Category: Equity

Distributions from a Mixed Trust Fund

What is the appropriate method of distribution to competing trust beneficiaries whose funds have been mixed? This short article considers this question following the decision in Hannan v Zindilis [2016] VSC 723.

The Lost Trust Deed

What should a trustee do if the trust deed governing the trust cannot be found? On what terms does the trustee hold the property? This short article considers these questions in the Victorian context.

Equitable estoppel – what must be shown to establish the equity?

In Crown Melbourne Ltd, the High Court held that a statement that lessees “would be looked after at renewal time” did not give rise to an estoppel in favour of the lessees. The judgments of the majority members of the Court should not distract attention from, or suggest a confinement of, the broad inquiry involved in assessing a claim of promissory (or proprietary) estoppel.

High Court finds settlement between one co-surety and lender does not affect other co-surety’s right to claim contribution in equity where contribution disproportionate

The decision of the High Court of Australia confirms and explains the application of the equitable doctrine of contribution between co-sureties. It provides a helpful summary of the law in respect of co-ordinate liabilities and the nature of covenants not to sue, all of which should be kept in mind by co-sureties when settling recovery proceedings brought against them by a lender.

Unsuccessful invocation of equitable principles to deflect a tax liability

The HCA disallowed a joint venturer’s claim to have derived a lump sum as constructive trustee. Alleged fiduciary duties owed to a non-venturer were not accepted. Alternatively, the venturer’s purported equitable assignment of his rights to the lump sum was not tax-effective.

Change of position – ‘Disenrichment’ principle not accepted

On 7 May 2014, the High Court unanimously held that Hills Industries Ltd (Hills) and Bosch Security Systems Pty Ltd (Bosch) established the defence of change of position. Hills and Bosch were not required to repay monies to Australian Financial Services and Leasing Pty Limited (“AFSL”), the party who had paid them monies as a result of a third party’s fraud. AFSL appealed from the decision of the NSW Supreme Court of Appeal. The appeal was unanimously dismissed.

High Court Lets Liens for Litigating Liquidators Lie

The High Court held unanimously that a liquidator is entitled to an equitable lien over settlement monies for litigation expenses which the liquidator incurred for the purpose of impugning a secured creditor’s charge, applying and confirming the principle in Universal Distributing in the process.

Intention to create a trust

In Korda v Australian Executor Trustees (SA) Ltd, the VSCA may have assisted the investors in a radiata pine managed investment scheme at the expense of trusts law orthodoxy.