WHAT IS EQUITY?... 6 COMPARISONS BETWEEN COMMON LAW AND EQUITY... 6 PROCEDURAL ASPECTS... 6 HISTORY OF EQUITY... 7 CHAPTER 15: UNDUE INFLUENCE...

Transcription

1 WHAT IS EQUITY?... 6 COMPARISONS BETWEEN COMMON LAW AND EQUITY... 6 PROCEDURAL ASPECTS... 6 HISTORY OF EQUITY... 7 CHAPTER 15: UNDUE INFLUENCE... 7 GENERAL PRINCIPLE... 7 RELATIONSHIPS IN WHICH INFLUENCE IS PRESUMED... 8 PARENT AND CHILD... 8 SOLICITOR AND CLIENT... 8 TRUSTEE AND BENEFICIARY... 8 DOCTOR AND PATIENT... 8 PRIEST AND PENITENT, OR SPIRITUAL ADVISER AND FLOCK... 8 FIANCÉ AND FIANCÉE... 8 REBUTTING THE PRESUMPTION DEFENCES TO CLAIMS BASED ON UNDUE INFLUENCE... 8 ADEQUACY OF CONSIDERATION... 8 INDEPENDENT ADVICE... 9 UNDUE INFLUENCE IN THE EXECUTION OF A WILL... 9 CHAPTER 16: FRAUD IN EQUITY AND UNCONSCIONABLE DEALINGS... 9 PRESSURE AS FRAUD... 9 THE EQUITY TO SET ASIDE A JUDGMENT OBTAINED BY FRAUD... 9 UNCONSCIONABLE TRANSACTIONS UNCONSCIONABLE RETENTION OF BENEFIT STATUTORY UNCONSCIONABILITY UNDUE INFLUENCE UNCONSCIONABLE TRANSACTIONS DEFINITION NATURE OF ESTOPPEL CATEGORIES OF ESTOPPEL AT COMMON LAW EQUITABLE ESTOPPEL PROPRIETARY ESTOPPEL IN EQUITY PROMISSORY ESTOPPEL TOPIC: ESTOPPEL DIFFERENT VARIETIES OF ESTOPPEL EQUITABLE ESTOPPEL ESTOPPELS BY DEED... 19

2 EQUITABLE ESTOPPEL PROPRIETARY ESTOPPEL PROMISSORY ESTOPPEL ELEMENTS OF EQUITABLE ESTOPPEL TOPIC: EQUITABLE RIGHTS, TITLES AND INTERESTS NATURE OF EQUITABLE INTERESTS TOPIC: EQUITABLE INTERESTS AND TORRENS TITLE EQUITABLE INTERESTS AND INDEFEASIBLE TITLE EQUITY OF REDEMPTION CO-OWNERSHIP IN EQUITY TOPIC: EQUITABLE PRIORITIES THE GENERAL RULE AND THE GENERAL PRINCIPLE OF EXCEPTION THE EXCEPTIONS TO THE GENERAL RULE (NOT ALL EXCEPTIONS) BASIC APPROACH TO ASSIGNMENT FUTURE PROPERTY [EXCEPTION BELOW] GENERAL PRINCIPLES EQUITABLE ASSIGNMENT OF LEGAL PROPERTY CHAPTER 7: THE ASSIGNMENT OF INTERESTS IN PROPERTY IN EQUITY THE RULE IN STRONG V BIRD DONATIONES MORTIS CAUSA ASSIGNMENTS OF CHOSES IN ACTION PROPERTY THAT CANNOT BE ASSIGNED Personal Contracts BARE RIGHTS TO SUE CHAPTER 8: VOLUNTARY ASSIGNMENT OF LEGAL INTERESTS IN EQUITY ASSIGNMENTS OF LEGAL PROPERTY ASSIGNABLE AT LAW THE FIRST LEG OF MILROY V LORD CHAPTER 10: ASSIGNMENTS OF INTERESTS IN PROPERTY FOR VALUE IN EQUITY ASSIGNMENTS OF LEGAL PROPERTY FOR VALUABLE CONSIDERATION THE REQUIREMENT OF WRITING DEALINGS IN THE FORM OF DIRECT ASSIGNMENTS DEALINGS IN THE FORM OF DECLARATION OF TRUSTS DEALINGS IN THE FORM OF DIRECTIONS TO THE TRUSTEE DIRECTIONS DEALING WITH THE EQUITABLE ESTATE EQUITABLE DEALINGS... 33

3 ASSIGNMENT OF EQUITABLE PROPERTY WRITING REQUIREMENTS: TRANSFER OF AN EQUITABLE INTEREST IN LAND ASSIGNMENT OF EQUITABLE CHOSES IN ACTION AGREEMENT TO ASSIGN DECLARATION AS TRUSTEE HOW CAN EQUITABLE PROPERTY BE DEALT WITH/ DISPOSED OF? FUTURE PROPERTY A. INTRODUCTION B. NATURE WHO IS A FIDUCIARY? WHAT IS THE TEST FOR THE EXISTENCE OF A FIDUCIARY RELATIONSHIP? SCOPE OF THE FIDUCIARY RELATIONSHIP C. PROSCRIPTIVE DUTIES NO CONFLICT, NO PROFIT D. PRESUMED RELATIONSHIPS THAT CARRY FIDUCIARY DUTIES E. FIDUCIARY RELATIONSHIPS OUTCOME OF THE PRESUMED RELATIONSHIPS FIDUCIARY RELATIONSHIPS OUTSIDE OF THE PRESUMED RELATIONSHIPS F. DEFENCES G. REMEDIES A. INTRODUCTION THIRD PARTY LIABILITY B. KNOWING RECEIPT KNOWLEDGE: TO WHAT EXTENT? C. KNOWING ASSISTANCE PART 1 TRACING (PROCESS) A. INTRODUCTION B. COMMON LAW AND EQUITABLE TRACING C. PRE-REQUISITE TO THE JURISDICTION TO TRACE D. TRACING INTO PROPERTY AND INTO THE HANDS OF TRUSTEES E. TRACING INTO PROPERTY AND INTO THE HANDS OF THIRD PARTIES PART 2 ACCOUNT OF PROFITS [EQUITABLE REMEDY]... 49

4 A. DEFINITION B. POWER TO ORDER ACCOUNT OF PROFITS C. DUE ALLOWANCE FOR FIDUCIARY S SKILL D. ACCOUNT OF PROFITS OR ALTERNATIVE REMEDY PLAINTIFF MUST ELECT A. INTRODUCTION TO EQUITABLE COMPENSATION B. CALCULATING EQUITABLE COMPENSATION BREACH OF TRUSTEE S CUSTODIAL DUTIES BREACH OF FIDUCIARY DUTIES INTRODUCTION CATEGORIES OF CONSTRUCTIVE TRUSTS A. BREACH OF FIDUCIARY DUTY B. SECRET COMMISSIONS AND BRIBES C. PROPERTY AGREEMENTS D. COMMON INTENTION OF CONSTRUCTIVE TRUSTS E. STOLEN PROPERTY F. MONEY PAID BY MISTAKE G. UNLAWFUL KILLING H. UNCONSCIONABLE ASSERTION/RETENTION OR DENIAL OF A BENEFICIAL INTERESTS IN PROPERTY GENERAL PRINCIPLES REMEDIAL CONSTRUCTIVE TRUST THE CONSTRUCTIVE TRUST AS AN ALL-OR-NOTHING REMEDY BREACH OF FIDUCIARY DUTY TIMBER ENGINEERING CO PTY LTD V ANDERSON THE KEECH V SANDFORD PRINCIPLE OTHER SOURCES OF PRINCIPAL LIABILITY UNCONSCIONABLE CONDUCT OR UNDUE INFLUENCE COMMON INTENTION CONSTRUCTIVE TRUST UNCONSCIONABLE RETENTION OF BENEFIT A. INTRODUCTION RESULTING TRUSTS ARE TRUSTS IMPOSED BY LAW IN TWO CIRCUMSTANCES: B. AUTOMATIC RESULTING TRUSTS C. PRESUMED RESULTING TRUSTS EXCEPTION CONTRIBUTIONS D. QUISTCLOSE TRUSTS... 65

5 Principal: Upon payment of consideration gives rise to a constructive trust: Minority in Oughtred, but approved in Neville v Wilson. DECLARATION AS TRUSTEE - An equitable interest can be declared as a trustee. A beneficial interest can be assigned to another, as a trustee of another trustee property - Sub-trust: A beneficiary can hold obligation to become a trustee assigned to his daughter. When he declares to be a trustee for his daughter, is this a disposition of interest? o Dixon J described the declaration as a disposition of that interest. o Disposition: Under s 7(1) CA includes a declaration of trust. o Comptroller of Stamps v Howard-Smith: It includes an intention to hold an interest on trust. o Photo, the value is with B by obligation. Alternatively, this is a disposition of the interest for B by means of this declaration. - Arguably, this falls within the scope of s23c. Disposition of an equitable interest, subsisting at the time of the disposition, and this interest is caught within 23C(1)(c). HOW CAN EQUITABLE PROPERTY BE DEALT WITH/ DISPOSED OF? - Direction to a trustee to: o Hold the property on trust for another party; o Transfer the property to another party. - Direction to a trustee to hold the property to another person. A direction to hold your own interest to someone else. o Howard-Smith: For this type of disposition, equity would require intention, immediacy and irrevocable disposition of the interest. o Must this arrangement be in writing, YES. It amounts to a disposition of interest, and thus, it must be in writing: Grey v Inland Revenue Commissioners (1960). - House of Lords held if it was a new trust, it was still a disposition of a subsisting equitable interest. o The oral direction amounted to a disposition of an equitable interest. The oral direction was ineffective because it was not in writing. Direction to a trustee to transfer legal title to a third party and therefore wind up a trust - This is where the trustee holds legal title for the beneficiary, and the direction was given to the beneficiary not to hold the interest on trust for someone else, but to transfer legal title to another so the trustee will no longer be the holder.