Author: Cameron Charnley

Equitable set-off: what kind of connection do two claims need? The NSW Court of Appeal is divided

The New South Wales Court of Appeal, in a split decision, has allowed an appeal against a judgment granting equitable set-off. In overturning the trial judge’s decision, the Court also considered the scope and application of the so-called Brickenden principle, which prohibits speculation by a defaulting fiduciary as to what would have happened had there been no default

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.

Got a hunch? Navigating the rules of preliminary discovery

The rules of most Victorian courts permit a party, in certain circumstances, to obtain discovery of material prior to commencing proceedings. Like many rule-based tests, there can be some confusion about the requirements as well as the discretionary factors involved in obtaining preliminary discovery. The Supreme Court in a recent appeal decision has shed some light.