SUBJECT OUTLINE

70517 Equity and Trusts

Subject coordinator
Name: Dr. John FeIemegas
Position: Senior Lecturer in Law
Room: 5B415
EmaiI: John.FeIemegas@uts.edu.au
Phone: (02) 9514 3061
Teaching staff
Name: Dr. AIIison SiIink
Position: Lecturer in Law, Barrister at Law
Room: 5B208
EmaiI: AIIison.SiIink@uts.edu.au
Phone: (02) 9514 3792
Subject description
This subject covers two related fields of study.
Ìn 'equity' students examine the doctrines and remedies which were originally developed in the Courts of Chancery
in England prior to 1873 to ameliorate the harshness of the common law and which are still applied today to the
largely same effect, with some modification from time to time. Equitable doctrines and remedies do not replace the
common law but supplement it in significant ways by recognising and enforcing obligations which are not known to
the common law and by granting remedies in respect of those obligations which are not available at common law.
These doctrines and remedies are now administered in the same courts in which the common law is administered.
Many areas of law are touched by equitable doctrines and remedies. Ìn particular, the law of contract and property
law are significantly affected by equity. Through the study of equity, students examine the range of discretionary
remedies which are available for breach of particular obligations.
Ìn 'trusts' students explore the concept of a trust which was developed in the Courts of Chancery, whereby an
interest in property is legally owned by one party but held for the benefit of another person or purpose permitted by
law. The obligations of the party owning the interest at law, and the rights of the beneficiary to that interest, continue
to be recognised and enforced in equity. Trusts are now commonly used in both private arrangements and for
commercial purposes, having particular consequences for taxation and insolvency. The relevant principles and
modern applications of trusts are considered.
Subject objectives
Objective 1. (Targeting Graduate Attributes 1, 2, 3, 4)
Read and interpret case law and legislation
Objective 2. (Targeting Graduate Attributes 1, 2, 4, 5)
Undertake relevant legal research in the equity jurisdiction
Objective 3. (Targeting Graduate Attributes 1, 2, 3)
Course area UTS: Law
DeIivery Spring 2012; City
Credit points 8cp
Requisite(s) 70317 Real Property
ResuIt type Grade and marks
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 1 of 10
Argue clearly and persuasively, both verbally and in writing
Objective 4. (Targeting Graduate Attributes 1, 2, 3)
Solve legal problems by reasoned analysis
Objective 5. (Targeting Graduate Attributes 1, 2, 5)
Understand the rationale and application of equitable doctrine
Objective 6. (Targeting Graduate Attributes 1, 2, 4)
Evaluate critically existing legal principles and institutions with a view to determining what reforms, if any, are
needed
Objective 7. (Targeting Graduate Attributes 1, 2, 5)
Develop an individual perspective on the philosophy of equity
Contribution to course aims and graduate attributes
The 10 UTS: Law Graduate Attributes
The UTS, Faculty of Law has identified a number of professional attributes that graduates from the Faculty will
possess upon graduation.
INTELLECTUAL
1. Critical Thinking: An appropriate level of independent thinking, creativity and critical analysis.
2. Analysis and Evaluation: An ability to strategically analyse issues of law, evaluate options and viewpoints to reach
and implement decisions.
3. Spoken and Written Communication: Advanced oral and written communication skills.
4. Legal Research and Technological Literacy: Appropriate research techniques to acquire, distil and utilise legal
information.
PROFESSIONAL
5. Disciplinary Knowledge: A coherent and extensive knowledge of substantive and procedural law.
6. Lifelong Learning: A capacity to continually update the knowledge skills and awareness appropriate to the practice
of law.
7. Ethics: A capacity to value and promote honesty, accountability and ethical standards.
PERSONAL
8. Self and Cooperative Work Management: Self and priority management skills including cooperative work.
9. Cultural Awareness and a Global Outlook: An appreciation and valuing of cultural and intellectual diversity and an
ability to function in a global environment.
10. Social Justice: An acknowledgement and acceptance of individual responsibilities and obligations and of the
assertion of the rights of the individual and the community.
Teaching and Iearning strategies
Strategy 1
Independent Learning SkiIIs: The subject guide sets out recommended reading for each topic. Students should aim
to read as widely as possible from the recommended readings and cases in the lecture outlines.
Strategy 2
Lectures: Designed to supplement and clarify issues and explain significance of cases and development in the law
in each topic.
Strategy 3
TutoriaIs: Provide an opportunity to participate in group discussion solving problems derived from real cases. These
are essential skills for practice as a solicitor or barrister.
Strategy 4
Research Essay: provides practice in high level research and legal writing with feedback to indicate where the
student has achieved well or needs to develop these skills.
Lecture Format
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 2 of 10
Lectures: 4 hours per week (2 x 2 hours)
The lectures are designed to supplement independent reading on a topic area by clarifying important issues and
principles and providing illustrations of their application in practice.
Students should also aim to read from recommended texts included in the Subject Guide and cases in the Lecture
Outlines in order to understand the material that is covered in lectures.
TutoriaI Format
Tutorials: 2 hours per week (1 x 2 hours)
Tutorials provide an opportunity to practise solving real legal problems drawn from case law, and to discuss
unsettled areas in law. Students must prepare for tutorials by attempting answers to problem questions set out in the
Subject Guide. Students should also use the opportunity to discuss issues arising from the topic of the week and
raise any questions.
Students must attend the tutorial in which they have registered unless prior consent is given by tutors.
Tutorials will conclude with a weekly quiz. Students must attend 5 out of 7 assessable quizzes in order to be eligible
for the full 20% class participation mark.
Content
Introduction to Equity, History and Nature of Equity
General comparison between Common Law and Equity
Historical development of Equity
Maxims of Equity
Judicature System and modern administration of equity
Fusion theory
UnconscionabIe deaIings/ Undue InfIuence
Undue Ìnfluence - elements
Unconscionable Dealings - elements
Remedies: rescission, equitable compensation, constructive trust
EstoppeI in Equity
Categories of Estoppel at Common Law and in Equity
Equitable Estoppel - development of, elements and application
Remedies for Equitable Estoppel; declaration, constructive trust, equitable lien, equitable charge, equitable
compensation
Doctrine of Part Performance
Elements
Remedy: specific performance
Fiduciary ObIigations
Scope and content of fiduciary duties
Rule against conflict of interest and duty
Rule against unauthorised profit
Remedies for breach: constructive trust, account of profits
LiabiIity of Third Parties for Breach of Fiduciary Duty or Trust
The rule in Barnes v Addy
Knowing receipt
Knowing Assistance
Remedies: constructive trust, equitable compensation
EquitabIe Estates and Interests
What is Property?
Multiple classification of equitable rights
Equitable proprietary interest, mere equity and personal equities
Types of equitable proprietary interests; features
Assignment of Property in Equity
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 3 of 10
Equitable assignment of legal property
Equitable assignment of equitable property
Assignment of future property
Writing requirements in assignment of equitable interests.
Introduction to Trusts/ Express Trusts
Elements of a trust, types of trusts
Creation of Express Trusts
The Three Certainties: Ìntention, Subject Matter, Object
Complete Constitution, Secret Trusts, Precatory Trusts
Rule against Perpetuities
CharitabIe Trusts
Beneficiary Principle
Four Divisions of charitable purposes
ResuIting Trusts
'Automatic' resulting trusts: incomplete disposition of beneficial interest
'Presumed' resulting trusts: contributions to property purchase
Presumption of advancement
Ìllegality
Constructive Trusts (other than for breach of fiduciary duty or third party IiabiIity aIready covered in Topics
5 and 6)
Features of constructive trusts
Nature - remedy or institution?
Different categories of constructive trust
Constructive trusts to enforce agreements concerning property
Constructive trusts to remedy an unconscionable retention of benefit
Other categories of constructive trusts: stolen property, unlawful killing
Duties, Powers and LiabiIities of Trustees, Rights of Beneficiaries
Duties of a trustee: loyalty; to preserve trust property; to insure trust property; of investment; to act gratuitously, to
keep accounts; duty of honesty; to pay trust fund to correct beneficiaries; to act impartially.
Powers of a trustee: sale, management, maintenance and advancement, to mortgage.
Rights of a trustee: reimbursement and indemnity; reimbursement from beneficiaries; right of contribution; other
rights.
Liability of a trustee in breach of trust.
Rights of beneficiaries: to extinguish trust, to compel performance, to restrain breach, to possession of trust
property, to information.
Rights of discretionary beneficiaries.
Program
Week/Session Dates Description
1 30 Jul Lecture 1: Introduction to Equity [Monday 30 July]
Lecture 2: UnconscionabIe Transactions/ Undue InfIuence [Thursday 2 August]
NO TUTORIALS
2 6 Aug Lecture 1: Introduction to EstoppeI, EquitabIe EstoppeI [Monday 6 August]
Lecture 2: EquitabIe EstoppeI, Remedies, Doctrine of Part Performance
[Thursday 9 August]
Tutorial: History and Nature of Equity/ Unconscionable Transactions / Undue
Influence
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 4 of 10
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
3 13 Aug Lecture 1: Fiduciary ObIigations/ Remedies for Breach [Monday 13 August]
Lecture 2: Fiduciary ObIigations: Remedies / Third Party LiabiIity for Breach
of Fiducuary Duty/ Trust [Thursday 16 August]
Tutorial: Estoppel in Equity/ Part Performance
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
4 20 Aug Lecture 1: EquitabIe Estates and Interests [Monday 20 August]
Lecture 2: EquitabIe Estates and Interests/ Assignment of Property in Equity
[Thursday 23 August]
Tutorial: Fiduciary Obligations and Third Party Liability for Breach of Trust or
Fiduciary Obligation
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
5 27 Aug Lecture 1: Assignment of Property in Equity [Monday 27 August]
Lecture 2: Assignment of Property in Equity [Thursday 30 August]
Tutorial: Equitable Estates and Interests
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
6 3 Sept NO LECTURES - ESSAY WRITING WEEK
Tutorial: Assignment of Property in Equity
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 5 of 10
7 10 Sept NO LECTURES - ESSAY WRITING WEEK
NO TUTORIALS - ESSAY WRITING WEEK
* RESEARCH ESSAY DUE: Wednesday 12 September 2012
8 17 Sept FACULTY NON-TEACHING WEEK
- 24 Sept UTS MID-SEMESTER BREAK
9 1 Oct E&T NON-TEACHING WEEK
10 8 Oct Lecture 1: Introduction to Trusts/ Express Trusts [Monday 8 October]
Lecture 2: CharitabIe trusts [Thursday 11 October]
NO TUTORIALS
11 15 Oct Lecture 1: ResuIting Trusts [Monday 15 October]
Lecture 2: Constructive Trusts [Thursday 18 October]
Tutorial: Express Trusts/ Charitable Trusts
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
12 22 Oct Lecture 1: Duties, Powers and LiabiIities of Trustees, Rights of Beneficiaries
[Monday 22 October]
Lecture 2: Revision Lecture and Exam Information [Thursday 25 October]
Tutorial: Resulting Trusts/ Constructive Trusts
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is an
assessable quiz this week.
13 29 Oct NO LECTURES
Tutorial: Duties, Powers and Liabilities of Trustees, Rights of Beneficiaries/
Revision and Exam Practice
Notes:
The tutorial questions and required readings are set out in the Subject Guide. You
should attempt to prepare a draft answer before the tutorial. There is no quiz this
week. This tutoriaI wiII aIso provide time for questions and discussion for the
purposes of revision and exam preparation.
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 6 of 10
Assessment
Assessment item 1: In-cIass tutoriaI quizzes
Intent: The weekly quizzes are intended to give students weekly feedback on their level of understanding of
important issues in each topic.
Weighting: 20%
Task: Format
The quiz will be conducted in 5 minutes at the conclusion of each of the 8 substantive tutorials held
in Weeks 2, 3, 4, 5, 6, 11 and 12. There is no quiz in the tutoriaI heId in Week 12.
The quiz will comprise a number of multiple choice questions and questions requiring students to link
equitable principles with cases. Ìt will be done as a cIosed-book test on a paper provided. Each quiz
is worth a total of 4 marks. The questions will focus on important principles of law drawn from the
content of that week's topic. The questions will be drawn from the lecture content and the material
covered in the tutorial questions or problems. Quiz papers will be collected at the end of the tutorial
for marking. Tutorial leaders will distribute and go through quiz papers (out of 4) in the following
tutorial to provide weekly feedback on how well the students understand the major issues of the
week. The papers will then be collected and retained by the Faculty.
Each week after the answers have been given and papers collected again, the marks for that quiz will
be loaded into My Grade Centre online. The final class participation mark will be taken from the best
5 (x4 marks) tutorial quiz results at the end of the semester.
Ìf students are unable to attend their regular quiz and class in a particular week, students may attend
an alternate tutorial in another class that week so as to sit the quiz for the week. Relevant permission
must be obtained by tutors concerned. The quiz papers will be retained by the tutor leading the class
in which the quiz is done.
Non-Attendance
Ìt is necessary for students to attend at least 5 tutorials containing assessable quizzes in order to be
eligible for the 20% quiz mark. Make-up quizzes will generally not be permitted. A written application
in exceptional or extenuating circumstances may be made to the Subject Coordinator, who may
exercise a principled discretion to provide alternative arrangements. Please note that overseas or
other travel arrangements are not regarded as extenuating circumstances unless travel is related to
your studies at UTS.
Assessment item 2: Research Essay
Intent: The research essay is intended to give students experience in:
undertaking relevant legal research in the equity jurisdiction;
reading and interpreting case law and legislation correctly and effectively;
constructing clear and persuasive legal argument in writing;
understanding the rationale and application of equitable doctrine, principles and rules;
evaluating critically existing legal principles and institutions with a view to determining what
reforms, if any, are needed; and
developing an individual perspective on the philosophy of equity.
Objective(s): attributes 1, 2, 3, 4
Weighting: 40%
Due: Wednesday, 12 September 2012
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 7 of 10
Due: Wednesday, 12 September 2012
Length: 2,500 words
Task: The 2,500 word Research Essay provides an opportunity for students to examine more deeply
some of the challenging and fascinating aspects of equity and to develop formal legal writing skills.
This semester, students are required to prepare an anaIyticaI case note.
Students may choose one of three recent cases to discuss. The list of cases will be made available
in UTS Online at the commencement of the semester.
Students must demonstrate the ability to discuss the case and the legal issues arising from it at a
high level. Ìt will not be sufficient to simply describe the case and the court's reasons. Broader
research must be demonstrated which contributes to your analysis of the significance of the case
and the legal issues arising in it.
Markers of the research essays will be looking for evidence that the student:
has understood the relevant law;
has developed his or her own argument;
can write with appropriate use of legal conventions, and in an appropriate academic style.
uses the Ìntroduction to set out the argument to be developed;
can use correct grammar, punctuation and spelling;
structures and organises the case note well so that the discussion of the case and the legal
issues are clear and logically developed;
demonstrates a critically reflective and insightful approach to the issues raised by the case;
displays thoughtful and thorough research with a wide variety of appropriate sources (i.e.,
scholarly writing and case law);
finishes with a Conclusion that draws together the argument which has been developed
through the case note in relation to the legal issues being discussed.
Further
information:
Word Count
Students must display an accurate word count on the title page of the assignment; approximate
counts will not be accepted. Students will be allowed a 10% leeway either side of 2,500 words.
Studetns who exceed the upper word limit may be penalised. Word limits do not include footnotes
or the bibliography. Footnotes and bibliography are assessable components of the assignment.
Submission of Essays
Students are required to submit their case notes in hard copy form to the Law Reception desk
located on Level 3 of the Law Faculty by 5:00pm on the due date. The official lodgement date of the
case note will be the time and date of lodgement of the hard copy.
Use of PIagiarism Software
Students are ALSO required to submit their case notes through Turnitin.
Requests for Extensions
Requests for extensions of up to one (1) week must be made PRÌOR TO the date for submission of
the case note. This requires the submission of a Request for Extension form to the Law Reception
desk on Level 3 of the Law Faculty. A request for extension cannot be made by emaiI request
to teaching staff. Forms are available at the Law Reception foyer or online under 'Links to
Ìmportant Ìnformation & Useful Resources'. Please refer to the procedures set out in the UTS:LAW
Subject Ìnformation Booklet 2011.
SpeciaI Consideration
Ìn accordance with the UTS:LAW Subject Ìnformation Booklet 2011, students whose studies are
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 8 of 10
Ìn accordance with the UTS:LAW Subject Ìnformation Booklet 2011, students whose studies are
affected by serious illness or hardship and require long-term extensions should submit an
Application for Special Consideration.
Feedback
Markers will provide concise but pertinent feedback on the areas of strength and weakness in your
answer according to a standardised feedback sheet. Model answers to the question will not be
provided. Ìf you would like more detailed feedback, please make an appointment to see the marker
of your case note.
Assessment item 3: FormaI Examination
Intent: The formal examination is intended to ensure that students can demonstrate sufficient competence
in:
solving legal problems by reasoned and substantiated analysis;
applying equitable doctrine, principles and rules correctly and effectively.
Weighting: 40%
Task: The formal end-of-semester examination will cover the entire semester's work. The examination
may comprise a range of question formats, particularly short answer questions, essay-style
questions and problem-based questions similar to the tutorial problems. Ìt is an open-book exam, so
students can bring in textbooks, written notes, summaries or flow charts etc. Reference may be
made to this material during the exam in compliance with University rules.
Further details of the exam format will be given to students closer to the end of the semester.
SuppIementary assessments
Please note that no supplementary examination is offered to students whose final mark in Equity & Trusts is below
50%.
Prize offered
An annual awards ceremony is held at the Faculty of Law each year in recognition of the achievements of our
students. You can check to see if a prize is awarded for this subject by visiting the Faculty of Law website.
Required texts
None
Recommended texts
Evans M, Equity & Trusts (LexisNexis Butterworths, 3rd ed, 2012) 1.
Meagher R, Heydon D, Leeming M, Meagher Gummow & Lehane's Equity Doctrines & Remedies, (LexisNexis
Butterworths, 4th ed, 2002)
2.
Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia, (LexisNexis Butterworths, 7th ed, 2006) 3.
Dal Pont GE & Chalmers DRC, Equity & Trusts in Australia, (Lawbook Co, 4th ed, 2007) 4.
Radan P, Stewart C, Principles of Australian Equity & Trusts (LexisNexis Butterworths, 2010) 5.
Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts, (LexisNexis Butterworths, 7th ed, 2007). 6.
Parkinson P (ed.), The Principles of Equity, (Lawbook Co, Australia, 2nd ed, 2003). 7.
Covell W & Lupton K, Principles of Remedies, (LexisNexis Butterworths, 2008) 8.
Tilbury M, Noone M & Kercher B, Remedies: Commentary and Materials, (Law Book Co, 2004) 9.
References
Reports, Journals and General References
Journal of Equity 1.
Law Quarterly Review 2.
Ford & Lee, Law of Trusts in Australia 3.
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 9 of 10
Maitland's Lectures in Equity 4.
Fredrick Jordan, Select Legal Papers 5.
Australian Guide to Legal Citation (3rd ed) 6.
Other resources
Other MateriaIs
Students are advised to be aware of relevant policies, rules and regulations that might be applicable to their
candidature and assessment matters.
UTS Law Subject Ìnformation Booklet 2012 1.
UTS Law Faculty Guide to Essay Writing ( www.law.uts.edu.au/students/assessment/submitting.html) 2.
UTS Coursework Assessment Policy and Procedure Manual
( http://www.gsu.uts.edu.au/policies/coursewkassess.html
3.
Lecture Recording
Audio or visual recording of classes for this subject is strictly prohibited unless written approval is sought and given in
advance by the Subject Coordinator. Approval for audio or visual recording will usually be limited to medical or
hardship reasons, and if approved, must be arranged by the student.
Recorded Lectures on UTSOnIine
Lecture recordings will be made available for download from UTSOnline during the week following the lecture. The
recordings are editted and do not reflect discussion with students or responses to questions. Accordingly, students
are encouraged to attend lectures where possible and to use the recordings as a backup or additional resource in
revising lecture notes.
You shouId expect a deIay of at Ieast 24-48 hours before the Iectures wiII be avaiIabIe onIine. PIease do not
ring the Law Reception Office to ask when the recording wiII be put onIine.
Please also note that no responsibility is taken for the quality or reliability of this taping service and that no Special
Consideration applications will be considered in relation to problems experienced by students using this taping
service. Students may only use these audio-tapes for private student purposes (and to avoid legal action) permission
must be obtained from the Subject Coordinator for any other usage. Technical difficulties with the taping of a lecture,
which do occur from time to time, will not result in any re-recording of the lecture.
DiscIaimer
This subject outline must be read in conjunction with the UTS: Law Subject Ìnformation Booklet which contains
important information for all Law subjects. Students must regularly check UTS Online for any changes to the subject
material and for announcements throughout the session.
16/07/2012 (Spring 2012) © University of Technology, Sydney Page 10 of 10