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1 Contents 3. Remedial Equity... 3 (A) Specific Performance Defences... 3 (B) Injunctions... 4 (1) Interlocutory/Interim Injunctions (Castlemaine Tooheys v SA)... 4 (2) Final Injunctions (2 Types)... 4 (3) Mandatory Injunctions (Redland Bricks v Morris)... 5 (4) Anton Pillar (Search) Orders (Anton Pillar KG)... 5 (5) Mareva (Asset Protection) Orders (Cardile v LED Builders)... 5 (C) Damages Under the Lord Cairns Act Assessment of equitable damages The Nature and Construction of Trusts... Error! Bookmark not defined. (A) Nature and Classification of Trusts... Error! Bookmark not defined. of a Trust... Error! Bookmark not defined. Classification of Trusts... Error! Bookmark not defined. (B) Distinction between Trusts and other Legal Relationships... Error! Bookmark not defined. (C) The Three Certainties (For Express Trusts)... Error! Bookmark not defined. (i) Certainty of Intention (Byrnes v Kendle)... Error! Bookmark not defined. (ii) Certainty of Subject Matter... Error! Bookmark not defined. (iii) Certainty of Object... Error! Bookmark not defined. D. Beneficiary Principle... Error! Bookmark not defined. Powers of Appointment... Error! Bookmark not defined. 5. Operation of Express Trusts... Error! Bookmark not defined. (A) Duties, Powers, Rights and Liabilities of Trustees... Error! Bookmark not defined. (i) Powers and Duties... Error! Bookmark not defined. (ii) Rights and Liabilities... Error! Bookmark not defined. (B) Rights of Beneficiaries... Error! Bookmark not defined. (i) Right to Extinguish the Trust (Saunders v Vautier)... Error! Bookmark not defined. 6. Fiduciary Obligations... Error! Bookmark not defined.... Error! Bookmark not defined. Page 1 of 5
2 How to Answer Fiduciary Obligations Questions... Error! Bookmark not defined. 7. Resulting Trusts... Error! Bookmark not defined. (A) Automatic Resulting Trusts... Error! Bookmark not defined. (B) Presumed Resulting Trusts... Error! Bookmark not defined. (C) Resulting Trusts and Illegality... Error! Bookmark not defined. (D) Quistclose Trusts... Error! Bookmark not defined. 8. Constructive Trusts... Error! Bookmark not defined. (A) Constructive Trusts and Third Parties... Error! Bookmark not defined. Limb 1: Knowing receipt... Error! Bookmark not defined. Limb 2: Knowing Assistance... Error! Bookmark not defined. (B) Constructive Trusts and Unconscionable Conduct... Error! Bookmark not defined. (C) Remedial Constructive Trusts... Error! Bookmark not defined. Topic 9 Tracing... Error! Bookmark not defined. How To Answer a Tracing Problem Question (See examples on other note set)... Error! Bookmark not defined. Topic 10: Charity... Error! Bookmark not defined. (A) Legal Concept of Charity... Error! Bookmark not defined. (B) Charitable Heads... Error! Bookmark not defined. (i) Poverty... Error! Bookmark not defined. (ii) Education... Error! Bookmark not defined. (iii) Religion... Error! Bookmark not defined. (iv) Other Beneficial Purposes... Error! Bookmark not defined. (v) Mixed Purposes... Error! Bookmark not defined. (C) Public Benefit... Error! Bookmark not defined. (D) Political Purposes... Error! Bookmark not defined. (E) Schemes... Error! Bookmark not defined. Page 2 of 5
3 3. Remedial Equity (A) Specific Performance 1.Validcontract + valuable consideration 2. Damages are an inadequate remedy 3. Can precisely identify what it is that must be performed Element 1 Is there a valid contract? o The contract requires consideration o Equity will not enforce contracts void for uncertainty Element 2 Are damages an inadequate remedy? (Dougan v Ley; Beswick v Beswick) o SP will not be ordered where damages are objectively an adequate remedy (Dougan v Ley; Beswick v Beswick) o Things to consider Rarity of item Defendant s prior and foreseeable conduct (Beswick v Beswick) Ease of calculation of damages o Categories Shares/Chattels damages generally sufficient (Dougan v Ley) Land SP usually granted (Dougan v Ley) Third party benefit contracts SP usually granted (Coulls v Bagot s; Beswick v Beswick) Contracts to pay/lend money: damages generally sufficient Element 3 Can precisely identify what it is that must be performed (Coulls v Bagot s) o SP wil not be granted where the parties obligations are imprecisely defined (Coulls v Bagot s) Defences 1. Court Supervision (Argyll) Rule: SP will not be granted where constant court supervision is required (Argyll) 2. Personal Service (CH Giles v Morris) Rule: Courts are reluctant to grant SP where it would require a person to be employed, remain the partner of, or otherwise be in some ongoing legal relationship with another person (CH Giles v Morris) o The obligation to perform personal service is not enforceable by SP but the obligation to enter into a contract to procure the provision of services is (CH Giles v Morris) 3. Hardship (Dowsett v Reid) Rule: SP may be refused if equitable relief would cause undue hardship to either party (Dowsett v Reid) o Relevant factors Page 3 of 5
4 If terms are too vague If SP would involve illegality/breach of fiduciary duty If SP would force defendant to break a contract with third party Impossibility of compliance 4. Lack of Mutuality Rule: If the plaintiff cannot perform their side of the contract, there can be no SP (B) Injunctions Jurisdiction for Injunctions o Auxiliary jurisdiction Injunction sought to restrain a legal right (e.g. breach of contract, tort, statute) Damages are an inadequate remedy o Exclusive jurisdiction Injunction sought to restrain an equitable right (e.g. breach of trust, confidence) (1) Interlocutory/Interim Injunctions (Castlemaine Tooheys v SA) Intro o Effect preserves the status quo prior to trial o Availability in exclusive and auxiliary jurisdictions, whether mandatory or prohibitory o 1. P has made out a prima facie case (ABC v O Neill) Sufficient likelihood of success required o 2. Balance of convenience/risk of injustice favours the grant of injunction (Beecham v Bristol) (2) Final Injunctions (2 Types) (A) Restraint of Trade (Curro v Beyond Productions) Intro o Rule: Court will not order SP of a personal service contract, but it may order an injunction to prevent that person from working for someone else o Jurisdiction: Auxiliary o 1. Would the restrictions exceed what is reasonably necessary for the protection of the legitimate interests of the party relying on the restraint of trade clause? (B) Licence (Cowell v Rosehill Racecourse) Rule: Where one person enters the land of another under a licence, and the licence is not coupled with grant of any interest in the land, the licence is revocable by the proprietor at will; even if such a revocation is wrongful o Note this rule may not be relevant now; may not need a proprietary interest Page 4 of 5
5 (3) Mandatory Injunctions (Redland Bricks v Morris) Intro o A positive injunction; forces one to do something (not restrain from doing something) o 1. Very strong probability that grave danger will accrue to plaintiff o 2. Whether D behaved wantonly or unreasonably (4) Anton Pillar (Search) Orders (Anton Pillar KG) Intro o Allows P to inspect D s property o 1. P has an extremely strong prima facie case o 2. Balance of convenience o 3. Clear evidence that D possesses vital material and there is a real possibility that he may destroy them (5) Mareva (Asset Protection) Orders (Cardile v LED Builders) Intro o Preserves a defendant s assets pending judgment and the enforcement of final orders o 1. Strong prima facie case o 2. Balance of convenience o 3. A real risk that assets will be removed or dissipated (C) Damages Under the Lord Cairns Act Overview o Rule: o Availability: Only in CL wrongs 1. At the date of instituting proceedings, or trial commencement, the court has jurisdiction to award an injunction or SP Element 1: Does the court have jurisdiction to award an injunction or SP? o If the Court has jurisdiction to award an injunction or SP, it may award damages either in substitution for or in addition to either remedy (Grant v Dawkins) o May be available for equitable wrongs (Giller v Procopets) Assessment of equitable damages Damages generally assessed as at contract breach but if unjust (considering that equity aims to put P in as good a position as if the contract had been performed), court may assess damages from: o Date of judgment (Wroth v Tyler) o Date that the contract was lost (Johnson v Agnew) Page 5 of 5
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