DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
07 EQUITY
SUMMER SESSION 2015-16
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
March 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Compulsory Assignment
Assignment Questions
Prescribed Topics and Course Outline
1
1
1-2
2
3
4-5
6
7
7
8-19
1
LAW EXTENSION COMMITTEE
SUMMER 2015-16
07 EQUITY
COURSE DESCRIPTION AND OBJECTIVES
Equity, which includes the law of trusts, considers the historical origins and development of the
equitable jurisdiction, equitable doctrines and the nature and creation of trusts.
The emphasis in the course will be on developing an understanding of the principles of equity and
their practical application. In this respect cases will be discussed and studied, but primarily as
examples of the application of principle, and as a means of understanding particular principles, rather
than as an end in themselves. Students are expected to identify and grasp the equitable issues
arising in a given set of facts and, also, how a court exercising an equitable jurisdiction would deal with
those issues in applying the principles discussed in the course to grant or refuse relief.
At the conclusion of the Equity course, students should be able to:
 Describe the key principles of equity and trusts law;
 Select equitable principles applicable to a given set of facts;
 Apply key principles of equity and trusts to factual scenarios;
 Draw conclusions regarding the likely outcome of applying equitable principles to problems;
 Compare and contrast the common law and equity in Australia; and
 Reflect on the application of equitable principles to real world situations.
LECTURERS
Prof Peter Radan, BA, LLB, PhD (Syd), DipEd (SCAE)
Peter Radan is a Professor of Law at Macquarie Law School. He holds the degrees of Bachelor of
Arts, Bachelor of Laws and Doctor of Philosophy from the University of Sydney, as well as a Diploma
in Education from Sydney College of Advanced Education. He has been a teacher with the Law
Extension Committee since 1984. His most recent published books include (with C Stewart) Principles
of Australian Equity & Trusts (2nd ed, LexisNexis, 2013); (with C Stewart & I Vickovich), Principles of
Australian Equity & Trusts, Cases & Materials (2nd ed, LexisNexis, 2014) and (with J Gooley & I
Vickovich) Principles of Australian Contract Law (3rd ed, LexisNexis, 2014).
Prof Cameron Stewart, BEc, LLB(Hons), GradDipJur, GradDipLegal Prac, PhD
Cameron Stewart is Professor at Sydney Law School and has lectured in property and equity for many
years. He has published widely on matters of health law, guardianship and human tissue regulation.
His most recent published books include (with P Radan) Principles of Australian Equity & Trusts (2nd
ed, LexisNexis, 2013) and (with P Radan & I Vickovich), Principles of Australian Equity & Trusts,
Cases & Materials (2nd ed, LexisNexis, 2014).
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
2
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
The History and Nature of Equity; The Relationship between Law and Equity; Assignments of Property
in Equity; Priorities; Fiduciary Obligations; Estoppel in Equity; Confidential Information;
Unconscionable Transactions; Introduction to Trusts; The Creation of Express Trusts; Variation and
Termination of Trusts; Charitable Trusts; Resulting Trusts; Constructive Trusts; The Duties of
Trustees; The Powers of a Trustee; The Rights of Trustees; Beneficiaries; and Equitable Remedies &
Defences.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed cases contained in the Law Extension Committee's course outline.
All enquiries concerning the March 2016 examination should be directed to the Legal Profession
Admission Board.
3
LECTURE PROGRAM
Lectures in Equity will be held on Thursdays from 6.00pm until 9.00pm. In the first half of the
semester, lectures will be held in Chemistry Lecture Theatre 3 (ChLT3). After the study break, they will
be held in Carslaw Lecture Theatre 273 (CLT 273). For details as to the location of these venues, refer
to page 53 of the Course Information Handbook for a map of the University of Sydney main campus.
Please note that this program is a general guide and may be varied according to necessity. Readings
are suggested to introduce you to the material to be covered in the lecture, to enhance your
understanding of the topic, and to encourage further reading. You should not rely on them alone.
WEEK
1
12 Nov
VENUE
ChLT3
TOPIC
KEY READING
The History and Nature of Equity
The Relationship between Law and
Equity
Principles of Australian Equity
and Trusts (‘PAET’), Chp 1, 2 &
3; Principles of Australian Equity
and Trusts: Cases and Materials
(‘CM’) Chp 1, 2 & 3
(Peter Radan)
2
19 Nov
ChLT3
Nature of Equitable Interests,
Dispositions of Property
(Peter Radan)
3
26 Nov
4
3 Dec
5
10 Dec
ChLT3
Fiduciary Obligations
ChLT3
The Nature of Trusts
The Creation of Express Trusts
(Peter Radan)
(Cameron Stewart)
ChLT3
Variation and Termination of Trusts
Charitable Trusts
(Cameron Stewart)
6
17 Dec
ChLT3
Resulting Trusts
(Cameron Stewart)
PAET Chps 4, 5 & 6; CM Chps
4, 5 & 6
PAET Chp 9; CM Chp 9
PAET Chps 15 & 16; CM 15 &
16
PAET Chps 17 & 18; CM Chps
17 & 18
PAET Chp 19; CM Chp 19
Study Break: Friday 18 December 2015 – Sunday 10 January 2016
7
14 Jan
8
21 Jan
CLT 273
Constructive Trusts
CLT 273
Trustees
Beneficiaries
Tracing
(Cameron Stewart)
PAET Chp 28; CM Chp 28
PAET Chps 20, 21 & 29; PAET
Chps 20, 21 & 29
(Cameron Stewart)
9
28 Jan
10
4 Feb
CLT 273
Revision on Trusts
CLT 273
Declarations
Injunctions
Mareva and Anton Pillar Orders
(Cameron Stewart)
PAET Chps 22, 24 & 25; CM
Chps 22, 24 & 25
(Peter Radan)
11
11 Feb
CLT 273
12
18 Feb
CLT 273
13
25 Feb
CLT 273
Specific Performance
Monetary Remedies in Equity
(Peter Radan)
Other Equitable Remedies
Equitable Defences
(Peter Radan)
Estoppel in Equity
Confidential Information
(Peter Radan)
PAET Chps 23 & 26; CM Chps
23 & 26
PAET Chps 30 & 31; CM 30 &
31
PAET Chps 12 & 8; CM Chps
12 & 8
4
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend on the
understanding that weekend schools are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These
programs are a general guide and may be varied according to need. Students are expected to have
read the relevant chapters of the text in advance of the lectures. You are advised to comply with this
reading to enhance your understanding of the topic and to encourage further reading.
The listed topics for lectures and times are set as a guide only. The time taken to cover individual
topics may vary.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Friday 27 November 2015: 5.00pm – 9.00pm in Carslaw Lecture Theatre 175 (CLT 175)
5.10pm-6.20pm
The History and Nature of Equity
The Relationship between Law and Equity
6.30pm-7.35pm
Nature of Equitable Interests
Dispositions of Property
7.45pm-9.00pm
Fiduciary Obligations
Principles of Australian Equity and
Trusts (‘PAET’), Chp 1, 2 & 3;
Principles of Australian Equity and
Trusts: Cases and Materials
(‘CM’) Chp 1, 2 & 3
PAET Chps 4, 5 & 6; CM Chps 4,
5&6
PAET Chp 9; CM Chp 9
Saturday 28 November 2015: 8.00am – noon in New Law School Lecture Theatre 024
(New LSLT 024)
8.10am-9.20am
9.30am-10.40am
10.45am-11.45am
The Nature of Trusts
The Creation of Express Trusts
Variation and Termination of Trusts
Charitable Trusts
PAET Chps 15 & 16; CM Chps 15
& 16
PAET Chp 17; CM Chp 17
PAET Chp 18; CM Chp 18
5
Weekend School 2
TIME
MAJOR TOPICS
KEY READING
Friday 29 January 2016: 5.00pm – 9.00pm in New Law School Lecture Theatre 026
(New LSLT 026)
5.10pm-6.20pm
6.30pm-7.35pm
7.45pm-9.00pm
Specific Performance
Injunctions
PAET Chps 23 & 24; CM Chps 23
& 24
Monetary Remedies in Equity
PAET Chp 26; CM Chp 26
Equitable Defences
PAET Chp 31; CM Chp 31
Saturday 30 January 2016: 8.00am – noon in New Law School Lecture Theatre 024
(New LSLT 024)
8.10am-9.20am
9.30am-10.40am
10.45am-11.45am
Resulting Trusts
Constructive Trusts
Trustees
Beneficiaries
Tracing
PAET Chp 19; CM Chp 19
PAET Chp 28; CM Chp 28
PAET Chps 20, 21 & 29; PAET
Chps 20, 21 & 29
6
TEXTS AND MATERIALS
Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Other materials may be made available on the LEC Webcampus
Prescribed Texts

P. Radan and C. Stewart, Principles of Australian Equity and Trusts, 2nd ed, LexisNexis, 2013,
(together with up-dates available on the LEC Webcampus) (hereafter referred to as ‘PAET’)

P Radan, C Stewart and I Vickovich, Principles of Australian Equity and Trusts - Cases &
Materials, 2nd ed, LexisNexis, 2014 (hereafter referred to as ‘CM’)
Recommended Materials

G Dal Pont, Equity and Trusts in Australia and New Zealand, 6th ed, Thomson Reuters, 2015

G Dal Pont, Equity and Trusts: Commentary and Materials, 6th ed, Thomson Reuters, 2015

Dal Pont and Cockburn, Equity and Trusts: In Principle, 3rd ed, Thomson Reuters, 2014

M B Evans, Equity and Trusts, 3rd ed, LexisNexis, Sydney, 2012

H A J Ford & W A Lee, Principles of the Law of Trusts, 3rd ed, Thomson Reuters, 1995 (now
loose leaf)

J D Heydon & M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed, LexisNexis, Sydney, 2006

J D Heydon, & P Loughlan, Cases and Materials on Equity and Trusts, 8th ed, LexisNexis,
Sydney, 2011

J. D. Heydon, M J Leeming & P G Turner, Meagher, Gummow & Lehane's Equity - Doctrines and
Remedies, 5th ed, LexisNexis, Sydney, 2015

D S K Ong, Ong on Equity, Federation Press, 2011

D S K Ong, Trusts Law in Australia, 4th ed, Federation Press, 2012

P W Young, C Croft & M L Smith, On Equity, Thomson Reuters, 2009
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the Webcampus.
Regularly check the Course Materials section in the LEC Webcampus for additional materials, notes,
assignment questions and other relevant research sites.
7
COMPULSORY ASSIGNMENT
In Equity, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date. A pass mark
is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the
assignment grading and assessment criteria. Students who fail to satisfy the compulsory
requirements will be notified through the Results screen on the Webcampus before the
examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Wednesday 27 January 2016
(Week 9)
ASSIGNMENT QUESTIONS
To obtain a copy of the Equity assignment for the Summer Session 2015-16, please follow the
instructions below:
1.
Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
8
PRESCRIBED TOPICS AND COURSE OUTLINE
Note: All items listed under ‘Key Readings’ are found in CM, unless otherwise
indicated
Lecture One
(12 Nov)
The History and Nature of Equity
The Relationship between Law and Equity
[PAET, Chapters 1, 2 and 3; CM Chapters 1, 2 and 3]
The History of Equity
Questions to guide your reading:
 What were the key stages in the development of the law of equity?
 How has the historical development of the law of equity affected its modern
application?
Key readings:
 St Germain, ‘What is Equytie’
 Avini, ‘The waqf and the trust’
 Stebbings, ‘The trust in Victorian England’
 Auchmuty, ‘Equity “Looking After” Women’
 Dickens, ‘In Chancery’
 Mason, ‘Variety and Stages of Fusion’
 McPherson, ‘Judicial Reception of Equity’
The Nature of Equity
Questions to guide your reading:
 What are the key underlying principles that guide equity’s intervention?
 What is an ‘equitable maxim’?
 What are the most significant equitable maxims?
Key cases and readings:
 Parkinson, ‘The Conscience of Equity’
 Jackson, ‘The Maxims of Equity Revisited’
 King v The Chiltern Dog Rescue [2015] EWCA Civ 581 (available on WebCampus)
 Kirby, ‘Reasons for Equity to Grow’
 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552
The Relationship between Law and Equity
Questions to guide your reading:
 How did the Judicature Act change the administration of law and equity?
 What is a ‘fusion fallacy’?
 Should legal and equitable principles influence each other?
Key cases and readings:
 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
 Walsh v Lonsdale (1882) 2 Ch D 9
 Chan v Cresdon Pty Ltd (1989) 168 CLR 242
9
Lecture Two
(19 Nov)
Nature of Equitable Interests and Dispositions of Property
[PAET, Chapters 4, 5 and 6; CM Chapters 4, 5 and 6]
The Nature of Equitable Interests
Questions to guide your reading:
 What are the indicia of a proprietary equitable interest?
 What is the difference between an equitable interest, a personal equity and a mere
equity?
Key cases and readings:
 Gross v Lewis Hillman Ltd [1970] Ch 445
 Commissioner of Stamp Duties (Qld) v Livingston (1965) AC 694; (1960) 107 CLR
411
 Horton v Jones (1935) 53 CLR 475
 Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265
 Hepburn, ‘The Benefits of Equitable Classification’
Assignments
This section of the course deals with the issues concerning the recognition in equity of
assignments of property or interests in property, both legal and equitable. In assessing
whether a court of equity will uphold or recognise any purported assignment it is essential to
correctly identify the components of the assignment, both as to form and content, in order to
identify the rules which determine the validity of that particular transaction. Satisfy yourself on
the following points:
(a)
(b)
(c)
(d)
Who is the assignor?
Who is the assignee?
What interest cannot be assigned?
What are the requirements for the assignment of property at law, especially the
assignment of a debt?
When do you need to consider whether an interest has been assigned in equity?
What are the rules for the assignment of property in equity?
What is meant by a disposition of property?
When, if at all, is a disposition of property required to be in writing?
(e)
(f)
(g)
(h)
Key cases and readings:











Tettenborn, ‘Champerty and Assignments’
Equuscorp Pty Ltd v Haxton (2012) 286 ALR 12
Austino Wentworthville Pty Ltd v Metroland Australia Ltd [2013] NSWCA 2013
Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614
Norman v Federal Commissioner of Taxation (1962) 109 CLR 9
Shepherd v Commissioner of Taxation of the Commonwealth of Australia (1965) 113
CLR 385
Re Lind, Industrials Finance Syndicate Ltd v Lind [1915] 2 Ch 345
Corin v Patton (1990) 169 CLR 540
Grey v Inland Revenue Commissioners [1960] AC 1
Vandervell v Inland Revenue Commissioners [1967] 2 AC 291
Oughtred v Inland Revenue Commissioners [1960] AC 206
10
Lecture Three
(26 Nov)
Fiduciary Obligations
PAET Chapter 9; CM Chapter 9
Fiduciary Obligations
Questions to guide your reading:
 What is a fiduciary relationship?
 When will a fiduciary relationship be imposed?
 When will a fiduciary breach their duty?
 What are the defences to a breach of fiduciary duty?
Key cases:
 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
 Boardman v Phipps [1967] 2 AC 46
 Westpac Banking Corporation v The Bell Group (No 3) (2012) 44 WAR 12
 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
 Paramasivam v Flynn (1998) 90 FCR 489
 Breen v Williams (1995) 186 CLR 71
 Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178
 Howard v Commissioner of Taxation (2014) 253 CLR 83 (available on WebCampus)
11
Lecture Four
(3 Dec)
Nature of Trusts & The Creation of Express Trusts
PAET Chapters 15 & 16; CM Chapters 15 & 16
Introduction to Trusts
Questions to guide your reading
 What are the differences between trusts and contracts, fiduciary obligations, agency,
charges, conditional dispositions, debt and equitable obligations?
Key cases:
 Gosper v Sawyer (1985) 160 CLR 548
 Visnic v Sywak (2009) 257 ALR 517
 Olma v Amendola [2004] SASC 274
 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
 Hammond v Hammond [2007] NSWSC 106
Creation of Express Trusts
 What are the three certainties?
 What are the requirements for proper constitution of the trust?
Key cases:
 Byrnes v Kendle (2011) 243 CLR 253
 Shortall v White [2007] NSWCA 372
 White v Shortall (2006) 68 NSWLR 650
 McPhail v Doulton [1971] AC 424
 Pascoe v Boensch (2008) 250 ALR 24
12
Lecture Five
(10 Dec)
Variation and Termination of Trusts
Charitable Trusts
[PAET, Chapters 17 and 18; CM Chapters 17 and 18]
Variation and Termination of Trusts
Questions to guide your reading
 What are the conditions under which a variation of trust can occur?
 What is the test for illegality?
 How does public policy effect the creation of trusts?
 What is the modern rule of perpetuities?
Key cases:
 Stein v Sybmore Holdings [2006] NSWSC 1004
 Nelson v Nelson (1995) 184 CLR 538
 Ashton v Pratt (No 2) [2012] NSWSC 3
 Ellaway v Lawson [2006] QSC 170
 Nemesis Australia Pty Ltd v Commissioner of Taxation (2005) 225 ALR 576
Charitable Trusts
Questions to guide your reading:
 What is the definition of charity?
 Define poverty
 Define advance of education
 Define advancement of religion
 Define ‘beneficial to the community’
 What are cy-pres schemes?
Key cases:
 Commissioner for Special Purposes of the Income Tax v Pemsel [1891] AC 531
 Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539
 Ballarat Trustees Executors & Agency Co v Federal Commissioner of Taxation (1950)
80 CLR 350
 Oppenheim v Tobacco Securities Co Ltd [1951] AC 297
 Commissioner of Taxation v Word Investments (2008) 236 CLR 204
 The Incorporated Council of Law Reporting of the State of Queensland v Federal
Commissioner of Taxation (1971) 125 CLR 659
 Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209
13
Lecture Six
(17 Dec)
Resulting Trusts
[PAET, Chapter 19; CM Chapter 19]
Questions to guide your reading:
 What are the two different kinds of resulting trusts?
 When does the presumption of resulting trust arise?
 When does the presumption of advancement arise?
 What evidence can be brought to reverse the presumptions?
Key cases:
 Re Gillingham Bus Disaster Fund [1958] Ch 300 519
 Calverley v Green (1984) 155 CLR 244
 Anderson v Anderson (No 2) [2012] WASC 19
 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278
14
Lecture Seven
(14 Jan)
Constructive Trusts
[PAET, Chapter 28; CM Chapter 28]
Questions to guide your reading:
 What are the key characteristics of a constructive trust?
 When is a constructive trust institutional or remedial?
 When are constructive trusts available?
Key cases:
 Muschinski v Dodds (1985) 160 CLR 583
 Black v S Freedman & Co (1910) 12 CLR 105
 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296
 Westpac Banking Corporation v The Bell Group (No 3) (2012) 44 WAR 12
15
Lecture Eight
(21 Jan)
Trustees
Beneficiaries
Tracing
[PAET, Chapters 20, 21 and 29; CM Chapters 20, 21 and 29]
Key cases:
 Nolan v Collie (2003) 7 VR 287
 Byrnes v Kendle (2011) 243 CLR 253
 McDonald v Ellis (2007) 72 NSWLR 605
 Karger v Paul [1984] VR 161
 Secretary, Department of Families, Housing, Community Services and Indigenous
Affairs v Elliott (2009) 174 FCR 387
 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98
 Kennon v Spry (2008) 238 CLR 366
 Foskett v McKeown [2001] 1 AC 102
 Re French Caledonia Travel (2003) 59 NSWLR 361
Lecture Nine
(28 Jan)
Revision on the Law of Trusts
16
Lecture Ten
(4 Feb)
Declarations
Injunctions
Mareva & Anton Pillar Orders
PAET Chapters 22, 24 & 25; CM Chapters 22, 24 & 25]
Declarations
Questions to guide your reading:
 On what basis can courts make declarations?
 What is the equitable jurisdiction for declarations?
Key cases:
 ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378
 Forster v Jododex Pty Ltd (1972) 127 CLR 421
 Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146
CLR 493
 Sankey v Whitlam (1978) 142 CLR 1
Injunctions
Questions to guide your reading:
 What is the difference between prohibitive and mandatory injunctions?
 When will an injunction be granted in equity’s auxiliary jurisdiction?
 When will an injunction be granted in equity’s exclusive jurisdiction?
 What is the difference between perpetual and interlocutory injunctions?
 When will an interlocutory injunction be granted?
Key cases:
 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
 Redland Bricks Ltd v Morris [1970] AC 652
 European Bank Ltd v Evans (2010) 240 CLR 432
 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 229 ALR 457
 Warner Bros Pictures Inc v Nelson [1937] 1 KB 209
 Cooney v The Council of the Municipality of Ku-Ring-Gai (1963) 114 CLR 582
 Gouriet v Union of Post Office Workers [1978] AC 435
 The Attorney-General, on the Relation of Daniels, Steward and Wells v Huber,
Sandy, and Wichmann Investments Pty Ltd (1971) 2 SASR 142
Mareva & Anton Piller Orders
Questions to guide your reading:
 What is the purpose of a Mareva order?
 What are the requirements for obtaining a Mareva order?
 What is the purpose of an Anton Piller order?
 What are the requirements for obtaining an Anton Piller order?
Key cases:
 Jackson v Sterling Industries Ltd (1987) 71 ALR 457
 Cardile v LED Builders Pty Limited (1999) 198 CLR 380
 Anton Piller KG v Manufacturing Process Limited [1975] 1 Ch 55
 Celanese Canada Inc v Murray Demolition Corporation (2006) 269 DLR (4th) 193
 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545
17
Lecture Eleven
(11 Feb)
Specific Performance
Monetary Remedies in Equity
[PAET Chapters 23 and 26; CM Chapters 23 and 26]
Specific performance
Questions to guide your reading:
 When will specific performance be an appropriate remedy?
 What jurisdictional factors will preclude an order for specific performance?
 What discretionary factors may lead to an order for specific performance being
refused?
 When will equity enforce a contract that does not comply with the statutory writing
requirement?
Key cases
 Beswick v Beswick [1968] AC 58
 Falcke v Grey (1859) 62 ER 250
 C H Giles & Co Ltd v Morris [1972] 1 All ER 960
 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
 Mehmet v Benson (1965) 113 CLR 295
 Khoury v Khouri (2006) 66 NSWLR 241
Equitable compensation
Questions to guide your reading:
 What are the differences between equitable compensation and damages?
 What is the purpose of equitable compensation?
 When may a court award equitable damages?
Key cases:
 Re Dawson (dec'd) [1966] 2 NSWR 211
 Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 1654
 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
 Johnson v Agnew [1980] AC 367
 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) VR 311
18
Lecture Twelve
(18 Feb)
Other Equitable Remedies
Equitable Defences
[PAET Chapters 30 & 31; CM Chapters 30 & 31]
Other Equitable Remedies
Key cases
 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603
 George Wimpey UK Ltd v VI Construction Ltd [2005] EWCA 77
 Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179 CLR 101
Equitable Defences
Key cases:
 Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060
 Lamshed v Lamshed (1963) 109 CLR 440
 Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of NSW Nominees
[2013] NSWSC 1168
 Gerace v Auzhair Supplies Pty Ltd (2014) 310 ALR 85 (available on Webcampus)
19
Lecture Thirteen
(25 Feb)
Estoppel in Equity
Confidential Information
[PAET Chapters 12 and 8; CM Chapters 12 and 8]
Estoppel in Equity
Questions to guide your reading:
 What is an estoppel?
 What are the elements of equitable estoppel?
 What is the aim of relief for equitable estoppel?
Key cases:
 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
 Commonwealth v Verwayen (1990) 170 CLR 394 (at 434-436)
 Thorner v Major [2009] 3 All ER 945
 Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101
 Giumelli v Giumelli (1999) 161 ALR 473
 Delaforce v Simpson-Cook (2010) 78 NSWLR 483
 Sidhu v Van Dyke (2014) 251 CLR 505 (available on Webcampus)
Confidential Information
Questions to guide your reading:
 What are the elements of the modern doctrine of breach of confidence?
 What is ‘confidential information’?
 When will there be an obligation of confidence?
 What is the test for establishing a breach of the duty of confidence?
 What are the possible defences for breach of the duty of confidence?
Key cases:
 Prince Albert v Strange (1849) 47 ER 1302
 Morison v Moat (1852) 68 ER 492
 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414
 Coco v A N Clark (Engineers) Ltd [1969] RPC 41
 Australian Football League v Age Company Ltd (2006) 15 VR 19
 Del Casale v Artedomus (Aust) Pty Limited [2007] NSWCA 172
 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
 Giller v Procopets (2008) Fam LR 378
 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208
CLR 199