This research paper discusses the main arguments that deal with the issue of doctrinal divergence between the English origin of a constructive trust in comparison to the Australian view on the constructive trust. Within Australia, the constructive trust can be created in conditions where there was no intention to produce a trust. After giving an overview of constructive trusts within Australia, an analysis of Australia’s remedial and institutional approach to constructive trusts will be examined. Finally, this essay will consider several inferences between Australia’s and England's approach and argue Australia’s divergence with regards to the difference in timing and the discretionary nature of both countries. Australian Courts Approach The …show more content…
Despite numerous cases following Deane J's notion of the remedial institution, there are a number of authorities in Australia that have recognised that constructive trusts are institutional and will rise when the parties involved in specific behaviour. In Parsons v McBain (2001) 109 FCR 120, when conferring common intention constructive trusts, the Federal Court held that trusts were created by the behaviour of the parties at that time, even if it had a negative effect on third parties. Similarly, Varma v Varma found that a constructive trust comes into being at the time of the behaviour that gives rise to the trust. Though Australia utilises either institutional or remedial elements as stipulated under their ‘remedial institution’ model through judicial discretion, common law authority on this issue is still indecisive with regards to courts having a set precedent upon which they should follow. Providing clarity for courts on constructive trusts is achievable in Australia through either the implementation of a solely institutional view upon constructive trusts or a solely remedial view. Subsequently, avoiding the middle ground of a remedial institution implies that judges must follow guidelines that are in favour …show more content…
Australia’s implementation of remedial institution allows courts to treat constructive trusts as an equitable remedy, that are discretionary in nature. This differs from England Courts where the institutional elements order that trusts arise upon the behaviour of the individuals rather than judicial discretion. Similarly, the use of discretion or lack of discretion by judges has major impacts on third parties who have an interest in the property. Problems within England’s institutional trusts states the possibility to render the action of the law ambiguous and place a greater burden on third parties. Suggestions in Varma v Varma state that courts should consider the influence of their verdict on third parties and provide relief accordingly. Alternatively, the use of discretion within remedial trusts contains issues regarding indecision for third parties where it is prejudicial for creditors who were not aware of a presiding trust but may find their claims cannot be fulfilled because the property is on trust. Similarly, a judge has enabled the power to avoid a constructive trust if it were a remedy, while, if the trust were an institution, it would exist regardless of the judge’s discretion. This refusal of a constructive trust allows judges to cater for third parties as was seen in
It has been stated that “a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.” In Bowman v Fels, the courts concluded that this section of the act was not interpreted in a way by which it intended to cover or affect the ordinary conduct of litigation by legal professionals, which was the issue that arose here.
Trustees have onerous and complicated duties that require them to act for the benefit of the beneficiaries of the trust. The precise content of these duties is the subject of on-going legal argument and debate and their scope is not always easy to define. Their breach can give rise to legal action. It is possible for a trust deed to vary or limit the trustee’s duties, but again the extent to which some limitations are effective is the subject of on-going legal debate. -There are costs to establishing trusts and many on-going associated costs.
An implied duty of good faith is to ensure an acceptable level of co operation and fairness in contract performance. It is used to preclude any unfair conduct in the course of performing a contract or exercising contractual powers. The High Court of Australia has not yet decided whether or not Australian law should recognize a duty of good faith which applies to the performance of all contracts. However, a duty of good faith has been recognized by lower courts in a number of cases. The concept of good faith should not be viewed as irrelevant and unnecessary as it encompasses the value of ensuring that contracts are performed with fairness, however not all contracts should encompass this principle.
In doing so resulted in Australia reaffirming its international obligations by enacting legislation. Moreover administrative law which operates to deal with the workings of the state, whether it is in public institutions or public authorities. This area of law reaffirms the accountability of government agencies which is evident in Minister for immigration and ethnic affairs v Teoh (1995). Also criminal law which the prosecution of a person(s) by the state due to a crime. Through criminal law’s function does not necessarily be concentrated in criminal trials such as R v Gittany.
However, there is an argument of opinion regarding how and why a secret trust should face outside the Wills Act 1837.Thus, Lord Warrington said in Blackwell v Blackwell case that what is enforced is not a trust imposed by the will but one arising from the acceptance by the legatee of a trust communicated to him by the testator on the faith of which acceptance the will was made or left unrevoked. The dehors’ theory and fraud theory are necessary to explain the enforcement of secret trust. Further this theory elaborated secret trust not compulsorily match with Section 9 of wills act 1837 .The orthodox view of this theory is that secret trusts are express inter vivos trust to which the requirements of the wills act are of no relevance. If the
The production of common law is held with the notion of stare decisis where judges remain consistent in the use of interpretive principle in litigation that works in accordance with precedent. Common law brings judges into the realm of law making because it evolves over time as judges find features in cases before them that different from precedent cases judges must interpret and apply relevant legislation and similar rulings to cases before it. The law of negligence is mainly judge made law and is involved in numerous car accident cases in B.C., which makes up over one-third of all lawsuits filed in the supreme court (Press, 2015). According to Daniel Schwartz (2012), institutionally the Charter significantly transferred enormous policy making power to the courts. Judicial activism has been characterized by judge’s readiness to veto policies proposed of by other branches of government.
Lord Langdale MR identified the three requirements for a valid trust in Knight v Knight, where he claimed that a trust would only come into existence if there was certainty of words, certainty of subject matter, and certainty of objects. The finding
The question is whether the courts are ready to induce a prompt and genuine intent to create a trust from the use of precatory words. There is a general rule that the courts won’t perceive a trust when a settlor uses ‘precatory’ words such as hope, desire and confidence. On the other hand it is important to consider all the circumstances in each case. It was eventually illustrated in Lambe v Eames , where a testator gave all his estate to his widow and used the words “…to be at her disposal in any way she may think best for the benefit of herself and her family”. It was held by the courts that the words were ineffective is creating a
However by doing so they further increased the amount of discretion that the courts apply. Also implied trusts are divided into resulting trusts and constructive trusts. Resulting trusts as defined in Dyer v Dyer are decided as in favour of the person who contributes to the purchase price of a property where there is no evidence that a gift or loan was intended. This idea was confirmed in Westdeutsche Landesbank Girozentrale v Islington BC, which also set out four main principles of presumed intention resulting trusts: 1. That Equity operates on the conscience of the owner of the legal interest 2.
WE can however, accommodate mechanisms which operate as additional or subsidiary processes in the discharge of sovereign responsibility. These enable the court system to devote its precious time and resources to the more solemn task of administering justice in the name of sovereign." Street, The language of alternative dispute resolution' (1992) 66 Australian Law Journal, 1994.
Furthermore 3 certainties need to be established in order for the trust not be void. Firstly, Certainty is vital to the administration of any trust, it is defined by Lord Langdale, Master in Knight V Knight (1840) ‘A trust will only come into existence if there is ‘certainty of words, certainty of subject matter and certainty of objects’ Certainty of intention needs to be considered, this is essential in order for a trust to be valid as the trustees must know what they are required to do. Andy intended for Maeve and her sister lily to have his collection of cars except the rusty one Certainty of subject matter is the next step which is crucial in order to know exactly the amount of the property which the trustee is responsible for, the case of Anthony v Donges shows when certainty of subject matter is not valid, in Andy’s situation the subject matter was the collection of cars he meant for Maeve and her sister lily to