Answers for Each Week's Class/Topic Study Notes

8 Found helpful • 18 Pages • Complete Study Notes • Year: Pre-2021 • Previously uploaded under: 200757 - Equity & Trusts

Week 1: history HIDTORY AND NATURE OF EQUITY Abigail and Roy, lottery, she took mum on holiday told Roy her defacto to buy house, gave him $800K to put title in both names, he did not do this, she came home found he had spent the money adverse to her instructions. - Look at title, Roy held the legal title, equity holds that Roy holds the property on constructive trust for Abby, it is important to know that in equity it does not ignore the legal requirements it circumvents the legal requirements for formalities, imposing a trust, equity will not allow a statute to be used as a cloak for fraud. - Roy can be prevented from profiting. Furniture (held on bailment). - Roy has the legal title on the apartment, since Abby’s name is not on the Deed - Abby is entitled to the car, the items she shipped back from Europe and the $50,000 that has been given to Roy’s new girlfriend (equitable interest in those items and also the house since Roy did not follow her instructions) - Abby can argue Resulting Trust in the apartment and Constructive Trust for the other items - Abby can sue for unjust enrichment for the money that was spent on Roy’s new girlfriend - If property not returned, remedy is damages. Specific restitution (like an injunction) which require Roy to return the property to Abby. It would be a court order. $50,000 spent on Paris – Roy would have to pay equitable compensation to Abby and interest (by court order). Week 2: maxims 1.Equity will not suffer a wrong without a remedy. Not as relevant today as it was previously. Equity has not developed a new remedy since 1987 ie extended principles of equitable estoppel, HC has been restricting discretion of equity judges. Discretion allows judges to hand down tailor made decisions and this makes equity unpredictable. Litigants and lawyers do not like unpredictability. 2.Equity follows the law. Earl of Oxfords case- conflict between CL and equity, equity will prevail. (ie equity acknowledges the law, ie legal rights and interests.) CL doesn’t recognise equitable interests. Equitable interest doesn’t distinguish legal title. S23C of Conveyancing Act. Avoidance of unconscionability. 3.He who seeks equity must do it. Plaintiff must act in a fair and just manner towards the defendant. Carpe Jugulum- seize the jugular. If the defendant wants a remedy from equity, plaintiff has to be fair, just and reasonable. 4.He or she must come with clean hands. Plaintiff be must free of wrong doing or impropriety before coming to court in relation to this matter. The court isn’t interested in their criminal history it is how they behave towards the defendant before the court. Example- dealing with a matter with a tenant/landlord and a lease and the stamp duty hasn’t been paid. This is unclean hands. Nelson v Nelson case- a mother puts a house in the children’s name. She was entitled to a low interest rate loan as her deceased husband was an ex-service man. She borrowed $25,000, signed a stat dec., saying no equitable interests in property. The children wanted to sell the house that was in their name. The mother commenced proceedings maintaining the kids should hold the property in trust for her. Did she intend to defeat the purpose of the Cth statute? Court decided no, therefore she had clean hands. This is a very important maxim. 5.Equity aids the vigilant and not the tardy (slow/late/procrastinating). 6.Delay defeats equity. Laches- how much time must pass to constitute delay. Bester v Perpetual Trustee case. Bester was an orphan. Uncle was loco parentus. Uncle advised that she should transfer the property to him. He will pay her an annuity. He died and perpetual trustee were the trustees. She wanted to rescind the agreement for undue influence. Defence of laches by perpetual did not hold up. The day began the day she found out about her rights. 7.Equity is equality. Ie proportional equality not literal equality. 8. Equity will not assist a volunteer. Consideration is adequate/sufficient and not necessarily monetary. 9.Equity looks to the intent rather than to the form. Joliffe case. Can only have one interest earning bank account. Joliffe opened a second interest earning account in his wife’s name with him as trustee. Mrs Joliffe died and assessed the value in the interest of the bank account. The court said the words trust or trustee doesn’t mean that person intended to create a trust. Need to look at intentions outside the document. No trust and no money owed in death duties. In 2011 Byrnes v Kendall case- you must treat a trust document in the same way that CL treats a contract. 10. Equity will not allow a technicality to prevent a Plaintiff from being awarded a remedy. Industrial properties case. Equity allowed them a remedy although B was not the registered owner. Week 3: assignments

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