The Commercial Bar Association of Victoria Inc. A0120851O
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
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.
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.
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.
In dismissing a claim that the exercise of a power to remove and appoint a trustee was for a foreign or extraneous purpose, the New South Wales Court of Appeal has provided guidance on the scope of trust powers and the importance of intention and good faith when ascertaining the validity of the exercise of a power.
The New South Wales Court of Appeal has allowed an appeal against orders for distribution from a co-mingled fund held by insolvent entities and, in doing so, has provided guidance for liquidators and creditors alike on the various methods for distribution and the principles of tracing.
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.
Where seeking to recover land on the basis of a constructive trust arising from proprietary estoppel, when does that constructive trust arise? Does it arise when a court makes a declaration to its effect, or when the relevant cause of action accrues? And when should the court consider a lesser remedy instead of declaring a trust?
Where one has a purported deed or a ‘heads of agreement’ type of document, when might that document be binding and when might it fall short? And when might someone who has not signed the document still be a ‘party’ to it?