LLB353 Trusts UILG 2021 PDF

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LLB353 Trusts

Unit Information and Learning Guide

Semester 2, 2021

This information should be read in conjunction with the online learning materials which can be found on your MyUnits page.

Unit Coordinator Dr. Dennis Ndonga Senior Lecturer Law School [email protected]

© Published by Murdoch University, Perth, Western Australia, July 2021.

This publication is copyright. Except as permitted by the Copyright Act no part of it may in any form or by any electronic, mechanical, photocopying, recording or any other means be reproduced, stored in a retrieval system or be broadcast or transmitted without the prior written permission of the publisher.

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Contents Unit information Information about the unit Contact details How to study this unit Resources for the unit Study schedule Assessment

4 6 7 10 11 13

Learning guide Introduction Workshop problem question: Problem scenario A Problem scenario B Workshop one Workshop two Workshop three Workshop four Workshop five Workshop six Workshop seven Workshop eight Workshop nine Workshop ten

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19 20 21-22 23 23 23 24 24 24 25 26 27 28

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Information about the unit Welcome to: LLB353 Trusts

Unit description This unit focuses upon equity’s most important creation: the trust. Students will learn about express trusts, constructive trusts and resulting trusts. The primary focus will be on the creation and proper administration of express trusts. This includes consideration of trustees’ duties, the remedies available for breach of trust and the process of tracing. The classes will focus upon the case law and upon the relevant statutes – the Trustees Act 1962 (WA) and Property law Act 1969 (WA) - and their interpretation.

Prerequisites Successful completion of all part 1 units in the LLB and also LLB260/LAW260 Contract Law and LLB254 Equity. Classes in LLB353 will be conducted on the basis that knowledge of the material covered in these units may be assumed.

Aims of the unit The broad aims of this unit are: 1. To equip students with the means to acquire a working knowledge of the fundamental elements of the law of trusts, including: -

the formation of a valid express trust;

-

the administration of an express trust;

-

the rights and remedies available to beneficiaries for breach of trust; and

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the law pertaining to non-express trusts, including: resulting trusts and constructive trusts.

2. To nurture students’ existing skills in legal drafting, writing and problem solving and assist students to refine and develop those skills.

Learning outcomes for the unit On successful completion of the unit you should be able to:

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1. Describe and critically evaluate Australian law of trusts and the judicial as well as policy debates with respect to the area. 2. Conduct research into the law of trust and use the result of that research. 3. Explain and apply to a factual problem the law relating to trusts (including express, resulting and the constructive trust) and effectively advise and communicate with clients and others about their rights and obligations. 4. Demonstrate intellectual skills needed to interpret trust documents, and also offer critique and suggest improvement to clauses in such documents.

Graduate attributes developed in the unit This unit will contribute to the development of the following Graduate Attributes. • • • • •

Communication Critical thinking Independent and lifelong learning Ethics Social justice

•

In-depth knowledge of a field of study

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Contact details Unit Coordinator’s contact details Name: Dr. Dennis Ndonga Email: [email protected] Room: 1.022 Phone: +61 8 93606276 Dennis is available to see students by appointment. Please contact him by email to arrange an appointment.

Administrative contact details For administrative support contact the School of Law Office Phone: 9360 7815 or 9360 6820 Email: [email protected]

Student Success Advisors Student Success Advisors (SSAs) are a team of staff who are a first port of call for any issues that you might be having at university. Whether assisting with your queries directly or referring you to the appropriate service, SSAs are there to help you get through those first bumps in the road of your learning journey. [email protected] Email: Locations: West (453.1.001), Library (350.3.001), East (247.1.001) Phone: 1300 687 3624 Website: https://www.murdoch.edu.au/students/mymurdoch-advice

Equity and Social Inclusion Office A disability or medical condition may affect your study from time to time or every day. Some examples of the types of conditions are those which are of a physical, sensory, learning or psychiatric nature, or perhaps a medical condition. We encourage you to make contact with Equity as early as possible in your study, so that we can talk with you about your specific needs and concerns. Don’t wait for there to be a problem; we want you to know that professional help is available when you need it. Making contact early with Disability staff will assist you to get the best from your Murdoch enrolment. You may also seek support if you are the primary carer for someone with a disability or ongoing medical condition. For more information go to: http://our.murdoch.edu.au/Student-life/Health-andhappiness/Disability-services/ Email: [email protected] Phone: (08) 9360 6084

Technical help Contact the IT Service Desk: [email protected], http://www.murdoch.edu.au/itservicedesk/ For difficulties with other online materials contact the Unit Co-ordinator.

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How to study this unit LLB353 is conducted on the basis that by the time that you undertake this unit, you are no longer a beginner, but an experienced law student. LLB353 is a demanding and conceptually challenging course to study.

Getting the most out of your classes The teaching of this unit is divided into lectures and workshops. The lectures provide students with a detailed overview and structure of the material, and the workshops teach students how to apply the material to solve hypothetical legal problems. As such, they are also excellent preparation for answering problem questions in the exam. Both lectures and workshops give students an opportunity to reflect upon and discuss and critically analyse the way that the doctrine of trusts operates. The best way to get the most out of lectures is as follows. 1.

Before the lecture: -

2.

read the suggested reading and ideally all important primary sources i.e. cases and statutory provisions; download and peruse the lecture materials (lesson plan powerpoint).

After the lecture: -

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review, organise and supplement your notes; read all relevant primary sources; if there is anything that you don not understand, re-read the text and the relevant primary sources, listen again to the lecture recording, and supplement your reading by referring to other relevant secondary sources (i.e. books and journal articles); and if you are still confused, speak to the Unit coordinator.

The best way to get the most out of workshops is as follows. 1.

Before the workshop: -

-

read over the problem; NB: the workshop problems are contained in the Learning Guide attached to this document. (if you have not done so already) read the suggested reading and all important primary sources, with an eye to finding a solution to the problem; write up a written answer to the problem. This often involves preparing advice for a client. Make special note of those areas about which you are unsure or confused, so that you can ask about them at the workshop. Don’t forget to bring these notes with you to class as evidence of your preparation and to assist you to participate more fully and effectively.

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2.

At the workshop: -

3.

take notes based on information flowing from your interaction with fellow students and with the teacher; remember to ask questions about all of the things that you were or have become unsure about and take a note of the answers to them; make sure that you leave the workshop with at least a basic understanding of the ‘answer’ to the workshop problem. After the workshop: -

download any workshop materials that the teacher has posted on the online unit; rework, augment and improve your answer to the problem question, so that it represents your best effort and understanding. If you feel that you still do not ‘get it’ and could not confidently solve the problem set, see Dennis during his consultation hours or make an appointment to see him.

Extra reading As is always, extra reading highly beneficial. However, do focus on assessable material – that is, the material covered in the lectures and workshops. Read the text book or the relevant material from one of the suggested texts listed in this document. It is expected that, at this stage of your study, you can locate the relevant material in a standard text by using the table of contents and / index.

The bottom line The key to success in this unit is sustained hard work over the whole semester – especially in preparing for workshops and reading the cases. If you get confused, seek help early.

Contact time This unit will be taught in: • •

One x 2 hour lecture each week (check timetable); and One x 2 hour workshop each fortnight./ One x 1 hour workshop each week

NB. Lectures begin in week one. Workshops begin in week three. You should already have signed up for workshops via Callista.

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Time commitment As this is a 3 credit point unit, we expect you to spend on average 12 hours per week for the total weeks of this teaching period (or 150 hours overall) working on this unit. This will include pre-reading, lecture attendance, workshop participation, study, exam, research and writing of the assignment.

Attendance requirements Attendance at lectures is not compulsory, but it is very highly recommended.

Lecture Capture System (LCS) This unit is offered in on-campus mode only. Lectures will be recorded by the Lecture Capture System (LCS) and placed on the unit’s echo360 site each week. They are not intended to substitute for attendance at lectures and does not afford you the opportunity to ask questions, although I accept there may be good reason why you cannot attend (e.g. timetable clash). However, it’s important to note that the recordings are not guaranteed and could fail or experience technical problems (for instance a reorder may fail to pick up sound clearly). The unit coordinator does not control the process of recording the lectures, and accepts no responsibility for providing you with any lecture-related materials, if: • • •

LCS fails; you miss a lecture; or are unable for any reason to access a recorded lecture.

You may tape lectures yourself. However, permission to tape lectures is conditional on strict compliance with the following provisos: • •

the recording is to be used only for the purposes of your own study; and any and all recordings must be erased by the day on which the final results in the unit are posted.

Attendance at workshops is not compulsory but highly encouraged to help understand application of the content.

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Resources for this unit To undertake study in this unit, you will need:

Textbooks and Statutes •

Essential textbook Dal Pont, G. E., Equity and Trusts in Australia (Thomson Reuters, 7th ed, 2019). [eBook available on Library “My Unit Readings”]

• •

Trustees Act 1962 (WA) and Property law Act 1969 (WA)

Online Resources The following will be provided during the teaching period: • • • • •

lecture slides; lesson plans; lecture recordings; workshop handouts (after the relevant workshop cycle); and other teaching materials, such as articles on ECMS, electronic journal articles and articles on the web may be provided intermittently throughout the semester, if and when, it is considered to be helpful and appropriate.

The lecture slides, lesson plans and workshop handouts will be posted on the Online Unit. It is recommended that you print or download these prior to each lecture. The lecture recordings will be available on LCS. Your Online Unit and LCS Recordings can be accessed from your MyUnits page.

Suggested Resources for Extra Reading You do not have to purchase these works. However, you may find it useful to consult them additional information. Dal Pont, G. E., Equity and Trusts: Commentaries and Materials (Thomson Reuters, 7th ed, 2019). Bryan, M., Vann, V. J., and Barkehall Thomas, S., Equity and Trusts in Australia (2nd Ed., Cambridge University Press, 2nd ed, 2020) Heydon, J. D., and Leeming, M. J., Jacobs Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016)

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Study schedule Date WEEK ONE

Lecture Session 1

Begins 26 July

WEEK TWO

Session 2

Begins 2 August

WEEK THREE

Session 3

Begins 9 August

WEEK FOUR

Session 4

Begins 16 August

WEEK SIX

Session 5

Begins 30 August WEEK SEVEN

Session 6

Begins 6 September

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Workshop Topic No workshop Introduction to the unit. Topic 1: Introduction to the Trust, including their: - nature and purpose; and - classification. Topic 2: Creating an Express Trust The three certainties: - Certainty of Intention No workshop Topic 2: Creating an Express Trust The three certainties: - Certainty of Subject Matter - Certainty of Object

Activity / Assessment Suggested Reading: Dal Pont, Chapter 16 & 17 pp 513 – 519. Bryan, Vann and Barkehall Chapter 13; Ch14: pp 215 – 223. And (for the very keen) see Heydon and Leeming, Chapters 1, 2, 3 and 5

Essay Question Distributed. Suggested Reading: Dal Pont, Chapter 17: pp 513 – 528. Bryan, Vann and Barkehall Chapter 14: pp 215 – 232. Heydon and Leeming, Chapter 5. Workshop 1 Topic 2: Creating an Express Trust Suggested Reading: The three certainties: Dal Pont, Chapter 17: pp 524 – - Certainty of object (cont.) 538; Chapter 29. - Anomalous purpose Trust Bryan, Vann and Barkehall - Unincorporated Associations Chapter 14: pp 227 – 232; Topic 3: Charitable Trusts Chapter 16. Heydon and Leeming, Chapters 5 & 10 Suggested Reading: Workshop 2 Topic 3: Charitable trusts (cont.) Dal Pont, Chapters 29 & 18. Topic 4: Formal requirements and Bryan, Vann and Barkehall complete constitution. Chapter 16; Chapter 15: pp 234240. Heydon and Leeming, Chapter 10; Chapters 6, 7 and 8 [8-04 to 8-10] WEEK FIVE beginning 23 August Independent Study Week Suggested Reading: Workshop 3 Topic 4: Formal requirements and complete constitution (cont.) Dal Pont, Chapters 18 & 19. Topic 5: Vitiating factors. Bryan, Vann and Barkehall Chapter 15: pp 241 – 246. Heydon and Leeming, Chapter 9 Workshop 4 Topic 5: Vitiating factors (cont.) Suggested Reading: Topic 6: Operation of the Express Dal Pont, Chapters 19 & 20. Trust Heydon and Leeming, Chapters 9 & 23 - Beneficiaries’ Rights

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WEEK EIGHT

Workshop 5

Topic 6: Operation of the Express Trust – Rights, Powers and Duties of Trustees under an Express Trust.

Session 11

Workshop 9

Topic 10: Constructive trust (cont.)

Session 12

Workshop 10 Review

Session 7

Begins 13 September

WEEK NINE 20 September

Session 8

WEEK ELEVEN 4 October

Session 9

WEEK TWELVE

Session 10

11 October

WEEK THIRTEEN

Essay DUE noon Wednesday 18 September. Suggested Reading: Dal Pont, Chapters 21, 22, 23. Bryan, Vann and Barkehall Chapters 17, 18 and 19. And (for the very keen) see Heydon and Leeming, Chapters 14 – 21. Trustees Act 1962 (WA). Workshop 6 Topic 7: Termination & Breach of Suggested Reading: Trust Dal Pont, Chapters 24, 25 and 39. Topic 8: Tracing Bryan, Vann and Barkehall Chapters 20 and 21. Heydon and Leeming, Chapter 27. WEEK TEN beginning 27 Sept Independent Study Week Workshop 7 Topic 9: Resulting trust Suggested Reading: Dal Pont, Chapter 26. Bryan, Vann and Barkehall Chapter 22. Heydon and Leeming, Chapter 12. Suggested Reading: Workshop 8 Topic 10: Constructive trust. Dal Pont, Chapter 38. Bryan, Vann and Barkehall Chapter 23. Heydon and Leeming, Chapter 13.

18 October WEEK FOURTEEN

Suggested Reading: Dal Pont, Chapter 38. Bryan, Vann and Barkehall Chapter 23. Heydon and Leeming, Chapter 13.

25 October Study Break Exams

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Assessment Assessment for this unit is conducted in accordance with the Assessment Policy. You can access this policy, along with other useful information pertaining to matters such as the grading scheme, assessment roles and responsibilities, academic integrity, nondiscriminatory language, student appeals, student complaints and conscientious objection in relation to teaching and assessment, at: http://our.murdoch.edu.au/Educational-technologies/Expectations-responsibilities/

Schedule of assessment items You will be assessed on the basis of:

Assessment item

Description

Value

Essay

Research

50%

Examination

Open book

50%

Due 15 September at 12:00 Noon (Week 8) University assessment period

Learning Outcomes 1 and 2 3 and 4

Assessment details 1. Essay This essay will be marked out of 50 and is worth 50% of your final grade. The assignment word limit is strictly 2000 words assignment (excluding footnotes and bibliography). The assignment must be completed in 12 point default Times New Roman (font and style). The topic will be distributed on LMS by Week 3. The Assignment is due by 12:00 noon, Wednesday 15 September 2021 (Week 8). The mark for your assignment will be determined by reference to: •

Research skills, knowledge and understanding of the topic;

•

Quality of analysis and argument;

•

Structure, organisation and sound writing skills including freedom from distracting stylistic errors (grammatical, spelling, punctuation and typographical);

•

Consistent use of a recognised citation system (see ‘Citation’ below).

A complete breakdown of the marking criteria noted above, and the total marks awarded to each criteria will be submitted together with the assignment question document. The assignment is directed at assessing Learning Outcomes 1 and 2.

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Citation You should follow the style of citation found in Melbourne University Law Review Inc, Australian Guide To Legal Citation, 4th ed. (Melbourne: the Review, 2018), on the Web at https://libguides.murdoch.edu.au/AGLC. You should include a bibliography giving details of texts, cases and journal articles referred to in the process of preparing your assignment.

Assignment Submission Your assignment must be submitted online via the LMS. Check the Assessment Schedule (above) for details. The submission...