A Sourcebook on Equity and Trusts in Australia最新文献_第2页

Participants in a breach of fiduciary obligation 违反信义义务的参与者

A Sourcebook on Equity and Trusts in Australia Pub Date : 2019-10-02 DOI: 10.1017/9781108628648.012

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Index 指数

A Sourcebook on Equity and Trusts in Australia Pub Date : 2019-10-02 DOI: 10.1017/9781108628648.026

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Resulting trusts 产生的信任

A Sourcebook on Equity and Trusts in Australia Pub Date : 2019-05-21 DOI: 10.4324/9781315413853-7

M. Ramjohn

引用次数: 1

Termination and variation of trusts 信托的终止和变更

A Sourcebook on Equity and Trusts in Australia Pub Date : 2017-09-25 DOI: 10.4324/9781843146919-33

M. L. Ahmadu, R. Hughes

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Equity in contract law 合同法中的衡平法

A Sourcebook on Equity and Trusts in Australia Pub Date : 2017-09-01 DOI: 10.1017/9781108628648.008

M. Bryan, Simone Degeling, M. Donald, Vicki Vann

{"title":"Equity in contract law","authors":"M. Bryan, Simone Degeling, M. Donald, Vicki Vann","doi":"10.1017/9781108628648.008","DOIUrl":"https://doi.org/10.1017/9781108628648.008","url":null,"abstract":"Introduction Much of equitable doctrine concerning contract law is now covered in contract law or property law subjects. Our coverage will therefore be brief. Equitable intervention into contract law can take one of four forms: (a) Equity enforces some promises which are unenforceable at common law. It may also modify or even prevent the enforcement of promises which would otherwise be enforceable at common law. These results are principally achieved by the doctrine of estoppel. (b) Equity sets aside contracts where the consent of a party to the contract has been impaired or vitiated by factors such as mistake, misrepresentation, undue influence or unconscionability. (c) Equity intervenes where the contract is substantively unfair, for example where it contains a penalty clause or a clause requiring forfeiture of property. (d) Equity provides remedies unavailable at common law (or, in the case of rescission, available on restrictive conditions) which: • enforce contracts (for example, specific performance or injunctions); • set aside contracts where consent has been vitiated (rescission); or • correct contracts where they do not reflect the mutual intention of the parties (rectification). The focus of this chapter will be on the first three examples of equitable intervention. Equitable remedies are discussed in Part B. Estoppel and promise enforcement Estoppels were originally developed as rules of evidence and some applications of estoppel (such as estoppel by deed, and judgment estoppel) remain evidential in character. The equitable estoppels considered in this chapter have outgrown their evidential origins. In all cases one party is prevented from enforcing a legal right, or from departing from an assumption relied upon by the other party, where it would be unconscionable to do so. This chapter focuses on two types of estoppel: common law estoppel and equitable or promissory estoppel. Proprietary estoppel is discussed in chapter 8. Common law estoppel This estoppel prevents a person who, by a representation of fact, has induced another to alter her position, from denying the fact as represented. Common law estoppel is not a cause of action. It alters the basis on which other causes of action may be brought or defended. It is confined to representations of existing fact, not to representations as to future intention. In Jorden v Money the plaintiff owed money to a solicitor.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133664122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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An introduction to equitable remedies 衡平法救济概论

A Sourcebook on Equity and Trusts in Australia Pub Date : 2017-09-01 DOI: 10.1017/9781316758540.003

M. Bryan, Vicki Vann, Susan Thomas

{"title":"An introduction to equitable remedies","authors":"M. Bryan, Vicki Vann, Susan Thomas","doi":"10.1017/9781316758540.003","DOIUrl":"https://doi.org/10.1017/9781316758540.003","url":null,"abstract":"Introduction Remedies evolve from the procedures courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, and the jury decided those questions. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies such as juries cannot supervise the performance of contracts, ensure compliance with injunctions or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life. Because current equitable practice emerged from the Chancellor's delivery of individual justice, based on the merits of the case and the circumstances of the particular parties before it, equitable remedies are always discretionary. They are not immediately granted once a plaintiff proves her claim (as is the case with contract and tort), but may perhaps be limited or denied altogether in response to a range of factors relevant to the particular claim. It is a feature of equitable remedies that the court's discretion is exercised after consideration of the positions of both parties before it; sometimes the effect of the remedy on other parties, including the wider community, is considered too. The array of remedies available in equity looks bewildering at first sight, but it becomes obvious in most cases that only one or two remedies will provide the kind of relief the plaintiff is looking for. At common law the plaintiff is limited to damages as a remedy; the plaintiff's question is ‘how much money am I entitled to?’. In equity, however, a wide array of remedies are available; so the plaintiff's question becomes ‘what remedy will put me in the position I would like to be in?’.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121736206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Certainty requirements in the law of trusts 信托法中的确定性要求

A Sourcebook on Equity and Trusts in Australia Pub Date : 2012-07-01 DOI: 10.1017/CBO9781139194013.020

M. Bryan, Vicki Vann

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Equitable proprietary interests 衡平法所有权权益

A Sourcebook on Equity and Trusts in Australia Pub Date : 2012-07-01 DOI: 10.1017/CBO9781139194013.012

M. Bryan, Vicki Vann, Susan Thomas

{"title":"Equitable proprietary interests","authors":"M. Bryan, Vicki Vann, Susan Thomas","doi":"10.1017/CBO9781139194013.012","DOIUrl":"https://doi.org/10.1017/CBO9781139194013.012","url":null,"abstract":"Introduction We saw in Part B that equity developed an armoury of personal remedies, such\u0000 as specific performance and injunctions, directed at the person of the\u0000 defendant. Their principal function is to enforce personal rights, such as performance of a contract. However, over time equity proved\u0000 willing to award personal relief almost routinely, not only against owners\u0000 of property but also against third parties who had received the property.\u0000 This regular award of equitable personal relief was eventually perceived as\u0000 having created a proprietary interest in favour of the party entitled to the\u0000 relief. For example, if A signs a contract to purchase land from B, but B\u0000 refuses to complete the contract, equity will grant the remedy of specific\u0000 performance against B, and B will have to transfer the land to A. This\u0000 happened so routinely that eventually A was treated in equity as if he held\u0000 a property interest in the land once the contract was signed. Similarly, the\u0000 regular awards of personal relief against trustees in breach of trust\u0000 eventually gave rise to a proprietary interest in the beneficiary. All\u0000 equitable property rights are sourced in a personal obligation enforced in\u0000 equity. The availability of an equitable remedy does not necessarily mean that the\u0000 interest protected by the remedy constitutes property. For example, equity\u0000 grants injunctions and other relief to prevent the unauthorised use of\u0000 confidential information. But confidential information is not recognised as\u0000 a species of equitable property. Information is only protected against\u0000 misuse by parties who act in breach of an equitable obligation of\u0000 confidence. A person who has confidential information has only a personal\u0000 right to protection in equity. Equitable property, like common law property,\u0000 must be of a kind that is recognised as property in law.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116890767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Bars to relief 救济栏

A Sourcebook on Equity and Trusts in Australia Pub Date : 2012-07-01 DOI: 10.1017/CBO9781107445499.007

M. Bryan, Simone Degeling, M. Donald, Vicki Vann

{"title":"Bars to relief","authors":"M. Bryan, Simone Degeling, M. Donald, Vicki Vann","doi":"10.1017/CBO9781107445499.007","DOIUrl":"https://doi.org/10.1017/CBO9781107445499.007","url":null,"abstract":"Introduction Plaintiffs may have an ‘equity for relief’ but this does not mean that the plaintiff holds a right to relief. All equitable relief is discretionary, and judicial discretion is exercised in a principled manner. The court considers the surrounding circumstances of the case, weighing factors from both the plaintiff's and defendant's perspectives in fashioning an appropriate remedy. Principles informing the exercise of equitable discretion include the doctrines of laches and acquiescence, unclean hands and hardship to the defendant. Additionally, a court exercising equitable jurisdiction will not make an order that is futile or impossible to supervise. The impact of the court's order on third parties will also be considered. These factors apply generally to all equitable remedies. The availability of specific performance is additionally controlled by particular discretionary grounds: want of mutuality and the plaintiff's willingness and readiness to perform her own obligations (see chapter 3 and textbook at [3.3]–[3.5]). Bars to relief are sometimes referred to as equitable defences but properly understood they are not true defences. Since there is no right to relief, any equity held by the plaintiff is coextensive with the extent to which equitable discretion will bend in her favour. However, there are true equitable defences which are considered elsewhere in this book: for example, estoppel can operate as a defence (see chapter 7). Questions for consideration 1. When an application is made for an equitable remedy, what factors ‘tend towards the justice or injustice of granting the remedy that is sought’ ( Bridgewater v Leahy (1998) 194 CLR 457, 494)? 2. Is the court's discretion a rule-based discretion or is it an unbounded discretion? 3. Are the conduct and conscience of both the plaintiff and defendant relevant to the court's deliberations? Laches Equity denies relief for stale demands. Where an equitable cause of action is brought ( Orr v Ford (1989) 167 CLR 316 at 340) and there is delay in bringing or prosecuting the claim, it may be open to the defendant to raise the delay and the impact of this delay in resisting a remedy. Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Background Land owned by Kemp was thought to contain oil.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"349 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120880935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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An overview of equity 公平概述

A Sourcebook on Equity and Trusts in Australia Pub Date : 2012-07-01 DOI: 10.1017/CBO9781139194013.003

M. Bryan, Vicki Vann, Susan Thomas

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