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): 70317 Real Property
Anti-requisite(s): 70516 Equity and Trusts

Handbook description

This subject covers two related fields of study.

In 'equity' students examine the doctrines and remedies which were originally developed in the Courts of Chancery in England prior to 1873 to ameliorate the harshness of the common law and which are still applied today to the largely same effect, with some modification from time to time. Equitable doctrines and remedies do not replace the common law but supplement it in significant ways by recognising and enforcing obligations which are not known to the common law and by granting remedies in respect of those obligations which are not available at common law. These doctrines and remedies are now administered in the same courts in which the common law is administered. Many areas of law are touched by equitable doctrines and remedies. In particular, the law of contract and property law are significantly affected by equity. Through the study of equity, students examine the range of discretionary remedies which are available for breach of particular obligations.

In 'trusts' students explore the concept of a trust which was developed in the Courts of Chancery, whereby an interest in property is legally owned by one party but held for the benefit of another person or purpose permitted by law. The obligations of the party owning the interest at law, and the rights of the beneficiary to that interest, continue to be recognised and enforced in equity. Trusts are now commonly used in both private arrangements and for commercial purposes, having particular consequences for taxation and insolvency. The relevant principles and modern applications of trusts are considered.

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

Contribution to course aims and graduate attributes

The 10 UTS: Law Graduate Attributes
The UTS, Faculty of Law has identified a number of professional attributes that graduates from the Faculty will possess upon graduation.

INTELLECTUAL
1. Critical Thinking: An appropriate level of independent thinking, creativity and critical analysis.
2. Analysis and Evaluation: An ability to strategically analyse issues of law, evaluate options and viewpoints to reach and implement decisions.
3. Spoken and Written Communication: Advanced oral and written communication skills.
4. Legal Research and Technological Literacy: Appropriate research techniques to acquire, distil and utilise legal information.

PROFESSIONAL
5. Disciplinary Knowledge: A coherent and extensive knowledge of substantive and procedural law.
6. Lifelong Learning: A capacity to continually update the knowledge skills and awareness appropriate to the practice of law.
7. Ethics: A capacity to value and promote honesty, accountability and ethical standards.

PERSONAL
8. Self and Cooperative Work Management: Self and priority management skills including cooperative work.
9. Cultural Awareness and a Global Outlook: An appreciation and valuing of cultural and intellectual diversity and an ability to function in a global environment.
10. Social Justice: An acknowledgement and acceptance of individual responsibilities and obligations and of the assertion of the rights of the individual and the community.

Teaching and learning strategies

Strategy 1
Independent Learning Skills: The subject guide sets out recommended reading for each topic. Students should aim to read as widely as possible from the recommended readings and cases in the lecture outlines.

Strategy 2
Lectures: Designed to supplement and clarify issues and explain significance of cases and development in the law in each topic.

Strategy 3
Tutorials: Provide an opportunity to participate in group discussion solving problems derived from real cases. These are essential skills for practice as a solicitor or barrister.

Strategy 4
Research Essay: provides practice in high level research and legal writing with feedback to indicate where the student has achieved well or needs to develop these skills.

Lecture Format

Lectures: 4 hours per week (2 x 2 hours)

The lectures are designed to supplement independent reading on a topic area by clarifying important issues and principles and providing illustrations of their application in practice.

Students should also aim to read from recommended texts included in the Subject Guide and cases in the Lecture Outlines in order to understand the material that is covered in lectures.

Tutorial Format

Tutorials: 2 hours per week (1 x 2 hours)

Tutorials provide an opportunity to practise solving real legal problems drawn from case law, and to discuss unsettled areas in law. Students must prepare for tutorials by attempting answers to problem questions set out in the Subject Guide. Students should also use the opportunity to discuss issues arising from the topic of the week and raise any questions.

Students must attend the tutorial in which they have registered unless prior consent is given by tutors.

Tutorials will conclude with a weekly quiz. Students must attend 5 out of 7 assessable quizzes in order to be eligible for the full 20% class participation mark.

Content

Introduction to Equity, History and Nature of Equity

General comparison between Common Law and Equity
Historical development of Equity
Maxims of Equity
Judicature System and modern administration of equity
Fusion theory

Unconscionable dealings/ Undue Influence

Undue Influence - elements
Unconscionable Dealings - elements
Remedies: rescission, equitable compensation, constructive trust

Estoppel in Equity

Categories of Estoppel at Common Law and in Equity
Equitable Estoppel - development of, elements and application
Remedies for Equitable Estoppel; declaration, constructive trust, equitable lien, equitable charge, equitable compensation

Doctrine of Part Performance

Elements
Remedy: specific performance

Fiduciary Obligations

Scope and content of fiduciary duties
Rule against conflict of interest and duty
Rule against unauthorised profit
Remedies for breach: constructive trust, account of profits

Liability of Third Parties for Breach of Fiduciary Duty or Trust

The rule in Barnes v Addy
Knowing receipt
Knowing Assistance
Remedies: constructive trust, equitable compensation

Equitable Estates and Interests

What is Property?
Multiple classification of equitable rights
Equitable proprietary interest, mere equity and personal equities
Types of equitable proprietary interests; features

Assignment of Property in Equity

Equitable assignment of legal property
Equitable assignment of equitable property
Assignment of future property
Writing requirements in assignment of equitable interests.

Introduction to Trusts/ Express Trusts

Elements of a trust, types of trusts
Creation of Express Trusts
The Three Certainties: Intention, Subject Matter, Object
Complete Constitution, Secret Trusts, Precatory Trusts
Rule against Perpetuities

Charitable Trusts

Beneficiary Principle
Four Divisions of charitable purposes

Resulting Trusts

'Automatic' resulting trusts: incomplete disposition of beneficial interest
'Presumed' resulting trusts: contributions to property purchase
Presumption of advancement
Illegality

Constructive Trusts (other than for breach of fiduciary duty or third party liability already covered in Topics 5 and 6)

Features of constructive trusts
Nature - remedy or institution?
Different categories of constructive trust
Constructive trusts to enforce agreements concerning property
Constructive trusts to remedy an unconscionable retention of benefit
Other categories of constructive trusts: stolen property, unlawful killing

Duties, Powers and Liabilities of Trustees, Rights of Beneficiaries

Duties of a trustee: loyalty; to preserve trust property; to insure trust property; of investment; to act gratuitously, to keep accounts; duty of honesty; to pay trust fund to correct beneficiaries; to act impartially.
Powers of a trustee: sale, management, maintenance and advancement, to mortgage.
Rights of a trustee: reimbursement and indemnity; reimbursement from beneficiaries; right of contribution; other rights.
Liability of a trustee in breach of trust.
Rights of beneficiaries: to extinguish trust, to compel performance, to restrain breach, to possession of trust property, to information.
Rights of discretionary beneficiaries.

Assessment

Assessment Item 1: In-class tutorial quizzes

Intent:	The weekly quizzes are intended to give students weekly feedback on their level of understanding of important issues in each topic.
Weighting:	20%

Assessment Item 2: Research Essay

Intent:	The research essay is intended to give students experience in: 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:	2,500 words

Assessment Item 3: Formal Examination

Intent:

The formal examination is intended to ensure that students can demonstrate sufficient competence in:

solving legal problems by reasoned and substantiated analysis;
applying equitable doctrine, principles and rules correctly and effectively.

Weighting:

40%

Required texts

None

Recommended texts

Evans M, Equity & Trusts (LexisNexis Butterworths, 3rd ed, 2012)
Meagher R, Heydon D, Leeming M, Meagher Gummow & Lehane's Equity Doctrines & Remedies, (LexisNexis Butterworths, 4th ed, 2002)
Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia, (LexisNexis Butterworths, 7th ed, 2006)
Dal Pont GE & Chalmers DRC, Equity & Trusts in Australia, (Lawbook Co, 4th ed, 2007)
Radan P, Stewart C, Principles of Australian Equity & Trusts (LexisNexis Butterworths, 2010)
Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts, (LexisNexis Butterworths, 7th ed, 2007).
Parkinson P (ed.), The Principles of Equity, (Lawbook Co, Australia, 2nd ed, 2003).
Covell W & Lupton K, Principles of Remedies, (LexisNexis Butterworths, 2008)
Tilbury M, Noone M & Kercher B, Remedies: Commentary and Materials, (Law Book Co, 2004)

References

Reports, Journals and General References

Journal of Equity
Law Quarterly Review
Ford & Lee, Law of Trusts in Australia
Maitland’s Lectures in Equity
Fredrick Jordan, Select Legal Papers
Australian Guide to Legal Citation (3rd ed)

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.

UTS Law Subject Information Booklet 2012
UTS Law Faculty Guide to Essay Writing (www.law.uts.edu.au/students/assessment/submitting.html)
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

Lecture recordings will be made available for download from UTSOnline during the week following the lecture. The recordings are editted and do not reflect discussion with students or responses to questions. Accordingly, students are encouraged to attend lectures where possible and to use the recordings as a backup or additional resource in revising lecture notes.

You should expect a delay of at least 24-48 hours before the lectures will be available online. Please do not ring the Law Reception Office to ask when the recording will be put online.

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. Technical difficulties with the taping of a lecture, which do occur from time to time, will not result in any re-recording of the lecture.

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