Equity and trusts PDF
Preview Equity and trusts
Equity and Trusts Fourth Edition Michael Evans BA (Hons), LLM (Syd), LLM (Hons) (Cantab) Barrister, Supreme Court of New South Wales and High Court of Australia Bradley L Jones BCom (UWS), LLB (Hons) (UTS), LLM (Syd) Barrister, Supreme Court of New South Wales and High Court of Australia Theresa M Power BBus, LLB (Hons) (UTS) Barrister, Supreme Court of New South Wales and High Court of Australia LexisNexis Butterworths Australia 2016 To my father, Captain William Brookes Evans TAWEL HUN, BREUDDWYDION MELYS PAN DDAW’R CYNLLYN MAITH I BEN LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, AUSTRIA VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, MALAYSIA SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Evans, Michael (Michael Brookes). Title: Equity and trusts Edition: 4th edition. ISBN: 9780409338331 (pbk). 9780409338348 (ebk). Notes: Includes index. Equity — Australia. Trusts and trustees — Subjects: Australia. Jones, Bradley L. Other Authors/Contributors: Power, Theresa M. Dewey Number: 346.94004 © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2003; Second edition 2009 (reprinted 2010), Third edition 2012 (reprinted 2013, 2014). Equity and Trusts is a successor to Outline of Equity and Trusts, first edition 1988 (reprinted 1991); second edition 1993 (reprinted 1995); third edition 1996 (reprinted 1999, 2000 (twice), 2001, 2002 (twice), 2003). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Cover image: The photograph ‘Waterlilies’ by Michael Evans is reproduced with his kind permission. Typeset in Adobe Garamond Pro and Futura. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au Foreword That this excellent book on equity and trusts is the work of a member of the New South Wales Bar is not surprising, for New South Wales seems to be the natural home of equity jurisprudence in Australia. The reasons are historical. The procedural reforms of the Judicature Act 1873 (UK), which enabled the same court to administer both common law and equity, did not take eff ect in New South Wales until the passing of the Supreme Court Act 1970 (NSW). Before then, the court was divided, as if by an electrified fence, between common law and equity. The New South Wales Bar reflected the division. The Common Lawyers regarded the Equity Bar as eff ete intellectual snobs; the Equity Bar regarded the Common Lawyers as dullards fit only to run simple ‘broken bones’ cases. Neither opinion was entirely justified. Nonetheless, the Equity Bar was somewhat proud of its reputation as intellectuals. It basked in the reflected glory of Sir Frederick Jordan, Chief Justice of New South Wales (1934–1949) and, arguably, the greatest equity scholar Australia had, until then, produced. Equity was taught as a separate subject at Sydney University Law School by barristers who revered, as almost divinely inspired, the Select Legal Papers, which Sir Frederick had written in the 1920s while himself a part-time lecturer in Equity at the Law School. They deplored the adoption of the judicature system by the other States, regarding it as unnecessary when Sir Frederick had gone to the trouble of making the pre-judicature system perfectly workable, and they fervently hoped that New South Wales would not be tempted into the same error. Indeed, one such lecturer in the late 1960s, a future Judge of Appeal, was fond of saying that, rather than introducing the judicature system, the New South Wales Parliament should re-introduce the requirement for Queen’s Counsel to wear silk knee-breeches, silk stockings and shoes with silver buckles. It was widely believed that he already had these adornments in his chambers in expectation of the happy day. Understandably, the judiciary of the time took a while to embrace the uncomfortable rubbing of shoulders between law and equity required by the Supreme Court Act 1970. Judges in both Divisions of the Court were fond of quoting Ashburner’s aphorism that equity and the common law, like two separate streams of water, flowed together side by side in the same river without mingling: W Ashburner, Principles of Equity, 2nd ed, Butterworths, London, 1933, p 18. Academics and authors, loyal to Sir Frederick Jordan, spent much time deriding the ‘fusion fallacy’ committed by Sir George Jessel MR in cases such as Walsh v Lonsdale (1882) 21 Ch D 9. When, in Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 56, the trial judge held that equity could give exemplary damages, conflict between supporters and opponents of that view in New South Wales reached an intensity not seen since the battles between Chief Justice Coke and the Chancellor, Lord Ellesmere, in the time of King James I: see, for example, the lengthy, erudite and trenchantly opposed judgments of Mason P and Heydon JA in Harris (supra). But even in this state, attitudes to the continuing development of equity are changing. There is no longer a clearly identifiable Equity Bar nor is there an identifiable body of equity practitioners among solicitors. Commercial litigation, in which the principles of equity and common law play an equal part, has increased dramatically in the last 40 years and commercial lawyers cannot be ignorant of either jurisprudence. Further, the Corporations Act has attempted not only to codify, but in many instances has modified or expanded, the equitable principles underlying the law relating to corporations. Consumer legislation has expanded notions of ‘unconscionability’ in transactions between unequal participants. It is no longer possible in much commercial and corporate litigation either for lawyers or for the courts to find solutions by thinking exclusively in terms of either equitable or common law principle — a broader, conceptual view is what is required. This development is recognised in the fact that most Australian law schools no longer teach equity as a separate subject but as adjunct to other substantive subjects such as contracts or remedies. Michael Evans, as a former academic and now a member of the New South Wales Bar with a busy commercial and equity practice, is very well placed to explain the principles of equity and of trusts. He moves easily between rigorous analysis of principle and concise illustration from only the most important cases. The principles are examined conveniently in logically related groups. The writing is clear and unburdened by copious footnotes; its scholarship is leavened, here and there, by a welcome sprinkling of wit. This is, therefore, a book which is valuable both to the busy lawyer and to the time-pressed judge. The student will find it a helpful guide through what can sometimes seem a bewildering maze. I commend it to a wide readership. The Hon George Palmer AM, QC Formerly a Justice of the Supreme Court of New South Wales Preface This is the fourth edition of this work. Its predecessor Outline of Equity and Trusts ran to three editions with some reprints. The first edition was published in early 1988. That book grew from a project I had been working on while on sabbatical at Duke University in 1985, a one volume text on, primarily, English legal and constitutional history. When I returned from Duke in early 1986 I discussed the project with a friend of mine, John Waugh, who was then a commissioning editor at Butterworths. Butterworths were off ering a prize for a student text.* John told me they would be more interested in a shortened text on equity and trusts. So I put the legal and constitutional history drafts away and set to work on what became Outline of Equity and Trusts. The completion of the manuscript marks 30 years since the inception of that project. In 2002 Butterworths agreed to a lengthened version which became the first edition of Equity and Trusts published in 2003. For this edition two co-authors have come on board, Bradley Jones who has written the chapters on trusts and tax since the 2003 edition and Theresa Power, (née Dinh), of the New South Wales Bar. The structure and purpose of the work remains the same. The aim is to produce a text on equity and trusts designed for the student which should also be useful to the practitioner. In this edition we have tried to cut the book back in size slightly, partly to avoid the page creep that infects many books in later editions and with a view to keeping the price of the book within reach of student budgets. In the process we have tried to maintain the quality of the content. The structure of the book remains the same in that the description and discussion of principles is conducted within a context of citations of relevant authorities, sometimes with some reference to the facts of those cases. From time to time, case summaries are presented in what should appear as neat boxes. The criteria for selection of cases for this treatment also remains the same. Some are chosen because they are decisions of the High Court that state with the authority of that court certain principles. Other cases have been chosen because they provide good
The list of books you might like
