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70517 Equity and Trusts

Warning: The information on this page is indicative. The subject outline for a particular semester, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

UTS: Law
Credit points: 8 cp

Subject level: Undergraduate and Postgraduate

Result Type: Grade and marks

Requisite(s): 70317c Real Property
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Anti-requisite(s): 70516 Equity and Trusts

Handbook description

This subject deals with the equity jurisdiction, its doctrines and remedies, and the law of trusts. The doctrines of equity developed as a response to defects in the English Common Law system and are based on the concept of 'good conscience'. Equity also developed remedies, such as specific performance and the injunction, which were unknown to the common law and which have a continuing influence in public law as well as private law. In that sense, the doctrines of equity form part of the law of contract and property. The equity jurisdiction has also developed the concept of a trust, which allows the conceptual separation of legal and equitable ownership of property.

Subject objectives/outcomes

Objective 1. (Targeting Graduate Attributes 1, 2, 3, 4)

  • Read and interpret case law and legislation

Objective 2. (Targeting Graduate Attributes 1, 2, 4, 5)

  • Undertake relevant legal research in the equity jurisdiction

Objective 3. (Targeting Graduate Attributes 1, 2, 3)

  • Argue clearly and persuasively, both verbally and in writing

Objective 4. (Targeting Graduate Attributes 1, 2, 3)

  • Solve legal problems by reasoned analysis

Objective 5. (Targeting Graduate Attributes 1, 2, 5)

  • Understand the rationale and application of equitable doctrine

Objective 6. (Targeting Graduate Attributes 1, 2, 4)

  • Evaluate critically existing legal principles and institutions with a view to determining what reforms, if any, are needed

Objective 7. (Targeting Graduate Attributes 1, 2, 5)

  • Develop an individual perspective on the philosophy of equity

Teaching and learning strategies

In this subject, we aim to offer you some flexibility in how and when you learn. There are several learning tools which you may use as best suits you:
Strategy 1
A series of 13 weeks of lectures (2 x 1.5 hours per week)

Strategy 2
A series of 12 weeks of tutorials (1 x 1 hour per week)

Strategy 3
This Subject Outline guide (also available electronically on UTSOnline)

Strategy 4
Tutorial hypothetical problems and questions (included at the end of this Subject Outline)

Strategy 5
Material posted by the lecturer and the Tutorial leaders on UTSOnline

Strategy 6
Feedback, advice and support from the subject coordinator and the lecturer (i.e., via e-mail or by appointment in person)

Strategy 7
Learning partnerships or groups


Subject Delivery
The subject delivery comprises a lecture series and a tutorial series

Lecture Format:
Lectures: 3 hours per week (2 x 1.5)
The lectures are designed to introduce the subject matter covered in the Equity and Trusts course. The lectures are intended to introduce and analyse the relevant material, to clarify the theoretical basis of the equitable principles and to provide illustrations of their application in the case law.

Students are expected to attend and pay attention during lectures, and to supplement their learning with prescribed and other recommended reading.

Students should expect to read from the prescribed texts but also from other recommended texts and case books in order to understand the material that is covered in lectures. Students are encouraged to do some reading in preparation for lectures, and they are expected to complete the prescribed reading by the time they have to attend each tutorial session.

Lecture outlines will be posted on UTSOnline prior to the introduction of each topic in the scheduled lectures. Students should feel free to raise questions about relevant issues at appropriate times during the lectures.

Tutorial Format:
Tutorials: 1 hour per week (1 x 1 hour)

The tutorials are an active participation exercise for students to develop skills in applying the law to given problems and critically assessing equity doctrine and case law.

Students are expected to prepare for, attend and participate in each tutorial. Tutorials provide a forum for students to discuss and further clarify with their fellow students and the tutorial leaders the equitable doctrines, rules and principles introduced in the lectures. In order to be able to participate in the tutorials in a meaningful manner, students would be expected to have done the prescribed reading before each tutorial session.

Tutorials also provide an excellent opportunity for students to develop the necessary problem-solving skills and analytical skills needed for successful completion of the subject. Further reading of relevant literature and case law materials is also recommended. The tutorial leaders will provide further information and guidance to students as to the exact manner of the students participation in the tutorials.

Tutorial Attendance:
Tutorial classes commence in week 2.
Students must attend the tutorial in which they have registered.
Classroom venues are also advertised on the noticeboards on Level 3.

Content

Introduction, history and nature of Equity

  • General comparison between Common Law and Equity
  • The maxims of Equity
  • The Judicature System
  • Fusion theories

The nature of equitable interests

  • Multiple classification of equitable rights
  • Equities, mere equities and personal equities
  • Equitable proprietary interests
  • Equitable priorities

The nature of assignment of property in Equity

  • Equitable assignment of legal property
  • The rule in Milroy v. Lord
  • Future property
  • Equitable assignment of equitable property

The fiduciary relationship

  • Scope and content of fiduciary duties
  • Conflict of interest and duty
  • Unauthorised profit

Nature, constitution and classification of Trusts

  • Appointment/removal and rights/duties/powers of trustees
  • The rights of beneficiaries

The essential elements of an Express Trust

  • The three certainties: intention, subject matter & object
  • Complete constitution
  • Variation, termination & failure of Express Trusts

The Beneficiary principle

  • The four divisions of “charitable purposes”
  • Schemes-general and Cy-pres schemes
  • Purpose Trusts

Automatic Resulting Trusts

  • Presumed Resulting Trusts
  • Presumptions and rebuttals

Rationale and nature of Constructive Trusts

  • Categories of Constructive Trusts
  • Third parties and Constructive Trusts: the rule in Barnes v. Addy

Equitable jurisdiction to relieve against unconscionable transactions

  • Undue influence
  • Unconscionable conduct

Nature of equitable relief

  • Principal forms of equitable relief (declarations, specific performance, injunction)
  • Grounds for relief

Historical development of estoppel

  • Promissory estoppel
  • Proprietary estoppel
  • Reinterpreting equitable estoppel

Assessment

Assessment Item 1: Research Essay

Intent: : undertaking relevant legal research in the equity jurisdiction; : reading and interpreting case law and legislation correctly and effectively; : constructing clear and persuasive legal argument in writing; : understanding the rationale and application of equitable doctrine, principles and rules; : evaluating critically existing legal principles and institutions with a view to determining what reforms, if any, are needed; and : developing an individual perspective on the philosophy of equity.
Objective(s):

attributes 1, 2, 3, 4
Weighting: 40%
Length: 3,000 words

Assessment Item 2: Formal Examination

Intent: : solving legal problems by reasoned and substantiated analysis; : applying equitable doctrine, principles and rules correctly and effectively : see also Learning Objectives, supra.
Weighting: 60%

Required text(s)

  1. Evans M, Equity and Trusts, Butterworths, Australia 2008.
  2. Heydon, J.D. & Leeming, M.J., Jacob’s Law of Trusts, 7th ed., Butterworths, Sydney 2006
  3. Meagher RP, Heydon JD & Leeming MJ, Meagher Gummow & Lehane’s Equity: Doctrines & Remedies, 4th ed., Butterworths, Australia 2002.

NB. Selected chapters in Evans MJ Equity & Trusts, Butterworths, Australia 2008, Meagher Gummow & Lehane’s Equity: Doctrines & Remedies, 4th ed., Butterworths, Australia 2002 (herein “MGL”) and Heydon, J.D. & Leeming, M.J., Jacob’s Law of Trusts, 7th ed., Butterworths, Sydney 2006 (herein “J”) provide the prescribed reading for the topics covered in the lecture series and the Tutorial sessions.
Students are advised to read Evans first and then refer to MGL for further detail. MGL is the leading practitioners text and students should aim to achieve the standard of analysis contained in that text.

Recommended text(s)

  1. Covell W & Lupton K, Principles of Remedies, LexisNexis, Sydney 2008
  2. Dal Pont GE & Chalmers DRC, Equity & Trusts in Australia, 4th ed., Lawbook Co, Australia 2007
  3. Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts, 7th ed., Butterworths, Australia 2007.
  4. Parkinson P (ed.), The Principles of Equity, 2nd ed., Lawbook Co, Australia 2003.
  5. Tilbury M, Noone M & Kercher B, Remedies: Commentary and Materials, Law Book Co, Sydney 2004

NB. Selected chapters in Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts, 7th ed., Butterworths, Australia 2007 (herein “HL”) form part of the recommended reading for the topics covered in the lecture series and the Tutorial sessions.

Indicative references

Reports, Journals and General References

  1. Journal of Equity
  2. Law Quarterly Review
  3. Ford & Lee, Law of Trusts in Australia
  4. Maitland’s Lectures in Equity
  5. Fredrick Jordan, Select Legal Papers

Other resources

Other Materials
Students are advised to be aware of relevant policies, rules and regulations that might be applicable to their candidature and assessment matters.

  1. UTS Law Faculty Guide to Essay Writing (www.law.uts.edu.au/students/assessment/submitting.html)
  2. UTS Coursework Assessment Policy and Procedure Manual (http://www.gsu.uts.edu.au/policies/coursewkassess.html)


Lecture Recording
Audio or visual recording of classes for this subject is strictly prohibited unless written approval is sought and given in advance by the Subject Coordinator. Approval for audio or visual recording will usually be limited to medical or hardship reasons, and if approved, must be arranged by the student.

Recorded Lectures on UTSOnline
Arrangements may be in place for lecture recordings to be made available for download from UTSOnline. Check with your Subject Coordinator if and which arrangement is in place for your subject.
Please also note that no responsibility is taken for the quality or reliability of this taping service and that no Special Consideration applications will be considered in relation to problems experienced by students using this taping service. Students may only use these audio-tapes for private student purposes (and to avoid legal action) permission must be obtained from the Subject Coordinator for any other usage.

Audio recordings available from AVS for purchase by students
Arrangements may be in place for lectures to be recorded, and tapes made available for purchase from the UTS Audio Visual Services in CM05D.01.01 on the Haymarket Campus, Quay Street. Check with your Subject Coordinator if and which arrangement is in place for this subject.