70517 Equity and Trusts
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particular session, location and mode of offering is the authoritative source
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Subject handbook information prior to 2023 is available in the Archives.
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 actively practise 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 subject, and the range of remedies which might be available in respect of breaches of these particular doctrines |
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| 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 |
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:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers’ roles. (LAW.1.1) - Ethics and Professional Responsibility
A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including:
a. An understanding of approaches to ethical decision making and professional responsibility;
b. An ability to recognise, reflect upon and respond to ethical issues likely to arise in professional contexts in ways that evidence professional judgment, promote justice and serve the community; and
c. An ability to reflect on and engage constructively with diversity in practice. (LAW.2.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
Teaching and learning strategies
Strategy 1. Preparation for lectures
You will need to read the prescribed text and set case(s) set out in the Subject Guide on Canvas 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.
Strategy 2. Weekly Online Quiz
From Week 2, you will do a short, 4 question quizzes on Canvas 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.
Strategy 3:
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 10 x 2 hour tutorials in the course. In the tutorial series, students will have the opportunity to discuss the principles applicable to giving legal advice on hypothetical legal problems, and discuss theoretical / jurisprudential aspects of the Equitable principles and doctrines.
The tutorial discussion topics and problems are all set out in the Subject Guide. You will need to read and prepare for your participation in tutorials each week. You should also read over and think about all the tutorial questions, to understand the scope of the tutorial and be able to contribute to the discussion in class. 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.
Strategy 4:
Research skills are essential for every lawyer. In this subject, your mid-session Assessment Task 2 is a substantial piece of written advice based on legal research. It is due in Week 6, and must be written in a plain legal English style, appropriate for professional client communication. The question will be made available in Week 3. You will need to commence researching and analyzing the relevant cases when the question is released to allow enough time for writing and proof-reading the advice. An example of a legal advice is available on Canvas.You will have the opportunity to post questions about the advice to the discussion board and to ask questions in tutorials about how to approach this task.
Strategy 5:
The skills practised throughout the session in relation to articulating reasons for legal advice culminate in an assessable task, applying your written communication skills as covered in Graduate Attribute 5.0 Communication and Collaboration.
Written Legal Advice: being the final assessment task, the written Legal Advice is due in the final assessment period. This is written legal advice in a form appropriate for a communicating with clients or other legal professionals, which is done under authentic time constraints: it is due 2 days after the questions are released online. The best preparation for this final assessment task is ongoing revision of the analytical approaches to giving legal advice practised in tutorials throughout the session.
Subject Delivery:
The course is structured around learning two topics per week in lectures (2x 90 minutes per week), and then developing skills in applying those principles during the corresponding tutorial (1x 2hours) held in the following week. There are 12 weeks of lectures and 10 tutorials.
The topics, the prescribed reading, tutorial questions and assessment tasks are all set out in the Equity & Trusts Subject Guide available on Canvas. 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.
Content (topics)
Module 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
Module 2: EQUITY AND THE LAW OF OBLIGATIONS?
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
Module 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
Module 4: TRUSTS
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
- Charitable 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
Trusts imposed by Law – Resulting Trusts
- Automatic resulting trusts
- Presumed resulting trusts
- Presumption of advancement Illegality
- The Quistclose trust
Module 5: EQUITABLE REMEDIES AND PROCESSES
Constructive Trusts
- Nature of a constructive trust
- Categories
Liability of Third Parties for Breach of Fiduciary Obligation or Breach of Trust
- The rule in Barnes v Addy
- Knowing receipt
- Knowing assistance
- Remedies
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
Assessment
Assessment task 1: Online Quizzes
| 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 1 This task contributes specifically to the development of the following graduate attributes: LAW.1.1 and LAW.3.1 |
| Weight: | 10% |
| Criteria: | Criteria for Quiz Working knowledge of legal principles and cases |
Assessment task 2: Client Advice
| 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.3.1 and LAW.5.1 |
| Weight: | 40% |
| Length: | Maximum of 2,000 words (no leeway to exceed limit, however answers may be provided in fewer than 2000 words) |
| Criteria: |
A copy of the marking rubric which sets out the marking criteria and grades is available in the Canvas assignment. |
Assessment task 3: Take-home assignment
| 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.2.1, LAW.3.1, LAW.4.1 and LAW.5.1 |
| Weight: | 50% |
| Length: | No more than 2500 words. (The word limit for this assignment is strict. There is no 10% leeway to exceed the limit. |
| Criteria: |
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Required texts
M W Bryan , S E Degeling, M S Donald and V J Vann, A Sourcebook on Equity & Trusts (Cambridge University Press, 3rd ed, 2023)
Recommended texts
- Bryan MW, Vann VJ and Barkerhall Thomas S, Equity & Trusts in Australia (Cambridge, 3rd ed., 2023)
- 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
CASES
Students are advised to use the databases in the UTS online library resources to locate authorised reports of cases on line.
Students may also access case reports on austlii, and medium neutral citations of recent cases (since 2000) are provided in the Subject Guide for this purpose.
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.
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
In normal circumstances 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. During the restrictions made necessary as a consequence of the COVID-19 pandemic, Lectures will be pre-recorded and made available on Canvas. A Question and Answer zoom session will be held each week at 11am on Thursdays for follow-up questions from the pre-recorded lectures. Attendance at the Lecture Q&As is recommended, but not compulsory. Tutorials will be held face-to-face and by zoom, and will not be recorded. Attendance at tutorials is compulsory.
Please note that when Lectures return to face-to-face delivery, 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. No responsibility will be taken for the quality or reliability of this taping service and 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.