sheet may be found at:

http://www.newcastle.edu.au/service/student-forms/Electronic copy
Assessment Criteria Six criteria will be used:

1. Identifies the relevant principles of equity and trusts law.

2. Develops a persuasive and well-reasoned response to the question.
3. Intelligently utilizes relevant research sources including cases, journal articles, books
and legislation.
4. Writes clearly, concisely and within the word limit.
5. Correctly cites authorities and references other people’s work using AGLC4 format.
6. Structures the analysis in a logical way (using headings where appropriate).
Return Method TBA
Feedback Provided Yes, if students indicate in writing on the front of their research essay that they desire written
feedback. If no written indicator is given, then no written feedback, aside from the final
percentage, will be given.

Assessment 2 – Final Examination in Examination Period (open book)

Assessment Type Final examination
Description This will be a five-hour at home open book examination, in accordance with COVID-based
Law School protocols.

The examination assesses the ability to locate and analyse legal information for problem
solving, and to deliver well-structured and well-presented arguments and solutions. It may
also involve goblet essay responses.

More information will be made available as the examination date becomes closer.
Weighting 50%
Due Date 5 June 2023 (9:30AM-2:30PM)
Submission Method Must submit to Turnitin
Assessment Criteria Three criteria will be used:

1. Identifies and applies the relevant principles of equity and trusts.

2. Develops a persuasive and well-reasoned response to the question(s).

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3. Structures the analysis in a logical way (using headings where appropriate).

Return Method NA
Feedback Provided No

Assessment 3 - Seminar Engagement and Participation

Assessment Type Seminar engagement and participation
Description Seminar engagement and participation assesses the ability to critically read, analyse and
reflect on Equity and Trusts Law, whilst learning within a collaborative environment.

Seminar engagement and participation marks will be awarded on the basis of the quality of
each student’s overall seminar participation.

Matters that will be taken into account will be regular attendance, and sensible/thoughtful
contributions to matters being discussed. Discussion points must relate to the designated
subject and be based upon, or referable to, the lecture and readings.

A seminar attendance roll will be taken in each class to allow accurate attendance records.
Students are responsible for ensuring that if their name has not been called, or if they arrive
late to class their attendance has been noted by the tutor. The record of attendance generated
at the conclusion of the semester will hence be unassailable and incontrovertible. It goes
without saying, of course, that falsely stating that someone has attended when they have not
is academic misconduct, and would be likely to impact on the issue of whether someone was
a “fit and proper” person to be admitted as a legal practitioner. Students who depart half way
through a seminar without providing their tutor with a satisfactory explanation will not be
recorded as having attended the class. Half class attendance does not count for this
assessment item. If there is an ongoing academic clash for any part of the classes, students
should contact the co-ordinator as soon as becoming aware of this to discuss the attendance
issue. Should illness affect attendance on a particular occasion, students may notify the co-
ordinator by email, either before, or within the week after, the occasion. Students must supply
a medical certificate should they not wish to be recorded as absent. It is emphasized here
that a law degree is a serious academic undertaking and cannot be properly attempted if
classes are not attended.
Weighting 10%
Due Date NA
Submission Method NA
Assessment Criteria Five criteria will be used:

1. Relevance to the question or discussion point.

2. Accuracy of information/argument.
3. Demonstrated links to corresponding readings.
4. Clarity of expression.
5. Reasoned interaction with points made by other students
Return Method NA
Feedback Provided NA

ADDITIONAL INFORMATION
Grading Scheme
This course is graded as follows:
Range of Grade Description
Marks
85-100 High Outstanding standard indicating comprehensive knowledge
Distinction and understanding of the relevant materials; demonstration of
(HD) an outstanding level of academic achievement; mastery of
skills*; and achievement of all assessment objectives.
75-84 Distinction Excellent standard indicating a very high level of knowledge
(D) and understanding of the relevant materials; demonstration of
a very high level of academic ability; sound development of
skills*; and achievement of all assessment objectives.
65-74 Credit Good standard indicating a high level of knowledge and
(C) understanding of the relevant materials; demonstration of a
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LAWS4010: Equity and Trusts
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high level of academic achievement; reasonable development

of skills*; and achievement of all learning outcomes.
50-64 Pass Satisfactory standard indicating an adequate knowledge and
(P) understanding of the relevant materials; demonstration of an
adequate level of academic achievement; satisfactory
development of skills*; and achievement of all learning
outcomes.
0-49 Fail Failure to satisfactorily achieve learning outcomes. If all
(FF) compulsory course components are not completed the mark
will be zero. A fail grade may also be awarded following
disciplinary action.

*Skills are those identified for the purposes of assessment task(s).

To ensure that grades are fair both within and between courses and cohorts, Newcastle Law
School has a rigorous policy of moderating and reviewing assessment. The School
Assessment Board (SAB) reviews all final grades before they are released to students, and
the SAB process may result in the overall marks of a class being moved up or down by a
specific amount, thus impacting individual marks. This is consistent with grading practices in
other Law Schools across the country and important to ensure the integrity of assessment.
This means that the final grade you are awarded may not be the sum of marks you have
received in all assessments.

There is a compulsory attendance requirement in this course. Attendance at all classes

(seminars and workshops) will be monitored and records maintained by the Course
Coordinator. In order to satisfy the “Attendance” requirement, students must be present at a
minimum of 80% of scheduled classes as spelled out in the course outline, unless they are
able to demonstrate that their absence falls within the Adverse Circumstances policy. Unless
this requirement is met, despite marks awarded in other assessment items, the student will
receive a zero mark and an CF grade for the course.

Please note that if you miss more than 2 classes for reasons that fall within the University’s
adverse circumstances policy you may be required to complete additional assessment items
to ensure that you have completed the required volume of learning for this course.

Communication Communication methods used in this course include email, canvass announcements,
Methods recorded verbal and video material, written materials, verbal communication in seminars.

Course Evaluation Each year feedback is sought from students and other stakeholders about the courses offered
in the University for the purposes of identifying areas of excellence and potential
improvement.

Oral Interviews As part of the evaluation process of any assessment item in this course an oral examination
may be conducted. The purpose of the oral examination is to verify the authorship of the
material submitted in response to the assessment task. The oral examination will be
conducted in accordance with the principles set out in the Oral Examination Guidelines. In
cases where the oral examination reveals the assessment item may not be the student's own
work the case will be dealt with under the Student Conduct Rule.

Academic Misconduct All students are required to meet the academic integrity standards of the University. These
standards reinforce the importance of integrity and honesty in an academic environment.
Academic Integrity policies apply to all students of the University in all modes of study and in
all locations. For the Student Academic Integrity Policy, refer to
https://policies.newcastle.edu.au/document/view-current.php?id=35.

Adverse The University acknowledges the right of students to seek consideration for the impact of
Circumstances allowable adverse circumstances that may affect their performance in assessment item(s).
Applications for special consideration due to adverse circumstances will be made using the
online Adverse Circumstances system where:
1. the assessment item is a major assessment item; or
2. the assessment item is a minor assessment item and the Course Co-ordinator has
specified in the Course Outline that students may apply the online Adverse Circumstances
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system;
3. you are requesting a change of placement; or
4. the course has a compulsory attendance requirement.
Before applying you must refer to the Adverse Circumstance Affecting Assessment Items
Procedure available at:
https://policies.newcastle.edu.au/document/view-current.php?id=236

Wellness Contacts There are a variety of pressures on law students, and being able to perform well academically
under pressure, without excessive stress will contribute to enhanced outcomes in wellbeing
and academic results. Reach out to support services and learn ways to maintain your mental
health, deal with stress and common issues like perfectionism, procrastination and anxiety.

To access UON support:

https://www.newcastle.edu.au/current-students/support/personal
Ph: 4921 6622 or email: counselling@newcastle.edu.au

For support outside of office hours call the University Crisis Support Line on 1300 653 007 or
for chat sms 0488 884 165.

For immediate support contact Lifeline 24/7 on 13 14 11 or https://www.lifeline.org.au/

Important Policy The 'HELP for Students' tab in UoNline contains important information that all students should
Information be familiar with, including various systems, policies and procedures.

This course outline was approved by the Head of School. No alteration of this course outline is permitted without Head of School
approval. If a change is approved, students will be notified and an amended course outline will be provided in the same manner as
the original.
© 2023 The University of Newcastle, Australia

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WEEK 1:

INTRODUCTION TO EQUITY I – HISTORICAL ORIGINS AND GENERAL PRINCIPLES

REQUIRED READING

Radan and Stewart, Chapters One and Two.

OPTIONAL READING

J. D. Heydon, M. J. Leeming and P. G. Turner, Meagher, Gummow and Lehane’s Equity Doctrines and
Remedies, Fifth Edition (2015), Chapters One, Two & Three.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapters One, Two and Three.

Patrick Parkinson, “The Historical Role of the Equitable Jurisdiction”, in Patrick Parkinson (Ed.), The Principles
of Equity, Second Edition (2003), Chapter One.

Alastair Hudson, Equity and Trusts, Tenth Edition (2021), Chapter One.

Peter Young, Clyde Croft and Louise Smith, On Equity, Chapters One, Two and Three.

G. E. Dal Pont, Equity and Trusts in Australia, Seventh Edition (2018), Chapter One.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 249-297, 309-347), Chapter
Nine (pp. 458-473), Chapter Eleven (pp. 623-634), Chapter Thirteen (pp. 777-780), Chapter Sixteen (pp.
984-990).

QUESTIONS

1. Define equity.

2. What is the purpose of equity? Why is there a distinction between law and equity? Is this distinction
merely historical?

3. Why do we study equity at law school? Why is equity important? Why is equity a Priestly 11 core
subject?

4. Why is equity widely regarded as a prestigious area of law?

5. In light of the questions above, has your conception of “law” been subject to challenge and revision?
If so, how?

6. Who are the most famous Lord Chancellors? What were their contributions to equity?

7. What are the maxims of equity and how do judges employ them in their reasoning? Can you provide
any examples where the maxims have featured prominently in judicial discussion?

8. Equity has become synonymous with certain doctrines and remedies. What might some of these be?

9. In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) (2000) 96
FCR 491 at 498 French J identified unconscionable conduct as, “the overriding aim of all equitable
principle”. Is there a distinction between legal and non-legal formulations of unconscionability, and if
so, how might legal unconscionability be broadly defined?

10. Denis Browne in Ashburner's Principles of Equity, second edition (Butterworth & Co: 1933) at pp. 38-
39 has rendered the following remark:

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The object of the Court of Chancery was, in the first instance, the purification of the defendant's
conscience. It was a cathartic jurisdiction. If a person is allowed to remain in possession of
property which it is against conscience for him to retain, his conscience will be oppressed; and
the court, out of tenderness for his conscience, will deprive him, notwithstanding his resistance,
of what is so heavy a burden upon it.

Does this statement reveal any connection to equity’s ecclesiastical influences?

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WEEK 2

INTRODUCTION TO EQUITY II – THE FUSION FALLACY?

REQUIRED READING

Radan and Stewart, Chapter Three.

OPTIONAL READING

The Hon Justice Michael Kirby, “Equity’s Australian Isolationism”, Queensland University of Technology Law
Journal (2008), Vol. 8, No. 2.

Keith Mason, “Fusion: Fallacy, Future or Finished?”, in S. Degeling and J. Edelman (Eds.), Equity in Commercial
Law (2005), Chapter Three.

David A. Hughes, “A Classification of Fusion After Harris v Digital Pulse”, University of New South Wales Law
Journal (2006), Vol 29, Issue 2.

Michael Tilbury, “Fallacy or Furphy? Fusion in a Judicature World”, University of New South Wales Law Journal
(2003), Vol. 26, Issue 2.

Fiona Burns, “The ‘Fusion Fallacy’ Revisited”, Bond Law Review (1993), Vol. 5, Issue 2.

Julie K. Maxton, “Intermingling of Common Law and Equity”, in Malcolm Cope (Ed.), Equity: Issues and Trends
(1995) Chapter Two.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 217-218, 247), Chapter
Eight (pp. 349-402, 392-396), Chapter Eleven (pp. 688-689).

QUESTIONS

1. Various meanings can be attributed to the word “fusion” in the context of the fusion fallacy debate.
What might these be?

2. Is fusion of law and equity a fallacy in Australia? In your opinion are the arguments for or against fusion
more compelling?

3. Discuss the significance of Walsh v Lonsdale (1882) 2 Ch D 9 as it relates to fusion.

4. In Aquaculture Corp v New Zealand Mussel Co [1990] 3 NZLR 299 at 300 Cooke P, in the context of a
case concerning confidential information, remarked:

For all purposes now material, equity and common law are mingled or merged. The practicality
of the matter is that in the circumstances of the dealings between the parties the law imposes
a duty of confidence. For its breach a full range of remedies should be available as appropriate,
no matter whether they originated in common law, equity or statute.

Do you agree with this statement? How does Cooke P’s opinion compare with the traditional orthodoxy
in Australia?

5. Compare and contrast the views of Mason P and Heydon JA in Harris v Digital Pulse Pty Ltd (2003) 56
NSWLR 298 in relation to the “fusion fallacy”. Which of these two views do you prefer and why?

6. Is the decision in Attorney General v Blake [2001] 1 AC 268 explicable from a policy perspective? Is it
possible that the case reveals a deeper understanding of how judges formulate decisions and apply
legal doctrine? Is there any compelling reason in principle why the decision should be regarded as
incorrect?
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7. Prior to the administrative fusion of law and equity it was not unknown for common law and equitable
courts to borrow concepts and doctrine developed in the other. If this is so, then why are the decisions
in Day v Mead [1987] 2 NZLR 443 and Mouat v Clark Boyce [1992] 2 NZLR 599 – where the tortious
defence of contributory negligence was invoked in the context of a fiduciary obligation – criticised by
anti-fusionists?

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WEEK 3

ASSIGNMENTS

REQUIRED READING

Radan and Stewart, Chapters Five and Seven.

OPTIONAL READING

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapters Seven, Eight, Nine, Ten and Eleven.

G. E. Dal Pont, Equity and Trusts in Australia, Seventh Edition (2018), Chapter Three.

Glen Anderson, “The Trendtex Principle in Australian Law: Context and Recent Developments”, University of
Western Australia Law Review (2016) Vol. 40, No 2.

Glen Anderson, “Future Property and the Torrens System”, Deakin Law Review (2017), Vol. 22 No 1.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 305-308).

QUESTIONS

1. What does the term “assignment” mean? Is there any distinction between the term “assignment” and
“disposition”? Who is the assignor and who is the assignee?

2. Which property rights cannot be assigned? What are the reasons for these prohibitions?

3. How might contract law interact with the assignment of the proceeds of a contract for personal services?
Further, how might contractual prohibitions on such assignments be circumvented? Is this a triumph
of form over substance?

4. What is a chose in action? Give examples. What are the requirements for a valid legal assignment of a
debt or chose in action?

5. Can equitable choses in action be validly assigned under s 12 of the Conveyancing Act 1919 (NSW)?

6. What is future property? How can such property be assigned?

7. Are there any circumstances when equity will perfect an imperfect gift of legal property and thus allow
for the voluntary assignment of legal property?

8. In a voluntary deed Dionysus assigned to Apollo the verdict of his pending accident compensation claim
against Poseidon. Two weeks later Dionysus obtained a verdict of $50,000 against Poseidon. Dionysus
then repudiated the deed between Apollo and himself. Discuss.

9. Discuss the validity of the following assignments set out in a voluntary deed:

a. One quarter of my contractual right to receive royalties from Gosford University Press (GUP) from
my book Why Law is Not Boring. At the time of the assignment GUP had gone into liquidation
without having printed the book.
b. One third of my right to receive interest in relation to my loan to Murdo McLeod. The loan is
repayable immediately on demand with interest to be paid to the date of repayment.
c. The first $30,000 of the yearly net income to accrue to me as dividends from my shares in Mediskill
Corporation Ltd.
d. All the shares in Rich Corporation Ltd that I am entitled to under my auntie’s will.
e. A mining license for Chromium in Wingelinna South Australia which I expect to be granted under
the Mining Act by the end of the year.
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WEEK 4

EQUITABLE DISPOSITIONS AND THE REQUIREMENT OF WRITING

REQUIRED READING

Radan and Stewart, Chapter Six.

QUESTIONS

1. What are the various acts which could amount to a disposition of an equitable interest in property?
What is the conceptual relationship between a disposition and an assignment?

2. What is a subsisting equitable interest? Will an absolute owner of property have a subsisting equitable
interest in that property? Provide case authority to support your answer.

3. Is there a requirement of writing when a beneficiary instructs his or her trustee to hold the equitable
interest in the property – the subject of the trust – on trust for a third party and no longer for
themselves? Discuss with reference to Grey v Inland Revenue Commissioners [1960] AC 1; [1959] 3
All ER 603.

4. Is there a requirement of writing when a beneficiary instructs his or her trustee to transfer both the
legal and equitable interest in trust property to a third party, so that the third party becomes the
absolute owner of the property? Discuss with reference to Vandervell v Inland Revenue Commissioners
[1967] 2 AC 291; [1967] 1 All ER 1.

5. Compare the results in Grey v Inland Revenue Commissioners [1960] AC 1; [1959] 3 All ER 603 and
Vandervell v Inland Revenue Commissioners [1967] 2 AC 291; [1967] 1 All ER 1. Do you agree with
the outcome? Can an argument be made that the more complex “Vandervell” situation should also be
subject to the requirement of writing bearing in mind the policy foundations of s 23C of the
Conveyancing Act 1919 (NSW)?

6. Is there a requirement for writing when there is a contract for valuable consideration to assign a
subsisting equitable interest in property? Discuss in relation to Oughtred v Inland Revenue
Commissioners [1960] AC 206; [1959] 3 All ER 623.

7. Mark is the bare trustee of shares in Blue Diamonds Ltd. Kelly, the beneficiary of the trust, telephones
Mark and directs him to hold the shares on trust for Kelly’s friend Catherine. What is the effect of Kelly’s
direction to Mark?

8. Bill was the sole beneficiary under a trust of a painting by the famous English artist Constable. Bill
agreed to transfer his interest in the painting to Frank for a nominal sum. Bill died leaving his entire
estate to Charles. Charles seeks your advice as to the extent (if any) of his interest in the painting.

9. Amber holds shares on trust for John. John wants to transfer his interest to Miranda. He persuades his
sister Emma to be part of an arrangement under which John directs Amber to transfer legal title to the
shares to Emma with the understanding that Emma will immediately declare herself trustee of the
shares for Miranda. Is writing necessary for any part of this transaction? If so what form of writing is
required?

10. Janine is the registered proprietor of Torrens title land known as Greenacre. She was also the registered
shareholder of 2000 shares in Concrete Constructions Ltd. Janine wanted to make a gift of property to
her niece Eva. To do this she made an oral declaration to the effect that she held Greenacre and the
shares on trust for Eva.

A few days after Janine’s declaration Eva, in a letter to her sister Margot wrote: ‘I give you any interest
I have in Greenacre’. In a telephone conversation with Janine on the same day Eva said: ‘I want Margot
to have my shares in Concrete Constructions Ltd. Transfer them to her as soon as possible.’
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Eva died the next day. Without knowing of the death, Janine transferred the shares to Margot and the
share transfer was duly registered in Margot’s name. A few days later Margot, claiming to be the
beneficial owner of Greenacre, wrote to Janine and demanded that she be given the certificate of title
to Greenacre and an executed transfer, transferring Greenacre into her name. Janine ignored this letter.

Margot seeks your advice as to the effect of these transactions on the legal and equitable ownership of
Greenacre and the shares.

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WEEK 5

CONFIDENTIAL INFORMATION

REQUIRED READING

Radan and Stewart, Chapter Nine.

OPTIONAL READING

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapter Fourteen.

QUESTIONS

1. How might confidential information be defined?

2. Is a recipient of confidential information necessarily a fiduciary?

3. Discuss the various origins of the action for breach of confidence. Is this information a property right?

4. What kind of personal information will be protected by an action for breach of confidence?

5. What kind of commercial information will be protected by an action for breach of confidence?

6. What are the differences between employment skills and confidential information? If an employee’s
skills are developed as a result of confidential information will they be able to use these skills if they
take up new employment?

7. In Gartside v Outram (1856) LJ Ch 114 at 114 Wood V-C stated that the, “true doctrine is, that there
is no confidence as to the disclosure of inequity”, which later cases have interpreted as allowing for
disclosure in the public interest. Discuss the public interest defence as it relates to confidential
information. Is there a difference between the UK and Australian approaches to the public interest
defence?

8. Is there a right of privacy at common law? To what extent has the action for breach of confidence
protected privacy rights? Is equity the most appropriate jurisdiction to protect privacy?

9. Jack and Jill both enjoyed successful professional jobs and met each other over the internet. Upon
meeting each other they exchanged sexually explicit pictures using their mobile phones. As the
relationship became more solidified, this behaviour gradually morphed into making their own adult
movies. Some of these were very explicit. After some time, Jill came to resent Jack’s controlling
personality and ended the relationship. When Jack found out about this he became increasingly
irrational, eventually posting erotic videos and pictures of the two together on Facebook so all their
mutual friends could watch. Jill has suffered extreme embarrassment as the result of Jack’s behaviour,
especially given that her employer, parents, grandparents and church minister are friends with her on
Facebook. Jill comes to you and seeks your advice in relation to Jack’s conduct.

10. Betty has a successful hairdressing salon that she had started many years previously. Betty doesn’t
like to pay her salaried hairdressers very much. In fact, she tends to stick to the minimum wage
prescribed by the relevant award. Not surprisingly, Betty has had high staff turnover.

Barbara, a recently hired hairdresser, has been left in charge of Betty’s salon whilst she goes on a two-
month trip to Europe for a holiday. While Betty is away, dissent grows within the salon. The other
employees realise that Barbara is a better boss than Betty. Betty also comes to believe in her own
managerial capabilities. Approximately three weeks before Betty is due home, Barbara decides to set
up her own rival salon. She takes out a lease on a retail premises and invests $20,000 in equipment.
Barbara is immediately swamped with customers.

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Betty returns home from her holiday to find that Barbara no longer works at the salon. Nor do several
of her former employees.

Betty strongly suspects Barbara of taking her established customers. She hires a photocopy technician
to undertake a data dump of her salon photocopier and discovers that the entire customer list has been
recently copied under Barbara’s password. This was data that Barbara was unauthorised to copy. Betty
comes to you with this information and seeks your advice. Specifically, can Betty bring an action for
breach of confidence?

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WEEK 6

FIDUCIARY OBLIGATIONS

REQUIRED READING

Radan and Stewart, Chapter Ten.

OPTIONAL READING

Malcolm Cope, Equitable Obligations – Duties, Defences and Remedies (2007), Chapter Three.

G. E. Dal Pont, Equity and Trusts in Australia, Seventh Edition (2018), Chapter Four.

J. C. Shepherd, The Law of Fiduciaries (1981), Chapter Five.

QUESTIONS

1. What does the term “fiduciary” mean? What is the essence of a fiduciary obligation? Is there a unifying
principle or principles that can be identified?

2. Explain the distinction between horizontal and vertical fiduciary relationships. Provide examples to
illustrate your answer.

3. Discuss the uneasy interrelationship between contract and fiduciary law, specifically, the ability to
contractually exclude fiduciary obligations.

4. What is the scope of the duty owed by a trustee to his or her beneficiary?

5. What is the scope of the duty owed by a solicitor to his or her client?

6. What is the scope of the fiduciary obligation owed by a partner to other partners? Does the
Partnership Act 1892 (NSW) have any bearing on these duties?

7. Discuss the intersection of agency and secret commissions and bribes. What remedies are available
to a principal whose fiduciary obtains secret commissions and bribes?

8. Discuss the following statement of principle with reference to case law:

It is possible that a fiduciary who enters into an arrangement which involves a conflict of
interest or duty, and who takes benefit or gain as a result thereof, may be able to retain this
benefit or gain if this arrangement has been fully disclosed to and consented to by the
beneficiary.

9. John Smith owns a 1976 Aston Martin sports car. He has been taking the car to Bob Nurk for servicing
and repairs ever since he bought it. It has now become too small for his needs and he decides to sell
it. The next time he takes the car to Bob Nurk for service, he mentions this to him. Bob knows the car
is in good order and thinks it is a good buy. He offers Smith $10,000 for the car, which he suggests is
a fair price. Smith accepts, but later discovers that the market value of a 1976 Aston Martin is $15,000.
Smith seeks your advice.

10. Brain, a Gosford hotelier, has requested Proctor to act as a purchasing agent for wine and spirits. As
part of the agreement, Proctor was entitled to charge Brian the cost price, and was entitled to take
reasonable commissions. It subsequently emerged that over the last two years Proctor had charged
Brian at above the cost price for the wine and spirits he had purchased. Brian seeks your advice in
relation to Proctor’s conduct.

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11. Green was the state manager of Bestobell Industries Pty Ltd (BIPL) which had obtained a building
contract for stage one of a medical centre in Newcastle. Green subsequently acquired a shelf company,
Clara Pty Ltd (CPL), and used this to submit a tender for stage two of the building process, which was
successful. BIPL also tendered for the same contract, but only came in third. BIPL has discovered
Green’s involvement in CPL and seeks your advice.

12. The Sinclairs were joint proprietors of a real estate firm in Lake Munmorah and obtained an authority
from Lunghi to sell land for a minimum price of “$100,000 or over.” Mr Sinclair informed Lunghi that
Mrs Sinclair was interested in purchasing the land, and tendered an offer of $105,000, which was
accepted. The Sinclairs were aware that the land was grossly undervalued, and made no attempt to
find any other purchasers. A few days after purchasing the land, it was resold for $750,000 to a third
party. Lunghi has since discovered the sale to a third party and seeks your advice.

13. A solicitor and his managing clerk, Hatt and Cox respectively, were the trustees of property for sale –
consisting of a pub known as the Gosford Hotel, together with a piece of land adjoining – and also acted
as solicitor for Moody, the purchaser. The contract price for the trust property was $3,700,000 which
both Hatt and Cox knew from a valuation report was overvalued. This was not conveyed to Moody as
purchaser. Moody has since discovered from a business colleague in the Masons that Hatt and Cox had
knowledge of the valuation report, and seeks your advice.

14. Optional self-directed question: Should the action for breach of fiduciary duty be available to victims
of sexual abuse? Discuss in relation to the case of Roger Paramasivam v Vincent John Adam Flynn
(1998) 90 FCR 489.

15. Optional self-directed question: Should the doctor-patient relationship be fiduciary in Australia?

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WEEK 7

INTRODUCTION TO TRUSTS

REQUIRED READING

Radan and Stewart, Chapter Twenty.

OPTIONAL READING

J. D. Heydon and M. J. Leeming, Jacob’s Law of Trusts in Australia, Eighth Edition (2016), Chapters One, Two
& Three.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapter Twenty-Three.

Alastair Hudson, Equity and Trusts, Tenth Edition (2021), Chapter Two.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 310-314).

Joel C. Dobris, “Changes in the Role and the Form of the Trust at the New Millennium, or, We Don’t Have to
Think of England Anymore”, Albany Law Review (1998 -1999), Vol. 62.

Roger Cotterrell, “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship”,
Journal of Law and Society (1987), Vol 14, No. 1.

QUESTIONS

1. Define the trust. Refer to case law and judicial formulations in your answer.

2. Describe some of the most important uses of the trust.

3. What are the four essentialia of a trust? Briefly discuss each of these.

4. What are the major differences between express, resulting and constructive trusts?

5. What is a Romalpa clause? In what ways are these similar to trusts?

6. What is the distinction between a trust power and a mere power in relation to special powers of
appointment? Why is this distinction important?

7. Characterise the following dispositions contained in John’s will:

a. I give my Bugatti Veyron to Agrippa, and on the condition that Agrippa pays my debts to
Christophorus.
b. I give my house in Scanno to Lavinia absolutely, with the hope that she shall allow my father to
live there until he dies.
c. I give $65,000 to Romulus, to be used for the costs of educating Valeria and to be hers absolutely
when she attains 21 years.
d. I give the residue of my estate to Alexa who may at her absolute discretion, give such residue to
anyone she thinks fit, barring herself, Agrippa, and Lavinia. If Alexa fails to dispose of the residue
in her lifetime, it shall become the property of Valeria.

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WEEK 8

EXPRESS TRUSTS

REQUIRED READING

Radan and Stewart, Chapter Twenty-One.

OPTIONAL READING

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapter Twenty-Five.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 315-324).

QUESTIONS

1. Who is the settlor? What is the settlor’s relationship to the trustee and beneficiary? How does the law
of capacity impact upon the settlor?

2. In White v Shortall (2006) 68 NSWLR 650 at paragraph 151 Campbell J remarked that:

In Kauter v Hilton (1953) 90 CLR 86 at 97, Dixon CJ, Williams J and Fullagar J reiterated: “…
the established rule that in order to constitute a trust the intention to do so must be clear and
that it must also be clear what property is subject to the trust and reasonably certain who are
the beneficiaries”. Those “three certainties” that are necessary for the existence of a trust
arise from the sort of thing that an express trust is.

How is the intention to create a trust ascertained? Whose intention is relevant?

3. What is a ‘Quistclose trust’? In what circumstances will it be useful? It what ways might a Quistclose
trust alter the test for certainty of intention?

4. What is the test for certainty of beneficiaries in fixed trusts?

5. What is the test for certainty of beneficiaries in discretionary trusts?

6. Angus covenants with Stewart that in the future he will settle existing property on Stewart as trustee
for Gordon. Only Angus and Stewart are party to the deed and no consideration has been provided by
either Stewart or Gordon. Angus later refuses to settle the property. Can Angus be forced to keep the
promise that he has made in the deed?

7. Discuss the extent to which the rule against delegation of testamentary power is applied in Australia.
Do you think that this rule should be abolished?

8. What is a ‘secret trust’ and what are the requirements for the valid creation of a secret trust in Australia?

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WEEK 9

VARIATION AND TERMINATION OF TRUSTS

REQUIRED READING

Radan and Stewart, Chapter Twenty-Two.

OPTIONAL READING

Kay v South Eastern Area Health Service [2003] NSWSC 292.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapters Twenty-Seven and Twenty-Eight.

QUESTIONS

1. In what ways might a trust be varied? What was the difference in approach to the variation of trusts in
Chapman v Chapman [1954] AC 429; 1 All ER 798 and Tickle v Tickle (1987) 10 NSWLR 581. Is this
difference largely inconsequential bearing in mind the import of s 81(1) of the Trustee Act 1925 (NSW)?

2. What is the test in Australia for striking down a trust on the grounds of illegality? Does this test differ
from the approach in the UK? Is the Australian or UK test preferable?

3. What is the prima facie rule relating to trusts and bankruptcy? Are there any exceptions to this prima
facie rule?

4. After reading Kay v South Eastern Area Health Service [2003] NSWSC 292 do you think people should
be able to discriminate in trusts on the basis of race and religion? What arguments are there for
abolishing such dispositions? Are there arguments in favour of keeping them?

5. What is the rule against perpetuities? Briefly discuss the modern common law rule and the important
provisions of the Perpetuities Act 1984 (NSW).

6. What is the rule in Saunders v Vautier (1841) 4 Beav 115; 49 ER 282?

7. Bianca died leaving a farming property and a large bank account. Under her will Bianca appointed her
brother Mark as executor and trustee of her estate. Bianca was a prejudiced woman who particularly
disliked Scientologists and Raëlians. Clause 5 of her will stated:

I give the farm to Mark on trust for Melissa for life, on the condition that Melissa is not married to a Scientologist.

Clause 7 of her will stated:

I give my 2015 Range Rover to Mark on trust for Rory, on the condition that Rory is not a practicing Raëlian.

Clause 11 of her will stated:

I give $350,000 to Mark on trust for Atticus, then for any wife that he may marry for life, and then to any of Atticus’
children that attain 25 years.

At the time of Bianca’s death, Melissa had been married to David (a Scientologist) for 5 years. Bianca
had been aware of the marriage and did not approve. Rory was the president of the Newcastle Raëlians.
Atticus was aged 68 and had not yet married or had any children. He was, however, considering
marriage to Florence, his girlfriend, who was aged 67.

Analyse the validity of these trusts.

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WEEK 10

CHARITABLE TRUSTS

REQUIRED READING

Radan and Stewart, Chapter Twenty-Three.

OPTIONAL READING

F. Maxwell Bradshaw, The Law of Charitable Trusts in Australia (1983), Chapter Two.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapter Twenty-Nine.

G. E. Dal Pont, Equity and Trusts in Australia, Seventh Edition (2018), Chapter Twenty-Nine.

QUESTIONS

1. What is the definition of a charitable trust? How do they differ from other types of trust?

2. Is it possible to create a charitable trust that has a political purpose? Do you agree with this result?

3. Who can be helped by a trust for the relief of poverty?

4. Will all trusts that advance education of any kind be classified as charitable?

5. What sorts of religious practices will be valid charitable activities?

6. Can charitable trusts make profit? Are there any economic or ideological arguments against charities
operating profitable businesses?

7. What activities will fall within the fourth Pemsel test as trusts that are ‘beneficial to the community’?

8. Is there any intellectual inconsistency between result in Re Hummeltenberg [1932] 1 Ch 237 and the
import of s 10(2) of the Charities Act 2013 (Cth)?

9. Who has responsibility for the administration of charitable trusts in Australia? What is a cy-près scheme
and when will this be used?

10. Consider the validity of the following testamentary gifts to trustees:

a. $250,000 to the Industrial Relations Committee of the Campbelltown Branch of the One Nation
Party of Australia, for the benefit of the said branch.
b. $275,000 to establish a sanctuary for the preservation of the native flora and fauna of New South
Wales.
c. $300,000 for the general purposes of St Vincent’s Private Hospital.
d. $300,000 to those of my friends who are poor.
e. $225,000 for the building of a recreation centre for the benefit of workers in the tobacco industry.
f. $200,000 for the education in the Greek language of police officers of the NSW police department.
g. $200,000 for the promotion of croquet in the private schools of New South Wales.
h. $15,000 to the Greek Orthodox Archbishop of Australia for masses for the repose for the souls of
my husband and my parents and my sisters and also myself when I die.
i. $200,000 to establish a training farm in Pakistan for refugee boys from Afghanistan.
j. $175,000 for such Order of Nuns of the Catholic Church whether active or contemplative, as my
trustees shall select.

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WEEK 11

RESULTING TRUSTS

REQUIRED READING

Radan and Stewart, Chapter Twenty-Five.

OPTIONAL READING

J. D. Heydon and M. J. Leeming, Jacobs’s Law of Trusts in Australia, Eighth Edition (2016), Chapter Twelve.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapter Twenty-Six.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (324-334).

Lisa Sarmas, “A Step in the Wrong Direction: The Emergence of Gender ‘Neutrality’ in the Equitable
Presumption of Advancement”, Melbourne University Law Review (1993-1994), Vol. 19.

QUESTIONS

1. Is the primary aim of resulting trusts to give effect to the equitable maxim that ‘equity abhors a
beneficial vacuum’? Discuss some of the common situations in which a resulting trust will arise.

2. Is intention important in the creation of a resulting trust or is such as trust based on some other
theoretical ground? Can a resulting trust arise over Torrens title land?

3. In his will Archibald has declared a trust over “his power boat” to “his grandson.” At the time of
Archibald’s death he has three power boats and five grandsons. Archibald has also declared a trust of
$5000 for the establishment of a local vigilante group to combat crime. The same will also contains a
trust to establish a local competition for monopoly. Discuss.

4. What are the presumptions of advancement and how do they operate? Do these presumptions operate
over Torrens title land?

5. In Calverley v Green (1984) 155 CLR 242 Justice Murphy said of resulting trusts; ‘My conclusion is they
are inappropriate to our times, and are opposed to a rational evaluation of property cases arising out
of personal relationships.” Do you agree?

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WEEK 12

CONSTRUCTIVE TRUSTS

REQUIRED READING

Radan and Stewart, Chapters Thirty-Five and Thirty-Six.

OPTIONAL READING

G. E. Dal Pont, Equity and Trusts in Australia, Seventh Edition (2018), Chapter Thirty-Eight.

Michael Evans, Equity and Trusts, Fourth Edition (2016), Chapters Forty-Six and Forty-Seven.

Malcolm Cope, Constructive Trusts (1992), Chapter One.

A. J. Oakley, Constructive Trusts (1987), Chapter One.

Glen Anderson, Property Law: Concepts and Doctrine (2022), Chapter Seven (pp. 334-347), Chapter 12 (p.
711).

QUESTIONS

1. Is the constructive trust a remedy or an institution? Why does it matter?

2. What are the major differences between express and resulting trusts and constructive trusts?

3. Discuss the operation of constructive trusts in relation to the rule in Keech v Sandford (1726) 25 ER
223 and fiduciary agents.

4. What role do constructive trusts play in the resolution of domestic property disputes? How do they
interact with legislative remedies in this area?

5. What is the significance of Barnes v Addy (1874) 9 Ch App 244 with regard to breaches of fiduciary
duties and constructive trusts?

6. What is a mutual will and how can it be enforced?

7. A father, mother and son purchased a Newcastle property as joint tenants with unequal contributions
to the purchase price. There was also a mortgage over the property and various ad hoc contributions
– often of cash – were made to pay off the loan by all parties concerned. At the time of the purchase,
it was intended that when the parents died, the property would pass to the son through the principle
of survivorship. All parties were very clear on this point. The principle of survivorship was explicitly
explained by the solicitor who acted for the purchase. It was explained that if the son should predecease
his parents, his potential share interest would accrete to his parents by the principle of survivorship.
All parties were very comfortable with the arrangement. Some years down the track the son – who had
since married, had two children and departed from the Newcastle property – predeceased the parents
in a fishing accident. The son’s widow seeks your advice as to whether she is entitled to any share of
the Newcastle property.

8. Lincoln, a senior employee of AB Tours Pty Ltd (ABTPL), used information gained in the course of his
employment to secure a contract to build tour buses (worth approximately $10,000,000) for a shelf
company he obtained, Phillip Coach Pty Ltd (PCPL). Lincoln is the sole director of PCPL. Lincoln held a
senior employment position within ABTPL, which included the roles of “production manager”,
“operations manager” and “acting general manager”, prior to his resignation. ABTPL has found out
through a former customer what Lincoln has done. Lincoln’s personal assets are rumoured to only total
$370,000, but PCPL – thanks to a gift of capital from Lincoln’s father – holds an industrial premises
worth approximately $4,000,000. ABTPL seeks your advice.
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9. Husband and wife Terrence and Melinda orally agreed that each would make a will leaving the whole
of his or her estate to the survivor, who would in turn leave his or her estate to Melinda’s sister, Annie.
After Melinda died leaving the whole of her estate to Terrence, Terrence married Natalie and used all
of his assets, including Melinda’s estate, as the full purchase price for a mansion at Vaucluse, title to
which was transferred to his and Natalie’s names as tenants in common in equal shares. Terrence
executed a will leaving all of his estate to Natalie, but tormented by his conscience, he later told Natalie
that he expected her to leave the mansion to Annie. Natalie said nothing. Terrence then died, without
changing his will, and Natalie inherited his estate. When Natalie died, she left the whole of her estate
to her children from her first marriage. Annie seeks your advice as to whether she has any rights over
the Vaucluse mansion.

WEEK 13

NO LECTURES

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