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
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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
There is clear disagreement over the question of whether Target v Redferns was correctly decided. One point of view is that “Lord Browne-Wilkinson took a false step in Target when he introduced an inapt causation requirement into the law governing … substitutive performance claims" (per Professor Charles Mitchell in a lecture on "Stewardship of Property and Liability to Account" delivered to the Chancery Bar Association on 17 January 2014); the other is that “I consider that it would be a backward step for this court to depart from Lord Browne-Wilkinson's fundamental analysis in Target Holdings” (per Lord Toulson in AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58). Critically discuss the competing arguments. Introduction The law is ever changing and as such, new principles arise from time to time.
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.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
It has been generally acknowledged that the doctrine of proprietary estoppel has much in common with common intention constructive trusts, i.e. those that concern the acquisition of an equitable interest in another person’s land. In effect, the general aim is the recognition of real property rights informally created. The similarity between the two doctrines become clear in a variety of cases where the court rely on either of the two doctrines. To show the distinction between the doctrines, this essay will analyse the principles, roots and rationale of both doctrines. With reference to the relevant case law it will be possible to highlight the subtle differences between the doctrines in the cases where there seems to be some overlap. Three key cases where this issue surfaced were the following: Lloyds Bank Plc v. Rosset (1991), Yaxley v. Gotts (1999) and Stack v. Dowden (2007). This essay will describe the relevant judgements in these cases in order to show the differences between the two doctrines.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
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.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
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.
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.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
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
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