Law Extension Committee

LAW EXTENSION COMMITTEE

UNIVERSITY OF SYDNEY

07 EQUITY SUBJECT GUIDE

WINTER SESSION 2007

Course Description and Objectives / 1
Teacher / 1
Assessment / 1
September 2007 Examination / 1
Lecture Program / 2
Weekend Schools 1 and 2 / 3-4
Texts and Materials / 5
Assignment / 6
Assignment Questions / 6
Prescribed Topics and Course Outline / 7

LAW EXTENSION COMMITTEE

WINTER 2007

07 EQUITY

COURSE DESCRIPTION AND OBJECTIVES

Equity, which includes the law of trusts, begins with a study of the historical origins and development of the equitable jurisdiction and then moves on to consider equitable doctrines concerning property, including the recognition of assignments of legal and equitable interests in property in equity; estoppel in equity; fiduciary obligations; the nature and creation of trusts, including trusts arising by operation of law as resulting or constructive trusts; charitable trusts; the duties, powers, rights and liabilities of trustees, the rights of beneficiaries, including the right to trace trust property; and, to conclude, equitable remedies including injunctions, specific performance, monetary remedies in equity and the equitable jurisdiction to set aside transactions procured by undue influence and unconscionable conduct.

The emphasis in the course will be on developing in the students 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 will be expected to identify and grasp the equitable issues arising in a given set of facts and, also, how a court exercising and equitable jurisdiction would deal with those issues in applying the principles discussed in the course to grant or refuse relief.

The course will also address some of the underlying doctrines of equity, particularly that of unconscionable conduct, and the links between those underlying doctrines and particular principles found in the spectrum of the equitable jurisdiction.

teacher

Mr M Evans BA (Hons) (Syd), LLM (Syd), LLM (Hons) (Cantab)

Michael Evans is a Barrister. He has lectured in equity and trusts at the University of Technology, Sydney and is the author of Equity and Trusts published by LexisNexis Butterworths. The current edition of this text, was published by Lexis Nexis Butterworths in April 2003.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.

To register with the LEC, go to www.usyd.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.

SEPTEMBER 2007 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics: The History and Nature of Equity; Equity and Property; Assignments of Property in Equity; Fiduciary Obligations; Estoppel in Equity; Confidential Information; The Nature of Trusts; The Creation of Express Trusts; Charitable Trusts; Resulting or Implied Trusts; Constructive Trusts; The Duties of Trustees; The Powers of a Trustee; The Rights of Trustees; The Liability of a Trustee; Beneficiaries; Remedial Equity and Review – The Notions of Conscience and Unconscionability.

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.

The examination in Equity will be a closed book examination.

All enquiries concerning the September 2007 examination should be directed to the Legal Profession Admission Board.

LECTURE PROGRAM

Lectures in Equity will be held on Thursdays from 6 pm until 9 pm on 17 May 2007 in Chemistry Lecture Theatre 3 (ChLT3). For details as to the location of these venues refer to the back page of the Course Information Handbook for a map of the University of Sydney main campus.

Please note that this program is a general guide and may be varied according to need. 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 / TOPIC / KEY READING
1
(17.5.07) / The History and Nature of Equity
Equity and Property / Equity and Trusts, Chapters 1 and 2
2
(24.5.07) / Assignments of Property in Equity / Equity snd Trusts, Chapter 3
3
(31.5.07) / Assignments of Property in Equity
(cont.) / Equity and Trusts, Chapter 3
4
(7.6.07) / Fiduciary Obligations / Equity and Trusts, Chapter 5
5
(14.6.07) / Estoppel in Equity
Confidential Information / Equity and Trusts, Chapter 4
Equity and Trusts, Chapter 8
6
(21.6.07) / The Nature of Trusts
The Creation of Trusts / Equity and Trusts, Chapter 12
Equity and Trusts, Chapter 13
7
(28.6.07) / Charitable Trusts / Equity and Trusts, Chapter 15
Study Break: 30.6.07 – 8.7.07
8
(12.7.07) / Resulting Trusts
Constructive Trusts / Equity and Trusts, Chapter 16
Equity and Trusts, Chapter 17
9
(19.7.07) / Duties of Trustees and Powers / Equity and Trusts, Chapter 18
10
(26.7.07) / Rights and Liabilities of Trustees
Rights of Beneficiaries, Remedial Equity (including Tracing) / Equity and Trusts, Chapter 19
Equity and Trusts, Chapter 20
11
(2.8.07) / Remedial Equity
a) Relief from Unconscionable Conduct
b) Injunctions / Equity and Trusts, Chapter 6
Equity and Trusts, Chapter 23
12
(9.8.07) / c) Specific Performance
d) Monetary Remedies in Equity / Equity and Trusts, Chapter 22
Equity and Trusts, Chapter 26

Weekend School programs

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. 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.

Weekend School 1

TIME / MAJOR TOPICS / KEY READING
Friday 1 June 2007 – Carslaw Lecture Theatre 159 (CLT 159)
5.10pm-6.20pm / The History and Nature of Equity
· The effects of the Judicature Acts
· Fusion Fallacy
· The Maxims of Equity
Equity and Property
Dealings with property in equity / Outline, chapters 1 and 2
6.30pm-7.35pm / Assignments of property in equity (cont.)
· Voluntary assignments
· Agreements to assign
· Declarations of trust
Future property / Outline, chapter 3
7.45pm-9.00pm / Assignments of property in equity (cont.)
· Future property
· Property incapable of assignment
Dealings with equitable interests / Outline, chapter 3
Saturday 2 June 2007 – Carslaw Lecture Theatre 159 (CLT 159)
8.00am-9.20am / Assignments of property in equity (cont.)
· Assignments of equitable interests
· Contracts for value to assign
· Direction to trustee
· Equitable interests and section 12 / Outline, chapter 3
9.30am-10.40am / Fiduciary Obligations
Estoppel in Equity
Confidential Information / Outline, chapter 5
Outline, chapter 4
Outline, chapter 8
10.45am-11.45am / The Nature of Trusts
· Nature and classification of trusts
· The 3 certainties
The Creation of Trusts / Outline, chapter 12
Outline, chapter 13

Weekend School 2

TIME / MAJOR TOPICS / KEY READING
Friday 27 July 2007 – Carslaw Lecture Theatre 173 (CLT 173)
5.10pm-6.20pm / Charitable trusts
· Charitable purposes
· Public benefit
· Political trusts
· Poverty
· Education
· Religion
· Fourth Class
· Schemes
· Mixed Purposes / Outline, chapter 15
6.30pm-7.35pm / Resulting Trusts / Outline, chapter 16
7.45pm-9.00pm / Constructive Trusts / Outline, chapter 17
Saturday 28 July 2007 – Carslaw Lecture Theatre 157 (CLT 157)
8.00am-9.20am / Duties and Powers of Trustees / Outline, chapter 18
9.30am-10.40am / Rights and Liabilities of Trustees
Rights of Beneficiaries
(including Tracing) / Outline, chapter 19
Outline, chapter 20
10.45am-11.45am / Remedial Equity
a) Relief from Unconscionable Conduct
b) Injunctions
c) Specific Performance
d) Monetary Remedies in Equity / Outline, chapter 6
Outline, chapter 23
Outline, chapter 22
Outline, chapter 26

TEXTS AND MATERIALS

Course Materials

· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Text

· M.B Evans, Equity and Trusts, LexisNexis Butterworths, Sydney 2003

Recommended Materials

· G Dal Pont & T Cockburn, Equity and Trusts in Principle, Thomson Lawbook, 2005

· G Dal Pont & D Chalmers, Equity and Trusts in Australia and New Zealand, 3rd ed. Thomson Lawbook, 2004

· R.P. Meagher, J D Heydon & M Leeming, Meagher, Gummow & Lehane's Equity - Doctrines and Remedies, 4th ed. LexisNexis Butterworths, Sydney, 2002

· J.D. Heydon & M.J. Leeming, Jacobs' Law of Trusts in Australia, 6th ed. LexisNexis Butterworths, Sydney, 2006

· J.D. Heydon, & P Loughlan, Cases and Materials on Equity and Trusts, 6th ed. LexisNexis Butterworths, Sydney, 2001

· H.A.J. Ford & W.A.Lee, Principles of the Law of Trusts, 3rd ed. Thomson Lawbook, 1995

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the Webcampus. Regularly check the Course Materials section on the LEC Webcampus for additional materials, notes, assignments questions and other relevant research sites.

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 (no extensions will be granted), and achieve a grade of at least 50%. 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 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.

If you do not achieve 50% or more in the compulsory assignment, you will be contacted by the LEC regarding your eligibility to sit the examination.

The completed assignment should be lodged through the LEC Webcampus by 9.00am on the following date:

Compulsory Assignment / Monday 9 July 2007 / (Week 8)

ASSIGNMENT QUESTIONS

To obtain a copy of the Equity assignment for the Winter Session 2007, please follow the instructions below:

1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the Assignment questions for this subject.

PRESCRIBED TOPICS AND COURSE OUTLINE

Lecture One The History and Nature of Equity

[Equity & Trusts Ch 1]

1.1 The History of Equity

The development of the common law – the forms of action and the jurisdiction of the common law courts; the Court of Common Pleas, the Court of King’s Bench and the Court of the Exchequer

The development of the “English” jurisdiction of the Chancellor, and thus the Court of Chancery in the period from, about 1300 to about 1500.

The recognition in the Court of Chancery of feoffments to uses in late medieval England, especially the equitable obligation owed by feoffees to uses to their cestuis que use and

The fiscal or revenue consequences of uses, particularly in terms of the avoidance of feudal incidents of;

(a) aids

(b) reliefs (upon inheritance)

(d) marriage

(e) escheat

The Doctor and Student dialogue of Christopher St Germain

The Earl of Oxford’s Case in Chancery (1615) Mich 13 Jac 1; 21 ER 485

Cook v Fountain (1672) 3 Swanst 600; 26 ER 984

1.2 The Relationship between Law and Equity

“ ... it must not be forgotten that the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time - altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented.” In re Hallett's Estate; Knatchbull v Hallett (1880) 13 Ch D 696, per Jessel MR at 710

Law Reform (Law and Equity) Act 1972 (NSW)

(a) Common law courts would not recognise equitable rights, titles and interests

Castlereagh Motels v Davies-Roe (1967) 67 SR (NSW) 279

Robertson v Wait (1853) 8 Exch 299; 155 ER 1360

(b) Equity had no power to decide disputed legal rights and titles

Equity Act 1880, s 4 (Equity Act 1901 s 8)

Goldsborough Mort v Quinn (1910) 11 CLR 674

King v Poggioli (1923) 32 CLR 222

(d) The common law courts lacked power to give interlocutory relief

(e) The courts of common law had no power to award specific performance, or injunctions

(f) The common law courts lacked power to make declarations

Rooke v Lord Kensington (1856) 2 K & J 753; 69 ER 986

(g) No power existed to transfer cases from one jurisdiction to the other

Mines Royal Societies v Magnay (1854) 10 Ex 489; 156 ER 531

Carter v Smith (1952) 52 SR (NSW) 290

1.3 The Judicature System

· Fusion fallacies

Seager v Copydex [1967] 2 All ER 415; [1967] RPC 349

Re Pryce (1917] 1 Ch 234

Walsh v Lonsdale (1882) 21 Ch D 9

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17

Chan v Cresdon (1989) 89 ALR 522

Cricklewood Ppty & Invest. Trust v Leighton [1945] AC 221, at 240