70517 Equity and Trusts

Warning: The information on this page is indicative. The subject outline for a particular session, 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.

Subject handbook information prior to 2020 is available in the Archives.

UTS: Law
Credit points: 8 cp
Result type: Grade and marks

Requisite(s): 70317c Real Property AND 70327 Introduction to Property and Commercial Law
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

Description

This subject explores the range of doctrines and remedies that were originally developed in the Courts of Chancery in England to ameliorate the harshness of the common law and provide remedies where none were available at law. Equitable principles are all fundamentally grounded in the concept of 'conscience'. Despite the antiquity of these doctrines, equitable principles continue to have enormous practical relevance, particularly in modern commercial litigation. Equitable doctrines and principles reach into many areas of legal practice: family law, superannuation, wills and probate, property law and intellectual property, to name a few. But it is in civil litigation that a solid understanding of equitable principles and remedies is essential: no litigation lawyer can afford not to be aware of how to apply equitable principles to seek the valuable remedies available in equity. The subject also examines the equitable concept of the 'trust' whereby an interest in property is legally owned by one party, but held for the benefit of another person or purpose permitted by law. Trusts are commonly used in both private arrangements and increasingly for commercial purposes. The popularity of unit trusts and trading trusts as versatile commercial vehicles is on the rise, as there are particularly advantageous consequences for taxation and insolvency through the use of a trust. Significant developments to equitable principles have occurred through a number of Australian High Court decisions, particularly since the 1980s. The subject compares Australian equity with other common law jurisdictions to understand international divergence in the scope of certain principles.

This subject takes a very hands-on, practical approach to learning the skills required in practice in applying equitable principles. Teaching resources include presentations from senior practitioners on equitable principles and advocacy skills. In tutorials students work in small 'law firms', actively practising how to apply equitable reasoning, giving legal advice orally and in writing, and making submissions as in court.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1.	Explain the nature and purpose of the equitable doctrines covered in the course, and the range of remedies which might be available in respect of breaches of these particular doctrines
2.	Evaluate a real-life legal problem and analyse the equitable doctrines and remedies which might be available in the circumstances; and collaborate effectively in small teams to formulate the best approach to a legal problem
3.	Prepare and write legal advice, in a form appropriate for a client, addressing the range of options for equitable relief in the circumstances
4.	Critically analyse unsettled questions in equity and issues in relation to which Australian law differs from the principles applied in other common law jurisdictions
5.	Conduct effective legal research to support an argument for equitable relief on behalf of a client or in relation to an unsettled or developing area of equity
6.	Write a clear, sustained academic argument about the development of the law or an area of uncertainty in the law

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge, including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice (LAW.1.0)
Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices (LAW.3.0)
Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues (LAW.4.0)
Communication and Collaboration
Effective and appropriate communication skills, including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (LAW.5.0)

Teaching and learning strategies

Subject Delivery: The course is structured around learning two topics per week in lectures (2x 2 hours per week), and then developing skills in applying those principles during the corresponding tutorial (1x 2 hours) held in the following week. There are 7 weeks of lectures and 8 tutorials.

The topics, the prescribed reading, tutorial questions and assessment tasks are all set out in the Equity & Trusts Subject Guide available on UTSOnline. Read this Guide before commencing the course for further information about the course, and on a weekly basis in relation to what to do each week.

Learning in this subject will come from actively engaging in the following activities and preparatory work for them:-

Strategy 1. Preparation for lectures

You will need to read the prescribed text and set case(s) set out in the Subject Guide on UTSOnline in the Subject Documents folder before the lecture. From time to time there are also podcasts and online materials that you will need to watch or listen to before lectures which address the lecture topics. The lecturer will assume the reading or preparatory work has been done and will answer questions during the lectures.

2. Weekly Online Quiz

From Week 2, you will do a short, 4 question quizzes on UTSOnline that test the essential principles from the lectures that week. A solid working knowledge of legal principles underpins the Graduate Attribute (Legal Knowledge (1.0)) and enables you to more confidently engage in finding solutions to legal problems. The quiz will be open until tutorials on those topics commence the following week. The quizzes are assessable and your best 5 weeks' quiz scores will make up 10% of your total assessment. These quizzes provide you with weekly feedback on your developing understanding of essential principles.

3. Tutorial Activities

The tutorial program has been specifically designed to scaffold your learning in the skills of analysing legal problems and communicating that analysis in relation to the availability of equitable relief for a client. These skills are practised and developed throughout the tutorial program. There are 8, 2 hour tutorials in the course. During the first six weeks, speakers will take responsibility for leading discussions in relation to giving legal advice about legal problems. During the final two weeks, you will practice delivering oral submissions as if in court, and write a formal legal advice. These activities are described further below.

In tutorials, you will be allocated into ‘law firms’ with 4 students per firm. You will collaborate with these students each week in discussing approaches to legal problems. Each student in your ‘law firm’ is allocated a speaker number (1, 2, 3 or 4). In the first six weeks, in each week students from half of the law firms will be nominated to lead a discussion topic or problem solving exercise. Students from the other law firms will be nominated to lead discussions in alternate weeks. You are therefore expected to lead class discussions in three of the first six tutorials, in alternate tutorial weeks. The tutorial discussion topics and problems are all set out in the Subject Guide. You will need to read and prepare for your allocated speaking role as you (together with the other students in law firms with the same speaking number), will lead that discussion or other activity. This will take roughly 20 minutes for each speaking role, each week.

You should also read over and think about the other questions for other speakers to understand the scope of the tutorial and see if you can contribute to the general discussion for other speakers. During this time, tutors will provide you with feedback in relation to the relevance and strength of your contributions and you will have the opportunity to ask for further feedback on your understanding of the issues.

Each week in which you are a nominated speaker you will assess your own oral contribution (out of 4 marks) in terms of what you contributed to your allocated role, and whether you made any broader contribution to class discussion outside your allocated role. Your evaluation will be moderated by your tutor. On this basis, you will be awarded a mark out of 12 (3 tutorials x 4 marks) for your contribution to leading class discussions. In addition to your mark for leading class discussions, you will be eligible for a mark out of 4 for attendance and participation throughout the semester. This attendance and participation mark is calculated on the basis of 0.5 marks for each of the tutorials that you attend and participate in. This is intended to reflect the expectation that, in those classes where you are not a nominated speaker, you are expected to make active contributions, and not merely be a passive observer. Each week, all students attending the tutorial must complete the section of the Tutorial Participation sheet indicating that you have attended and participated in the tutorial.

In tutorials 7 or 8 you are required to make a compulsory oral submission which simulates a court appearance. Your compulsory oral submission will be awarded a mark out of 4, meaning that the tutorial participation component is worth 20% of your total assessment.

The ‘law firm’ structure of these tutorials and the weekly practice in articulating legal advice targets the Graduate Attributes of Critical Advice and Evaluation (3.0), and Communication and Collaboration (5.0). You will receive feedback of your performance, including in the form of your tutor’s confirmation or moderation of your self-assessment of your contributions from the previous week.

4. Research

Research skills are essential for every lawyer. In this subject, your mid-session Assessment Task 2 is a substantial research essay, due in Week 6, written in an academic style appropriate for publication in a legal journal. The questions are available in the Subject Guide. You will need to commence researching and analyzing the relevant cases and journal articles at least 4 weeks before the essay is due to allow enough time for writing and proof-reading the essay. You will have the opportunity to post questions about the essay to the discussion board and to ask questions in tutorials about how to approach research methodology and writing.

5. Communicating Legal Arguments and Advice

The skills practised throughout the session in relation to articulating reasons for legal advice culminate in two assessable tasks, one applying oral communication skills and another applying your written communication skills as covered in Graduate Attribute 5.0 Communication and Collaboration.

Oral submissions: In the final two weeks of tutorials all students will prepare and deliver short (3-5 minute) oral submissions, as if you were in court. These submissions are a compulsory part of your class participation mark. This task is worth 4 marks (one of the 5 tutorials scored in your class participation). There is a video made available on UTSOnline in which a senior barrister demonstrates how to deliver oral submissions. You should watch this before preparing your submissions as it will provide some guidance on how to prepare effective submissions.

Written Legal Advice: the final assessment task, the written Legal Advice, is due in the final assessment period. This is a written legal advice in a form appropriate for a client which is done under authentic time constraints: it is due 2 days after the question is released. An example of a legal advice is available on UTSOnline. The best preparation for it is ongoing revision of the analytical approaches to giving legal advice practised throughout the session.

Content (topics)

Part 1: HISTORY AND NATURE OF EQUITY

Introduction to Equity

Comparison between common law and Equity Historical development of Equity
Maxims of Equity
Judicature System and modern administration of Equity

PART 2: WHEN DOES EQUITY INTERFERE WITH CONTRACTS OR UPHOLD NON-CONTRACTUAL PROMISES?

Doctrines of Unconscionable Dealing and Undue Influence

Undue Influence – elements and application
Unconscionable Dealing – elements and application
Remedies

Estoppel

Categories of estoppel at common law and in equity Proprietary Estoppel
Promissory Estoppel
Remedies

PART 3: EQUITY AND PROPERTY – EQUITABLE INTERESTS IN PROPERTY AND ASSIGNMENT OF PROPERTY IN EQUITY

Equitable Estates and Interests

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

Assignment of Property in Equity

Equitable assignment of legal property
Equitable assignment of equitable property
Assignment of future property
Writing requirements for the assignment of equitable interests

PART 4: FIDUCIARY OBLIGATIONS AND LIABILITIES

Fiduciary Obligations

Scope and content of fiduciary duties
Rule against conflict of interest and duty
Rule against profits
Remedies for breach of fiduciary obligation

Liability of Third Parties for Breach of Fiduciary Obligation or Breach of Trust

The rule in Barnes v Addy
Knowing receipt
Knowing assistance
Remedies

PART 5: SOME SPECIFIC EQUITABLE REMEDIES AND PROCESSES

Tracing

Nature and purpose of tracing

Account of Profits

Nature of remedy
Calculation of account of profits

Equitable Compensation

Nature of the Remedy and its availability
Calculating Equitable Compensation

PART 6: TRUSTS

Trusts imposed by Law – Constructive Trusts

Nature of a constructive trust
Categories

Trusts imposed by Law – Resulting Trusts

Automatic resulting trusts
Presumed resulting trusts
Presumption of advancement Illegality

Express Trusts

Elements of a trust
Creation of Express Trusts
Types of Express Trusts, including Charitable
The three certainties: intention, subject matter, object
Complete constitution, secret and precatory trusts

Duties, Powers, Liabilities and Rights of Trustees, Rights of Beneficiaries

Duties of a trustee
Powers of a trustee
Rights of a trustee
Liability of a trustee for breach of trust
Rights of beneficiaries and beneficiaries under a discretionary trust

Assessment

Assessment task 1: Student Contribution to Learning (Parts A and B)

Intent:	This assessment task is intended to assess your weekly revision of legal principles before tutorials and your active contributions to tutorial discussions and activities. It also provides you with weekly feedback on your performance in class in the subject in relation to skills in analyzing and evaluating legal problems and communicating solutions.
Objective(s):	This task addresses the following subject learning objectives: 1, 2 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.0 and LAW.3.0
Weight:	30%
Criteria:	Criteria for Quiz Working knowledge of legal principles and cases Criteria for Self-Assessment and Moderation of Weekly Participation in tutorials in weeks 1-6 (oral contributions, answers, general discussion): Ability to answer allocated questions relevantly supported with appropriate arguments, cases or reasons; Constructive contribution to broader class discussion beyond your allocated question; Quality rather than quantity of contributions. Marking scale: 0-1 = did not attend or attended but could not answer allocated questions and made very little substantive contribution to the class discussion; 1-2 = attended and contributed to group work; engaged with prescribed speaker’s question; 2-3 = attended, actively contributed to group work; contributed actively to the allocated speakers discussion and/or made some other constructive contribution to class discussion; 3-4 = attended, actively contributed to group work; made a significant contribution to the allocated speakers question and made an OUTSTANDING contribution to class discussion overall. Criteria for Self-Assessment of Compulsory Oral Submissions in Tutorials 7-8. (Mark out of 4). Development of a clear argument; Reference to cases to support arguments; Relevance and correctness of analysis; Clear persuasive delivery of submissions. Marking scale: 0-1 = did not attend or attended but but submissions were poorly prepared with little or no reference to relevant cases and little or no development of submissions in relation to the client’s case; 1-2 = presented submissions, poor preparation of relevant law to support submissions, some attempt to address the issues in the case and appropriate relief but lacking detail as to law or reasons for claimed relief or outcome; 2-3 = presented submissions that addressed most or all relevant issues and made good use of the law to support the relief or outcome for which you argued; 3-4 = presented submissions that addressed all relevant issues and made very good use of the law to develop highly persuasive and well structured arguments to support the relief or outcome for which you argued. Moderation of Self-Assessment The tutor will moderate your self assessment against the same criteria and will only increase or lower the self-assessment mark out of 4 where in the tutor’s view a different mark more accurately reflects your performance against these criteria. All self-assessment results are returned to students the following week providing weekly feedback on performance in class participation. The best 5 weeks’ results in Class Participation, (of which one week must comprise delivering compulsory submissions in Tutorials 7 or 8) will give a mark out of 20 for Part B. These two marks for Parts A (out of 10) and B (out of 20) will give a total mark out of 30 for Contribution to Learning.

Assessment task 2: Research Essay

Intent:	Research skills are an essential part of being a lawyer. Every case in court or advice to a client involves being able to research the current law and being able to develop a clear and persuasive argument about the law. This task is intended to assess your research skills, your ability to analyse and evaluate issues in relation to the development of the law, and your ability to develop a clear and well-reasoned argument in writing in relation to these issues.
Objective(s):	This task addresses the following subject learning objectives: 3, 5 and 6 This task contributes specifically to the development of the following graduate attributes: LAW.3.0, LAW.4.0 and LAW.5.0
Weight:	40%
Length:	2,500 words (10% leeway)
Criteria:	An introduction that effectively describes the nature of the issues and the argument that will be made; A clear and persuasive argument developed and sustained through the essay; Evidence of relevant legal research of cases and secondary materials such as journal articles; Evidence of an original argument(s) or perspective(s) supported by appropriate references and case law; Appropriate use of Australian Guide to Legal Citation (4th ed) for heading levels, formatting, quotes and footnotes; Use of subheadings to direct the reader through the essay; Correct grammar, punctuation and spelling; A conclusion that draws together the argument introduced in the Introduction and developed in the essay; An appropriate bibliography. A copy of the marking rubric which sets out the marking criteria and grades is available on UTSOnline under Subject Documents.

Assessment task 3: Legal Advice

Intent:	Giving effective legal advice in relation to the availability of equitable relief is an essential skill in practice and it is often required to be given in writing. This assessment is intended to give you experience in this authentic, everyday task of a lawyer in giving clear and effective written legal advice in a form appropriate for a client, under real-life time constraints.
Objective(s):	This task addresses the following subject learning objectives: 2, 4 and 6 This task contributes specifically to the development of the following graduate attributes: LAW.1.0, LAW.3.0, LAW.4.0 and LAW.5.0
Weight:	30%
Length:	1500 words
Criteria:	Clear statement of the issues referring to relevant facts; Clearly reasoned advice in relation to the relevant issues; Evidence of relevant legal research of cases with use of that research to support the advice in relation to the relevant law; Evidence of an original perspective(s) in relation to the most appropriate solution for the client; Appropriate use of Australian Guide to Legal Citation (4th ed) for heading levels, formatting, quotes and footnotes; Clear structure with use of subheadings; Correct grammar, punctuation and spelling. An appropriate bibliography. A copy of the marking rubric which sets out the marking criteria and grades in available on UTSOnline under Subject Documents. An example of a written legal advice is also available in UTSOnline to demonstrate presentation and style of legal advice.

Required texts

M W Bryan , S E Degeling, M S Donald and V J Vann, A Sourcebook on Equity & Trusts (Cambridge University Press, 2nd ed, 2020)

Recommended texts

Bryan MW, Vann VJ and Barkerhall Thomas S, Equity & Trusts in Australia (Cambridge, 2nd ed., 2017)
Evans M, Jones B and Power T, Equity & Trusts (Lexis Nexis Butterworths, 4th ed., 2016)
Heydon D, Leeming M, Turner, P, Equity Doctrines & Remedies, (LexisNexis Butterworths, 5th ed, 2015)
Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia, (LexisNexis Butterworths, 7th ed, 2006)
Radan P, Stewart C, Principles of Australian Equity & Trusts Cases and Materials (LexisNexis Butterworths, 2nd ed, 2014)
Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts, (LexisNexis Butterworths, 8th ed, 2011)
Covell W & Lupton K, Principles of Remedies, (LexisNexis Butterworths, 2008)
Ford HAJ, Lee WA, Bryan MW and Glover J, Law of Trusts (Thomson Reuters, available via Westlaw AU)

References

Reports, Journals and General References

Journal of Equity
Law Quarterly Review
Australian Guide to Legal Citation

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 Student Guidebook Booklet 2019
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)

Unauthorised Lecture Recording

Audio or visual recording of classes by a student for this subject is strictly prohibited unless written approval is sought and given in advance from 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.

Lecture Recordings

Lectures in this subject are taught as a face-to-face activity. Recordings of lectures made by AVS will be available to students of this subject, but are intended as a supplement and not as a substitute for attending lectures.

Please 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. The teaching staff bear no responsibility for the quality, reliability or availability of the audio lecture recordings.