Term
| What happens in a resulting trust? |
|
Definition
| Legal interest is transferred to the trustee (the transferee), but it is called a resulting trust because the equitable interests springs back to the transferor |
|
|
Term
| What are the 2 categories of resulting trusts? |
|
Definition
|
|
Term
| How does an automatic resulting trust arise? |
|
Definition
| Arises where settlor intends to create an express trust for X, but failed to dispose of the entire beneficial interest in the trust assets. “undisposed of beneficial interest situation” |
|
|
Term
| List 4 specific instances where an automatic resulting trust will arise. |
|
Definition
a. The trust is void or unenforceable
b. The trust does not refer to the beneficial interest. Eg ‘to X upon trust’ (no certainty of objects). Exception= half secret trusts.
c. Failure of the purpose of the trust: (possibly controversial) Barclays Bank v Quistclose Investments [1970]
d. Surplus of property (most often arises w/ trusts for a charitable purpose): see Re Gillingham Bus Disaster Fund |
|
|
Term
| Explain the significance of Barclays Bank v Quistclose Investments [1970] |
|
Definition
i. Argument that the “secondary trust” in Barclays Bank is a resulting trust
ii. Alternative reasoning, close to the reasoning of L Wilberforce- on the evidence an inference could be drawn that Q had actually formed the intention that in the R could not pay shareholders, then R must hold on trust for Q- express trust on the basis of inferred intention- money to be used “solely for the purpose of paying dividend” |
|
|
Term
| What is a cy-pres scheme? |
|
Definition
| ‘circumstances in which the original purposes of a charitable trust can be altered to allow the property given or part of it to be applied cy pres… [include] where the original purposes provide a use for part only of the property available by virtue of the trust’- at the core of cy pres is a ‘general charitable intention’ |
|
|
Term
| What happens when there is no general charitable intention for cy-pres? |
|
Definition
| The law implies a resulting trust unless it is established/ shown that the settlors intention was to part with ownership forever (ie abandon the property)- the onus of proof is on the person seeking to prove that a resulting trust did not arise. Re Gillingham |
|
|
Term
| What is the core finding from Re Gillingham? |
|
Definition
| The law implies a resulting trust unless it is established/ shown that the settlors intention was to part with ownership forever- the onus of proof is on the person seeking to prove that a resulting trust did not arise (in this case- on the Crown) |
|
|
Term
| How does presumed resulting trust work? |
|
Definition
A trust results because someone other than the legal owner provided some or all of the purchase money.
2 situations in which equity will make the presumption of a resulting trust. (NOTE: presumption is rebuttable). |
|
|
Term
| What are the two types of presumed resulting trust? |
|
Definition
Volunteer situation
Unequal Contribution of Purchase Money Situation |
|
|
Term
| What is the volunteer situation? |
|
Definition
‘where a person pays the purchase price of property and causes it to be transferred to another or to another and himself jointly, the property is presumed to be held by the transferee or tranferees upon trust for the person who provided the purchase money.’
Equity presumes against gifts. The onus of proof is on the person who wants to show that it is a gift. |
|
|
Term
| What is the important legal concept for the volunteer situation? |
|
Definition
| As discussed in Calverly v Green. In assessing resulting trusts-> look to the moment of acquisition of the property. 1. The presumption of advancement or a. The presumption of advancement does not apply to de facto relationships as a class of people 2. By evidence of actual intention (re common intention -> look to what the parties do and say |
|
|
Term
| What is the Unequal Contribution of Purchase Money Situation? |
|
Definition
| where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which the provided it |
|
|
Term
| 2 ways to rebut that a resulting trust has been created. |
|
Definition
The presumption of advancement
Evidence of Actual Intention |
|
|
Term
| What is the presumption of advancement? |
|
Definition
Traditionally applied to transfers by husband to wife and father to child
Where the presumption applies, the onus of proof shifts to the person who seeks to establish that there was not a gift. |
|
|
Term
| What happens with presumption of advancement for parents and children? |
|
Definition
| Mothers are under the same moral obligation to provide for their children (Nelson v Nelson) |
|
|
Term
| What did NAB v Maher say about PoA? |
|
Definition
| 3 wks prior to Nelson, FCSCA held that the presumption of advancement does not apply where a wife enters into a transaction for the benefit of her husband. |
|
|
Term
| How do de facto relationships work with PoA? |
|
Definition
- The presumption of advancement does not apply to de facto relationships as a class of people because the term/idea de facto relationship embraces a wide variety of relationships, and there may be an intention of the parties to keep their finances separate
Calverly v Green |
|
|
Term
| What effect does the FLA have on these de facto relationships? |
|
Definition
Family Law Act 1975 (Cth) Pt 8AB.
Judge can consider contributions at the start of the marriage, during the marriage, non-financial contributions, and the future needs of the parties. |
|
|
Term
| How can evidence of actual intention displace the presumption of resulting trust? |
|
Definition
| Where there is evidence that shows that the parties had a common intention or an agreement that they would share the beneficial title in the same way that the legal title was share, the presumption of a resulting trust may be displaced. |
|
|
Term
| What happened in Muschinski v Dodds? |
|
Definition
presumption of a resulting trust was rebutted by Mrs M’s actual intention. (see Deane J @611-612) The planned future association and joint activity explained the arrangement b/w the parties. Mrs M’s intention was that the “status” of her and Mr D in the venture would be equal.
The conferral of Mr D’s beneficial interest was immediate and unconditional, because Mrs M had not been planning for either the relationship or the joint endeavour to fail. |
|
|
Term
| Under M v Dodds, how would a constructive trust be imposed? |
|
Definition
| Where a joint endeavor prematurely fails without attributable blame in circumstances where it is unconscionable for a person to assert or retain the benefit of the relevant property, - in which they had gained an interest for the purposes of the joint endeavour. |
|
|
Term
| What was the importance of Baumgartner v Baumgartner? |
|
Definition
Using Deane in MvD: HCA by majority imposed a constructive trust focusing on the pooling of the earnings.
• The parties’ cohabitation was the joint endeavour that provided the basis for the pooling of their earnings.
• The parties’ premature separation (the failure of their relationship) was the failure of basis. |
|
|
Term
| What was the importance of Swettenham v Wild? |
|
Definition
Elderly widower contributed $190,000 to a $235,000 house, in which his daughter and son-in-law were to live and he was to reside in the granny flat.
Mr S would have been entitled to the proportionate share of the property relative to his capital contribution. |
|
|
Term
| What was the importance of Riches v Hogben? |
|
Definition
| An interest in land may arise by an equitable estoppel where a party has acted to his detriment in consequence of an expectation created or encouraged by another that the interest in the land will be granted. |
|
|
Term
| Why is Calverley v Green important? |
|
Definition
HC: (focusing on the moment of acquisition) both parties were legally liable to make the loan repayments, therefore each of them is deemed to contribute $9,000 to the purchase price.
Mr C’s total contribution= $18,250; Ms G’s deemed contribution= $9,000.
The presumption was that Mr C and Ms G held the beneficial title in accordance with their respective contributions to the price.
The presumption can be rebutted by:
1. The presumption of advancement or
a. The presumption of advancement does not apply to de facto relationships as a class of people because the term/idea de facto relationship embraces a wide variety of relationships, and there may be an intention of the parties to keep their finances separate (per Mason and Brennan JJ @ 260; contra Gibbs CJ).
2. By evidence of actual intention (re common intention -> look to what the parties do and say (@261).
a. Per Deane J @ 296: Admissible evidence= acts and declarations of the parties before or at the time of the vesting of the legal estate and admissions against interest. Also, evidence of the relationship- both legal and factual. |
|
|
