Equity and Trusts LAW Final Exam Notes

3 Found helpful • 108 Pages • Complete Study Notes • Year: Pre-2021 • Previously uploaded under: 200757 - Equity & Trusts

I took these notes into the exam with me and got a Distinction for the exam mark. They are a complete version of revision notes from start of semester to the end of the semester. It starts with a heading for each topic. involves CASES relevant to the exams. Property and Equity Equitable interests in the context of land: The old system of title The land in Australia has been granted by the crown – is held on tenure of some kind – property holders in Australia do not hold land as absolute owners. Rather the property holder has an estate in the land which is a right to possess land as a tenant for a period of time. Torrens title: Conveyancing whereby parcels of land would be registered and title to each parcel of land would be evidenced by a single document ‘certificate of title’. This registration confers ‘indefeasible title’ that is good against all the word. (Real property Act 1990 (NSW). Equitable interests in fee simple: There are two main estates: freehold estates (lasting a life-time) and leasehold estates (Definitive periods). The fee simple estate is the greatest right to land, closest that a person can get to the ownership of land itself. It is a bundle of rights in respect of land – fee means that the estate can be inherited, simple means that there are no restrictions to alienability. Equitable leases and the rule in Walsh v Lonsdale: As in relation to the creation of a legal fee simple interest, a legal lease-hold interest will be created when all common law and statutory formalities are followed. A lease will only be created if: - There is a date on which the lease commences, certain and capable of being rendered certain - The duration is certain. In addition, land that is held under ‘old system’ title, a deed is required in order to create legal leasehold interests. Walsh v Lonsdale (1882) - Facts: by agreement, lonsdale agreed to grant walsh a lease of a weaving shed and certainother buildings and machinery for a term of 7 years from the time Lonsdale put the shed into working order. He was obliged to run 300 loons during the first year and 540 looms thereafter. - Walsh entered possession on 1 july 1879. [aid rent quarterly but not in advance. 13 march, Lonsdale served walsh with notice requesting year in advance rent. Walsh argued the lease did not create legal interest and remedy of distress (for Lonsdale) could not apply - HELD: tenants hold under agreement for a lease – same terms under equity – he cannot coplain of the exercise of the right of distress merely because the actual parchment has not been signed and sealed. AND SO: gave equivalent of a legal lease – equitable lease gave rise to a legal liability to pay rent for which the common law remedy of distress could be levied. Mere equities: A personal equity refers to the right that a person has to a remedy in equity. Nlike an equitable interest, it is a personal right and does not attach to property. A personal equity, have QUASI-PROPREITARY characterstics where it entitles a person to make a claim to a court of equity, if successful, will entitle the person to an equitable interest – this is a mere equity. The development of mere equity began with Phillips v Phillips (1861) which lord Westbury referred to ‘circumstances that give right to an equity as distinguished from an equitable estate. Leading case: Latec Investments v Hotel Terrigal (In Liq) (1965) - Facts: latec was the mortgagee of land owned by Hotel Terrigal and exercised its power of sale as the mortgagee. Late and poor advertisement – failed to sell. Few weeks later sold to a subsidiary owner but the sale price was significantly lower than the auction reserve. - Five years later H.T sought to have the transaction set aside on basis that the power of sale had been conducted fraudantly. ISSUE: court had to determine the priority of the respective interests and MLC. - HELD by Kitto J and Menzies J: the interest of HT was not equitable but a mere equity. THE MOST COMMON FORMS OF MERE EQUITIES ARISE IN ACTIONS TO SET ASIDE TRANSACTIONS FOR FRAUD, OR UNCONSCIONABLE CONDUCT, THE RIGHT TO OBTAIN RECTIFICATION FOR MISTAKE.

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