Professional Documents
Culture Documents
LXEC 2104
Historical reason
Different approach from common law
the ecclesiastical influence
Concepts of honour, duty, and moral
obligation
EQUITY
Custom
Common law
Law merchant
Legislation
Historical Development
History
Emergence of Equity
Procedural reforms
Court of Appeal
Case examples:
Walsh v Lonsdale
Job v Job (1877)
Joseph v Lyons
Berry v Berry
Lowe v Dixon
Prof Maitland:
We ought not to think of common law and equity as
two rival systems. Equity was not a self sufficient
system, at every point it presupposed the
existence of common law. Common law was a self
sufficient system. I mean this: that if the legislature
had passed a short Act saying Equity is hereby
abolished, we might have got on fairly well; in
some respects our law would have been barbarous,
unjust, absurd, but still the great elementary rights,
the right of immunity form violence, the rights to
ones good name, the rights of ownership and
possession would have been decently protected
and contract would have been enforced.
Maitland Contd
(1879) 13 Ch D 310
Salt v Cooper
Ashburner:
-Express
THE TRUST
trusts
Implied trusts
Obligations of confidence
(Trust-key ingredient)
Personal Remedies
CONSCIENCE
The fiduciary
relationship
Misrepresentation
Fraud
mistake
Undue influence
UNCONSCIONABILITY
Unconscionability
Unconscionability
Relevance of Equity to
contemporary issues
Influence of equity
Intervention in the
administration of
common law
Penetrates aspects
of legal practice
Influences modern
commercial law
Environmental law
Administrative law
eg. Declaration &
injunction
Emerging role of
equitable principles
eg. In human rights
law restitution,
fiduciary role of
govts in relation to
indigenous peoples
Significant dates
1807
1826
1937
1951
1956
1963
Reception of equity
Application of English
Principles of Equity
2.
3.
statement.
QUESTIONS
Maxims of Equity
Equitable Remedies
1.Equitable remedies are discretionary. Discuss with
Equitable remedies
Specific Performance
Particular contracts
Contracts for sale of land ***
Building contracts
Contracts for sale of goods
Contracts to lend money
Contracts for personal services
Particular Contracts
Contracts for the sale of land sp generally
decreed see Specific Relief Act s 11
o
o
Injunctions
Types of injunctions
- perpetual / interim or interlocutory
- prohibitory / mandatory
- quia timet injunction
Perpetual injunctions
- Day v Brownrigg
- Redland Bricks v Morris
- Gibb v Malaysia Building Society
Interlocutory injunctions
- American Cyanmid Co v Ethicon
- Keet Gerald Francis Noel v Mohd Noor
Doctrines of Equity
Borneo
Housing
Finance v Time
Engineering
Constructive trusts
Equitable
Assignmen
t/ Statutory
Assignmen
t
Equitable Interests/
Proprietary interests
May arise in various circumstances:
Express trusts
Beneficial interests in a deceased
estate
Under contract of sale bare trust
Implied trusts
Constructive trusts
Assignment of property
Assignment of Property
Equitable Assignment
William Brandts & Sons v The Dunlop
Rubber Co
MIMB v Malaysia Airlines
Public Finance v Scotch Leasing Sdn Bhd
Estoppel
By deed
Common law
by judgement
by conduct
Estoppel
promissory estoppel
Equity
proprietary estoppel
Development of Estoppel
Estoppel by representation
Representation by or omission by A
Induced B to act
Caused detriment to B
Equity binds the conscience of the person
Promissory Estoppel
Proprietory estoppel
Unconscionability
Promissory Estoppel
William Teos House and Estate Agencies v Chan Eng Swee
Where one party has by his words or conduct, made to the other
a promise or assurance which was intended to affect the legal
relations between them and to be acted on accordingly, then
once the other party has taken him at his word and acted on it,
the one who gave the promise or assurance cannot afterwards be
allowed to revert to the previous legal relations as if no such
promise or assurance had been made by him, but he must
accept their legal relations subject to the qualifications that he
himself has so introduced even though it was not supported in
point of law by any consideration butt only by his word. The
principle does not create a cause of action where none existed
before. It only prevents a party form insisitng on his legal rights,
when it would be unjust to allow him to enforce them, having
regards to the dealings which have taken palce between them.
Proprietary estoppel
Trust
Dependence
Reliance
Disadvantaged
Vulnerability
One in position of influence
over another
Konsep Fidusiari
Pemecahan kewajipan?
Meletakkan amanah
konstruktif
Dasar:Unconscionability
Prevents unjust enrichment
Menimbulkan remedi
ekuiti
Injunksi
Tracing (Pengesahan)
Account (akaun)
Amanah Konstruktif
Fiduciary duty
Prevent unconscionability
Definition of trust
Yong Nyee Fan v Kim Guan [1979] 1 MLJ 182
Trustee
Trust property
Settlor / testator
Classification of trusts
1.
2.
3.
4.
5.
6.
Express trust
Express Trust
Declaration of trust
Intervivos trust
Transfer or property to
Trustee for the beneficiary
A trust which operates during
The life of the settlor
Failure of certainties
Failure of certainties
NO
Has the trust been created by
transfer of property to trustee
Has the settlor done everything
that is necessary for him to do?
YES
YES
lease
Transfer by
assignment
Gift by cheque
Appropriate mode of
transfer according to the
nature of the property
chattels
shares
land
bank accounts
Open bank account and
Hand passbook to bfy
Cheque endorsed to
its beneficiary
delivery
delivery of duly executed
instrument of transfer
deliver a duly executed
instrument of transfer (IDT)
deed of conveyance
Trust is enforceable by
beneficiaries
Has the settlor done all in
his power to create the trust?
NO
Yes
perfect an
assist a
exceptions
1. The Rule in
Strong v Bird
2. Gifts in contemplation
of death
3.
Estoppel
If
and
B becomes the executor of As
will
then
B is entitled to hold property for his (Bs)
benefit
2. Must be in contemplation of
impending death
3. Must be intended to take
effect upon death
Estoppel
An imperfect gift may be enforceable where 3
elements are present
Detriment suffered
by the representee
Representation by the
representor
Reliance on the
representation
by the representee
Express trust
Express trust
No indication in the
will that X only holds
as trustee and not
beneficiary
Secret trust
Blackwell v Blackwell
Acquiesence on behalf of
the trustee
Discretionary Trust
Beneficiaries do
not have a fixed entitlement
assignable
Protective trust
Protective Trust
To A on protective trust
S 36 Trustee Act
Couples life interest
In a settlement with a
discretionary trust
Bankrputcy
Interest will determine on
the occurrence of specified event
Attempted alienation of property
Resulting Trusts
2 categories
conseq
The undisposed
beneficial interest
automatically
results to the
settlor
Automatic
Resulting trusts
4 typical
situations
void
uncertainty
eg
perpetuity
Intended beneficiary
predeceases testator
Reasons for failure
unenforcable
Failure to create
express trust
illegality
eg
Incomplete constitution
Lack of formality
conseq
Trust property
automatically
results to the
settlor
Usually because
of an error in
drafting
conseq
Trust property
automatically results
to the settlor
eg
Quistclose trust
conseq
EXCEPT
Undistributed
surplus of a fund
Bona vacantia
(ownerless
goods)
Cy-pres
application
Presumption against
a gift
Express agreement?
REBUTTABLE
By presumption of
advancement
Presumption of Advancement
Transfer from
husband to wife
Defacto partners?
Tinsley v Milligan
Damaratna v Damaratna
Transfer from
man to fiancee ?
Transfer from
parent to child
Includes adoption
2)Presumed resulting
trusts
Voluntary transfer of As
property into Bs name and B
provides no consideration
eg
Purchase of property by
A&B and B makes a direct
financial contribution to
the purchase
Matrimonial
property
Elements of Fiduciary
Obligation
Fiduciary Obligation
Confidence
Scope for exercise
of discretion and
power
Bfy vulnerable
Trust
Dependence
Reliance
Disadvantaged
Vulnerability
One in position of influence
over another
Powers of Trustees
Advancement
Insurance
Maintenance
Business
Investment
QUESTIONS