Category Archives: Equity

‘Emphasizing the Public Interest in Charitable Gifts’

Susan Gary, Restricted Charitable Gifts: Public Benefit, Public Voice, 81 Albany Law Review 101 (2018), available at SSRN. Susan Gary’s ‘Restricted Charitable Gifts: Public Benefit, Public Voice’ makes the case for legal reforms that reflect the public’s interest in loosening donor control of charitable gifts. Gary writes that her article is aimed at advocating for […]

PG Turner, ‘Fusion and Theories of Equity in Common Law Systems’

Abstract The fusion of law and equity in common law systems was a crucial moment in the development of modern Anglo-American law, with implications for the procedural, substantive and remedial aspects of law. This paper will introduce a volume of essays in which scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed […]

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd

“The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed […]

Thomas Gallanis, ‘The Use and Abuse of Governing-Law Clauses in Trusts: What Should the New Restatement Say?’

Abstract This Essay offers a novel solution to a thorny problem at the intersection of trust law and the conflict of laws: When should the settlor be able to choose a governing law other than the law of the jurisdiction with the most significant relationship to the trust? The law of the conflict of laws […]

Hilary Biehler, ‘The scope of common intention constructive trusts: where to draw the line?’

Introduction The common intention constructive trust is now well established as the mechanism used by the courts in England to resolve disputes about the beneficial ownership of family property, whether held in the parties’ joint names or in the sole name of one of them. However, it is clear that there are both doctrinal and […]

Nicholas McBride, ‘The Future of Clean Hands’

Abstract This paper introduces the concept of a supererogatory remedy (a remedy which no one has a right to, and which it is not necessary to award) and seeks to argue that the equitable defence of clean hands has a distinctive role to play in determining whether such a remedy will be granted. As such, […]

Charles Rounds, ‘Arbitration Contracts Between Trustees And Their Investment Agents: A Warning Label’

Abstract This Article considers whether arbitration clauses in contracts between trustees and their investment managers are binding on the trust beneficiaries. Nowadays, it is default law that a trustee may delegate investment discretion to an investment manager (IM); provided the IM has been prudently selected by the trustee and the IM’s activities are prudently monitored […]

Jesse Wall, ‘The functional-formal impasse in (trust) property’

Abstract This paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in […]

John Eldridge, ‘The New Law of Penalties: Mapping the Terrain’

Abstract This paper gives an account of recent developments in respect of the penalty rule in Australia and England, before going on to explore two unresolved questions. The first is whether Australian law recognises two jurisdictions to relieve against penalties – one in equity and another at common law – or instead a unitary penalty […]

Paul Rose, ‘Public Wealth Maximization: A New Framework for Fiduciary Duties in Public Funds’

Abstract This Article challenges the standard doctrine that public pension funds should be managed solely for the benefit of plan participants and their beneficiaries. Instead, economic logic suggests that public pension fund trustees owe their duties to the public collectively. This analysis is driven by the fact that, in practice, individual pension fund claimants function […]