Equity and Trusts in Australia

Author: Professor Michael Bryan; Dr Vicki Vann
Publisher: Cambridge University Press
ISBN: 9780521676632
Published In: October 2012
Format: Paperback , 454 pages
Jurisdiction: Australia ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents
Author

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Equity and Trusts in Australia is a practical and engaging introduction to equitable and trusts law in Australia. Drawing on the authors' collective 45 years of teaching experience, this text is carefully designed to cater to the needs of undergraduate law and Juris Doctor students approaching equity and trust law for the first time. The book provides a succinct, clear and accessible explanation of key theories and terminology in equitable and trust law and demonstrates how these are applied in practice with simple, topical examples. Comprehensively cross-referenced, it draws links between equitable and trusts doctrines and their wider relationships to the law. The companion website, at www.cambridge.edu.au/academic/equity is an invaluable resource for students and lecturers, featuring further reading, discussion points and practice exercises and solutions.

• Provides a clear and accessible explanation of key theories and terminology and demonstrates how these are applied in practice • Comprehensively cross-referenced, the book draws links between equity and trusts doctrines and their relationship with the wider law • Material is presented in a succinct and clear manner, supported by simple, topical examples, so as not to overburden the beginner student with dense mathematics and case law

Preface	xi
Table of cases	xii
Table of statutes	xxix
List of abbreviations	xxxv
Part A Introduction
1 An overview of equity	2
What is equity?	3
A map of equity	13
The maxims of equity	20
What's online?	21
Part B Equitable Remedies
2 An introduction to equitable remedies	24
Introduction	25
Personal and proprietary remedies	26
The objectives of equitable remedies	28
What's online?	31
3 Specific performance, injunctions and equitable damages	32
Introduction	33
Specific performance	33
Injunctions	40
Plaintiff's remedy if specific performance or injunction are denied	51
Equitable damages	51
Are equitable damages available for equitable wrongs?	52
How are equitable damages assessed?	54
What's online?	55
4 Monetary remedies in equity	56
Accounts of profits	57
How are accounts of profits calculated?	58
Equitable compensation	61
How is equitable compensation calculated?	63
What's online?	70
5 Rescission, rectification and declarations	71
Introduction	72
When can a voidable transaction be rescinded?	72
The aim of rescission	73
Rescission at common law and in equity	73
Total and partial rescission	74
The election to rescind	75
Restoring the parties to their pre-contractual position	76
The proprietary consequences of rescission	77
Bars to rescission and pecuniary restitution	78
Rectification	79
Declaration	81
What's online?	83
6 Bars to relief	84
Introduction	85
Laches	85
Acquiescence	87
Unclean hands	88
Hardship	91
Effect of order on third parties	92
What's online?	93
Part C Equity, Contract and Property
7 Equity in contract law	96
Introduction	97
Estoppel and promise enforcement	97
Equity and voidable transactions	103
Undue influence	105
Unconscientious conduct	110
The rule in Yerkey v Jones and the Garcia case	113
Equity and substantive fairness: penalties and relief from forfeiture	116
What's online?	121
8 Equitable proprietary interests	122
Introduction	123
The nature of equitable ownership	125
Priority disputes and the doctrine of notice	126
Equities and equitable interests	127
What's online?	129
9 Equitable assignments	130
Introduction	131
Assignment of legal property	132
Assignment of equitable property	141
Statutory assignment	143
What's online?	149
Part D Equitable Obligations
10 Fiduciary obligations	152
Introduction	153
Fiduciary relationships	154
Fiduciary obligations	162
What's online?	172
11 Participants in a breach of fiduciary obligation	173
Introduction	174
Third party liability: the rule in Barnes v Addy	176
Other forms of participatory liability	187
What's online?	188
12 Breach of confidence	189
Introduction	190
The equitable obligation of confidence	190
Defences to breach of confidence	197
Protection of private information	199
Remedies for breach of confidence	202
What's online?	205
Part E Express Trusts
13 The concept of the express trust	208
Introduction	209
Definition	209
Trusts and related concepts	218
What's online?	224
14 Certainty requirements in the law of trusts	225
Introduction	226
Certainty of intention	227
Certainty of subject-matter	235
Certainty of objects	237
What's online?	245
15 Creating an express trust	246
Introduction	247
Methods of creating a trust	247
Testamentary trusts	251
The doctrine of incorporation by reference	252
Incompletely constituted trusts	252
Trusts and public policy	253
What's online?	255
16 Trusts for charitable and non-charitable purposes	256
Introduction	257
A valid trust for a purpose	257
Historical development of the charitable trust	258
Trusts for the aged, impotent and poor	259
Trusts for the advancement of education	261
Trusts for the advancement of religion	262
Trusts for other purposes beneficial to the community	263
The ‘public benefit’	267
Trusts for multiple purposes	269
Administrative schemes	270
Trusts for non-charitable purposes	272
Problems with purpose trusts	272
What's online?	275
Part F Performing the Trust
17 Trustees’ duties and powers	278
Introduction	279
Sources of the trustee's duties and powers	279
Duties on assumption of trusteeship	280
Ongoing management duties	282
Duties of performance	287
Trustees’ powers	296
Exercise of power and review	296
Effect of improper exercise of discretion	302
What's online?	303
18 Investment of trust funds	304
Introduction	305
Sources of trustees’ investment powers	305
The statutory model	307
Investing prudently	309
Review of investments	311
Applying other duties of law and equity to investing	312
Matters to be considered by the trustee when investing	317
Exculpatory provisions	319
What's online?	321
19 Trustees’ rights and liabilities	322
Introduction	323
Trustees’ liabilities	323
Trustee's right of indemnity	323
The status of the trustee's right of indemnity	324
Indemnification by the beneficiaries	331
Trustee's right to impound beneficiary's interest	334
Trustee's right of contribution from co-trustees	334
Trustee's right to recover overpayment from a beneficiary	335
What's online?	336
Part G Breach of Trust
20 Breach of trust: Defences and remedies	338
Introduction	339
Exculpation and defences	339
Exculpation in the trust instrument	339
Statutory exculpation	343
Equitable defences	346
Remedies in the context of breach of trust	348
Monetary remedies for breach of trust	349
Non-monetary remedies for breach of trust	353
Standing to sue	355
What's online?	355
21 Tracing	356
Introduction	357
Tracing and claiming at common law and in equity	358
A fiduciary requirement?	359
The equitable tracing rules	360
Defences to equitable tracing claims	368
What's online?	369
Part H Non-consensual Trusts
22 Resulting trusts	372
Introduction	373
Why does equity recognise resulting trusts?	374
The presumption of advancement	376
Application of the presumptions to family property	379
Voluntary transfers of property	384
Resulting trusts arising on failure of an express trust	384
Resulting trusts arising in other cases of failure of basis: the Quistclose trust	386
What's online?	388
23 Constructive trusts	389
Introduction	390
The constructive trust compared with other trusts	390
Categories and principles	391
The ‘common intention’ constructive trust and family property disputes	393
The Baumgartner constructive trust	395
The constructive trust as a remedy for estoppel	402
Constructive trusts imposed for breach of fiduciary obligation	403
The constructive trust imposed over stolen money and its proceeds	406
The constructive trust as a restitutionary remedy for unjust enrichment	407
The doctrine of mutual wills	409
Constructive trusts imposed over property transferred under specificallyenforceable contracts	411
What's online?	413
Index	414