The duration of all express trusts except charitable trusts is limited by the application of the rule against perpetuities. As explained in chapter 15, the rule does not impose a fixed time limit on the duration of a trust. In most cases, it imposes a limit (nowadays usually 80 years) beyond a which an interest arising under the trust cannot vest. In South Australia, the perpetuity rule has been abolished but a court may, upon application, vary the terms of a trust 80 or more years after the date of the instrument creating the trust so that any interests which have not yet vested vest immediately. There are no limits on the duration of a charitable trust beyond the practical limitation of the availability of trust money to be applied for the charity’s objects. If the original objects of the charity become impossible or impracticable to achieve, a cy-près scheme will be approved enabling the trust property to be applied for objects which are as close as possible to the original objects.

The word ‘equity’ is one of the most ambiguous in the law. Its most obvious meaning is fairness and justice. Many would argue that equity is the overriding goal of all law. How could the law ever justify unfair or inequitable outcomes? But a moment’s thought will show that applying, without more, the criterion of ‘fairness’ to solve all legal problems is open to serious objections. Decisions will inevitably reflect the subjective beliefs and values of the decision-maker as to what is fair. In a pluralist democracy, disputes about what is fair or equitable are settled by elected legislators, not by unelected judges, except where legislation has explicitly authorised judges to determine cases by reference to considerations of fairness. Judges do not assess what is equitable without reference to some standard or benchmark.

A trustee owns the trust property and can exercise an owner’s legal right to manage and dispose of the property. But the exercise of these rights is not absolute. It is subject to the beneficiary’s equitable rights to compel the proper performance of the trust and, in accordance with principles described in chapter 24, to bring the trust to an end and become owner of the property. Legal ownership presents opportunities for the trustee to betray and exploit the trust for personal gain. It also exposes the beneficiary to the risk that the trustee may neglect the trust property. Equity therefore imposes strict obligations on the trustee to ensure that the trust is carried out strictly according to its terms. Even when a trustee holds property on a bare trust for a single, adult beneficiary, so that an adult beneficiary can claim the trust property under the rule in Saunders v Vautier, the trustee will have active duties to perform, including a duty of care with respect to the property. The duties are enforceable by the remedies discussed in Part B, all of which are designed not only to provide complete relief for the trust but also to deter wrongdoing.

The fiduciary may not be the only person who is accountable for a breach of fiduciary obligation. Other parties may also be liable. Suppose a solicitor misappropriates client money and then pays it into his wife’s bank account. The solicitor might also have been helped to commit the breach by an accountant who gave the solicitor access to the client account. Will these third parties – the wife and accountant – be liable in equity for their participation in the fiduciary’s breach? If the solicitor is solvent, the answer to this question may not matter much. The solicitor will be ordered to restore the money to the fund, together with compound interest to compensate for the loss of investment opportunity caused by the misappropriation. But if the solicitor is insolvent, the client will look to other participants in the fraud with ‘deep pockets’ to recover her funds.

Express trusts are created to manage assets. Asset management means active asset management. Thus, the trustee is under a duty to invest trust funds rather than to simply hold them safe. Resulting or constructive trustees are usually not under a duty to invest funds as their responsibility is to transfer the property to the person entitled to it. However, they can come under a duty to invest if the period of time for which the asset is held allows investment. It has been held that a trust fund should be invested within six months, although there are occasions when funds should be invested more promptly. Failure to actively manage the trust is a breach of trust and can result in personal liability for the trustee. If a trustee under a resulting or constructive trust invests the funds, the trustee is under the same investment duties as a trustee of an express trust.

Equity recognises as property certain assets not recognised at common law, such as the beneficiary’s interest in a trust. It is also clear that property interests can be created more informally in equity than at law. One aspect of this is equity’s attitude to assignments of property. Assignments are transfers of property either for consideration or as gifts. The question whether property has been effectively assigned is of considerable commercial significance. It is not always an easy question to answer. The law of assignments stands at the intersection of common law, equity and statute. The common law developed basic rules for the transfer of property. Equity acts as a ‘gloss’ and recognises assignments in various cases where the common law would not. Many assignments are also effected by statute. So when we consider whether an assignment has been effective, we need to be able to apply law from all three sources.

The title of this chapter may look like a grab bag of remedies, but this is not the case. Specific performance and injunctions are equitable remedies. The remedy of equitable damages is a creature of statute available either in lieu of or in addition to the equitable remedies of specific performance and injunction. Thus, the three remedies are closely related. They will be discussed in turn.

Resulting trusts arise where property is disposed of in circumstances in which a provider of property does not intend to benefit the recipient. The recipient holds the property on trust for the provider. The property is said to ‘result back’ to the provider. This does not mean that the equitable interest in the property returns to the provider. What happens is that when the legal title to the property vests in the recipient, a new equitable interest is created in favour of the provider. Resulting trusts differ from express trusts in that an express trust gives effect to the settlor’s positive intention to benefit another by way of trust, whereas a resulting trust gives effect to the provider’s negative intention – an intention not to benefit the recipient. The resulting trust resembles a constructive trust in that it arises by operation of law but differs in that its imposition may be negatived by evidence of the provider’s actual intention. Resulting trusts are said to be either ‘presumed’ or ‘automatic’. Presumed resulting trusts can be rebutted by evidence that the provider of the property intended to benefit the recipient or to create an express trust in favour of a third party