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Types of Trusts (Constructive Trusts (Kowing receipt of trust property:…
Types of Trusts
Constructive Trusts
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Not always subject to req of certainty of subject: Westdeutsche Landesbank Girozentral v Islington Borough Council; Giumelli v Giumelli
Institutional CT where 1 incomplete contract for the sale of property OR 2 3rd party liability connected to breach of trustee/fiduciary duty
Institutional CT for incomplete contract for the sale of property: Rule in Lysaght v Edwards - qual of rule?
Institutional CT against 3rd party - liability connected to breach of trustee/fiduciary duty: *Barnes v Addy*: strangers to trusts made cstructive trustees 1 by acting without authority 2 through knowing receipt of trust property (1st limb); through knowingly assisting in a breach of trust (2nd limb)
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Trustee de son tort: Strict Liability: intermeddles in trust affairs without authority/becomes trustee through wrong-doing: Mara v Browne. Must have assumed degree of control of trust property: Re Barney
Kowing receipt of trust property: *Barnes v Addy; The Bell Group Ltd (in liq) v WBC*; Farrah Constructions PL v Say-Dee PL
5 categories of knowledge: Bell Group v WBC, Owen J. In Aus, cat a- d accepted.Farrah Constructions: the result is that Consul supports the proposition that the 4 cat Baden Scale for satisfying 2nd limb (knowingly assist) of Barnes v Addy.
knowledge requirements for knowing receipt? More debate but they seem the same as knowingly assist but not settled law: Simmons.
Baden, Delvaux and Lecuit v Société Generale [1992]
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- Wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make
- Knowledge of circumstances which would indicate the facts to an honest and reasonable person
Used for breach of fid duties Muschinski v Dodds; trust is a property institution and interest arises at time of breach Zabory v FCT
Express Trusts
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Discretionary Trusts
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T absolute discretion to apply trust income or capital to B: Chief Comm of Stamp Duty (NSW) v Buckle
B hold right to due administration of trust: Cypjane, right to be considered: Re Smith; Fay v Moramba PL but not prop interest
Charitable Trusts
Four Categories: Poverty, Education, Religion, Community
Charities Act 2013 (Cth) s 12: def of charitable purpose - ie promoting or protecting human rights, preventing or relieving the suffering of animals, advancing natural environment
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- testamentary or inter vivos
Varied by provision in trust instrument, inherent power of court of court by statutory power.
Resulting Trusts
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Quistclose: Specific purpose (loan) fails, monies held on trust Barclays Bank Ltd v Quistclose Investments Ltd
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Presumed intention of the settlor; failure of an express trust; surplus of trust property after termination; contributor to purchase f property that does not have legal title. Westdeutche Landesbank Girozentrale v Islington Borough Council
a contribution has been made to the purchase of a property, but the contributor has not been given legal title equivalent to his or her contribution, including circumstances in which property is voluntarily transferred without consideration passing. Westdeutche Landesbank Girozentrale v Islington Borough Council Text 608
Purchase in another's name (Napier v PT; Vandervell v Inland Revenue Comm or contribution towards PP of property without legal title equiv to contribution: Calverley v Green (presumption of advancement - Eq will presume a resulting trust in favour of the other parties)
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