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Q to ask 1. How to differentiate between general charitable intention and particular intention? Cy-pres 2. Trust of promise – present property/future property 3. Succession Act on small amounts of money? Yes or No?

205 2019 Q1 ANSWER: The issue here is whether the representation made by managing director of SN that there would be an option to renew lease for another 2 year would give rise to an estoppel. A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made must be clear and unequivocal. Representation made where tenants would be ‘looked after at renewal time’ was held to be equivocal (Crown Melbourne v Cosmopolitan Hotel). The representation made here by SN’s managing director after hearing that there would be renovations in SN’s owned premises by Susan and Ashley that there would be an option to renew for another 2 years is clear and unequivocal. The representation made must have induced actions or acts that establishes that there is a sufficient link between the promises relied upon and the conduct which constitutes the detriment. The acts of reliance here including renovations, improvements and installation of the lift with the knowledge and approval of SN were reasonably sufficient and in reliance on the representation.

As a consequence, the persons must suffer detriment in reliance on the representation. There must be proof of a substantial detriment/material disadvantage and not speculated (Sidhu v Van Dyk). The broad view of the detriment suffered here would be the stress and anxiety of not having the TP to conduct STW and the possible loss of their celebrity presenter Lewis Andrews (Cth v Verwayen). Furthermore, the large amounts spent on the renovations and installation of lift amounts to approximately $900,000 which is a substantial amount of

money and may put S and A at a financial detriment. TALK ABOUT BROAD VIEW AND NARROW VIEW

There is also some degree of unconscionability here by SN as they knew that RS were installing the lift (to their knowledge and approval) and then gave notice for them to vacate the premises two days later.

Courts should prima facie enforce expectation encouraged by estopped party, unless it would be disproportionate to detriment claimed (Delaforce v Simpson-Cook). This is affirmed in Sidhu v Van Dyke where it is held that reliance must be affirmatively proven. Here, as Triple A PL had been granted a lease over the premises, the representation would not be made good. Equitable compensation would be the relevant remedy.

NEXT PART Q 1 ANSWER: 1. $5,000 to look after dog The beneficiary principle states that in order for a trust to be valid, it must be for the benefit of persons or charitable trusts (Morice v Bishop of Durham). In Taylor, a small gift for the care of a dog was allowed APT. The $5,000 to look after the dog falls under an exception to the beneficiary principle under an anomalous purpose trust. The trust is valid and therefore subject to the rule against perpetuities but unenforceable. 2. $650,000 to BDDAA Inc NOT SURE GENERAL OR SPECIFIC It is evident that BDDAA was an incorporated association (Inc) and its purpose of training dogs to assist sight-impaired people is a charitable purpose. The issue here is the initial failure of the trust as BDDAA had recently disbanded. Susan can apply to the court for a cy-pres scheme to save the gift. A purpose as close as possible to the settlor’s intention will be dealt by the court (Public Trustee of Queensland v

Rutledge). BGADA with similar objectives to BDDAA to train dogs and assist sight-impaired people would receive the gift.

However, there must be a general charitable intention, rather than specific intention, which would invalidate the trust (AG v Perpetual Trustee Co Ltd). The donation of $650,000 to assist sight-impaired people in training dogs is likely a general charitable intention. There was an initial failure of the purpose due to the impossibility/impracticality such that the BDDAA ceased to exist, and a cy-pres scheme could be imposed to save the gift. 3. $200,000 for the education of employees’ children The advancement of education falls under the four heads of charity (Pemsel’s Case) and is given a broad definition. It is likely that creative industries and journalism fall under the wide definition of an education. The issue here is whether the purpose benefit a sufficiently numerous ‘section of the public’. The trust fails where the class of beneficiaries depends upon their relationship to particular individual or entity (Re Compton). Trust educating the children of employees of a particular company would fail because the trust lacked public benefit (Oppenheim v Tobacco Securities Trust Co Ltd). Here, as the class of beneficiaries depended on their relationship to their employer, the trust would fail.

4. $50,000 for friends at funeral The application of the three certainties here would have only met the intention (clear language) and subject matter ($50,000). The issue was whether there was certainty of object. This requires criterion certainty in-out test and the trust would not fail on the basis of evidential uncertainty because a list of funeral attendees could be produced (Prosper v Wojtowicz). If the funeral was a private funeral, it is likely that those attendees besides family relations would have been a “friend” of Ashley. Will provided that the remainder of estate: ‘should be divided equally between such persons who attend my funeral and who are not (and were not) at any time related to me’ o Held: ‘the class was sufficiently defined to be ascertainable at the date of distribution: it would have been possible to have a complete list of funeral attendees compiled’ (at [31]).

Jason’s Will

1. $200 for Radio Appreciation Society Gifts to unincorporated association can survive the beneficiary principle if the gift is to present individual members or for the purposes of the association and charitable. The prima facie presumption is that a gift treated for present individual members. However, this presumption can be rebutted by evidence of a contrary intention, which indicates a gift for the association purposes (Leahy v AG) where the form of the gift, subject matter and the nature of association are considered. There are approximately 300 RAS members spread around Australia and they would meet every 6 months to discuss radio shows and presenters. Prima facie presumption is rebutted.

The gift was likely to be for the association’s purpose due to the small amount of money to be distributed among large number of members. However, discussing radio shows and presenters are unlikely to be a charitable purpose and the gift would fail on that basis. The Succession Act can save this invalid gift for the purposes of non-charitable unincorporated associations (s 33Q Succession Act). The $200 to RAS would be saved by a disposition on trust to an unincorporated association of persons that is not a charity (s 33Q(a) SA)). 2. Death of Trustee (Ashley’s death) Jason’s will appointed Ashley as trustee following his death and they both died in the accident. Susan can apply to the court for an appointment due to death of a trustee (s 12(1)(a) TA). The court could also order the trust property to devolve to and vest in the public trustee until an appointment is made. (s 16(2) TA)). Q2 Skip -

Pam Cott died 21 Oct 19, survived son Andy and Pam’s mother (Erin Shannon)

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1 Dec 18, pam met ryan and knew he was love of life, 1 Jan 19 Pam paid 1,000,000 for 2 level house registered in Ryan’s name

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Pam and Ryan plan live upstairs, pam mother Erin live downstairs.

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Ryan worked from home helped erin with shopping, chores and look after her in old age, agree maintain property, pay rates and insurance, pay groceries, cook meals, make curtains for entire house

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Lived happily for some time, during this time ryan did everything he said he would do

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On 1 Oct 19, Ryan told Pam reunited with former partner Kevin and leaving her be with him, ryan moved out. Pam and Erin continued to live in Ashgrove house.

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5 Aug 19 Pam’s friend, Jim told pam wanted invest in PL. told pam 600,000 minimum investment, Jim only had 300,000, when pam dinner jim and jim wife pam suggest can loan 300,000 for him make investment in PL

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10 Aug 19, Jim sent Pam a msg include details of his B/a which jim opened to save for PL investment, Pam deposited as soon as saw msg and same afternoon Pam sent a msg to group chat to say she deposited.

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Andy Cott is the executor sole beneficiary of Pam’s will come for legal advice

ANSWER Given that Pam is deceased, Andy will bring any claims on her behalf as executor of her estate. The presumption of resulting trust is an effective disposition of property at law, but nothing to show that a third party was intended to take beneficially and often arise in the purchase of property by a person in another person’s name. The presumption of resulting trust can be established if there are evidence of a direct contribution to the purchase price (Calverley v Green). Here, there are nothing to suggest that Ryan made any contributions to the cost of acquisition. The presumption of resulting trusts can be rebutted by evidence of a contrary intention (Calverly v Green). Looking at the relationship between parties, a presumption of advancement is where a person in a special relationship registers property in another person’s name and that the presumption of the funds intended that the equitable interest follow the legal estate. There is nothing on the facts to conclude Pam and Ryan’s relationship but considering that they lived together, it is arguable that a de facto relationship exists and is not categorised under ‘special relationship’ (Calverly) therefore, rebutting the presumption of resulting trust.

The remedy of constructive trust arises by operation of law rather than intention to create a trust to prevent unconscionable conduct. Constructive trust in equity for unconscionable denial of a beneficial interest (Muschinski v Dodds; Baumgartner) will arise in de facto relationship property disputes and granny-flat type case.

It was necessary to identify the requirements for a failed joint endeavour and carefully apply the facts to these elements. Both financial (eg rates, insurance, maintenance etc) and non-financial contributions of Ryan should have been identified and considered in the context of the relevant principles. It was then necessary to consider the appropriate remedy, noting the nature, extent and duration of the parties’ respective contributions. It was necessary to consider whether a court might not award an interest in the property in this case, but rather equitable compensation (secured by equitable lien) and/or allowances: cf Sweetenham v Wild; Luke v Chamberlain.  Some students who did not perform well in relation to this aspect of the question incorrectly applied the law relating to estoppel to this issue. In addition, to perform well in this aspect of the question it was necessary to carefully consider how the court might exercise its discretion in relation to the award of remedies. Some students only considered constructive trust as a possible remedy without considering the more likely remedy of equitable compensation. a) House Removal: Injunctions Students were required to consider whether a prohibitory injunction might be awarded in equity’s auxiliary jurisdiction to prevent Ryan from demolishing the house. This required identification and discussion of the requirements of an injunction and a conclusion as to whether the court would exercise its discretion to award an injunction: ABC v Lenah Game Meats. Given the urgency, it was also necessary to consider whether an interlocutory injunction would be awarded. The elements of an interlocutory injunction (Australian Broadcasting Corporation v O’Neill) should have been identified, the material facts identified and the law applied to these facts and then a reasoned conclusion reached. b) $300,000 in ABC Bank Account

The facts raised the issue as to whether a Quistclose trust arose over this money given that it was advanced by Pam for the purpose of investing in Phoenix Ltd, which was wound up before the investment was made. Students were required to identify

the elements of a Quistclose trust and apply the facts, and come to a conclusion. It was quite likely that a Quistclose Trust would arise here – especially as the money was deposited into a separate bank account.

It was also necessary to consider whether ABC Bank would be liable as a third party constructive trustee if it exercised its right of set off to discharge the overdraft – this required a discussion of the relevant law and facts, particularly consideration of the relevance of the bank’s knowledge: Quistclose; Consul; Farah Constructions v Say Dee.  Most students identified and discussed the Quistclose trust issue. A number of students focused heavily on this issue to the detriment of allocating time for a more complete discussion of the resulting trust issue. Students who did not perform well in relation to this aspect of the question incorrectly applied the law relating to estoppel to this issue. Some students did not identify the Quistclose trust issue and included irrelevant consideration of contract law. The Quistclose trust aspect of the question could have been dealt with fairly concisely. Students who received higher marks in this question more generally were those who effectively allocated time across all the various issues raised by the question and did not spend a disproportionate amount of time discussing the Quistclose issue. c) Breach of trust and tracing Transfer of money out of the ABC account which was held on Quistclose Trust was a breach of trust, giving rise to a personal claim against Jim as trustee in breach of trust and also proprietary claims – tracing - which was important here as Jim was bankrupt. Students were first required to identify and explain the requirements for tracing, and apply these elements to the facts of the case. i)

Payment to Cathy: Here, there is an argument that Cathy had knowledge of the breach of trust by Jim: Leighton Contractors Pty Ltd v O’Carrigan & Ors [2016] QSC 223. It was also necessary to consider the appropriate

remedy – it may be that an election to take the Kenmore townhouse to access the increase in value (Scott v Scott) would be made, subject to appropriate allowances.

ii)

Payment to Dwight: This required consideration of the rights to trace against volunteers, and particularly innocent volunteers, including the relevance of the trustee’s bankruptcy: re Diplock; s113(2) Trusts Act 1973 (Qld) Trusts Act 1973 (Qld), s 113(3). This part of the question also raised the issue of the change of position defence. In this case it was necessary to identify that Dwight still had the $10,000 in his savings account and the relevance of this fact for the change of position defence (the defence may be held not to apply here as arguably Dwight had not changed his position).

 Students who did not perform so well in this part of the question missed the tracing aspect of the question, did not discuss all parts, or did not fully apply the facts to the relevant law.

Q3

Mike v Rachel (Breach of Confidence)

Equity has an original, inherent and independent jurisdiction to grant relief against actual or threatened breaches of confidence (Moorgate v Philip Morris).

The information at issue is a video of Mike and Rachel having sexual intercourse. To be confidential, there must be a degree of secrecy and not in public domain. The facts of this case are analogous to Giller v Procopets. In Giller, both Giller and Procopets were in a de facto relationship and P filmed sexual activities in 10 occasions. When the relationship ended, P decided and attempted to show the video to G friends and family. The court held that

information about private sexual activities between two people was not in the public domain and is confidential information and that the obligation of confidence arose due to the nature of the relationship. Here, because of the nature of the Rachel and Mike de facto relationship, there is an obligation of confidence. The publication to a private group on Facebook does not impact on confidentiality here (HRH Prince of Wales v Associated Newspapers). The publication to the group (actual) and deciding to let people know (threatened) constitute breach of confidence. The disclosure could rely on the public interest defence if it was carried out to disclose matters ‘in breach of a country’s security, or in breach of law… or otherwise destructive of the country or its people, including matters medically dangerous to the public; and doubtless other misdeeds of similar gravity’ (Rath J in Castrol v Emtech). The disclosure must also amount to more than public curiosity (AFL v The Ago Co Ltd). The defences clearly do not apply to Rachel. Rachel’s breach of confidence will allow remedies for Mike. The potential remedies available to Mike will be an interlocutory injunction to prevent Rachel from using the video before trial. There is a potential award of a prohibitory injunction at trial. A court order for delivery up and destruction will also be available to destroy all video that are subject matter to the breach of confidence (the sexual video). Monetary remedies will also be available to Mike and includes equitable damages. Damages may be awarded for distress (breach of personal confidence) (Giller). Exemplary damages are not awarded, but aggravated damages for humiliation and embarrassment may be awarded (Giller). On the facts, Mike stated that he felt so humiliated. Next Part B – Donna’s duty Trustees have a power to insure any trust property against loss or damage, whether by fire or otherwise where a prudent person would do so (s 47 Trusts Act). A trustee has an obligation to act in the best interests of the beneficiaries. Where the trustee is holding property for the benefit of another and there may be a risk of suffering loss or damage by fire, then provided funds are available, the trustee has a duty to act prudently and to insure the property.

Here, an ordinary and prudent person would be likely to insure their own house of value and a painting worth $2,000,000. Donna is likely to be under duty to insure the artwork. She has breached the duty and may be liable.

Part C – Donna v Mike – claim for the NF apartment Resulting trust arise by presumption of law that is based on the presumed intention of the settlor and outside requirement of writing (PLA s 11(2)). The presumption of resulting trust is the effective disposition/transfer of property at law, but nothing to indicate that the third party was intended to take beneficially. The beneficial (equitable) interests results back to the transferor via a resulting trust. The presumption can be rebutted by evidence of a contrary common intention at the time of purchase (intended as gift or loan?) (Calverly v Green). Here, the onus is on Mike to rebut the presumption.

Looking at the relationship between parties, a presumption of advancement is where a person in a special relationship registers property in another’s name (and the legal title does not reflect financial contributions made toward the purchase) and a presumption that there was an intention to benefit the other party/make a gift of the property interest). Establishing a presumption of advancement rebuts the presumption of resulting trust.

A presumption of advancement arises from parents to child (Nelson v Nelson, Calverley v Green) unless rebutted. The onus will be on Donna to rebut the presumption by evidence of her actual intention.

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The settlor may recover in Austra...