LLB220 Study Guide - Final Guide: Australia And New Zealand Banking Group, J. C. Williamson, Calverley
Equity & Trusts:
DEFINTIONS:
Equitable interest in land: equity looks upon what ought to be done as though it was done,
these may arise from an express trust or form a resulting or constructive trust.
Trust: legal relationship where the trustee holds the property as the legal owner for the
benefit of the beneficiary or beneficiaries
Trustee: legal owner of the property
Beneficiary: individual whom the property was intended to benefit
1. Has the transfer created a legal interest in land?
a. Is it transferred by deed?
Must be in writing – s 23B(1) of Conveyancing Act
Requirements – s 38(1) of Conveyancing Act
oSigned and sealed
Sealing won’t be necessary if signed and attested – s
38(3)
oAt least one witness not party to proceedings
oNo particular form or words
Must be delivered – s 38 of Conveyancing Act
oMeans that he or she intended the deed to be binding on
execution (Xenos v Wickham)
oMay occur whether or not deed is physically handed (Doe d
Garnous v Knight)
Unregistered dealings of Torrens land must occur by deed
(Chronopoulus v Caltex Oil applying Section 7 of Conveyancing Act)
b. Is it created by parol or by conduct?
Certain leases are exempt from the requirement of a deed – s 23B(2)
(d)
Leases exempt – s 23D(2)
oThose not exceeding a period of 3 years
oTaking effect immediately in possession
oWithout taking a fine
Lump sum payment (form of a premium)
yearly implied tenancies are exempt from the deed requirement
AP – transfer can only occur by deed
2. Has the transfer created an equitable interest?
a. Is it an express trust?
Formal elements:
oMust be in writing – s 23C(1)(b) of Conveyancing Act
oMust be signed by person disposing or someone entitled to
sign – s 23C(1)(c) of Conveyancing Act
b. Is it a resulting trust?
No formal elements
Is it a failed express trust?
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oSettlor fails to dispose of the entire beneficial interest –
Longely v Lonely
oVoid or unenforceable express trust creates a resulting trust –
Re West Sussex Constabulary’s
Is it a trust resulting from a purchase in another’s name?
oCreates a presumption in favour of a trust
oEquity presumes the purchaser is the legal owner
Is it a trust resulting from a contribution to the purchase price?
oOccurs when contribution isn’t recognised in legal title
oLoans – entitled to borrowed and repaid amount as if it was
real (even if no contribution to deposit) – Calverley v Green
Is there a presumption of advancement (for (ii) and (iii))?
oHusband or fiancé to wife or future wife – Wirth v Wirth
oDoes not apply from women to men – March v March
oFathers to children – Dullow v Dullow
oApplies equally to mothers – Nelson v Nelson; Brown v Brown
oRebutted with a clear intention that the transfer IS NOT
DONATIVE, successfully argued in Brown v Brown
c. Is it a constructive trust?
No formal elements
Is there a common-intention resulting trust?
oLegal owner and non-legal owner have demonstrated a
common intention that the non-owner will receive an interest
and it would be ‘inequitable’ to deny that interest (Gissing)
oLord Diplock, Gissing v Gissing:
‘… if by his words or conduct he has induced the cestui
que trust to act to his own detriment in the reasonable
belief that by so acting he was acquiring an equitable
interest in the land.’
oMay be implied but not imputed – Allen v Synder
oInterest will be proportionate– Hussey v Palmer
Is there a contrastive trust based solely on unconscionable use of
legal title?
oNormally arises in cases of pooled income – Baugmgartner v
Baugmgartner
‘… it is proper to regard the arrangement… as one
which was designed to ensure that their earnings
would be expended for purposes of their joint
relationship and for their mutual security and benefit…’
oIncludes de facto relationships – Miller v Sutherland
oNot limited to relationships, main TEST – Cohen J, Miller:
‘on the basis that these would contribute to the making
of a home for their joint occupation and enjoyment…
in those circumstances it would be unconscionable of
the defendant to deny the plaintiff an equitable
interest…’
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Document Summary
Equitable interest in land: equity looks upon what ought to be done as though it was done, these may arise from an express trust or form a resulting or constructive trust. Trust: legal relationship where the trustee holds the property as the legal owner for the benefit of the beneficiary or beneficiaries. Beneficiary: individual whom the property was intended to benefit: has the transfer created a legal interest in land? a. Must be in writing s 23b(1) of conveyancing act. Requirements s 38(1) of conveyancing act: signed and sealed. Sealing won"t be necessary if signed and attested s. 38(3: at least one witness not party to proceedings, no particular form or words. Must be delivered s 38 of conveyancing act: means that he or she intended the deed to be binding on execution (xenos v wickham, may occur whether or not deed is physically handed (doe d.
