Category: Equity

Is a fiduciary relationship a precondition to the right to trace? The Full Court of the Federal Court says ‘no’

This case note reviews a decision of the Full Court of the Federal Court on the question of whether or not a person seeking to trace money or property must first establish the existence of a fiduciary relationship. In analysing the divergent views evident in a number of cases, the Court unanimously held that a fiduciary relationship is not a precondition.

Powers laid bare: bare trustees, liquidators, and the sale of trust assets

This case note reviews a decision where a plaintiff, as corporate trustee in liquidation and claiming to be assignee of a right to recover a debt paid for by a guarantor, sought to enforce that right. The decision addresses the power of a former trustee as bare trustee to deal with trust assets and the powers of a liquidator of a bare trustee in similar respects.

Formulating a remedy for proprietary estoppel

In assessing whether the trial judge’s decision to declare a promisee’s entitlement to inherit the land was disproportionate in satisfying the requirements of conscientious conduct, the Court of Appeal in Harris v Harris identified and applied a number of key principles guiding the award of remedies for proprietary estoppel.

Insolvent corporate trustees: some questions finally answered

The Victorian Court of Appeal and a Full Court of the Federal Court have each recently held that the statutory priority regime applies to the winding up of companies that act as trustees of trading trusts, confirming that employee claims and a liquidator’s remuneration and costs are priority debts. Special leave to appeal the Court of Appeal’s decision has been sought.