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Trusts Law in Australia

Trusts Law in Australia

5th edition

By Denis SK Ong

CONTENTSREVIEWS

Trusts Law in Australia, now in its fifth edition, provides a comprehensive and scholarly analysis of modern trusts law. Earlier editions have been praised for their utility both as a text for students and as for the sophisticated analysis of decisions they provide for practitioners.

The text is logically structured, setting out the conceptual foundations of trusts before dealing with all of the key topics including express trusts, charitable trusts, voluntary trusts, resulting trusts, constructive trusts, writing and related requirements, the rules against perpetuities and accumulations, life tenants, remaindermen, tracing, and the duties, liabilities, powers, rights, appointments, retirement and removal of trustees.

Professor Denis Ong’s meticulous analysis of both the facts and reasoning of key judgments identifies conceptual anomalies in the law, and interprets and at times critiques the relevant Australian and UK authorities. Each chapter finishes with a summary of relevant legal principles, making the book unusually accessible.

Among the important decisions included in this new edition:

  • In Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62, the High Court stated the requirements for establishing an intention to create an express trust.
  • In Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560, the High Court clarified the defence of a bona fide change of position.
  • In Fischer v Nemeske Pty Ltd (2016) 257 CLR 615, the High Court addressed the distinction between trust and debt.
  • The Federal Court in Jones v Matrix Partners Pty Ltd [2018] FCAFC 40 and in Lane v Deputy Commissioner of Taxation [2017] FCA 953, and, on the other hand, the Victorian Court of Appeal in Commonwealth v Byrnes [2018] VSCA 41, disagreed on the controversial ramifications of the trustee’s right of indemnity.
  • In Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 and Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732 the New South Wales Court of Appeal examined the volatile doctrine of accessory liability in equity.

CONTENTS

Preface
Table of Cases
Table of Statutes

1. Introduction

The Trust
The Three Categories of Trusts

2. The Trust Compared with Some Other Concepts

Trust
Debt
Personal Representatives
Partners
Equitable Charge, Equitable Personal Obligation and Condition Subsequent
Bailment
Agency
Mortgage
Unincorporated Associations
Company Directors
Corporations
Company Liquidators
Trust Powers and Mere Powers
Summary

3. Three Certainties Required for Creation of Express Trust

Certainty of Intention
Certainty of Subject Matter
Certainty of Objects
Summary

4. Writing Requirements for Certain Types of Transactions

Section 23C(1)(a) of Conveyancing Act 1919 (NSW)
Section 23C(1)(b) of Conveyancing Act 1919 (NSW)
Section 23C(1)(c) of Conveyancing Act 1919 (NSW)
The Principle in In re Schar
Section 54A of Conveyancing Act 1919 (NSW) and Doctrine of Part Performance
Section 23C of Conveyancing Act 1919 (NSW) and Adamson v Hayes
Dispositions by Will
Summary

5. Complete Constitution of Voluntary Trust

The Basic Principle
Executory Trusts
Particular Applications of Basic Principle
Capacity to Create a Trust
Summary

6. TRUSTEES: Duties, Liabilities, Powers, Rights, Appointment, Retirement and Removal

Duties of Trustees
Liabilities of Trustees: Rights of Beneficiaries
Powers of Trustees
Rights of Trustees
Appointment, Retirement and Removal of Trustees
Summary

7. Charitable Trusts

Charitable Trusts are Trusts to Promote Charitable Purposes
Categories of Charitable Trusts
Trusts for the Relief of Poverty
Trusts for Advancement of Education
Trusts for Advancement of Religion
Trusts for Other Purposes Beneficial to Public
Statutory Modification of Fourth Category
Statutory Severance of Non-Charitable Purposes from Charitable Purposes
The Doctrine of Cy-près
Statutory Cy-près
Control of Public Collection and Disposition of Funds raised for Charitable and Other Public Purposes
Lapse
Summary

8. Resulting Trusts

Statement of Principle
Presumption of Resulting Trust
Presumption of Advancement (Presumption of Gift)
Joint Bank Accounts between Purchasers and Volunteers
The Enigmatic Episode of Tony Vandervell: Vandervell v Inland Revenue Commissioners
Can a Trust be Created by the Transfer of a Bare Legal Estate?
Resulting Trusts Precipitated by Transfer of Property in Trust for Illegal Purposes
Summary

9. Constructive Trusts

Acquisition of Legal Title with Actual or Constructive Notice of Earlier Inconsistent Equitable Interest
Property Acquired through Giving of Knowing Assistance to Another in Latter’s Breach of Fiduciary Duty
Fiduciary’s Duty to Account for Unauthorised Gains
Unconscionable Reliance on Legal Title
Vendor as Conditional Constructive Trustee of Property under Contract of Sale
Summary

10. Tracing

Tracing at Common Law
Tracing in Equity
Tracing and Romalpa Clauses
No Tracing Where Agent a Mere Debtor
Does Defence of Change of Position apply to Law of Tracing?
Backward Tracing?
Summary

11. The Rights of Life Tenant and Remainderman Regarding Income and Capital

Rule in Howe v Lord Dartmouth
Apportionment Legislation
Distinguishing Capital from Income: Company Shares and Pastoral Properties
Burden of Loss or Expenditure to be Borne as between Capital and Income
Rule in Allhusen v Whittell
Summary

12. The Rule Against Perpetuities and the Rule Against Accumulations

Statement of Rule Against Perpetuities
Statement of Rule Against Accumulations
Summary

Index


REVIEWS

Reviews of previous editions:

…the text provides a valuable statement about modern trusts law in Australia, including insights into the potential for changes in the law via the critique offered of the current law. Both students and practitioners can use the statement and critique not only to confirm their understanding of trusts law but also to reflect upon discrepancies in the law and how these anomalies may be treated by the courts in practice.
         The summary at the end of each chapter is a welcome tool in aiding the reader to remember the key principles discussed and to reference them. This, together with the other features which facilitate locating information in the text makes it easy for readers to use the text as a reference for either detailed analysis of the principles of trusts law in Australia or the particulars of the sources materials which establish the principles discussed.

Proctor, Qld Law Society, February 2008

[T]he volume is one for anyone who advises on trusts to have on their bookshelves.

Law Society Journal, New South Wales, April 2008

The text maintains its previous strengths. … the reader interested in considering elements of the topic in depth will find considerable satisfaction. …
         Like so much else of Professor Ong’s work, it is impossible not to be swept up and absorbed by his immense enthusiasm for the subject. As with previous editions, this is an essential work for all who come near this wide-ranging jurisdiction.

The Queensland Lawyer, April 2008

This book contains a detailed consideration of the principles of trusts law in Australia. It will be a useful book for both students of trusts law and practitioners in need of a quick reference to key principles.
         … [Ong’s] expertise in the area certainly comes through in this edition. Each topic is dealt with comprehensively, and in a scholarly manner. Each principle is supported by very extensive footnote references to a range of well known, and less well known, cases cited as authority from around the common law world.
         … Professor Ong engages in a scholarly debate with the reader about the scope of particular cases and leads the reader through an assessment of their impact on the law. … [T]he in-depth focus on the facts, issues and reasonings of each case is an advantage that this book has over some of its competitors. One particularly useful feature for students is the provision of an overview summary at the end of each chapter. …
         The coverage of the book is truly national, with cases cited from across Australia, as well as relevant cases from the United Kingdom and New Zealand. Similarly legislative references are given to all jurisdictions in Australia. …
         Overall, this book is a necessary acquisition for any university law library as students (and academics) will find it accessible and authoritative. Practitioner and court libraries should also purchase the book as a handy reference guide to the modern principles of trusts law.

Australian Law Librarian, 2007

This book is not for those looking for a bullet-point reference text of the law of trusts, with little or no analysis. It is a scholarly, and often critical, review of the law of trusts in this country.
         Professor Ong is not afraid to suggest that certain decisions of the High Court may have added to the uncertainty of the law. However, such criticism is always underpinned by a thorough analysis of precedent and principle. …
         Throughout the book, it is clear that the author has a high regard for the historical development of the law and the need to maintain consistency and certainty when dealing with trusts law in a modern context.
         The summaries which appear at the end of each chapter are a useful feature of the book, and provide a helpful starting point when undertaking research. Overall, the 12 chapters are well organised and cover relevant topics such as charitable, resulting and constructive trusts, tracing, and the duties and liabilities of trustees. Thorough analysis is given to each topic, particularly where an area of law is unsettled or beset by difficult and irreconcilable precedent.
         On the whole, the third edition of Trusts Law in Australia provides a balance to the many other texts on this topic which are currently available. It does this through uncompromising scholarship, leaving the reader fully informed as to the difficulties which often arise when attempting to comprehend this branch of the law.

Hearsay November 2007

If you are Senior Counsel arguing that the High Court should abandon established principle in order to rule in your client’s favour, then this is the book for you. Professor Ong explores the field with constant and close reference to both leading and less-known cases. He lays out the facts of each case in detail and provides a careful analysis of both what the case stands for and … what he thinks it should stand for if the court in question hadn’t made a particular mistake which he is able (very convincingly) to discern and explain. …
         The reading is immensely rewarding. … The vexed fields of resulting and constructive trusts are frozen in the fierce spotlight of the author’s daunting intellect and unremittingly dismembered. These things touch so much now, of course, from joint bank accounts to the infinite variety of shared fiscal ventures. I enjoyed the author’s efforts to show why the “Baumgartner” type trust is institutional rather than remedial – in contrast to other commentators – but the debate rather illustrates my point: this is a book for the true believer and dilettantes ought stay clear.
         This is not to suggest that the work is too ethereal for practical use. Far from it; but its utility has a price – a commitment to understanding the difficult questions often arising in the jurisdiction – for commitment is, in essence, what the author asks as a fair price for his great scholarship.

Martyn Hanmore, Qld Lawyer, 2005

An excellent work which can be recommended to students, scholars and lawyers who require a thoroughly updated and Australian focused guide to the law of trusts.

PW Lithgow, Victorian Bar News, Summer 2004

As a textbook for the law student, the tome works wonderfully well. Written in clear, unambiguous language and principle-based, the book is easily digested. Most importantly, the judgment citations are a treat as they are unusually referenced by name and page number allowing unprecedented ease for further research.
         Also excellent is the book’s examination of recent Australian developments including: beneficiaries’ right of access to trust documents, equitable compensation, constructive and discretionary trusts, tracing, trustee’s right of indemnity, knowing assistance, complete constitution of gifts, trustee exemption clauses, writing requirements, mutual wills, Romalpa clauses and breach of trust and causation.

AD Akratos, Lawyers Weekly, January 2004

[E]very practitioner ought to have readily to hand an up-to-date text dealing comprehensively with all issues relating the law of trusts.
         The second edition of Trusts to Law in Australia published in September 2003 is a successor to the first published in 1999. Not only is it comprehensive in its scope but each of the 12 chapters concludes with a helpful summary. Those summaries provide a convenient starting point for identifying the areas of text which merit far closer attention as a precursor to more thorough examination of the statutes and decisions commented on in the text.

Peter Roach, Tasmanian Law Society Newsletter, November 2003

This second edition comes only four years after the first. In a field which has not radically changed, that says a great deal for the author's industry and the demand for the book.
         The text is set out in a straightforward and comprehensive fashion. The first chapters compare the trust with other concepts and then deal with the three certainties required to create an express trust and the requirements for writing. The constitution of a voluntary trust is followed by the duties, liabilities, powers and rights of a trustee. The following chapters deal with charitable trusts, resulting trusts and constructive trusts.                                     The book closes with chapters on tracing, life tenancies and the rule against the perpetuities.
         The book is written in a clear, readable style balancing the need to state the law clearly with the task of the text writer to question and forecast its future development. To whom is the text addressed? Students will enjoy the clear writing and the early introduction and comparisons. They will also find particularly useful the summaries at the end of each chapter. Practitioners will find a clear exposition of the theory and valuable summaries of the leading cases. However, they will probably look for more detail than is provided on the practical application of trusts in such areas as testamentary trusts, unit trusts and superannuation trusts.

Tim Johnstone, Ethos, ACT Law Society, Dec 2003

   

Publishing 30 November 2018
Publisher The Federation Press
Paperback/880pp
ISBN 9781760021771
Australian RRP $145.00
International Price $135.00
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Not yet published

Hardback/880pp
ISBN 9781760021948
Australian RRP $180.00
Direct Price $180.00
International Price $165.00
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Law - Equity & Trusts


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