Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
  1. Home
  2. Browse subjects
  3. Law
  4. Equity and Trusts
  5. Content listing

Refine search

Refine search

Access:
Content type:
Publication date:
Apply   From and To filters
Subject: Show more
Journals Show more
Publishers: Show more
Societies Show more
Series: Show more
Collections: Show more

Actions for selected content:

Select all | Deselect all
  • View selected items
  • Export citations
  • Download PDF (zip)
  • Save to Kindle
  • Save to Dropbox
  • Save to Google Drive

Save Search

You can save your searches here and later view and run them again in "My saved searches".

Please provide a title, maximum of 40 characters.
Cancel
×

632 results in Equity and Trusts

Page 16 of 32

  • 10 - Compensatory Remedies for Breach of Trust

  • from Part II
  • Edited by Richard C. Nolan, University of York, Kelvin F. K. Low, City University of Hong Kong, Tang Hang Wu, Singapore Management University
  • Book:
    Trusts and Modern Wealth Management
    Published online:
    19 April 2018
    Print publication:
    31 May 2018, pp 307-339

  • Summary

    This chapter considers compensatory remedies for breach of trust. The first part of the analysis considers the important recent decision of the UK Supreme Court in AIB Group (UK) v Mark Redler & Co Solicitors, and explores its significance and potential impact. The second part examines more closely what is meant by ‘equitable compensation’, and what remedial rules might develop to govern ‘equitable compensation’ following a breach of trust.

Trusts and Modern Wealth Management
  • Edited by Richard C. Nolan, Kelvin F. K. Low, Tang Hang Wu
  • Published online:
    19 April 2018
    Print publication:
    31 May 2018
  • Trust law has grown and developed over recent years through the continued ingenuity of practitioners and the provision of innovative new trust laws by offshore jurisdictions. The wealth managed through the medium of trust law has also changed in recent years, as increasingly it has come from the newly rich of Asia. This brings distinctive issues to the fore: the role of settlors, family members and trusted advisors in trust administration; the position of trustees in relation to instructions coming from such persons; and an increased desire for confidentiality in trust administration and the settlement of trust disputes. This collection focuses on trusts which are deliberately created to manage wealth and the concomitant issues such trusts raise in other areas of law. Essays from leading members of the judiciary, practitioners and academics explore these developments and their implications for the users of trust law and for society in general.

  • Chapter 6 - Bars to relief

  • from Part B - Equitable Remedies
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 82-90

  • Summary

    Introduction

    One distinguishing feature of equitable remedies is their discretionary nature. Common law remedies accrue as of right once the plaintiff has made out her cause of action. However, equitable relief is not automatic. Equity acts to correct the defendant's conscience and sometimes this may not lead to full recovery, or indeed any recovery, for the plaintiff. Because the court weighs factors from both the plaintiff's and defendant's perspectives ‘that tend towards the justice or injustice of granting the remedy that is sought’, there is some unpredictability involved in equitable remedies.

    Nevertheless, it is a mistake to imagine that equitable remedies are entirely unpredictable. When the plaintiff is denied her remedy, or finds her remedy less than she hoped for, or given to her on terms, we are able to point to a set of well-identified grounds that will have informed the court's exercise of discretion. Because these grounds are used to reduce or deny the plaintiff's remedy, they are often referred to as ‘equitable defences’, but they are not defences in the common law sense. They are merely factors relevant to the exercise of remedial discretion. They include the doctrines of laches and acquiescence, unclean hands, and hardship to the defendant. These are by no means the only cases in which equity will deny a plaintiff a remedy. For example, a court exercising equitable jurisdiction will not make an order that is futile, or impossible to supervise. Estoppel, discussed in chapter 7, can operate as a defence. Another highly relevant matter, which is discussed in this chapter, is the effect of the order on third parties.

    Laches

    Broadly speaking, laches involves delay. Nowadays, limitations legislation prescribes time limits within which most claims must be brought. But prior to statute, common law actions had no limitation periods, and equity's disdain of slothful plaintiffs distinguished it from the common law. Laches is only relevant to equitable causes of action. ‘Delay’ may be the English word nearest in meaning to the term ‘laches’ but delay does not fully encompass the concept of laches in equity. The classic statement of law comes from Lindsay Petroleum Co v Hurd.

  • Chapter 20 - Breach of trust: defences and remedies

  • from Part G - Breach of Trust
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 321-337

  • Summary

    Introduction

    Put very simply, a breach of trust occurs whenever the trustee fails to perform one of the duties or obligations discussed in earlier chapters. This chapter is not, therefore, principally concerned with how a breach of trust occurs. Instead, the focus is on the consequences of a breach of trust.

    There are many different duties that can be breached by a trustee; the consequences that attend a breach will depend on the nature of the breach.

    A breach of trust does not automatically mean that the trustee must compensate the trust, in the sense that breach of a common law obligation exposes the defendant to liability for damages. First, the breach may be of a minor or merely technical nature, or may not call for relief in monetary terms. Secondly, no matter how poorly the trustee has performed his obligations, if he has not been dishonest he may be protected by a valid exculpation given by the trust instrument. Further opportunities for relief are given by explicit statutory provisions and by the general law. Finally, it must always be borne in mind that equity's remedies are discretionary. Courts try to give effect to the terms of the trust and will utilise the appropriate remedy to achieve that aim. Exculpatory provisions, defences and remedies for breach of trust are discussed below.

    Exculpation and defences

    There are three sources of trustees’ defences. Nowadays the most important of these is the trust instrument itself. Professionally drawn trust instruments invariably contain provisions excusing breaches of trust or limiting liability in the case of loss. Statutory provisions also provide some protection to trustees. Finally, as the law of trusts is a branch of equity, general equitable defences such as laches and acquiescence apply.

    Exculpation in the trust instrument

    Most, but not all, liability for breach of trust can be excluded by specific provision in the trust instrument. The trustee bears the burden of establishing that the loss in question is covered by any exemption clause. Such clauses are always interpreted strictly, according to the natural meaning of the words used, and any ambiguities are resolved against the interests of the party seeking to rely on the clause.

  • Chapter 15 - Creating an express trust

  • from Part E - Express Trusts
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 233-246

  • Summary

    Introduction

    In chapter 14 we saw that enforceability of an express trust depends on proof of certainty in three matters: intention to create a trust, subject-matter and objects. In addition to satisfying the certainty requirements and not infringing public policy prohibitions on creating trusts, an express trust must have been validly created (or constituted). That is, the trust must be properly declared, and title to the trust property must be properly vested in the trustee. Additionally, some trusts must comply with statutory formalities. Unless they meet these requirements they will be unenforceable or void, depending on the statutory provision in question.

    Methods of creating a trust

    Testamentary trusts are created by will, and only come into effect on the death of the testator. Inter vivos trusts are trusts that come into effect during the settlor's life. Inter vivos trusts can be created by a declaration of trust of the settlor's own property, or by transfer of property to a trustee.

    Self-declaration of trust

    A settlor can declare herself trustee of her own property. The settlor already holds title to the property, and all that she has to do is to make a valid declaration of trust. A declaration of trust is simply a way of saying that the requirement of certainty of intention to create a trust has been satisfied. The authorities on certainty of intention are therefore also authorities on declaration of trust. In trusts created by declaration the settlor must intend to impose trustee obligations upon herself.

    A court will not, however, construe a declaration of trust out of an invalid gift. In Richards v Delbridge4 a grandfather who was the lessee of business premises wanted to benefit his grandson. He wrote on the back of the deed of lease: ‘This deed and all thereto belonging I give to [my grandson] from this time forth, with all the stock-in-trade’. The lease was delivered to the grandson's mother. The grandfather died, making no mention of the property in his will.

    The writing did not constitute a valid gift of the lease to the grandson.

  • Chapter 1 - An overview of equity

  • from Part A - Introduction
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 3-22

  • Summary

    What is equity?

    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.

    Secondly, equity sometimes refers to the principles applied by judges where the law is deficient for some reason. Aristotle is the first recorded writer to define ‘equity’ in these terms. In Nicomachean Ethics, Aristotle contrasted law, which was said to be ‘universal’ in its application, with equity which was seen as ‘a correction of law where it was defective owing to its universality’. We might nowadays say that the law is only ‘universal’ in the sense that in a society based on the rule of law there is an expectation that like cases will be treated in a like way. The complexity of society in practice means that few legal rules, unless stated at a high level of generalisation, can be described as being of ‘universal’ application. Even if they can, it is doubtful whether equity should today be invoked in order to correct specific injustices caused by their over-rigid application. The preferable response in a democratic society to a legal rule that cannot do justice in an individual case is to invite the legislature to reform the law. But Aristotle anticipated the lawyer's idea of equity in two respects. First, equity corrects, or supplements, the law but does not replace it. The fact that equity modifies the application of the law in specific instances does not impair the legitimacy of the law in those cases where there is no need of equity.

  • Chapter 9 - Equitable assignments

  • from Part C - Equity, Contract and Property
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 129-146

  • Summary

    Introduction

    In chapter 8 we saw that equity recognises as property certain assets not recognised at common law, such as the beneficiary's interest in a trust. We also saw 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.

    A transfer or assignment of property is a transfer of wealth, whether it is in exchange for value, or by gift. Common law assumes that people do not part with their wealth lightly or accidently. It treats assignments of property formally, in the sense that it does not recognise that a transfer has occurred unless and until all formal requirements have been met.

    There are several differences in equity's approach to property assignments. First, equity may regard a transfer of property as complete in equity even though the law would regard the transfer as incomplete. Secondly, equity may regard a transfer as effective even though the property is not transmissible at common law. Finally, equity adopts a wider definition of property for the purpose of recognising and enforcing the transfer of property. The guiding principle behind these different approaches to assignment is that equity steps in when the assignor's conscience ought to be bound by the assignment.

    Equity's approach to assignment should not, however, be seen as so informal as to be discretionary. Principles governing when equity will (or will not) recognise an assignment have been developed and consistently applied. Equity's relative lack of formality has played an important role in economic development. Equity has been able to respond more quickly to new forms of property and wealth, and recognise assignments of such property, where the common law lagged behind.

  • Chapter 7 - Equity in contract law

  • from Part C - Equity, Contract and Property
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 93-118

  • Summary

    Introduction

    Much of equitable doctrine concerning contract law is now covered in contract law or property law subjects. Our coverage will therefore be brief. Equitable intervention into contract law can take one of four forms:

    (a) Equity enforces some promises which are unenforceable at common law. It may also modify or even prevent the enforcement of promises which would otherwise be enforceable at common law. These results are principally achieved by the doctrine of estoppel.

    (b) Equity sets aside contracts where the consent of a party to the contract has been impaired or vitiated by factors such as mistake, misrepresentation, undue influence or unconscionability.

    (c) Equity intervenes where the contract is substantively unfair, for example where it contains a penalty clause or a clause requiring forfeiture of property.

    (d) Equity provides remedies unavailable at common law (or, in the case of rescission, available on restrictive conditions) which:

  • • enforce contracts (for example, specific performance or injunctions);

  • • set aside contracts where consent has been vitiated (rescission); or

  • • correct contracts where they do not reflect the mutual intention of the parties (rectification).

    • The focus of this chapter will be on the first three examples of equitable intervention. Equitable remedies are discussed in Part B.

    Estoppel and promise enforcement

    Estoppels were originally developed as rules of evidence and some applications of estoppel (such as estoppel by deed, and judgment estoppel) remain evidential in character. The equitable estoppels considered in this chapter have outgrown their evidential origins. In all cases one party is prevented from enforcing a legal right, or from departing from an assumption relied upon by the other party, where it would be unconscionable to do so.

    This chapter focuses on two types of estoppel: common law estoppel and equitable or promissory estoppel. Proprietary estoppel is discussed in chapter 8.

    Common law estoppel

    This estoppel prevents a person who, by a representation of fact, has induced another to alter her position, from denying the fact as represented. Common law estoppel is not a cause of action. It alters the basis on which other causes of action may be brought or defended. It is confined to representations of existing fact, not to representations as to future intention. In Jorden v Money the plaintiff owed money to a solicitor.

  • Chapter 5 - Rescission, rectification and declarations

  • from Part B - Equitable Remedies
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 69-81

  • Summary

    Introduction

    The word ‘rescission’ is ambiguous, and its various meanings must be carefully distinguished. Here, we will be discussing rescission in the sense of the process for setting aside a voidable contract and restoring the parties to their pre-contractual position. This is distinct from rescission (sometimes known as repudiation) for breach of contract, where the innocent party to a breach of contract exercises her right to terminate the contract and sue for damages and restitution of benefits conferred under the contract. The principal difference between rescission of a voidable contract and rescission for breach of a valid contract is that the former operates retrospectively, restoring both parties to their pre-contractual position, whereas rescission for breach operates prospectively, entitling both parties to enforce their accrued rights under the contract but removing any obligation to carry out the terms of the contract in the future.

    When can a voidable transaction be rescinded?

    A contract is voidable in equity for mistake, misrepresentation, duress, undue influence, unconscionable conduct, for breach of fiduciary obligation and under the rule in Yerkey v Jones. A voidable contract is valid until the plaintiff has elected to avoid it. It will then be set aside and both defendant and plaintiff must be restored to their pre-contractual position.

    Gifts may also be rescinded in equity on any of these grounds except under the rule in Yerkey v Jones, which only applies to contracts of guarantee. It is unclear, however, whether a donor has to elect to rescind a gift that is voidable due to one of these vitiating factors, or whether a constructive trust will be automatically imposed over the property as soon as it is received by the donee, so that no election to rescind has to be made.

    The aim of rescission

    Rescission is a restitutionary remedy; it restores both parties to the position in which they would have been if the contract had not been entered into or the gift not made. If P buys a defective car for $10 000 as a result of D's misrepresentation as to the car's roadworthiness, P can rescind the contract. P is entitled to the return of her $10 000 (restitution) while D is entitled to the return of the car (counter-restitution).

  • Chapter 2 - An introduction to equitable remedies

  • from Part B - Equitable Remedies
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 25-31

  • Summary

    Introduction

    Remedies evolve from the procedures courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, and the jury decided those questions. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies such as juries cannot supervise the performance of contracts, ensure compliance with injunctions or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant.

    Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life.

    Because current equitable practice emerged from the Chancellor's delivery of individual justice, based on the merits of the case and the circumstances of the particular parties before it, equitable remedies are always discretionary. They are not immediately granted once a plaintiff proves her claim (as is the case with contract and tort), but may perhaps be limited or denied altogether in response to a range of factors relevant to the particular claim. It is a feature of equitable remedies that the court's discretion is exercised after consideration of the positions of both parties before it; sometimes the effect of the remedy on other parties, including the wider community, is considered too.

    The array of remedies available in equity looks bewildering at first sight, but it becomes obvious in most cases that only one or two remedies will provide the kind of relief the plaintiff is looking for. At common law the plaintiff is limited to damages as a remedy; the plaintiff's question is ‘how much money am I entitled to?’. In equity, however, a wide array of remedies are available; so the plaintiff's question becomes ‘what remedy will put me in the position I would like to be in?’.

Equity and Trusts in Australia
  • 2nd edition
  • Michael Bryan, Vicki Vann, Susan Barkehall Thomas
  • Published online:
    21 June 2018
    Print publication:
    01 September 2017
  • Incorporating recent case law developments, the second edition of Equity and Trusts in Australia provides undergraduate and Juris Doctor students with a current and accessible introduction to Australian equitable and trust law. Expanding upon first edition content, the text includes greater depth of topic discussion, explanation of key theories and terminology, while demonstrating how these are applied in practice. Chapters including Fiduciary Obligations, Resulting Trusts and Constructive Trusts have been reworked to strengthen the text's coverage of all facets of equity and trusts law. Equity and Trusts in Australia, second edition links key doctrines to their wider relationship with the law, making it a fundamental text for students embarking on this area of study for the first time.

  • Chapter 4 - Monetary remedies in equity

  • from Part B - Equitable Remedies
  • Michael Bryan, University of Melbourne, Vicki Vann, Monash University, Victoria, Susan Barkehall Thomas, Monash University, Victoria
  • Book:
    Equity and Trusts in Australia
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 53-68

  • Summary

    Introduction

    In certain situations equity orders the defendant to make payments to the plaintiff as a remedy for the wrong done. These are orders for the defendant to account for profits made, or pay equitable compensation to the plaintiff. These remedies impose a personal obligation on the wrongdoer to pay and do not per se attach to property. This is their disadvantage compared to proprietary remedies in the case of the defendant's insolvency. The remedies perform substantially different tasks. We will now look at each remedy in turn.

    Accounts of profits

    As a general rule, accounts of profits are not available at common law. They are designed to strip profits made in breach of equitable obligations, preventing the wrongdoer profiting from his own wrong. The remedy is awarded in response to breaches of trust, fiduciary obligations and the obligation of confidence. Third party participants in fiduciary breaches may also have to account for profits made (see chapter 11). The essence of the plaintiff's complaint is that the defendant has usurped a profit-making opportunity that should have come to the plaintiff alone (if to anyone at all); justice requires the profit made be removed from the defendant and directed to the plaintiff. However, the remedy is not designed to punish the defendant. As with all equitable remedies it is designed to do corrective justice between the parties. Therefore, only net profits are stripped from the defendant. Although the defendant cannot profit from his wrong he should not be put in a worse position than if he had not taken up the opportunity.

    The remedy is said to be ‘ancient’; it may have been in use since the earliest days of Chancery. Its award is discretionary, and may be defeated by the traditional equitable bars such as laches and unclean hands.

    The remedy focuses on the profit made by the wrongdoer through the equitable wrong. This results in numerous outcomes that seem strange when compared with common law remedies. For example, it is irrelevant that:

  • • the plaintiff has not suffered any loss, or has also suffered a loss (the focus is on profit, not loss);

  • • the plaintiff could never have made a profit itself, or has also made a profit itself incidentally through the defendant's breach9 (the focus is on the defendant's profit);…

Page 16 of 32