Cambridge University Press 978-1-316-62194-3 — Equity and Trusts in Australia Michael Bryan , Vicki Vann , Susan Barkehall Thomas Index More Information INDEX accounts of profits, 54–5, 169 limitation statutes, 84–5 remedies for. See remedies allowances, 57–8 unclean hands, 86–8, 168 for breach of trust breach of confidence, 197 beneficiaries, 206 ‘but for’ test, 65–6, 333 calculation of, 55–7 administration of trust and, acquiescence, 85–6 207 calculation of equitable as equitable defence to creditors’ rights and, 313–14 compensation, 60–1 breach of trust, 329–30 differences between fixed breach of fiduciary duty, overlap with laches, 85–6 and discretionary trusts 63–5 advancement for, 207 breach of trust, 61–3 presumption of, 357–9 ‘gift-over’ right, 208–9 calculation of equitable agency indemnification of trustees, damages trusts and, 210–11 311–13 causation standard, 65–6 aggravated damages, 68 interest, trustees’ right to common law adjustments to Anton Piller order, 39 impound, 314 quantum, 66–8 Aristotle, 4 investment of trust funds, categories of constructive trusts, assessment of equitable 297, 299 371 damages, 51 ‘list certainty’, 227 as remedy to proprietary in addition to injunction or sui juris, 278, 312 estoppel, 380–2 specific performance, 51 trust property and, 208 as restitutionary remedy in substitution for injunction trustees’ right to recover for unjust enrichment, or specific performance, overpayment from, 315 380–2 51–2 breach of confidence, 17–18, 47, Baumgartner constructive assignments 50, 68 trusts, 375–9 equitable property, 138–9 defences to. See defences to common intention, family future property, 137–8 breach of confidence property disputes and, gifts, 133–6 remedies for. See remedies 373–5 law of, 130 for breach of confidence imposed for breach of legal property, 131–2 breach of contract fiduciary obligation, legal property only in equity, injuctions to restrain, 382–5 141 correlation with specific imposed over property legally ineffective, 132 performance, 43–4 transferred under non-assignable rights, 136–7 breach of fiduciary duty, 100 specially enforceable property terminology, 130–1 assistance in, 180–1 contracts, 390–1 relevance of consideration, knowing receipt and, 175–8 imposed over stolen 132 knowledge of, 181 money and its proceeds, statutory, 139–41 breach of fiduciary obligation, 385–6 statutory formalities, 141–3 17 certainty of intention, 216–17 constructive trusts imposed certainty of objects, 216, 225–6 Baden scale of knowledge, for, 382–5 trustees’ duties and, 231 176–8, 181–2 informed consent as defence certainty of subject-matter, 216, bankruptcy to action for, 168–9 224–5 trusts and, 242–3 knowing receipt as, 174 charitable purposes bars to relief participants in. See definition for purposes of Cth acquiescence, 85–6 participants in breach of legislation, 250 delay, 83–4 fiduciary obligation four ‘heads’ of, 249 effect of order on third remedies for, 169–70 charitable trusts, 203, 207, 216, parties, 89–90 breach of trust, 322 336 hardship, 88–9, 168 defences for. See defences administrative schemes, laches, 83–5, 168 for breach of trust 259–60 limitation of action by dishonest and fraudulent, advancement of education, analogy, 85 179–80 251–2 393 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-316-62194-3 — Equity and Trusts in Australia Michael Bryan , Vicki Vann , Susan Barkehall Thomas Index More Information charitable trusts (cont.) consideration damages advancement of religion, relevance in assignment, 132 aggravated, 68 252–3 constructive trustees, 172–4, equitable. See equitable differences to express trusts, 369 damages 248 constructive trusts, 27, 30, 169, exemplary, 67–8 for a valid charitable 216, 340, 369 debt purpose, 248 categories of. See categories trusts and, 213–14 historical development of, of constructive trusts declaration, 78–9 249–50 compared to express trusts, criteria for award of, 79–80 political purposes, 253–5 370 equitable bars to relief and, public benefit, 256–7 criteria for imposition of, 373, 80–1 public or section of the 376 defences for breach of public, 257–8 impact of family law confidence purposes beneficial to the legislation on, 379–80 change of position, 193 community, 253 institutional and remedial, iniquity, 192 relief of poverty, 250–1 369–70 defences for breach of trust support for the aged and unconscionability and, 372 equitable defences. See impotent, 251 unjust enrichment and, equitable defences for taxation legislation and, 248 371–2 breach of trust chattels, 131 wrongdoing and, 372–3 exculpation in the trust contracts for sale of, 37 contract law instrument, 322–5 injunctions to restrain loss or equity in, 94 statutory exculpation. See damage to, 45 contracts statutory exculpation chose in action, 131 construction, 34–5 defences to breach of civil procedure equitable remedies and, confidence equitable remedies and, 14–15 public interest, 192–3 18–19 performance of personal delay, 83–4 civil wrongs services, 35–6 discretion equitable remedies and, prerequisites to award of award of a declaration and, 17–18 specific performance, 80 claiming, 339 36–8 discrimination ‘cloak for fraud’ doctrine, 236–7 sale of chattels, 37 trusts and, 243–4 coercion, 29 sale of land, 37 disgorgement, 29, 169 common law to pay or lend money, 38 doctrine of constructive notice, competition with equity, 7–8 trusts and, 212–13, 220–1 176 differences to equity, 6 contribution, 18 doctrine of cy-près, 259 remedies, 26 contributory negligence, 67 doctrine of incorporation by tracing and claiming at, 340 contructive trusts reference, 238 ‘common sense’ test, 65–6 compared to resulting trusts, doctrine of mutual wills, 388–90 compensation, 29, 169 370–1 doctrine of notice, 176 condition Court of Chancery, 5, 203 duress, 100 trusts and, 211–12 appointment of confidence chancellors, 6 efficient market hypothesis, breach of. See breach of discretion of chancellors, 7 291 confidence Earl of Oxford’s Case,7,9 equitable charge, 211 equitable obligation of. See issue of writs by, 5–6 equitable compensation, 58, 182 equitable obligation of petitions to, 6 calculation of. See calculation confidence reform and judicature of equitable confidential information legislation, 8–10 compensation misuse of, 190–1 summons to appear before emergence of jurisdiction to confidentiality Chancellor, 6 award, 58–60 quality of, 187–8 uses of land disputes, 6–7 equitable damages, 49–50 consent criminal liability, 26 assessment of. See as equitable defence for criterion certainty test, 226–9 assessment of equitable breach of trust, 329 cy-près schemes, 259–60 damages 394 Index © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-316-62194-3 — Equity and Trusts in Australia Michael Bryan , Vicki Vann , Susan Barkehall Thomas Index More Information availablility for equitable objectives of. See objectives essential characteristics, wrongs, 50 of equitable remedies 204–5 jurisdiction to award Lord personal, 27 methods of creating. See Cairns’ Act damages, property, 15–17 methods of creating a 50–1 proprietary remedies. See trust equitable defences for breach of proprietary remedies parties to, 205–6 trust, 328–9 specific performance. See private, 336 acquiescence and release, specific performance purposes of, 202 329–30 equitable wrongs resulting trust arising from consent, 329 breach of confidence, 17–18 failure of, 364–5 equitable intervention breach of fiduciary ‘three certainties’ contribution, 18 obligation, 17 requirements, 216 general principles of, 99–100 equities and equitable interests, types of, 206–8 marshalling, 18 127–8 subrogation, 18 equity family property equitable obligation of Aristotelian, 4 constructive trusts and, confidence, 186–7 in contract law, 94 360–3, 373–5 Australian developments, differences to common law, fiduciary obligations, 150, 195–6 6 159–63 circumstances importing, exclusive and auxilliary authorisation and ratification, 189–90 jurisdictions of, 13–14 163 elements of, 186 institutional. See institutional Boardman v Phipps, 165–7 English developments, 194–5 equity breach of. See breach of misuse of confidential map of, 13–19 fiduciary obligation information, 190–1 maxims of, 19–21 Chan v Zacharia, 167–8 protection of private meaning of, 4 core, 159–60 information, 193–4 monetary remedies in. See deterrence and, 163–4 quality of confidentiality, monetary remedies duty of loyalty, 164 187–8 place in modern law, 12–13 Keech v Sandford, 164–5 showing of detriment reception of in Australia, stringency of, 163–8 suffered, 191–2 10–11 trustees. See trustees’ specificity, 187 substantive fairness and, fiduciary obligations equitable ownership, 125–6 112–18 fiduciary relationships equitable property tracing and claiming at, concurrent contractual, 155–7 assignment, 138–9 340–1 distortion of fiduciary distinction between legal voidable transactions and, concept, 157–8 property, 131 99–100 ‘horizontal’ relationships, gift of, 139 estoppel, 83, 94 154–5 equitable proprietary interests, common law, 94–5 recognised, 150–1 120–2 criteria, 96 scope of, 158–9 equitable relief equitable, 95–9 ‘vertical’, 152–4 against forfeiture, 115–18 promise enforcement and, 94 following, 339 bars to. See bars to relief proprietary. See proprietary forfeiture equitable remedies, 13–14, 26 estoppel equitable relief against, bars to. See bars to relief exceptions to indefeasibility, 115–18 civil procedure, 18–19 179 fraud civil wrongs, 17–18 exemplary damages, 67–8 actual, 323 contract, 14–15 express trusts equitable, 323