Lecture One Guides_Summer... · Web viewCourse Description and Objectives 1 Lecturers 1 Assessment 1-2 March 2018 Examination 2 Texts and Materials 3 Lecture Program 4 Weekend Schools

Lecture One

1

2

Diploma in Law

LEGAL PROFESSION

ADMISSION BOARDLAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

07 EQUITY

SUMMER SESSION 2017-18

This Guide includes the Law Extension Committees course information and teaching program and the Legal Profession Admission Boards 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

1

Lecturers

1

Assessment

1-2

March 2018 Examination

2

Texts and Materials

3

Lecture Program

4

Weekend Schools 1 and 2

5-6

Compulsory Assignment

7

Assignment Questions

7

Prescribed Topics and Course Outline

8-20

Revision Questions

21-29

LAW EXTENSION COMMITTEESUMMER 2017-18

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), FAAL

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 (3rd ed, LexisNexis, 2016); (with C Stewart & I Vickovich), Principles of Australian Equity & Trusts, Cases & Materials (3rd ed, LexisNexis, 2016); and (with J Gooley & I Vickovich) Principles of Australian Contract Law (4th ed, LexisNexis, forthcoming, 2018).

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 (3rd ed, LexisNexis, 2016) and (with P Radan & I Vickovich), Principles of Australian Equity & Trusts, Cases & Materials (3rd ed, LexisNexis, 2016).

ASSESSMENT

To be eligible to sit for the Boards 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.

Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a students 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 Boards 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 LPABs 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 students overall mark after the examination is between 40-49%, the students assignment in that subject will be included in the Revising Examiners review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

MARCH 2018 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; Fiduciary Obligations; Estoppel in Equity; Confidential Information; 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 examination should be directed to the Legal Profession Admission Board.

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, 3rd ed, LexisNexis, 2016, (together with up-dates available on the LEC Webcampus) (hereafter referred to as Textbook)

P Radan, C Stewart and I Vickovich, Principles of Australian Equity and Trusts - Cases & Materials, 3rd ed, LexisNexis, 2016 (hereafter referred to as Casebook)

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, 4th ed, LexisNexis, Sydney, 2016

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, 8th ed, LexisNexis, Sydney, 2016

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

LexisNexis Questions and Answers Equity and Trusts, 4th ed, 2013

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.

LECTURE PROGRAM

Lectures in Equity will be held on Thursdays from 6-00pm until 9-00pm. For details as to the location of venues, refer to 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

VENUE

TOPIC

KEY READING

1

9 Nov

CLT 373

The History and Nature of Equity

The Relationship between Law and Equity

(Peter Radan)

Textbook - Chapters 1, 2 & 3; Casebook - Chapters 1, 2 & 3

2

16 Nov

CLT 373

Nature of Equitable Interests, Dispositions of Property

(Peter Radan)

Textbook - Chapters 4, 5, 6 & 7 Casebook - Chapters 4, 5, 6 & 7

3

23 Nov

CLT 373

Fiduciary Obligations

(Peter Radan)

Textbook - Chapter 10

Casebook - Chapter 10

4

30 Nov

CLT 373

Confidential Information

Introduction to Trusts

(Cameron Stewart)

Textbook - Chapters 9 & 20

Casebook Chapters 9 & 20

5

7 Dec

CLT 373

The Creation of Express Trusts

Variation and Termination of Trusts

(Cameron Stewart)


Casebook - Chapters 21 & 22

6

14 Dec

CLT 373

Charitable Trusts

(Cameron Stewart)



Study Break: Saturday 16 December 2017 Sunday 7 January 2018

7

11 Jan

New Law LT 101

Resulting Trusts

(Cameron Stewart)


Casebook - Chapter 25

8

18 Jan

New Law LT 101

Constructive Trusts

(Cameron Stewart)



9

25 Jan

New Law LT 101

Trustees

Beneficiaries

Tracing

(Cameron Stewart)

Textbook - Chapters 26, 27 & 37

Casebook - Chapters 26, 27 & 37

10

1 Feb

New Law LT 101

Declarations

Specific Performance

Injunctions

(Cameron Stewart)

Textbook - Chapters 28, 29 & 30

Casebook - Chapters 28, 29 & 30

11

8 Feb

New Law LT 101

Freezing & Search Orders

Monetary Remedies in Equity

(Cameron Stewart)



12

15 Feb

New Law LT 101

Equitable Defences

Equitable Estoppel

(Cameron Stewart)

Textbook Chapters 14 & 39


13

22 Feb

New Law LT 101

Problem Solving & Revision

(Cameron Stewart)

See problem questions at end of study guide

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

Saturday 25 November 2017: 8.00am noon in Abercrombie Lecture Theatre 1130

8.00am-9.20am

The History and Nature of Equity


(Peter Radan)

Textbook - Chapters 1, 2 & 3 Casebook Chapters 1, 2 & 3

9.30am-10.40am

Nature of Equitable Interests

Dispositions of Property

(Peter Radan)

Textbook - Chapters 4, 5, 6 & 7; Casebook Chapters 4, 5, 6 & 7

10.45am-11.45am


(Peter Radan)


Casebook Chapter 10

Sunday 26 November 2017: noon 4pm in Abercrombie Lecture Theatre 2150

12.10pm-1.20pm

Specific Performance, Injunctions

(Peter Radan)



1.30pm-2.35pm


(Peter Radan)

Textbook Chapter 32

Casebook Chapter 32

2.45pm-4.00pm

Equitable Defences

(Peter Radan)

Textbook Chapter 39

Casebook Chapter 39

Weekend School 2

TIME

MAJOR TOPICS

KEY READING

Saturday 3 February 2018: 8.00am noon in New Law School Lecture Theatre 106

8.00am-9.20am


The Creation of Express Trusts

(Peter Radan)

Textbook Chapters 20 & 21 Casebook Chapters 20 & 21

9.30am-10.40am


(Peter Radan)

Textbook Chapter 22

Casebook Chapter 22

10.45am-11.45am

Charitable Trusts

(Peter Radan)



Sunday 4 February 2018: noon 4pm in New Law School Lecture Theatre 024

12.10pm-1.20pm

Resulting Trusts

(Peter Radan)

Textbook Chapter 25

Casebook Chapter 25

1.30pm-2.35pm

Constructive Trusts

(Peter Radan)



2.45pm-4.00pm

Trustees, Beneficiaries, & Tracing

(Peter Radan)

Textbook Chapters 26, 27 & 37

Casebook Chapters 26, 27 & 37

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

Monday 11 December 2017

(Week 6)

ASSIGNMENT QUESTIONS

To obtain a copy of the Equity assignment for the Summer Session 2017-18, please follow the instructions below:

1. Register online with the LEC (see page 24 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.

PRESCRIBED TOPICS AND COURSE OUTLINE

Note: All items listed under Key Readings are found in the Casebook, unless otherwise indicated

Lecture One The History and Nature of Equity


Textbook - Chapters 1, 2 & 3; Casebook - Chapters 1, 2 & 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


What are the key underlying principles that guide equitys 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

Kirby, Reasons for Equity to Grow

Levenstein, Aiding the Vigilant



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:

Harris v Digital Pulse Pty Ltd

Walsh v Lonsdale

Chan v Cresdon Pty Ltd

Lecture Two Nature of Equitable Interests and Dispositions of Property

Textbook - Chapters 4, 5, 6 & 7; Casebook - Chapters 4, 5, 6 & 7

The Nature of Equitable Interests


What are the indicia of a proprietary equitable interest?

What is the difference between an equitable interest, a personal equity and a mere equity?


Gross v Lewis Hillman Ltd

Commissioner of Stamp Duties (Qld) v Livingston

Horton v Jones

Latec Investments Ltd v Hotel Terrigal Pty Ltd

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)Who is the assignor?

(b)Who is the assignee?

(c)What interest cannot be assigned?

(d)What are the requirements for the assignment of property at law, especially the assignment of a debt?

(e)When do you need to consider whether an interest has been assigned in equity?

(f)What are the rules for the assignment of property in equity?

(g)What is meant by a disposition of property?

(h)When, if at all, is a disposition of property required to be in writing?


Austino Wentworthville Pty Ltd v Metroland Australia Ltd

Comptroller of Stamps (Victoria) v Howard-Smith

Norman v Federal Commissioner of Taxation

Shepherd v Commissioner of Taxation of the Commonwealth of Australia

Re Lind, Industrials Finance Syndicate Ltd v Lind

Corin v Patton

Grey v Inland Revenue Commissioners

Vandervell v Inland Revenue Commissioners

Oughtred v Inland Revenue Commissioners

Tettenborn, Champerty and Assignments

Equuscorp Pty Ltd v Haxton

Lecture Three Fiduciary Obligations

Textbook - Chapter 10; Casebook Chapter 10



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

Boardman v Phipps

United Dominions Corporation Ltd v Brian Pty Ltd

Paramasivam v Flynn

Breen v Williams

Howard v Commissioner of Taxation

Lecture Four Confidential Information & Introduction to Trusts

Textbook - Chapters 9 & 20; Casebook - Chapters 9 & 20

Confidential Information


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

Morison v Moat

Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2)

Coco v A N Clark (Engineers) Ltd

Australian Football League v Age Company Ltd

Del Casale v Artedomus (Aust) Pty Limited

Commonwealth v John Fairfax & Sons Ltd

Giller v Procopets

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited


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

Visnic v Sywak

Olma v Amendola

Countess of Bective v Federal Commissioner of Taxation

Barclays Bank Ltd v Quistclose Investments Ltd

Hammond v Hammond

Lecture FiveCreation of Express Trusts and Variation & Termination of Trusts

Charitable Trusts


Creation of Express Trusts


What are the three certainties?

What are the requirements for proper constitution of the trust?

Key cases:

Byrnes v Kendle

White v Shortall

McPhail v Doulton

Pascoe v Boensch


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

Nelson v Nelson

Ashton v Pratt

Ellaway v Lawson

Nemesis Australia Pty Ltd v Commissioner of Taxation

Lecture Six Charitable Trusts


Charitable Trusts


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

Aid/Watch Inc v Commissioner of Taxation

Ballarat Trustees Executors & Agency Co v Federal Commissioner of Taxation

Oppenheim v Tobacco Securities Co Ltd

Commissioner of Taxation v Word Investments

The Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation

Attorney-General (NSW) v Perpetual Trustee Co Ltd

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28 extract on WebCampus

Lecture Seven Resulting Trusts

Textbook - Chapter 25; Casebook - Chapter 25

Resulting Trusts


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

Calverley v Green

Anderson v Anderson (No 2)

Trustees of the Property of Cummins (a bankrupt) v Cummins

Lecture EightConstructive Trusts


Constructive Trusts


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

Black v S Freedman & Co

Grimaldi v Chameleon Mining NL (No 2)

Westpac Banking Corporation v The Bell Group (No 3)

Shepherd v Doolan

Lecture Nine Trustees, Beneficiaries and Tracing

Textbook - Chapters 26 (pp 638-691 only), 27 & 37; Casebook - Chapters 26, 27 & 37

Trustees

Key cases:

Nolan v Collie

Byrnes v Kendle

McDonald v Ellis

Karger v Paul

Beneficiaries

Key cases:

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Elliott

CPT Custodian Pty Ltd v Commissioner of State Revenue

Kennon v Spry

Tracing

Key cases:

Foskett v McKeown

Re French Caledonia Travel

Lecture TenDeclarations

Specific Performance

Injunctions

Textbook - Chapters 28, 29 (pp 754-774 & 780 only) & 30; Casebook - Chapters 28, 29 & 30

Declarations


On what basis can courts make declarations?

What is the equitable jurisdiction for declarations?

Key cases:

ACCC v MSY Technology Pty Ltd

Forster v Jododex Pty Ltd

Australian Conservation Foundation Inc v Commonwealth of Australia

Sankey v Whitlam

Specific performance


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?

Key cases

Beswick v Beswick

Falcke v Grey

C H Giles & Co Ltd v Morris

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd

Mehmet v Benson

Injunctions


What is the difference between prohibitive and mandatory injunctions?

When will an injunction be granted in equitys auxiliary jurisdiction?

When will an injunction be granted in equitys 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

Redland Bricks Ltd v Morris

European Bank Ltd v Evans

Australian Broadcasting Corporation v ONeill

Warner Bros Pictures Inc v Nelson

Gouriet v Union of Post Office Workers

The Attorney-General, on the Relation of Daniels, Steward and Wells v Huber, Sandy, and Wichmann Investments Pty Ltd

Lecture ElevenFreezing & Search Orders



Freezing & Search Orders


What is the purpose of a freezing order?

What are the requirements for obtaining a freezing order?

What is the purpose of a search order?

What are the requirements for obtaining a search order?

Key cases:

Jackson v Sterling Industries Ltd

Cardile v LED Builders Pty Limited

Anton Piller KG v Manufacturing Process Limited

Long v Specifier Publications Pty Ltd

Monetary Orders in Equity


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)

Wentworth v Woollahra Municipal Council

Johnson v Agnew

Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd

Lecture TwelveEquitable Defences

Equitable Estoppel

Textbook - Chapters 14, & 39; Casebook - Chapters 14, & 39

Equitable Defences

Key cases:

Black Uhlans Inc v New South Wales Crime Commission

Lamshed v Lamshed

Gerace v Auzhair Supplies Pty Ltd

AWA Ltd v Exicom Australia Pty Ltd

Commonwealth v Verwayen

Equitable Estoppel


What is 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

Commonwealth v Verwayen

Thorner v Major

Giumelli v Giumelli

Delaforce v Simpson-Cook

Sidhu v Van Dyke

Lecture Thirteen Revision and Problem Solving

Students should prepare, prior to this class, notes on answers to the questions set out at the end of the Study Guide, starting at page 21.

QUESTIONS FOR REVISION CLASS IN LECTURE 10.

Question 1 (from September 2017 Examination)

In 1973 Clark Kent came to Australia from the United States of America to take up a position as the managing director of Kryptonite Enterprises Ltd. As part of his salary package, 10,000 shares in Kryptonite Enterprises Ltd were transferred, at Clarks request, to KC Trustees Pty Ltd to hold as bare trustee for Clark.

In 1980 Clark purchased a Torrens title house at 11 Dundas Avenue, Mosman, but had it registered in the name of his loyal assistant manager at Kryptonite Enterprises Ltd, Jimmy Olsen. At the time of purchasing the Mosman property, Clark told Jimmy that the house was Jimmys for as long as he (Jimmy) lived. Clark kept the title deed and placed it in his safe at work.

Soon after arriving in Australia, Clark became good friends with Dick Tracey. In 1985 Dick introduced Clark to Lois Lane. Lois, who was five years younger than Clark, lived in a house that she owned at 43 Gotham Street, Kirribilli. Lois and Clark soon entered into an intimate relationship that was kept secret from everyone except their mutual friend Dick Tracey and Clarks loyal secretary, Della Street. Together, Lois and Clark had three sons, Larry, Curley, and Moe, born in 1988, 1989, and 1990 respectively. Lois and the children never lived with Clark, and the children were never told that Clark was their father. In 1994 Lois executed a will in which she appointed Dick Tracey as her executor and trustee, and left her entire estate to Larry, Curley, and Moe in equal shares as joint tenants.

In March 1995 Clark executed a will that was witnessed by Lois and Jimmy. Apart from Clause 5, which named Dick Tracey as Clarks residuary beneficiary, the other relevant provisions of the will were as follows:

1.I revoke all previous testamentary acts.

2.I appoint Dick Tracey as my executor and trustee.

3.I give my interest in the property at 11 Dundas Avenue, Mosman to Della Street.

4.I give my bank account with Metropolis Banking Corporation to the Parramatta Retirement Home.

In September 2013 Clark spoke about his will to Della Street and told her the terms of Clause 3. He also told Della that the he wanted her to be the trustee for Lois of his property interest in the Mosman property. Della said she would do so.

On 18 August 2017 Clark telephoned the manager of KC Trustees Ltd and said to him: I want Larry, Curley, and Moe to have my shares in Kryptonite Enterprises Ltd. Please transfer them to then as joint tenants. The manager replied: Very well.

On 21 August 2017 Lois and Clark were involved in a car accident in which Lois was killed instantly and Clark died the following day.

After Clarks death, Dick Tracey made enquiries and became aware of the following information:

(i) that the manager of KC Trustees Ltd had done nothing in relation to the verbal instructions he had received form Clark on 18 August 2017;

(ii) that, at the date of Clarks death, the account with the Metropolis Banking Corporation had a credit balance of $750,000; and

(iii) that Parramatta Retirement Home had recently changed its name to the Parramatta Retirement Village. The Village had as its sole objective: the care and welfare of, and the provision of facilities for, retired, aged, pensioned, and infirm persons.

In the light of the above facts, Dick Tracey seeks your advice as to the following:

(a)who is entitled to or has any interest in the property at 11 Dundas Avenue, Mosman;

(b)who is entitled to the shares in Kryptonite Enterprises Ltd; and

(c)who is entitled to the funds in Clarks account with Metropolis Banking Corporation.


Chandler and Monica married in 1999. Chandler worked as a marketing manager for an electronics company in Sydney. Monica did not work, but devoted much of her spare time to preparing meals as a volunteer for a number of charities catering to the needs of Sydneys homeless children. Chandler and Monica owned, as tenants-in-common in equal shares, a Torrens title home unit in Manly. Apart from the home unit, they jointly owned a car, furniture, and a bank account with EastPac Banking Corporation. In addition to these interests, Monica was the sole proprietor of shares in Central Perk Cafes Ltd. Central Perk Cafes Ltd is a large corporation operating over 25,000 cafes in over 150 countries.

In 2005 Chandler and Monica executed their wills. The executor and trustee of both wills was their friend Phoebe.

By clause 3 of his will, Chandler left his entire estate to Monica. Clause 4 of his will stipulated that if Monica predeceased him, the Manly home unit was to go to his and Monicas best friend, Joey, and that the rest of his estate would go to Monicas brother Ross.

Clause 2 of Monicas will stipulated that her shares in Central Perks Cafes Ltd were to be sold by Phoebe acting in her capacity as executor and trustee of the will. Clause 2 further stipulated that the sale proceeds were to be paid to the Breast Cancer Council of New South Wales. By clause 3 of her will Monica left the rest of her estate to Chandler. Clause 4 of her will stipulated that if Chandler predeceased her she left the Manly home unit to Joey and the rest of her estate to Ross.

At the time of executing their wills Chandler and Monica signed a document which acknowledged that by executing their wills they had set out their wishes as to what was to happen to their assets after they died and further that they agreed that, no matter what happened in the future, after they both had died, they wanted the Manly home unit to go to Joey and the rest of their jointly owned assets to go to Ross.

In 2011 the Breast Cancer Council of New South Wales, which conducted research into treatment of breast cancer, was disbanded and its assets and activities were taken over by the New South Wales Institute for Research into Breast Cancer.

In 2012 Chandler died. In accordance with his will, Chandlers entire estate was transferred to Monica.

In 2013 Joey died leaving a will in which his whole estate was left to his friend Rachel.

In 2015 Monica, who hated Rachel, transferred the Manly home unit to Ross for no consideration.

In August 2017, Monica died.

Phoebe seeks your advice as to the following:

(i)what is to happen to the sum of $2,000,000, being the proceeds of sale of Monicas shares in Central Perks Cafes Ltd; and

(ii)who is entitled to the Manly home unit.


In 2005 Cosmo made a will in which he appointed Jerry as his executor and left his entire estate to George.

In late June 2016 Cosmo entered into a written contract with Newman by which Newman assigned to Cosmo any dividends on my shares with Acme Investments Ltd that are to be paid to me on or before 31 July 2017 in return for a price of $2,500 to be paid by Cosmo within seven days of the execution of the contract. Cosmo paid Newman the sum of $2,500 two days after the contract was executed.

On 29 July 2017 Newman telephoned Cosmo and told him that he (Newman) had just received and banked a dividend cheque from Acme Investments Ltd in the sum of $4,000. This was the first dividend that the company had declared since 2010. Newman asked Cosmo for instructions as to what to do with the funds. Cosmo told him to hold the money on trust for their mutual friend Elaine, who was experiencing financial difficulties.

On 30 August 2017 Cosmo executed a Memorandum of Transfer in relation to his Torrens title house in Double Bay transferring it by way of gift to his life-long friend Larry. He gave the transfer to Larry and told him that he could collect the certificate of title to the land from his (Cosmos) solicitor.

On 1 September 2017, Larry attended the office of Cosmos solicitor to collect the certificate of title to the Double Bay house. The solicitor told him that he was unable to release the title document without written instructions to that effect from Cosmo. Larry then went to Cosmos home to get the written instructions that the solicitor wanted. When he arrived at Cosmos house he was greeted by Jerry with the news that Cosmo had died earlier that day after suffering a massive heart attack.

Jerry, as executor of Cosmos will, seeks your advice as to who is entitled to:

(a) the $4,000 received by Newman as dividends;

(b) the Double Bay house.


Alan is a trustee of 200 shares in a publicly listed company. The beneficiaries of the trust are Bruce, aged 22, and Clarence, aged 15.

Bruce seeks your advice as to whether he can demand that Alan transfer to him the legal title to half of the trust shares.

Question 5

In 2010 a trust, with Gina appointed as the trustee, was set up in relation to the following assets:

(i) 1,000 shares, each worth $10, in Gold Exploration Ltd (GEL), a publicly listed company valued at 250 million dollars;

(ii) a vacant residential property in Collaroy;

(iii) a supermarket in Mosman; and

(iv) the sum of $1,000,000 which was invested in a high interest account with Acme Banking Corporation Ltd (Acme).

The beneficiaries of the trust in equal shares to all the trust assets are Ginas children, John (now aged 28) and Bianca (now aged 14).

In early 2015 the Full Court of the Federal Court of Australia found Gina guilty of breaches of s 18 of the Australian Consumer Law in relation to certain actions she had taken in managing and operating the Mosman supermarket. Gina was ordered to pay, and did pay from her own funds, $500,000 in damages to the plaintiff in that case. Gina was also ordered to pay, and did pay from her own funds, the plaintiffs legal costs of $50,000. In the course of the Full Courts joint judgment, the court observed that Ginas actions that constituted the breach of s 18 were outrageous and bordering on criminal fraud. In relation to the damages and legal costs that she has paid to the plaintiff, Gina claims that she is entitled to a lien against the funds invested in Acme.

At all times since the trust was set up, the Collaroy property was vacant and Gina never sought to have it leased to a tenant.

At no time since the trust was established has Gina provided John or Bianca with copies of any trust documents or information about the s 18 litigation.

John, who is now very concerned about Ginas conduct as trustee, seeks your advice as to the following:

(i)whether he can have legal title to 500 shares in GEL transferred to him;

(ii)whether Gina is entitled to a lien over the funds deposited with Acme in relation to the damages paid to the plaintiff and the legal costs incurred in the s 18 litigation;

(iii)whether Gina has incurred any liability to the trust in relation to her management of the Collaroy property;

(iv)whether Gina is required to hand over to John copies of the trust deed, financial accounts relating to the trust and all documents in her possession as trustee relating to the s 18 litigation; and

(v) whether the Supreme Court of New South Wales can, and would, remove Gina as trustee and appoint a new trustee.

Question 6

Mark is the writer of the words and music to a famous pop song entitled American Fly recorded in the 1970s by Ron McLean. Mark has been receiving royalties ever since from Bizarro Productions Ltd, the music company that published all of McLeans musical recordings.

In March 2013, for valuable consideration, Mark assigned to Kelly my royalties from American Fly payable to me by Bizarro Productions Ltd for the 2014-2015 financial year.

On 1 August 2015, Bizarro Productions Ltd deposited $30,000 into Marks bank account with EastPac Banking Corporation in payment of his royalties for American Fly for 2014-2015. On the same day Mark advised Kelly about the receipt of the $30,000.

On 2 August 2015, Kelly telephoned Mark and directed him to hold his (Kellys) interest in the $30,000 on trust for his nephew Jack.

On 1 September 2015, Mark executed his will, in which he appointed Frank as executor. Clause 4 of Marks will stipulated as follows:

I give my bank account with Vanderlay Banking Corporation to my executor to hold on trust for the scholarships for students undertaking post-graduate research in American history with a preference to be given to the children of employees and former employees of Kramerica Enterprises Ltd.

Clause 5 of Marks will stipulated as follows:

I give my house at 22 Clarke Street, Manly to Manuel De la Vega on condition that he keep it as a home and provide board for his sisters Linda De La Vega and Maria De La Vega.

Clause 6 of Marks will stipulated as follows:

I give the residue of my estate to Basil.

Frank seeks your advice as to the following:

(i)who is entitled to the royalties received by Mark on 1 August 2015;

(ii)the effect of Clause 4 of Marks will; and

(iii)the effect of Clause 5 of Marks will.

Question 7

In the early 1990s Belindas husband was killed on active military service during the First Gulf War. As a result, she was entitled, pursuant to the War Veterans Act 1919 (Cth) (the Act), to a subsidised loan in relation to the purchase of a house or home unit. Section 45 of the Act stipulated that such subsidised loans were only available to a former soldiers widow if, at the time of purchasing the house or home unit, the widow owned no land or interest in land anywhere in Australia.

In 2001 Belinda and her niece Alicia decided to buy a Torrens title house in Warriewood for the sum of $500,000. Belinda and Alicia contributed equally towards the purchase price. However, the house was registered in Alicias name as sole registered proprietor. This was done because Belinda intended to apply for a subsidised loan pursuant to the Act at a later date to purchase another house. A few months after moving into the house Belinda and Alicia decided that it would be a good idea to add a couple of rooms to the house. This was done at a cost of $100,000 paid for by Alicia.

In 2005 Belinda purchased a house in Dee Why. To enable her to purchase this house she successfully applied for a subsidised loan pursuant to the Act. In her application for the subsidised loan, Belinda declared that she did not own land or any interest in land in Australia.

In mid-2015, following a falling out between Belinda and Alicia, the property at Warriewood was put up for sale. Last week, contracts for the sale of the property for $900,000 were exchanged. Alicia has told her aunt that she (Alicia) is entitled to the whole of the sale proceeds upon completion of the sale.

Belinda seeks your advice as to whether she (Belinda) has a claim to any of the proceeds of sale of the Warriewood house.

Question 8

Mark was the owner of a Torrens title property at 15 Lister Street, Manly. The certificate of title to the property was held in safe custody by Marks solicitor Bill. One month ago Mark instructed Bill to prepare the necessary documentation to have the property transferred to Teresa as a gift. A few days later Mark and Teresa went to Bill's office where they executed the Memorandum of Transfer that had been prepared by Bill. Bill advised them that the property had to be valued for stamp duty purposes and that, once a valuation had been done, stamp duty on the transaction had to be paid. He further advised them that, after the payment of stamp duty, the transfer, together with the certificate of title, would have to be lodged for registration, whereupon Teresa would become the registered proprietor of the Manly property. Mark then gave Bill a cheque to cover the stamp duty and other expenses involved in getting the property registered into Teresa's name.

Two days ago Mark telephoned Bill to enquire how things were proceeding in relation to the transfer of the Manly property to Teresa. Bill told him that stamp duty had been paid, that the valuation had been done and that he was going to lodge the transfer for registration on the next day. An hour after speaking to Bill, Mark was killed in a motor vehicle accident. Because of Marks death Bill did not lodge the transfer for registration.

In his will, Mark appointed his sister Gillian as his executrix, trustee, and residuary beneficiary. The will was executed on 29 November 2005. Clause 2 of Mark's will stipulated as follows: I give my property at 15 Lister Street, Manly to Joe on trust.

Clause 3 of Marks will stipulated as follows: I give my bank account with Eastpac Banking Corporation to Gillian on trust for the education of the descendants of three my nephews, Moe, Larry and Shemp.

After reading the terms of the will, Gillian approached Joe in relation to Clause 2. Joe, a close friend of Mark's, told Gillian that in early 2006: (i) Mark had told Joe that he (Mark) had made a will which stipulated that the property at Manly was to go to Joe, but that he (Mark) wanted Joe to hold that property on trust for somebody else; (ii) Mark gave Joe a sealed envelope in which he (Mark) said was a note containing the name of the person for whom Joe was to hold the property on trust; (iii) Mark instructed Joe that the envelope was not to be opened until he (Mark) had died; and (iv) Joe had said to Mark that he (Joe) would carry out Mark's instructions.

Joe then produced the envelope that he had received from Mark and opened it in Gillian's presence. Inside was a written note, signed by Mark, which, after referring to the provisions of clause 2 of his will, stated that Joe was to hold the Manly property on trust for Regina Falange. At the date of his death, Marks bank account with Eastpac Banking Corporation had a balance of $4,003,221.

Gillian seeks your advice as to:

(a) who is entitled to the Manly property; and

(b) the effect of Clause 3 of Mark's will.

Question 9

Jennifer is the registered proprietor of Torrens title land known as Leica Chalet. She was also the registered shareholder of 2,000 shares in Acme Constructions Ltd. Jennifer wanted to make a gift of property to her niece Evelyn. To do this she made oral declarations to the effect that she held Leica Chalet and the shares on trust for Evelyn.

A few days after Jennifers declarations, Evelyn, in a letter to Maralyn, wrote: I give to you any interest I have in Leica Chalet. In a telephone conversation with Jennifer on the same day Evelyn said: I want Maralyn to have my shares in Acme Constructions Ltd. Transfer them to her as soon as possible.

Evelyn died the next day, leaving a will in which Filipe was named as sole beneficiary of her entire estate.

Jennifer seeks your advice as to who is entitled, in law and equity, to Leica Chalet and the shares.

Question 10

Jack (born in 1950) and Jill (born in 1955) met in 1974 and entered into a de facto relationship in 1975. In 1976 they had a child named Zac. In 1987 they purchased a house in Richmond for $150,000. The purchase price was paid by Jack, the money coming to Jack as an inheritance from the estate of his late uncle. At the time of purchase Jack decided to have the property registered in his, Jills and Zacs names as tenants in common and in equal shares.

In 1994, when Zac reached his majority age Jack opened a bank account with the Western Sydney Bank Ltd in the joint names of Jack and Zac. All the money for the account was supplied by Jack. When opening the account Jack told Zac that he (Jack) alone would be making all the deposits into the account and would withdraw from the account whenever he wanted to. However, he also said that if anything should ever happen to him (ie Jack) the money then in the account would belong to Zac.

Two weeks ago Jack and Jill died instantly in a car accident. In his will Jack left his entire estate to Lucy, his daughter that he had fathered in 1972. In her will Jill left her entire estate to Zac. At the time of their deaths the Richmond property was worth $800,000, and the bank account at Western Sydney Bank Ltd had a balance of $5,000.

Lucy seeks your advice as to whether she has any entitlements in the Richmond property and the bank account, and, if not, who is entitled and to what extent.

Note: Students should ignore the provisions of any relevant statute and answer the question on the basis of the principles of equity.

Question 11

Characterise the following provisions contained in Lionels will:

a. I give the whole of my personal estate to James, whom I also appoint as my executor and trustee, subject to James paying the sum of $5,000 to my son Alvin within two years of the date of my death.

(Note: Assume that Lionel died three years ago and no payment has been made to Alvin).

b. I give my house in Cooma to Petra absolutely, with the hope that she will allow my mother to live there until she dies.

c. I give $2,000,000 to my trustees upon trust for the purchase or provision of an area of land in rural New South Wales to be used as a park or reservation or sanctuary for the purpose of the preservation and conservation of native Australian flora and fauna.

Question 12

In 2005 George Van Nostrum opened a bank account in the name of 'Nancy van Nostrum George van Nostrum, Trustee. At the time of opening the account, George never had any intention to hold the money in the account on trust for Nancy. The account was operated by George solely for his benefit and purposes.

Last week Nancy died. In her will Nancy left the whole of her estate to Benito. The bank account at the date of her death had a credit balance of $25,000.

Benito seeks your advice as to whether he is entitled to any interest in the bank account.

Question 13

Jack recently entered into two separate contracts with Kevin, a well-known painter. In the first contract Kevin agreed to sell to Jack, a guitar once used by the legendary rock guitarist, Eric Clapton. The contract price was $2,000, although the commercial value of the guitar was $15,000.

In the second contract Kevin agreed to paint Freds wooden garden furniture in return for Jack paying Kevin $1500 for the paint work to be done. Fred was Jacks next-door neighbour.

A few days ago Jack and Kevin had a serious argument following which Kevin told Jack that he was not going ahead with either of the contracts.

Jack seeks your advice as to whether he can insist on Kevin complying with his contractual obligations.


Jumbo Hi-Fi Ltd (Jumbo) operates a series of stores in New South Wales selling CDs and DVDs. All of its stores are very profitable, including the store in Goulburn that operates from premises leased from Amadio. However, Jumbo wants to re-locate its Goulburn store to a new location in Goulburn, and advises Amadio that it will be vacating the premises leased from him at the end of July 2017 and moving into new premises. Vacating the premises would be in breach of its lease with Amadio, which still has five years to run and requires Jumbo to operate its retail business during normal business hours. Amadio has offered to negotiate with Jumbo to see if they can agree on a variation of the lease. However, Jumbo refuses to enter into any negotiations and maintains that it will be vacating the premises at the end July 2017. Amadio then tells Jumbo that he will be commencing an action seeking an order for specific performance of the lease against Jumbo.

Advise Amadio on his prospects of obtaining an order of specific performance in these circumstances.


Rebecca is an actress who plays a pivotal character in the soap opera Orange County. Rebecca has been an actress since she was a very young child and has no meaningful skills or aptitude for any other kind of work. She has played the part since Orange County began production fifteen years ago. Her contract with Quistclose Productions Ltd (Quistclose), who produce Orange County, was renewed last month. Under the terms of the renewed contract, Rebecca agreed to play her character on Orange County for a further five years. She also agreed that for the duration of the new five-year contract she would not appear in any other television programs or films without Quistcloses prior approval.

Last week the producers of a rival soap opera, Days Gone By, approached Rebecca and offered to create a new and central character in that show for her to play at the earliest date possible. The fresh artistic challenge that this role would give Rebecca makes the offer very appealing to her. She is also tempted by the salary the Days Gone By producers are prepared to pay, which is triple her present salary. She is keen to take up the offer to star in Days Gone By.

In the light of the above circumstances Rebecca seeks your advice on the following matters:

(a)whether Quistclose can obtain a court order requiring Rebecca to perform the balance of her contract with Quistclose; and

(b)whether Quistclose can obtain a court order preventing Rebecca from appearing in Days Gone By until the expiration of her contract with Quistclose.

Question 16

Walter owns a small farm south of Sydney. Gustav owns an adjoining property of approximately 2,000 hectares. Gustav, a bluegrass musician, is planning to hold a week-long bluegrass music festival on his property on 14-15 November 2015. In early June 2015, Gustav began advertising his bluegrass music festival. Prior to that point he had spent $100,000 on preparations and facilities for the big event. At no stage did Gustav seek or obtain local authority approval as he was required to do by the provisions of the Outdoor Musical Events Act 2001 (NSW). If prosecuted by the local authority, Gustavs failure to do obtain the necessary local authority approval renders him liable to a penalty under the Act of $20,000.

Two days ago, Walter, who, with his brother Eric, had been holidaying and visiting their parents in a remote part of Argentina since April 2015, returned to Sydney. Walter immediately became aware of Gustavs plans. He is greatly concerned, particularly so as his parents (both in their late eighties) will be visiting for a week at exactly the same time as Gustavs proposed festival is scheduled to be held. Walter has already paid $15,000 for their return airfares from and to Argentina.

Eric, who lives in Gosford and hates bluegrass music, is also angered by Gustavs actions.

In relation to the above facts:

(i)If Walter commences proceedings to prevent the bluegrass festival from taking place, what are the possible outcomes of such proceedings? (Note: In answering this question you can assume: (i) the court would conduct a hearing on the merits and hand down its decision on Walters application prior to 14 November 2015; and (ii) if the bluegrass festival is held, Gustav will be liable to Walter in the tort of nuisance).

(ii)Advise Eric on his prospects of being successful in any proceedings he may take to prevent the bluegrass festival from taking place.

Documents

Lecture One Guides_Summer... · Web viewCourse Description and Objectives 1 Lecturers 1 Assessment 1-2 March 2018 Examination 2 Texts and Materials 3 Lecture Program 4 Weekend Schools