LAWS2385 Equity and Trusts Reading Notes

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LAWS2385 Equity and Trusts Contents WHAT IS EQUITY? 4 EQUITY’S HISTORICAL EVOLUTION 4 FUSION FALLACY 4 EQUITABLE MAXIMS 4 NATURE OF EQUITABLE OWNERSHIP 5 IDENTIFYING FRs – PRESUMED STATUS-BASED FRS 6 7 CONTRACTING OUT OF FIDUCIARY OBLIGATIONS 7 SCOPE OF THE FR 9 F OBLIGATIONS 9 OBLIGATION NOT TO OBTAIN ANY UNAUTHORISED PROFIT FROM THE RELATIONSHIP 9 OBLIGATION NOT TO BE IN A POSITION OF CONFLICT 9 12 ASSIGNMENTS OF ‘GIFTS’ – LEGAL PROPERTY 13 ASSIGNMENTS OF FUTURE PROPERTY – EQUITABLE PROPERTY 14 ASSIGNMENT OF CHOSES IN ACTION 16 COMMON LAW 16 STATUTORY 17 EQUITY 17 STATUTORY WRITING REQUIREMENT FOR ASSIGNMENT OF EQUITABLE PROPERTY 18 24 CREATING A TRUST BY TRANSFER 24 CERTAINTY REQUIREMENTS IN THE LAW OF TRUSTS 26 INTRODUCTION 26 CERTAINTY OF INTENTION TO CREATE A TRUST 27 CERTAINTY OF OBJECT 30 DUTY TO CONSIDER EXERCISE OF POWERS 31 CONSEQUENCES OF AN INVALID EXERCISE OF POWER 32 TRUSTEE’S DUTIES 32 DUTIES ON ASSUMPTION OF TRUSTEESHIP 32 ONGOING MANAGEMENT DUTIES 33 DUTIES OF PERFORMANCE 35 ONGOING MANAGEMENT DUTIES – INVESTMENT OF TRUST FUNDS 36 TRUSTEE’S RIGHTS 39 INTRODUCTION 39 NATURE OF THE TRUSTEE’S RIGHT OF INDEMNITY 39 LIMITATION - ‘PROPERLY INCURRED’ EXPENSES 40 RECOVERY AGAINST BENEFICIARIES PERSONALLY 41 • The T accepts the trust at the request of another, and that other is a B – Jervis v Wolferton 41 WHO CAN SUE FOR BREACH OF TRUST? 43 REMEDYING A BREACH OF TRUST: REMOVING THE TRUSTEE 46 DOES THERE NEED TO BE A FIDUCIARY REQUIREMENT FOR TRACING? 47 HAS THE TRUSTEE MIXED TRUST MONEY WITH HIS OWN BANK ACCOUNT, WITHDREW SOME OF THE MONEY + INVESTED SUCCESSFULLY? 50 DEFENCES TO TRACING 52 PRIORITY DISPUTES AND THE DOCTRINE OF NOTICE 53 FOUNDATION CASE ON THIRD PARTY LIABILITY 58 BREACH OF FIDUCIARY DUTY 59 RECEIPT OF PROPERTY BY A THIRD PARTY 59 60 60 61 REMEDIES FOR KNOWING RECEIPT 61 KNOWING ASSISTANCE 61 A DISHONEST AND FRAUDULENT BREACH OF TRUST BY THE FIRST PARTY/TRUSTEE 61 ASSISTANCE IN THE BREACH 62 KNOWLEDGE OF THE BREACH OF F DUTY 62 PERSONAL AND PROPRIETARY REMEDIES 62 COMPENSATION AND THIRD PARTIES EXAMPLE 63 INADEQUACY OF DAMAGES 64 66 68 THE DISTINCTION BETWEEN MANDATORY AND PROHIBITORY INJUNCTIONS 68 PREVENTING BREACHES OF CONTRACT BY INJUNCTION 69 TOTAL AND PARTIAL RESCISSION 70 RECTIFICATION 71 INTRODUCTION 71 HOW ARE ACCOUNTS OF PROFIT CALCULATED? 72 EQUITABLE COMPENSATION 73 INTRODUCTION 73 ACCOUNT – HOW IS EQUITABLE COMPENSATION CALCULATED? 74 SUBSTITUTIVE AND REPARATIVE COMPENSATION 74 EXEMPLARY DAMAGES? 77 PRESUMED RESULTING TRUSTS 78 81 AUTOMATIC RESULTING TRUSTS 81 RATIONALE OF RESULTING TRUSTS 82 THE COMMON INTENTION CONSTRUCTIVE TRUST 84 CONSTRUCTIVE TRUSTS AS A REMEDY FOR ESTOPPEL 87 89 90 CONSTRUCIVE TRUST AS A RESTITUTIONARY REMEDY FOR UNJUST ENRICHMENT 91 LACHES 93 ACQUIESCENCE 94 UNCLEAN HANDS 94 HARDSHIP 95 EFFECT OF ORDER ON THIRD PARTIES 95