The purpose of orders of specific performance of a contract and of injunctions is to compel the performance of legal obligations. Many, though not all, of the considerations relevant to an order granting specific performance of a contract are also germane to the award of an injunction. Matters such as inadequacy of damages, hardship and the ability of a court to supervise the execution of its own orders are relevant to both remedies (see textbook chapter 3). Underlying the principles governing these orders are policy questions relating to the nature and limits of judicial coercion to which monetary remedies, such as damages, do not usually give rise. These questions include: to what extent can private law (as opposed to the criminal law) restrict individual freedom, including a person’s freedom to select his or her employment; can a court compel parties whose commercial relationship has broken down to cooperate with each other; and what are the limits of a court’s power to prevent wrongdoing, for example where the wrong is likely to occur outside a court’s jurisdiction but will cause damage within its jurisdiction?

Many trusts are established specifically to facilitate investment activity. Many managed investment schemes and most superannuation funds, for instance, employ the legal architecture of the trust. Parties may also create specialised trust structures that are not open to the public in order to arrange their investment affairs. The trust is a convenient device to enable a collection of investor monies under the management control of a party with experience and skills in the business of investing. The need for a trustee to invest trust assets can arise in other circumstances. The most obvious of these is where the trust is expected to exist for some time and has assets that are not specifically nominated in the trust instrument as assets that must be held by the trustee. In this situation, a trustee is likely to be subject to a duty, implied from the circumstances of the trust, to invest unallocated assets. This chapter examines the rules that apply to the investment of trust funds. It takes the statutory regime as its starting point but also illustrates the interplay between the statutory and general law rules that apply in different contexts.

A successful claim against the fiduciary may result in an award of compensation for loss, disgorgement of gain or restitution of property misappropriated by the fiduciary. But it will sometimes be impossible for the plaintiff to obtain complete relief, particularly if the fiduciary is insolvent or beyond the jurisdiction of the court. In some of these cases, the plaintiff may be able to pursue third parties who participated in the breach of duty. The principles governing the imposition of liability on participants are discussed in this chapter. This chapter principally examines the liability of third parties under the so-called ‘two limbs’ of Barnes v Addy. Liability under the first limb arises when the defendant has knowingly received property in breach of fiduciary duty. Liability is imposed under the second limb on a defendant who knowingly assists the commission of a breach of fiduciary duty. But, as the cases make clear, third parties can be held accountable on other equitable grounds. Finally, a common law claim can sometimes be brought in unjust enrichment against the third party which does not require proof of a breach of fiduciary duty.

Assignments are transfers of property from one party to another. The dualist nature of our legal system is exhibited here. The common law originally only recognised two kinds of property (land and chattels), and developed mechanisms for their legal transfer. Over time, new varieties of property interests (such as shares in companies) were recognised by the common law, and transfer methods adopted for them. Different methods of assignment (most now sourced in statute) apply to different forms of legal property. Equity enforced rights that were unrecognised at common law, such as the partnership interest and the beneficiary’s interest in trust property. The Court of Chancery developed its own methodology for assignment of property or rights it recognised. All equity required was that the assignor manifest an immediate intention to assign the equitable property interest. It was even possible to manifest an immediate intention to assign without any writing. A statutory requirement of writing was, however, later introduced as different transfer rules apply to each.

In understanding constructive trusts, it is essential to be clear about labelling. First, not all judicial remedies labelled ‘constructive trust’ are in substance proprietary remedies. An example is the use of a so-called constructive trust as a personal remedy to compensate the plaintiff for loss incurred where the defendant has knowingly assisted in the commission of a breach of fiduciary obligation. Secondly, a chapter on constructive trusts necessarily assumes a sensible delineation between trusts labelled constructive and those labelled resulting. To the extent that resulting trusts are seen as being imposed by operation of law, rather than arising from the intentions (or vitiation of intention) of the transferor of property, a separate chapter devoted to each type of trust may seem unnecessary. However, for ease of exposition, this book deals separately with resulting and constructive trusts. Two forms of constructive trust are often juxtaposed: remedial constructive trusts and institutional constructive trusts. This distinction is said to be maintained by the following elements, which themselves may overlap.

Tracing is the process of identifying one asset as a substitute for another. Identification (or tracing) rules are needed if property is removed from the trust and mixed or exchanged with other property. For example, trust money that a trustee pays into his personal bank account can be traced into the bank account as well as into property purchased with money withdrawn from the account. Once identified, the trust money can be recovered from the trustee’s personal account, or from property purchased with the money, or from both. Note that the beneficiary does not literally ‘recover’ the trust money. Tracing entitles her to new personal or proprietary rights enforceable against the contractual right the trustee has to payment from his bank account, or against any right in property purchased by the trustee with the trust money. If the trustee pays trust money to a third party who applies it in the purchase of a painting, tracing enables the beneficiary to obtain proprietary rights in the painting unless the purchaser is a good faith purchaser for value without notice of the beneficiary’s right to enforce the trust.

The Court of Chancery required ‘three certainties’ in order to recognise a valid private express trust. These are: certainty of intention to create a trust, certainty of subject matter of a trust (trust property), and certainty of object (those who are or may be entitled to trust property). Each of the certainties is crucial, for varying reasons. Unless the certainty requirements can be satisfied, an enforceable trust will not have been created. Each of the three certainties will be considered separately.

The trustee’s position is both simple and highly complex. The trustee is the legal owner of the trust property, and therefore has all the rights and responsibilities that come with complete ownership. The trustee is regarded as personally liable for debts incurred on behalf of the trust unless documents contain clear and unambiguous words excluding that conclusion: see Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773. But in equity the trustee only holds the property for those beneficially entitled to it. Thus, trustees may potentially incur personal liability in performing trust business without taking personal benefit from the expense. Few would take on the responsibilities of trusteeship without some financial relief from that outcome. Equity, and more recently, statute, has dealt with the situation by recognising the trustee’s right to be indemnified out of trust assets for expenses incurred in carrying out the trust. Practically, this means the trustee can pay the trust expense directly out of trust funds (called the right of exoneration) or pay the expense out of personal funds, and then be reimbursed for it (called the right of recoupment).

Equitable intervention into contract law defies easy summary. Apart from equitable remedies to enforce contracts, such as specific performance and injunctions, or to rescind voidable contracts, equitable doctrines perform a number of distinct roles in the formation, modification and enforcement of contracts. Equity recognises more extensive grounds than the common law to set aside agreements based on defective consent. So, while contracts can be rescinded at common law for duress or fraudulent misrepresentation, in equity they can be avoided on the additional grounds of undue influence, unconscionability, non-fraudulent misrepresentation, mistake and under the rule in Yerkey v Jones (1939) 63 CLR 649. Equity can also occasionally modify or prevent contract enforcement even though the bargaining process was not defective. Terms constituting penalties (as opposed to liquidated damages clauses), forfeiture clauses and contractual restrictions on a mortgagor’s equity of redemption belong to this category and can be set aside.