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12061 Equity and Trust - Coggle Diagram

- - - - The trustee may allow income to accumulate within the trust at their discretion
    - - Whether EO is holding beneficial or equitable interest in a way that attracts tax
    - - Keenan v Spry; Simons v Simons
    - - The trustee is obliged to fully distribute trust income to the beneficiaries of the trust
  - - - Private express trust: Ask courts to review acts, omissions or decisions on the part of the Trustee; Trusts Act 1973 (Qld) s 8
      - s 98
      - s 80
      - s 90
      - s 82
      - Right to pursue third parties; need exceptional circumstances
        
        if trustee refuses to perform her duty to protect trust property or beneficiaries rights, beneficiaries can pursue a third party; Hilliard v Eiffe (1874) LR 7 HL 39
        
        Trustee declared insolvent or bankrupt; Commonwealth Bank of Australia v Iinvest Pty Ltd (in liq) [2014] NSWSC 1257 [34]
      - Right to information
        
        Arises from trustee's fiduciary duties
    - - The Rule in Saunders v Vautier (1841) 49 ER 282
        
        Sole beneficiary
        
        Sui juris of full age and capacity
        
        Absolutely entitled
        
        Legally capable
      - Gosling v Gosling (1859) 70 ER 423
        
        More than one beneficiary
        
        All sui juris
        
        Beneficiaries agree unanimously tp distribution of trust property
        
        Legally capable
      - Whakatane Paper Mills Ltd v Public Trustee (1939) SR (NSW) 426
        
        The rule in Saunders allows a benficiary to take his proportionate share of the trust property subject to:
        
        any contrary intention in the trust deed; and
        
        only in relation to divisible property
  - - - Equitable compensation: Re Dawson (deceased) (1966) 2 NSWR 211
        
        Interest: trustee v mercantile rates
        
        simple or compound interest
      - Account of profits
        
        unauthorised profit from office
        
        breach of trust has allowed trustee to make personal gain
      - Possibility of just allowance: Phipps v Boardman [1967] 2 AC 46; the trustee be acknowledged where
      - against third parties
        
        if beneficiaries are overpaid or third parties receive trust property, the other beneficiaries can bring a personal action
        
        Re Diplocks Estate
        
        Concerned distribution of funds under a will to charitable institutions and 'benevolent objects'
        
        The beneficiaries of the trust brought a personal action against recipients (third parties) of funds - they had been wrongfully paid
        
        all other remedies has been pursued against executors
        
        the action was upheld even though the third party recipients were innocent
        
        where third parties receive trust property they hold that property on trust for the beneficiaries
    - - Constructive Trust
      - Equitable Tracing
        
        allows a beneficiary to follow his interest, even if property is mixed, or consumed in the production of a new item Brady v Stapleton (1952) 88 CLR 322
        
        To obtain a tracing order, beneficiary must show
        
        there was a breach of a trustee duty or fiduciary duty
        
        there was a pre-existing proprietary interest in the property before the breach of trust; and
        
        the property is now in the hands of the defendant
        
        Trusts Act 1973 (Qld) s 113
        
        applies to tracing for a breach of trustee/fiduciary duty
        
        applies to tracing property where property has been passed on to a third party
        
        s 113 is the statutory equivalent to Re Diplock
        
        s 113(1) allows property to be traced 'against the trustee and any property to whom trust property has been distributed'
        
        s 113(2) 'before pursuing third parties the claimant must exhaust all remedies which may be available to the person against the trustee or personal representative. Note that the person may apply for the leave of the court to do otherwise
        
        s 113(3) where the property has been received by the third party in good faith and the third party has altered his or her position in reliance on the propriety of the distribution, the court has the discretion to not enforce the remedy. However the court has the power to make such an order as it considers just in all of the circumstances
        
        if the trustee mixes trust funds with his or her money or converts the trust property into another form or asset, tracing will protect a beneficiary's interest Rule in Re Hallett's Estate (1880) 13 Ch D 696
- - - - Under general law, no limit
      - under the Act, s 11(2) - four
    - - the Act s 21(1)(g)
      - a minor appointed as a trustee can take up the role on attaining majority: Re Gartside's Estate (1853) 1 WR 196
  - - - The trustee has 'a right to be indemnified for the costs and expenses incurred in the proper administration of the trust': Southern Wine Corporation Pty Ltd (2005) 31 WAR 162
      - In equity: expenses must have been incurred properly in the exercise of the trustee's duties: Franknelly NomineesPty Ltd v Abrugiato [2013] WASCA 285 [212]
      - Under statute: Trusts Act 1973 (Qld) s 72
        A trustee may reimburse himself or herself for or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers
      - If the trust property is not sufficient to cover the trustee's costs, a trustee has the right to pursue the beneficiaries personally: Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439
    - - Where there is a breach of trust and there is more than one trustee, the foundational principle is that the co-trustees are jointly liable, even if only one trustee is responsible for the wrong: Bahin v Hughes (1886) 31 ChD 390
        This principle has been altered by statue: Trusts Act 1973 (Qld) s 71
      - Implied indemnity of Trustees s 71
        A trustee shall be chargeable only for mmoney and securities actually received by the trustee, notwithstanding the trustee signing any recepit for the sake of conformity; and shall be answerable and accountable only for the trustee's own acts. receipts, neglects or defaults, and not for those of any other trustee, nor those of any financial institution, broker or other person with whom any trust money or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other los, unless the insufficiency, deficiency or loss occurs through the trustee's own default"
    - - Trustees have the right to seek advice and obtain direction from the court: Re Permenent Trustee Australia (1994) 33 NSWLR 547
      - In Queensland the statutory right is found in the Trusts Act 1973 (Qld) s 96
      - Trusts Act 1973 s 96
        (1) Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
        (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such them as the court thinks expedient.
    - - Trusts Act 1973 (Qld) s 77
        Power of court to make beneficiary indemnify for breach of trust
      - 77(1) Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the court may, if it thinks fit, make such order as to the court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through the trustee.
        (2) This section applies to breaches of trust comitted as well before as after the commencement of this Act.
  - - - the trust instrument
      - legislation: Trusts Act 1973 (Qld)
      - may be granted by the court
    - - Powers are generally discretionary and may be exercised as such
      - Duties are something that is imperative, that the trustee must do
    - - Powers of sale (sometimes take the form of a duty)
        
        power to sell trust property may be
        
        expressly granted in the trust instrument
        
        implied
        
        provided for under statute (Trusts Act)
        
        s 32(1)(a) powers to sell, exchange, partition, postpone, lease etc
        
        s 34 - sell by auction
        
        s 51 - valuation
        
        granted by the court
      - Power of management
        
        Generally relates to the general duty to preserve the trust property.
        
        Can exist where there is no express power in the trust: Byrnes v Kendle (2011) 243 CLR 253, 279
        
        Under the Trusts Act the trustee may
        
        s 33 - repair and improve trust property (up to a limit)
        
        s 47 - insure trust property
        
        s 57 - carry on a business: Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319
      - Powers of maintenance and advancement
        
        Maintenance: payments made from trust income, provided by the trustee to a benficiary/beneficiaries for food, clothes and medical expenses
        
        Advancement: lump sum payments made from capital, used to establish the beneficiary in life, such as obtaining a profession or trade: Public Trustee v Markham (1999) 21 WAR 295
        
        Trusts Act ss 60-62
    - - Obey the terms of the trust (loyalty): Youyang Pty Ltd v Minter Ellison Morrison Fletcher (2003) 212 CLR 484
      - On taking up office the trustee must enquire as to the state of the trust and become familiar with the terms of the trust
      - Ensure the 'trust property is brought under the trustees' control and is vested in them': Dal Pont & Cockburn (2019) 368
      - The trustee has a duty to keep accounts: Byrnes v Kendle (2011) 243 CLR 253, 270
      - Duty not to profit from their office/not entitled to remuneration: Re Whitehead
        
        Exceptions:
        
        Remuneration is authorised by the trust instrument: Re Dowling (dec'd) [1961] VR 615, 619-29
        
        Trustees and beneficiaries agree for payment of the trustees' services
        
        Court awarded remuneration to ensure roper administration of the trust and compensation of trustees' efforts: Will of Moore
      - Duty to act impartially between Beneficiaries
        
        This principle concerns how the trustee acts towards difference classes of beneficiaries, commonly:
        
        Life tenants - benficial interest in the income
        
        Remaindermen - capital
        
        The rule in Howe v Dartmouth applies - sell wasting assets
        
        Also - s 23(2)(c) of the Trusts Act
      - Duty to invest
        
        The trust instrument may authorise certain investments
        
        I the trust instrument does not provide investment guidelines, the trustee can invest according to the legislative framework: Hepburn (2020) 624
        
        also: Trusts Act ss 20 - 24
        
        s 21 Trusts Act: 'a trustee may, nless expressly forbidden by the instrument creating a trust -
        (a) invest trust funds in any form of investment; and
        (b) at any time, vary an investment or realise an investment of trust funds and reinvest an amount resulting from the realisation in any form of investment
      - Duty to act personally
        
        A trustee cannot delegate authority to others unless they have the authority to do so: Pilkington v Inland Revenue Commissioners [1964] AC 612
        
        Three exceptions exist
        
        The trust instrument may permit delegation
        
        s 56 of the Trusts Act
        
        As a matter of necessity, as long as the exercised powers are not part of a trustee's discretionary powers
      - Duty to consider the use of power
        
        Trustees must consider the use of their trustee powers: Re Gestetner Settlement; Barnall v Blumka
        
        Fiduciary obligation to consider all the options before deciding: Re Baden's Deed Trust; McPhail v Doulton [1971] AC 424, 49
        
        Requires that trustees inform themselves of all relevant matters before making a decision, including taking advice: Scott v National Trust [1988] 2 All ER 705
- - - - an injunction granted to protect a purely equitable right, for example, a breach of confidence, is an exercise of equity's exclusive jurisdiction: Argyll v Argyll [1967] Ch 302
      - an injunction granted to protect a common law, or statutory right, is an exercise of equity's auxiliary jurisdiction
    - - Mandatory: commands a positive act to be done
        
        mandatory restorative injunction Redland Bricks
        
        Mandatory enforcing (like specific performance)
      - Prohibitory: restrains or forbids conduct
      - Interlocutory: a temporary order made before the full hearing of the matter. Does not involve 'a trial on the merits'.
        May stand perpetually as the parties accept the decision as it stands.
        
        In assessing whether to order an interlocutory injuction the court applies the test found in Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The court asks
        
        Is there a prima facie case/serious question to be tried?
        
        The court must balance the inconvenience or injury to the plaintiff (if injuction not ordered) v that which would be suffered by the defendant were the injunction ordered (the balance of convenience): Qld Industrial Steel v Jensen
      - Perpetual: intended to 'finally settle relations between parties. Granted after final hearing but may be confined for a period of time
      - Quia timet injunction:
        Prevents a wrong being committed: Proctor v Bayley (ie before it happens)
        
        Granted where:
        
        no harm to the plaintiff has occurred but is threatened; or
        
        harm has been done by defendant's earlier actions, and the plaintiff has been compensated but still fears future wrongs may be committed by defendant: Redland Bricks v Morris
        
        Redland Brick
        
        Due to defendant action on their land the plaintiffs land (farm) was damaged and further damage would keep progressing. Costs to make repairs was hugely expensive. An order was made for defendant to pay for rectification works.
  - - - Inherent jurisdiction in equity to grant compensation for an equitable wrong: Norton v Lord Ashburton
        
        aim to restore the plaintiff to the position they would have occupied had there been no breach of duty
        where both an account of profits and equitable compensation are available, plaintiff must elect between them: Tang Man Sit v Capacious Investments Pty Ltd
        
        Examples
        
        Breach of trust Re Dawson
        
        Breach of fiduciary duty: McKenzie v McDonald
        
        Causation, as in negligence. If but for the defendans action, the plaintiff would not have suffered the loss
        
        whether the loss would have occurred had their been ono breach
        
        plaintiff's contribution to the loss, the plaintiffs contribution is not considered and will not impact quantum of damaes
        
        Exemplary damages: Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
        
        Aggravated damages: Giller v Procopets [2008] VSCA 236
    - - Uniform Civil Procedure Rules 1999 (Qld) Ch 14
    - - Jurisdiction
        The court must have jurisdiction to order specific performance or an injunction before equitable damages can be awarded
        
        when dealing with the enforcement of common law rights, the court of Chancery' in its auxiliary jurisdiction may award damages
        The Lord Cairns' Act provided that equitable damages were availble where a court had the jurisdiction to order an injunction or specific performance.
        
        equitable damages may be awarded in addition to specific damages or an injunction
        
        equitable damages in lieu of specific performance or an injunction
        
        Civil Proceedings Act 2011 (Qld) s 8:
        If a court has jurisdiction to hear an application for an injunction or specific performance, the court may award damages as well as, or instead of, an injunction or specific performance.
- - - - Jurisdictional origins are in equity - but now statutory jurisdiction which expands itsutlity ie in providing clarification as to each party's legal position: R&S [28.3]
    - - to determine the meaning of a will
      - to determine a person's interest in land
      - to establish whether a contract is valid
      - declaration that a fudiciary has breached her duty: Robinson (2015) 129
      - Commonwealth v Sterling Nicholas Duty-Free Pty Ltd (1972) 126 CLR 297
        https://bit.ly/34viaoN
    - - Declaration must be directed to the determination of legal controversies and not resolution to hypothetical questions
        Universtity of NSW v Moorhouse
        https://bit.ly/3sEQ1Dt
        
        Application must show that the parties have a real dispute over some question of law
        
        Court will not grant where it would only be stating its opinion on a hypothetical question
        
        Hypothetical? - eg, where there is no dispute in existence, the dispute is not attached to the facts, the dispute has ceased to be of practical significance
      - Applicant has a real interest in the controversy ie standing; and
        
        Applicant must have a real interest (locus standi) ie standing
        
        Private Right eg those arising from a contract
        
        Public Right
        
        Applicant must show 'special interest' in the matter and one with tangible consequences
        Australian Conservation Foundation Inc v Commonwealth
        https://bit.ly/3rIyAmr
        More than just an intellectual curiosity
        
        Also - Onus v Alcoa Ltd
        https://bit.ly/3BflnEV
      - The declaration must produce foreseeable consequences for the parties
        
        No declaration if it produces 'no foreseeable consequences for the parties' Ainsworth v CJC
        
        Declaration 'must have some kind of effect on the rights and obligations of the parties': ACCC v Francis
        
        No declaration if it's ineffectual, thereby damagaing court's authority and may lead to further litigation: Neeta (Epping) Pty Ltd v Phillips
  - - - Executory: where the parties have entered into an agreement, but have not compled all formal requirements for the agreement to be legally binding
        
        In this case the court would order the contract to be executed and confirm the positions of the parties
      - Executory: where the parties have completed the formal requirements to enfore the contract in law, but damages are not a suitable remedy - R&R [29.4]
    - - Beofre the court can exercise jurisdiction to order specific performance there needs to be
        
        Binding Contract for valuable consideration
        
        Common law damages are an inadequate remedy
    - - personal services contract
      - constant court supervision
      - hardship for the defendant
      - lack of mutuality
      - plaintiff in substantial breach and/or not ready, will and able to perform
    - - where the property is rare, unique, unobtainable
      - where it concerns real property
- - - - confined to assumptions and representations of existing fact
        is a defence - does not provide a cause of action: Commonwealth v Verwayan (1990)
    - - Recognises represntations with respect to future facts R&S [14.60]
      - Is a cause of action in equity
      - The two types of estoppel recognised in equity are promissory and proprietary estoppel
        
        Promissory
        
        Equity binds the holder of a legal right who induces another to expect that right will NOT be exercised against him: Brennan J Waltons
        In other words A makes a representation to B that A will not exercise a right in context of an existing legal agreement.
        
        Contemporary formulation
        Central London Property Trust v High Trees London House Ltd
        
        In Australia the HCA Legione v Hateley
        
        Waltons Stores v Maher
        
        Before Waltons promissory estoppel was limited:
        
        did not give rise to rights in equity - defence only
        
        the promise had to relate to a pre-existing relationship: Combe v Combe
        
        Effect of Waltons
        
        pre-existing legal relationship no longer required
        -could be used as a cause of action
        departure from the assumption by the defendant will be unconscionable
        
        a single doctrine that incorporates proprietary and promissory estoppel
        
        aim - to remedy detriment experienced by a promise from having relied upon assumption, in circumstances where it would be unjust to allow representor from resiling promise
        
        can be used as a cause of action
        
        successful plaintiff has an 'equity' (ie source of legal obligation)
        
        remedy is what is necessary to prevent unconscionable conduct/reverse detriment that would be suffered
        
        Equitable estoippel elements as per Brennan J in Waltons
        
        2 more items...
        
        Proprietary
        
        where a property owner encourages another party to believe that she has an interest in the land or property, and the belief is then acted upon by the other party.
        
        Can give rise to independent cause of action
        
        pre-existing contractual relationship not required
- - - - the weaker party must be under a special disadvantage: ACCC v Radio Rentals Ltd
        
        Leading case: Commercial Bank of Australia v Amadio [1983]
        
        Equitable relief granted where there is exploitation by one party of a special disadvantage of another
        
        Prevention of victimisation: Louth v Diprose
        
        The stronger party must know of and exploit the special disadvantage
        
        the essential elements of unconscionable transactions, per Deane J
        
        Party A (weaker party) is under a special disadvantage
        
        Party B (stronger party) knew, or is likely to have known, about the special disadvantage
        
        Party B uses that disadvantage unconscientiously in order to obtain Party A's consent to the transaction
        
        Assessed at the time the transaction was entered into: Gustav & Co Ltd v Macfield Limited
        
        Special Disadvantage
        
        special disadvantage exists where the party's circumstances seriously affect his/her capacity to make an informed judgment as to her interest in a transaction
        
        In ACCC v Samton Holdings Pty Ltd it was held that factors establishing a special disadvantage fell into two categories
        
        Constitutional - (arising form personal characteristics): age, illness, poverty, inexperience or lack of education
        
        Situational (based on circumstances surrounding the transaction): emotional dependence Diprose v Louth
        
        Knowledge: Amadio
        
        Defendant: actual knowledge or ought to have known of the disadvantage
        
        Amadio: bank manager was aware of the significant risks involved and was put on notice of their disadvantage
        The bank manager knew that:
        
        1 more item...
    - - s 131 of the CCA confines the operation of the CCA as a law of the Commonwealth, to the activites of corporations R&S [13.46]
        
        For persons that are not corporations, the ACL is enforced as a law of the state or territory where such conduct occurred
      - s 20: a person must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time
      - s 21(1): [a] person must not, in trade or commerce, in connection with:
        a) the supply or possible supply of goods or services to a person; or
        b) the acquisition or possible acquisition of goods or services from a person;
        engage in conduct that is, in all the circumstances, unconscionable
  - - - the wearker party does not exercise free judgment and act in their own interests
      - Focuses on relationship parties had prior to the transaction
      - Actual or presumed
        
        Actual
        
        No special relationship between the parties (class 1)
        
        transaction under coercion: William v Bayley
        
        Found on the facts: Desir v Alcide [2015] UKPC 24
        Two women attempted to manipulate and defraud another woman out of inheritance money
        
        Presumed
        
        Certain relationships are presumed to be affected by undue influence Class 2A
        
        Parent/child: Lancashir Loans v Black
        
        Guardian/ward: Hylton
        
        Solicitor/client: Archer & Shulman
        
        Doctor/patient: Bar-Mordecai v Hillston
        
        Religious leader/disciple: Allcard v Skinner - large congregation: McCulloch v Fern; Hartigan v Int Society Hare Krishna
        
        Husbane and wife: no presumption: Yerkey v Jones
        
        Fiance/Fiancee: no presumption: Thorne v Kennedy
        
        Particular Relationships Class 2B
        
        Focus is on the nature of the relationship
        Johnson v Buttress (1936) 56 CLR 113
        https://bit.ly/3BfBsu0
        
        Factors considered in terms of how they colour the relationship
        
        Age difference: extreme youth and old age
        
        mental disability
        
        physical disability
        
        poor education
        
        lack of business experience: Bester v Perpetual Trustees
        
        Once the presumption has arisen, it can be rebutted
        
        the defendant is not redbutting the existence of the relationship
        
        the stronger party must show that the applicant (aggrieved) was acting independently and exercised free judgment
        
        full knowledge and not 'mere understanding': IJohnson v Buttress
        
        Independent advice - may assist: Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773
        
        Lack of improvidence: Bester v Perpetual Trustee
        
        improvidence: a lack of foresight or awareness of risk
        
        2 more items...
    - - Blomley v Ryan (1956) HCA
  - - - Delay defeats equity
        
        the delay after the applicant is freed from the influence and is aware that she could seek to set aside the contract matters: Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30
      - Effect
        
        Successful defence - interest defeated &lost: Hourigan
  - - - Takes parties back to their original position:McDonald v Dennys Lascelles
      - The innocent party needs to clearly and unequivocally communicate with the stronger party: Immer v Uniting Church
      - The role of the court: R&S [33.18]-[33.23]
        Confirms the rescinding act on the part of the weaker, rescinding party: Gutnick v Indian Farmers Fertilizer Cooperative
        Determines whether the act of rescinding is valid: Brown v Stitt
        Equitable compensation
- - - - "automatic": either a failure of an express trust; surplus of trust proprety; Quistclose - failure of purpose of a loan; illegality: Nelson v Nelson
        
        Failure of an express trust: Hodgson v Marks [1971] Ch 892; Nelson v Nelson (1995) 184 CLR 538
        Note: Property Law Act (Qld) s 11(2)
        
        Failure of a purpose of a loan: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
        
        Surplus after astisfaction of the purpose of the trust: Smith v Cook; Australian Incentive Plan v Babcock
      - "presumed": purchase money contribution to property
        
        circumstances in which property is voluntarily transferred (no consideration)
        Napier v Public Trustee (WA); Vandervell v Inland Revenue Connissioners
        
        a contribution is made to the purchae of a property - the contributor has not been given legal title equivalent to his or her contribution
        Calverley v Green (1984) 155 CLR 244
        
        Principles on the meaning 'purchase price Calverley v Green
        
        The contribution must be to the purchase of the property, eg a financial contribution or other purchase related costs
        
        Assuming mortgage liability - yes Calverley v Green
        
        Making mortgage payments after the purchase price is not included:Calverley v Green (this is considered for constructive trusts)
        
        Rebutting the Presumption of a Resulting Trust
        
        Evidence there is a clear (actual) intention to create some other arrangement
        
        The evidence must be related to just before, or at the time of the purchase - anything that constitutes part of the transaction
        
        Presumption of a resulting trust will not arise if the presumption of advancement applies, ie the scenario concerns a transfer from
        
        a parent to child
        
        husband to wife
        
        de facto - unclear
        
        Equity will assume the transfer is a gift
        Rebutting the presumption of advancement uses the same principles as for rebutting presumption of resulting trust
  - - - Remedial: arises at time of the court order: Re Polly Peck International
        
        Common Intention
        
        Imposed by the court: 'where parties have entered into a relationship with a common intention that the property is to be held between them in a particular way: Allen v Snyder
        
        Must show
        
        Common intention as to ownership of the eequitable/beneficial interest: Shepherd v Doolan [2005] NSWSC 42
        
        Party claiming the interest must show she has acted to her detriment
        
        It would be a fraud for the trustee/owner to deny the interest
        
        Unconscionability
        Radan and Stewart [36.59]-[36.86] for requirements of constructive trust ordered for unconscionable behaviour
        
        Imposed by the court to remedy unconscionable behaviour: Muschinki v Dodds; Baumgartner v Baumgartner
        
        Must show
        
        A joint venture
        
        Valuable contributions by the plaintiff
        
        Unconscionable for the contributions to be retained by the legal title holder
      - Institutional: comes into existence upon 'the parties engaging in certain forms of conduct': Westdeutche Landesbank Girozentrale
        
        May arise where there is
        
        An incomplete contract for the sale of property: Lysaght v Edwards (1876) 2 ChD 499, 506
        
        Equitable Estoppel: McNab v Graham [2017] VSCA 352
        
        Breach of fiduciary or trustee duties
        
        Breach of confidence
        
        Third party liability connected to a breach of trustee/fiduciary duty: Barnes v Addy
        
        Against third parties:
        In Barnes v Addy, Lord Selbourne stated that third parties ('strangers to a trust') can be made constructive trustees in three ways:
        
        Through knowing receipt of trust property (first limb of Barnes v Addy)
        
        Through knowingly assisting in a breach of trust (second limb of Barnes v Addy)
        
        By acting as a trustee without authority (trustee de son tort)