Jacobs' law of trusts in Australia [8th edition.] 9780409343526, 0409343528

Table of contents :
Full Title
Copyright
Preface
The Honourable Sir Kenneth Jacobs KBE
Table of Cases
Table of Statutes
Works Frequently Cited
Table of Contens
Chapter 1 The Nature of a Trust
Chapter 2 The Distinction Between a Trust and Certain Other Legal Institutions
Chapter 3 The Classification of Trusts
Chapter 4 Capacity to Create a Trust
Chapter 5 Express Trusts — Certainty of Intention, Subject Matter and Object
Chapter 6 Express Trusts — Complete Constitution or Consideration
Chapter 7 Express Trusts — The Requirement of Writing
Chapter 8 The Interpretation of the Trust
Chapter 9 When an Express Trust may Fail or be Set Aside
Chapter 10 Charitable Trusts
Chapter 11 Purpose Trusts
Chapter 12 Resulting Trusts
Chapter 13 Constructive Trusts
Chapter 14 Capacity to be a Trustee
Chapter 15 The Appointment, Retirement and Removal of Trustees
Chapter 16 Duties, Powers and Discretions of a Trustee
Chapter 17 Duties of a Trustee
Chapter 18 The Duty to Invest Trust Funds
Chapter 19 Duty of Impartiality
Chapter 20 Powers of a Trustee
Chapter 21 Rights of Trustees
Chapter 22 Liability of a Trustee
Chapter 23 The Rights of a Beneficiary
Chapter 24 What may be Trust Property
Chapter 25 Vesting of Trust Property
Chapter 26 Conversion
Chapter 27 Tracing Trust Property
Chapter 28 Trusts in the Conflict of Laws
Chapter 29 The Trust Aspects of Superannuation
Index

Citation preview

Jacobs’ Law of Trusts in Australia 8th Edition J D Heydon BA (Syd) MA BCL (Oxon) Queen’s Counsel in the State of New South Wales

M J Leeming BA LLB PhD (Syd) A Judge of Appeal, Supreme Court of New South Wales Challis Lecturer in Equity, University of Sydney

LexisNexis Butterworths Australia 2016

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Heydon, J. D. (John Dyson).

Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Jacobs’ law of trusts in Australia. 8th edition. 9780409343519 (hbk). 9780409343502 (pbk). 9780409343526 (ebk). Includes index. Trusts and trustees — Australia. Leeming, M. J. (Mark James). 346.94059

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 1958; Second edition 1967; Third edition 1971; Fourth edition 1977; Revised reprint 1979; Fifth edition 1986; Sixth Edition 1997; Seventh Edition 2006 (reprinted 2010 twice). 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. Typeset in Goudy. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Seven editions of this book have been published, under six editors in various combinations, in the last 58 years. The previous edition — the 7th — appeared 10 years ago. Overall, the last decade shows that the law of trusts still plays a central and characteristic role in Australian law, and continues to have great vitality. In that time, while much of the law of trusts has continued its tranquil existence, other parts have exhibited signs of steady curial activity. These have been considered and incorporated in this book. And yet other parts have been the subject of intense examination in and out of court. These have called for a substantial amount of revaluation and rewriting. Among the last group are the topics of charitable trusts, resulting trusts, constructive trusts, some of the duties and rights of trustees, and some of the beneficiary’s rights. An attempt has also been made to revise, improve and on occasion tighten up the text in its totality. A great deal is owed to the following for their intense labours in assembling materials for consideration, checking the text, typing the manuscript, reading the proofs or otherwise facilitating the quite large task of preparing this 8th edition: Tara Kahrovic, Mia Sheldon, Barbara Price, Catherine Young, Elizabeth Daley, Kate Lindeman and Hannah Vieira. The publishers, too, are deserving of much gratitude for their forbearance and cooperation. J D H M J L

The Honourable Sir Kenneth Jacobs KBE1 1917–2015 Kenneth Sydney Jacobs was born and educated in Sydney. He was dux of Knox Grammar School, and obtained an Honours degree in Latin and Greek from the University of Sydney, where he was taught by a youthful Professor Enoch Powell (whom he regarded as pretentious). He joined but strongly disliked the reserve forces, and enlisted with the Australian Army, seeing service at El Alamein and in New Guinea. On discharge, he completed his law degree, with First Class Honours and the University Medal, and in his final year worked as associate to Justice Leslie Herron. He was admitted to the Bar in 1947, was made Queen’s Counsel in 1958, and appointed to the Supreme Court of New South Wales in 1960. He was a founding member of the Court of Appeal in 1966, and was appointed its President in 1972. In 1974 he was appointed to the High Court of Australia, but retired in 1979, aged 61, having been misdiagnosed with a serious illness. He and his British-born wife retired to England, where he was physically and mentally active for the remainder of his life. In his late eighties, he caught a bus from Hammersmith to lectures at University College, London, which awarded him a Masters degree. He said that he struggled with his Classical Greek lecturer’s insistence that footnoted references be given for propositions that were obvious. Jacobs taught at the University of Sydney as Challis Lecturer in Equity from 1953 to 1960. He wrote much of the first edition of this work in the long vacations in the late 1950s, when he was a busy junior barrister. He said that he wanted the work to discuss ‘the practical problems which face those who

undertake the duties of a trustee’. We share the same desire. This book is dedicated to him. J D H M J L

________________________________ 1.

See ‘Remembering Sir Kenneth Jacobs KBE QC’ [2015] (Summer) Bar News 61; ‘Kenneth Jacobs interviewed by Peter Coleman in the Law in Australian society oral history project’ (interview recorded 10 May 1996); Preface to 1st ed (1958); personal communications.

Table of Cases References are to paragraph numbers

A A v A [2007] 2 FLR 467 …. 5-04 A E Goodwin Ltd v A G Healing Ltd (1979) 7 ACLR 481 …. 22-07 A M Spicer Pty Ltd v Spicer (1931) 47 CLR 151; 37 ALR 357 …. 17-43 Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409; [2003] 1 All ER 763 …. 16-01, 16-12, 17-04 Abbott, Re [1983] Ch 45 …. 9-39 Abbott v Abbott [2008] 1 FLR 1451 …. 12-18, 13-54 — v Middleton (1858) 7 HLC 68; 11 ER 28 …. 8-01 Abbott Fund, Re Trusts of the [1900] 2 Ch 326 …. 12-08 Aberdeen Town Council v Aberdeen University (1877) 2 App Cas 544 …. 1743 Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 …. 7-03 Aboriginal Development Commission v Treka Aboriginal Arts and Crafts Ltd [1984] 3 NSWLR 502 …. 5-21, 14-12 Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414; 75 FLR 197 …. 10-19, 10-84 Abrahams, Re [1908] 2 Ch 69 …. 21-11 Abraham’s Will Trusts, Re [1969] 1 Ch 463; [1967] 2 All ER 1175 …. 9-16, 1612, 20-59 Accident Compensation Tribunal, Registrar of the (Vic) v Federal Commissioner of Taxation (1993) 178 CLR 145; 117 ALR 27 …. 1-01, 102, 5-02, 5-21, 23-09

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; 110 ACSR 1 …. 1-01, 21-02 Ackroyd v Smithson (1780) 1 Bro CC 503; 28 ER 1262 …. 12-05, 26-17 Adair v Shaw (1803) 1 Sch & Lef 243 …. 22-10 Adam v Newbigging (1888) 13 App Cas 308 …. 2-50 Adams v Alemite [1994] NSWCA 1 …. 22-13 — v Clifton (1826) 1 Russ 297; 38 ER 115 …. 17-23 Adams’ Trusts, Re (1879) 12 Ch D 634 …. 15-49, 15-86 Adamson v Hayes (1973) 130 CLR 276; [1972–73] ALR 1224 …. 7-03, 7-05 — v Melbourne & Metropolitan Board of Works [1929] AC 142; (1928) 34 ALR 353 …. 10-05 Adamson v Reid (1880) 6 VLR (E) 164 …. 18-01 Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504 …. 27-07 ADM Franchise Pty Ltd, Re (1983) 7 ACLR 987 …. 21-14 Adsett v Berlouis (1992) 37 FCR 201; 109 ALR 100 …. 21-07 AG Securities v Vaughan [1990] 1 AC 417 …. 5-04 Agip (Africa) Ltd v Jackson [1990] Ch 265; [1992] 4 All ER 385 …. 13-34, 1336, 13-37, 23-20 — v — [1991] Ch 547; [1992] 4 All ER 451 …. 27-04, 27-05 Agricultural Credit Corpn of Saskatchewan v Pettyjohn (1991) 79 DLR (4th) 22 …. 27-07 Agricultural Land Management Ltd v Jackson (No 2) (2014) 98 ACSR 615 …. 22-04 Agusta Pty Ltd v Provident Capital Ltd (2012) 16 BPR 30,397 …. 21-02 AIB Group (UK) plc v Mark Redler & Co Solicitors [2015] AC 1503; [2015] 2 All ER 747 …. 22-01, 22-04 Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; 272 ALR 417 …. 10-12, 10-29, 10-51 Ailesbury, Re [1893] 2 Ch 345 …. 15-64 Ainsworth, Re [1915] 2 Ch 96 …. 17-37

Air Canada v M & L Travel Ltd, Re (1993) 108 DLR (4th) 592 …. 2-11, 13-36 Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 …. 3-07, 9-28, 12-01, 12-08, 29-01, 29-07, 29-53, 29-56, 29-57 Aitken and Barron’s Bill, Re (1932) 49 WN (NSW) 224 …. 21-09 Akerman, Re [1891] 3 Ch 212 …. 21-11 Akers v Samba Financial Group [2015] Ch 451 …. 28-09, 28-19 Albazero, The [1977] AC 774; [1976] 3 All ER 129 …. 2-18, 2-20 Albert Road, Norwood, Re [1916] 1 Ch 289 …. 15-51, 25-04 Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 …. 21-18 Albion Park Agricultural Association, Re (1902) 19 WN (NSW) 237 …. 10-78 Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618 …. 2921, 29-55 Alcock v Bilbrough (1900) 25 VLR 360; 6 ALR 12 …. 20-43 — v Public Trustee (1936) 53 WN (NSW) 192 …. 21-10, 21-34 — v Sloper (1833) 2 My & K 699; 39 ER 1111 …. 19-02, 19-04, 19-06 Aldridge, Re (1886) 55 LT 554 …. 20-58 Alemite Lubrequip Pty Ltd v Adams (1997) 41 NSWLR 45 …. 22-07 Alexander v Mills (1870) LR 6 Ch App 124 …. 15-20 — v Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417 …. 23-03 Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518; [2000] 4 All ER 97 …. 2-20 Alfred Shaw & Co Ltd, Re (1897) 8 QLJ 93 …. 21-15 Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25; 139 FLR 236 …. 10-55, 10-84 Alitalia Linee Aeree Italiane SpA, Re [2011] 1 WLR 2049 …. 5-02 All Benefit Pty Ltd (in liq) v Registrar General (1993) 11 ACLC 1,068 …. 21.14 Allan, Re (1881) 17 Ch D 807 …. 20-63 Allcard v Skinner (1887) 36 Ch D 145; [1886–90] All ER Rep 90 …. 9-36

Allen, Re [1905] 2 Ch 400 …. 10-62 Allen, Re [1953] Ch 810; [1953] 2 All ER 898 …. 9-16 Allen v Distillers Co (Biochemicals) Ltd [1974] QB 384; [1974] 2 All ER 365 …. 17-05, 17-07 — v Jackson (1875) 1 Ch D 399 …. 9-13 — v Kent 136 A (2d) 540 (1957) …. 13-52 — v Rochdale Borough Council [2000] Ch 221; [1999] 3 All ER 443 …. 12-13 — v Snyder [1977] 2 NSWLR 685 …. 7-12, 12-14, 12-15, 12-18, 13-50 Allen-Meyrick’s Will Trusts, Re [1966] 1 All ER 740; [1966] 1 WLR 499 …. 1616 Alleyne v Davey (1854) 4 I Ch R 199 …. 13-34 Allhusen v Whittell (1867) LR 4 Eq 295; [1861–73] All ER Rep 149 …. 19-01, 19-10 Allott, Re [1924] 2 Ch 498; [1924] All ER Rep 810 …. 20-06 Allsop, Re [1914] 1 Ch 1; [1911–13] All ER Rep 1834 …. 22-16 Alsbury, Re (1890) 45 Ch D 237 …. 19-38 Alsop Wilkinson v Neary [1995] 1 All ER 431; [1996] 1 WLR 1220 …. 21-34 Alston, Re [1901] 2 Ch 584 …. 19-09, 19-60 Altson, Re [1955] VLR 281; [1955] ALR 896 …. 5-11, 16-05 Altson v Equity Trustees, Executors and Agency Ltd (1912) 14 CLR 341 …. 2003 Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 2 All ER 552; [1976] 1 WLR 676 …. 2-47, 2-48, 2-49, 2-51 Ambulance Service of New South Wales v Deputy Commissioner of Taxation (2003) 130 FCR 477; 200 ALR 218 …. 10-55 Ames, Re (1883) 25 Ch D 72 …. 17-40 Ames v Parkinson (1844) 7 Beav 379; 49 ER 1111 …. 18-34 Ames’ Settlement, Re [1946] Ch 217; [1946] 1 All ER 689 …. 9-36, 12-05 Amos v Fraser (1906) 4 CLR 78; 12 ALR 481 …. 20-30, 21-10 Anantamul Pty Ltd v Innes-Irons [1984] 2 Qd R 180 …. 20-70 Andco Nominees v Lestato (1995) 17 ACSR 239 …. 25-08

Anderson, Re (1901) 1 SR (NSW) Eq 223; 18 WN (NSW) 285 …. 17-42 Anderson, Re (1927) 27 SR (NSW) 296; 44 WN (NSW) 69 …. 20-44, 21-03 Anderson v McPherson (No 2) (2012) 8 ASTLR 321 …. 12-01, 12-14 Andrabell Ltd (in liq), Re [1984] 3 All ER 407 …. 2-47, 2-48, 2-51 Andrew v Andrew (1845) 1 Coll 686; 63 ER 598 …. 19-41 — v Trinity Hall, Cambridge (1804) 9 Ves 525; 32 ER 706 …. 15-73 — v Zant Pty Ltd (2004) 213 ALR 812 …. 9-40 Andrews v Bousfield (1847) 10 Beav 511; 50 ER 678 …. 13-34 — v Ramsay & Co [1903] 2 KB 635 …. 13-25 Andrew’s Trust, Re [1905] 2 Ch 48; [1904–7] All ER Rep Ext 1595 …. 12-08 Androma Pty Ltd, Re [1987] 2 Qd R 134 …. 24-04 Angas, Re [1906] SALR 140 …. 19-31, 19-50 Angas Law Services Pty Ltd v Carabelas (2005) 226 CLR 507; 215 ALR 110 …. 2-03 Angerstein v Martin (1823) T & R 232; 37 ER 1087 …. 19-10 Angier v Stannard (1834) 3 My & K 566; 40 ER 216 …. 22-03 Annandale, Re [1980] 1 Qd R 353 …. 10-68 Anning v Anning (1907) 4 CLR 1049; 13 ALR 709 …. 6-19, 6-20 Anon (1755) 2 Ves Sen 629; 28 ER 401 …. 22-06 Anscor Pty Ltd v Clout (2004) 135 FCR 469 …. 9-39 Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2002) 174 FLR 1 …. 8-02, 29-53 Anson v Potter (1879) 13 Ch D 141 …. 23-12, 23-16 Anson’s Settlement, Re [1907] 2 Ch 424 …. 20-52 Aon Trust Corporation Ltd v KPMG [2005] 3 All ER 587 …. 8-02 Apostolou v VA Corporation of Australia Pty Ltd (2010) 77 ACSR 84 …. 2104 Apostolovski v Total Risk Management Pty Ltd (2010) 79 NSWLR 432 …. 2920, 29-37, 29-38 Appah v Monseu [1967] 2 All ER 583; [1967] 1 WLR 893 …. 10-08 Appleby, Re [1903] 1 Ch 565 …. 20-06

Appleby’s Estate, Re (1930) 25 Tas LR 126 …. 5-24 Applegate v Moss [1971] 1 QB 406; [1971] 1 All ER 747 …. 22-30 Application by Klumper, Re (2003) 11 BPR 21,225 …. 25-11 Application by Olrey Pty Ltd, Re [2016] VSCA 8 …. 21-34 Application of Albarran; Harb v Harb (2010) 17 BPR 33,295 …. 17-05 Application of Karla Marie Tate and Hyun Jong Chung [2015] NSWSC 639 …. 8-02 Application of M (2000) 50 NSWLR 401 …. 4-05 Application of Permanent Trustee Co Ltd, Re (1983) 7 ACLR 411 …. 14-05 Arakella v Paton (2004) 60 NSWLR 334 …. 17-06, 17-07 Arber, Re (1919) Times, 13 December …. 10-45 Arbib and Class’ Contract, Re [1891] 1 Ch 601 …. 15-73 Archer, Re [1961] Tas SR 1 …. 19-49 Aristoc Industries Pty Ltd v R A Wenham (Builders) Pty Ltd [1965] NSWR 581 …. 2-20 Arjon Pty Ltd v Commissioner of State Revenue (2003) 8 VR 502 …. 21-02 Armenian General Benevolent Union v Union Trustee Co of Australia Ltd (1952) 87 CLR 597; [1952] ALR 781 …. 10-20, 10-59 Armitage, Re [1893] 3 Ch 337; [1891–4] All ER Rep Ext 1592 …. 19-40 Armitage v Nurse [1998] Ch 241; [1997] 2 All ER 705 …. 15-43, 16-19, 16-20, 17-04, 17-14, 17-18, 22-06, 22-09, 22-26, 22-29 Armour v Thyssen Edelstahlwerke AG [1991] 2 AC 339; [1990] 3 All ER 481 …. 2-47, 2-49 ARMS (Multiple Sclerosis Research) Ltd, Re [1997] 2 All ER 679; [1997] 1 WLR 877 …. 10-84 Armstrong, Re [1960] VR 202 …. 5-02 Armstrong v A-G (1934) 34 SR (NSW) 454; 51 WN (NSW) 151 …. 10-71 Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156; [2012] 3 All ER 425 …. 13-10, 13-36 Artifakts Design Group Ltd v NP Rigg Ltd [1993] 1 NZLR 196 …. 13-30 Asea Brown Boveri Superannuation Fund No 1 Pty Ltd v Asea Brown Boveri

Pty Ltd [1999] 1 VR 144 …. 16-08, 16-12, 29-21, 29-56 Ashby v Blackwell (1765) 2 Eden 302; 27 ER 326 …. 17-35 Ashfield Municipal Council v Joyce [1976] 1 NSWLR 455 …. 10-05, 10-44 Ashton, Re [1897] 2 Ch 574 …. 12-12 Ashton, Re [1898] 1 Ch 142 …. 12-12 Ashton, Re [1938] Ch 482; [1937] 3 All ER 279 …. 10-46 Ashton, Re [1938] 1 All ER 707 …. 10-46 Ashton, Re [1950] NZLR 42 …. 10-65 Ashton v Pratt (2015) 318 ALR 260 …. 5-02 Ashton (decd), Re [1955] NZLR 192 …. 10-46, 10-65 Ashton’s Charity, Re (1859) 27 Beav 115; 54 ER 45 …. 10-69 Askew v Woodhead (1880) 14 Ch D 27; [1874–80] All ER Rep 644 …. 19-03, 19-23 Aspinall, Re [1961] Ch 526; [1961] 2 All ER 751 …. 19-30 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; 171 ALR 568 …. 2-26, 2-28, 2-47, 2-48, 5-01, 5-02, 5-24, 6-25, 17-20 Associated Securities Ltd and the Companies Act, Re [1981] 1 NSWLR 742 …. 2-16 Association of Franciscan Order of Friars Minor v City of Kew [1967] VR 732 …. 10-44 Astbury v Astbury [1898] 2 Ch 111 …. 2-43, 16-14 Aston v Aston (1703) 2 Vern 452; 23 ER 890 …. 9-13 Astor, Re [1952] Ch 534; [1952] 1 All ER 1067 …. 11-05, 11-06 Astill Freeman, Re [1906] QWN 5 …. 20-45 Atkinson, Re [1904] 2 Ch 160; [1904–7] All ER Rep Ext 1545 …. 19-60 Atkinson, Re (1911) 103 LT 860 …. 5-07 Atkinson, Re [1971] VR 612 …. 23-18 Atkinson’s Will Trusts, Re [1957] Ch 117; [1956] 3 All ER 738 …. 12-09 Atkinson’s Will Trusts, Re [1978] 1 All ER 1275; [1978] 1 WLR 586 …. 10-68 Attenborough v Solomon [1913] AC 76; [1911–13] All ER Rep 155 …. 2-40, 243

Attorney-General v Aspinall (1837) 2 My & Cr 613; 40 ER 773 …. 23-04 — v Bedford Corp (1754) 2 Ves Sen 505; 28 ER 323 …. 10-67 — v Bishop of Worcester (1851) 9 Hare 328; 68 ER 530 …. 10-67, 10-78 — v Blake [1998] Ch 439; [1998] 1 All ER 833 …. 5-21 — v Brandreth (1842) 1 Y & CCC 200; 62 ER 854 …. 10-67 — v Brereton (1752) 2 Ves Sen 425; 21 ER 475 …. 10-39 — v Bushby (1857) 24 Beav 299; 53 ER 373 …. 10-54 — v Calvert (1857) 23 Beav 248; 53 ER 97 …. 10-67 — v Cambridge (Margaret and Regius Professors) (1682) Vern 55n; 23 ER 306 …. 10-28 — v Chester (Bishop) (1785) 1 Bro CC 444; 28 ER 1229 …. 10-39 — v Christ’s Hospital (1834) 3 My & K 344; 40 ER 131 …. 10-67 — v Clack (1839) 1 Beav 467; 48 ER 1021 …. 15-86 — v Clarendon [Earl] (1810) 17 Ves 49; 34 ER 190 …. 10-67 — v Clarke (1762) Amb 422; 27 ER 282 …. 10-69 — v Comber (1824) 2 Sm & St 93; 57 ER 281 …. 10-20 — v Compton (1842) 1 Y & CCC 417; 62 ER 951 …. 10-67 — v Corp of Leicester (1844) 7 Beav 176; 49 ER 1031 …. 13-34 — v Corp of Rochester (1854) 5 De GM & G 797; 43 ER 1079 …. 10-67 — v Cuming (1843) 2 Y & C Ch Cas 139; 63 ER 61 …. 15-87 — v Day [1900] 1 Ch 31 …. 10-38 — v Dodd [1894] 2 QB 150 …. 26-10 — v Downing (1767) Wilm 1; 97 ER 1 …. 15-02, 17-04 — v Foundling Hospital (1793) 2 Ves 42; 30 ER 514 …. 10-67 — v Hall [1897] 2 IR 426 …. 10-14 — v Heelis (1824) 2 Sim & St 67; 57 ER 270 …. 10-53 — v Herrick (1772) Amb 712; 27 ER 461 …. 10-63 — v Hickman [1731–32] Kel W 34; 25 ER 482 …. 14-13 — v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293; 98 ALR 327 …. 23-04

— v Ironmongers Co (1841) Cr & Ph 208; 41 ER 469 …. 10-71 — v Jacobs Smith [1895] 2 QB 341 …. 6-26 — v Lady Downing (1766) Amb 550; 27 ER 353 …. 10-28 — v Landerfield (1744) 9 Mod 286; 88 ER 456 …. 14-04 — v Lord Dudley (1815) Coop G 146; 35 ER 510 …. 17-43 — v Madden (1843) 2 Con & Law 519 …. 10-69 — v Magdalen College, Oxford (1854) 18 Beav 223; 52 ER 88 …. 10-67 — v Mansfield [Earl] (1827) 2 Russ 501; 38 ER 423 …. 10-67 — v Mathieson [1907] 2 Ch 383 …. 10-68, 15-12 — v Mayor of Dublin (1827) 1 Bli NS 347; 4 ER 888 …. 10-53 — v Metcalfe (1904) 1 CLR 421 …. 10-63 — v Molland (1832) 1 You 562; 159 ER 1114 …. 10-39 — v Munro (1848) 2 De G & Sm 122; 64 ER 55 …. 17-03 — v Murdoch (1856) 2 K & J 571; 69 ER 910 …. 15-87 — v National Provincial Bank [1924] AC 262; [1923] All ER Rep 123 …. 10-48 — v Oakover (1736) cited 1 Ves Sen 536; 21 ER 1190 …. 10-45 — v Owen (1805) 10 Ves 555; 32 ER 960 …. 20-20 — v Pearson (1817) 3 Mer 353; 36 ER 135 …. 10-33 — v Powell (1890) 11 LR (NSW) Eq 263 …. 10-70 — v Rance …. 10-69 — v Ross [1985] 3 All ER 334; [1986] 1 WLR 252 …. 10-32 — v Schonfeld [1980] 3 All ER 1; [1980] 1 WLR 1182 …. 23-05 — v Scott (1750) 1 Ves Sen 413; 27 ER 1113 …. 17-31 — v Sparks (1753) Amb 201; 27 ER 134 …. 10-39 — v St John’s Hospital, Bedford (1865) 2 De GJ & Sm 621; 46 ER 516 …. 1404 — v Stephens (1834) 3 My & K 347; 40 ER 132 …. 15-02 — v Stepney (1804) 10 Ves 22; 32 ER 751 …. 10-33 — v Trustees of National Art Gallery of NSW (1944) 62 WN (NSW) 212 …. 16-14

— v Trustees of the British Museum [2005] Ch 397 …. 10-78 — v Try (1891) 12 LR (NSW) Eq 23 …. 10-67 — v Vint (1850) 3 De G & Sm 704; 64 ER 669 …. 10-23 — v Walker (1914) 31 WN (NSW) 59 …. 10-71 — v Wright [1987] 3 All ER 579; [1988] 1 WLR 164 …. 10-67 — v Wylde (1948) 48 SR (NSW) 366 …. 13.35 Attorney-General (Bahamas) v Royal Trust Co [1986] 3 All ER 423; [1986] 1 WLR 1001 …. 10-48, 10-63 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576 …. 1606, 29-42 Attorney-General (ex rel Nye) v Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1976) 12 ALR 87 …. 10-55, 10-56 Attorney-General for England and Wales v R [2002] 2 NZLR 91 …. 28-22 Attorney-General for Hong Kong v Reid [1994] 1 AC 324; [1994] 1 All ER 1 …. 13-11, 13-22, 13-24 Attorney-General (NSW) v Adams (1908) 7 CLR 100 …. 10-63 — v Cahill [1969] 1 NSWR 85 …. 10-11 — v Donnelly (1958) 98 CLR 538; [1958] ALR 257 …. 9-30, 10-66 — v Parramatta City Council (1949) 49 SR (NSW) 283 …. 5-21 — v Perpetual Trustee Co Ltd (1940) 63 CLR 209; [1940] ALR 209 …. 10-01, 10-30, 10-61, 10-68, 10-70, 10-71 — v — (1966) 115 CLR 581 …. 10-71 — v Public Trustee (1987) 8 NSWLR 550 …. 10-71 — v Sawtell [1978] 2 NSWLR 200 …. 10-57, 10-58 Attorney-General (NZ) v Brown [1917] AC 393; [1916–17] All ER Rep 245 …. 10-48 Attorney-General of the Cayman Islands v Wahr-Hansen [2001] 1 AC 75; [2000] 3 All ER 642 …. 10-58 Attorney General (SA) v Bray (1964) 111 CLR 402; [1964] ALR 955 …. 1057, 10-71 Attwater v Attwater (1853) 18 Beav 330; 52 ER 131 …. 9-19

Atwell v Roberts (2013) 43 WAR 507 …. 21-02 Audio Visual Copyright Society Ltd v Australian Record Industry Association Ltd (1999) 46 IPR 29 …. 22-16 Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245; [1971] ALR 661 …. 28-06 Ausintel Investments Australia Pty Ltd v Lam (1990) 19 NSWLR 637 …. 2-15 Austec Wagga Wagga Pty Ltd v Rarebreed Wagga Pty Ltd [2012] NSWSC 343 …. 15-51 Austin v Abigail (1933) 49 CLR 177 …. 20-61 — v Austin (1906) 3 CLR 516; 12 ALR 159 …. 17-18, 17-20, 17-21, 22-09 — v Keele (1987) 10 NSWLR 283; 72 ALR 579 …. 12-14 Austin’s Settlement, Re [1960] VR 532 …. 20-03 Australasian Annuities Pty Ltd v Rowley Super Fund Pty Ltd (2015) 318 ALR 302 …. 13-02 Australia and New Zealand Banking Group Ltd v National Mutual Life Nominees Ltd (1977) 15 ALR 287 …. 17-11 — v Westpac Banking Corp (1988) 164 CLR 662; 78 ALR 157 …. 27-08, 2714 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 …. 13-01, 13-10 Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 …. 13-53 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512 …. 9-02, 9-06 — v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; 197 ALR 153 …. 9-36 Australian Council of Social Service Incorporated v Commissioner for Pay-roll Tax (1985) 1 NSWLR 567 …. 10-19 Australian Elizabethan Theatre Trust, Re (1991) 30 FCR 491; 102 ALR 681 …. 2-14, 3-06, 5-02, 5-22, 6-24, 13-11 Australian Executor Trustees Ltd v A-G (SA) [2010] SASC 348 …. 10-68, 1085 Australian Home Finance Pty Ltd, Re [1956] VLR 1 …. 27-11

Australian Olympic Committee Inc v The Big Fight Inc (No 2) (2000) 176 ALR 124 …. 23-11 Australian Pipeline Ltd (2006) 60 ACSR 625 …. 21-34 Australian Postal Corp v Lutak (1991) 21 NSWLR 584 …. 13-10, 27-09 Australian Provincial Association v Coroneo (1935) 35 SR (NSW) 391 …. 205 Australian Reward Investment Alliance v Superannuation Complaints Tribunal (2008) 173 FCR 335 …. 20-48 Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509; 233 ALR 475 …. 23-15 — v Letten (No 17) (2011) 87 ACSR 155 …. 21-03 Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504; 133 ALR 1 …. 13-27, 13-39, 17-18, 18-12 — v Melbourne Asset Management Nominees Pty Ltd (1994) 49 FCR 334; 121 ALR 626 …. 13-11, 27-11 Avanes v Marshall (2007) 68 NSWLR 595 …. 17-16 Aveling v Knipe (1815) 19 Ves 441; 34 ER 80 …. 12-10 Avondale Printers v Haggie [1979] 2 NZLR 124 …. 7-12, 7-13, 13-41 Avtex Air Services Pty Ltd v Bartsch (1992) 107 ALR 539 …. 13-34 Ayles, Re (1875) 1 Ch D 282 …. 9-09 Ayliffe v Murray (1740) 2 Atk 58; 26 ER 433 …. 17-39 Aylwin v Bray (1822) 2 Y & J 519n; 148 ER 1024 …. 22-33 Aylwin’s Trusts, Re (1873) LR 16 Eq 585 …. 9-20

B Bacon, Re (1893) 62 LJ Ch 445 …. 19-53 Bacon v Camphausen (1888) 58 LT 851 …. 21-19 — v O’Dea (1989) 25 FCR 495; 88 ALR 486 …. 9-30, 9-32, 11-04 — v Pianta (1966) 114 CLR 634; [1966] ALR 1044 …. 9-30, 9-31, 9-32, 10-29, 11-04 Baden v Société Générale pour Favoriser le Développement du Commerce et de

l’Industrie en France SA [1992] 4 All ER 161; [1993] 1 WLR 509 …. 13-36, 13-37, 13-38, 13-39 Baden (No 2), Re [1973] Ch 9; [1972] 2 All ER 1304 …. 5-27, 5-28 Badger’s Settlements, Re (1915) 84 LJ Ch 567 …. 15-22 Bagnall v Carlton (1877) 6 Ch D 371 …. 17-42 Bagshaw, Re [1954] 1 All ER 227; [1954] 1 WLR 238 …. 10-85 Bagster v Fackerell (1859) 26 Beav 469; 53 ER 979 …. 26-20 Bahin v Hughes (1886) 31 Ch D 390 …. 21-18, 21-19 Bahr v Nicolay (No 2) (1988) 164 CLR 604; 78 ALR 1 …. 5-02, 7-11, 13-47 Bailey, Re (1854) 3 WR 31 …. 15-16 Bailey v Gould (1840) 4 Y & C Ex 221; 160 ER 987 …. 17-19, 20-36 — v Medical Defence Union (1995) 184 CLR 399; 132 ALR 1 …. 3-11 Baillie, Re [1928] VLR 171; (1928) 34 ALR 12 …. 15-67, 19-46 Bain, Re [1930] 1 Ch 224; [1929] 1 All ER Rep 387 …. 10-46 Bainbrigge v Blair (1839) 1 Beav 495; 48 ER 1032 …. 15-49 Baird, Re [1908] 1 Ch 383 …. 9-17, 17-05 Baker, Re [1924] 2 Ch 271 …. 19-14 Baker, Re [1961] VR 641 …. 17-06 Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 …. 16-10 — v Peck (1861) 9 WR 472 …. 17-43 Baker and Selmon’s Contract, Re [1907] 1 Ch 238 …. 20-11 Baker (dec’d), Re [1961] VR 641 …. 18-37 Bakewell v Holme (1943) 44 SR (NSW) 150; 61 WN (NSW) 47 …. 19-38, 2051 Bale v Newton (1687) 1 Vern 464; 23 ER 589 …. 9-35 Balfour v Public Trustee [1916] VLR 397; 22 ALR 284 …. 10-02, 14-04 Balfour’s Settlement, Re [1938] Ch 928; [1938] 3 All ER 259 …. 9-24, 9-26 Balkin v Peck (1998) 43 NSWLR 706 …. 3-13, 17-11, 21-05 Ballard v A-G (Vic) (2010) 30 VR 413 …. 17-06

Ballarat Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1950) 80 CLR 350; [1950] ALR 487 …. 10-17 Balls v Strutt (1841) 1 Hare 146; 66 ER 984 …. 16-03, 23-04 Ball’s Settlement Trusts, Re [1968] 2 All ER 438; [1968] 1 WLR 899 …. 17-07 Baloglow v Konstantindis (2001) 11 BPR 20,721 …. 6-20, 6-23 Banco de Portugal v Waddell (1880) 5 App Cas 161 …. 21-15 Banfield (dec’d), Re [1968] 2 All ER 276; [1968] 1 WLR 846 …. 10-44 Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437; [2000] 4 All ER 221 …. 13-34, 13-36, 13-37 Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 …. 17-18, 22-04 Bankes v Salisbury Diocesan Council of Eduction Inc [1960] Ch 631; [1960] 2 All ER 372 …. 14-04 Banner Homes plc v Luff Developments Ltd [2000] Ch 372; [2000] 2 All ER 117 …. 13-02, 13-41 Bannister v Bannister [1948] 2 All ER 133 …. 7-11, 7-12, 13-06, 13-47, 13-48 Banque Belge pour L’Etranger v Hambrouck [1921] 1 KB 321 …. 27-04 Barbados Trust Co Ltd v Bank of Zambia [2007] 1 Lloyd’s Rep 495 …. 1-06, 524, 24-03 Barber, Re (1886) 34 Ch D 77 …. 17-40, 17-41 Barber, Re (1888) 39 Ch D 187 …. 15-53 Barber, Re (1902) 21 NZLR 527 …. 20-42 Barby v Perpetual Trustee Co Ltd (1937) 58 CLR 316 …. 10-47, 10-71 Barclay, Re [1899] 1 Ch 674 …. 22-08 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; [1968] 3 All ER 651 …. 2-14, 2-15, 2-16, 5-22, 12-06, 27-17 Barclays Bank plc v Holmes [2000] PLR 339 …. 29-56 Barendse v Comptroller-General of Customs (1996) 136 FLR 243 …. 5-04 Baring’s Settlement Trusts, Re [1940] Ch 737; [1940] 3 All ER 20 …. 9-23 Barkeley v Reay (1842) 2 Hare 308; 67 ER 127 …. 23-05 Barker, Re (1898) 77 LT 712 …. 22-13

Barker, Re (1909) 25 TLR 753 …. 10-38, 10-56 Barker v Linklater [2007] QSC 125 …. 12-19 Barker’s Trusts, Re (1875) 1 Ch D 43 …. 15-49, 15-86 Barker’s Will Trusts, Re (1948) 64 TLR 273 …. 10-33 Barkworth v Young (1856) 26 LJ Ch 153 …. 7-08 Barlow Clowes International Ltd (in liq) v Vaughan [1992] 4 All ER 22 …. 2708, 27-11 Barnes, Re [1930] 2 Ch 80 …. 10-33 Barnes v Addy (1874) LR 9 Ch App 244 …. 2-14, 3-08, 13-02, 13-32, 13-33, 13-34, 13-35, 13-36, 13-38, 13-39, 13-40, 27-05 — v Queensland National Bank Ltd (1906) 3 CLR 925 …. 2-05 Barney, Re [1894] 3 Ch 562 …. 20-32 Barns v Barns (2003) 214 CLR 169; 196 ALR 65 …. 13-42 Baron Vestey’s Settlement, Re [1951] Ch 209; [1950] 2 All ER 891 …. 16-12, 20-58, 20-62 Barratt v Wyatt (1862) 30 Beav 442; 54 ER 960 …. 17-35 Barrett v Hartley (1866) LR 2 Eq 789 …. 17-39 Barrington and Associates Pty Ltd (in liq), Re [1989] VR 940 …. 2-16 Barron v Willis [1900] 2 Ch 121 …. 17-49 Barrow v Greenough (1796) 3 Ves 52; 30 ER 943 …. 7-22 Barry & Staines Linoleum Ltd, Re [1934] Ch 227 …. 22-14 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515; [1980] 1 All ER 139 …. 16-18, 17-18, 22-01, 22-05, 22-30 — v Bartlett (1845) 4 Hare 631; 67 ER 800 …. 23-03 Barton, Re; Tod v Barton [2002] WTLR 469 …. 28-06, 28-07, 28-08, 28-09 Barton v Deputy Commissioner Taxation (1974) 131 CLR 370 …. 9-40 — v Muir (1874) LR 6 PC 134 …. 12-10 — v Official Receiver (1986) 161 CLR 75; 66 ALR 355 …. 9-39 Barton’s Trust, Re (1868) LR 5 Eq 238 …. 19-38 Base Metal Trading Ltd v Shamurin [2005] 1 All ER 17; [2005] 1 WLR 1157 …. 17-18

Basham (decd), Re [1987] 1 All ER 405; [1986] 1 WLR 1498 …. 13-11 Bastion v Gideon Investments (2000) 35 ACSR 466 …. 21-14 Bate v Hooper (1855) 5 De GM & G 338; 43 ER 901 …. 19-10, 19-20 Bateman Television Ltd v Bateman [1971] NZLR 453 …. 12-10, 12-16 Bateman’s Will Trusts, Re [1970] 3 All ER 817; [1970] 1 WLR 1463 …. 7-24 Bates, Re [1928] Ch 682; [1928] All ER Rep 126 …. 19-38 Batho, Re (1888) 39 Ch D 189 …. 25-04 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414 …. 1-02 3-06, 3-08, 5-21, 7-04, 10-03, 10-53, 13-02, 13-11 Baumgartner v Baumgartner (1987) 164 CLR 137; 76 ALR 75 …. 12-14, 12-19, 13-11, 13-52, 13-53, 13-54 Bayer v Balkin (1995) 31 ATR 295 …. 21-05 Bayley v Public Trustee (1907) 27 NZLR 659 …. 7-05 Baynard v Woolley (1855) 20 Beav 583; 52 ER 729 …. 21-20 Bayne, Re (1892) 25 SALR 109 …. 17-06 Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1 …. 22-05 Beale’s Settlement Trusts, Re [1932] 2 Ch 15; [1931] All ER Rep 637 …. 17-06 Beaman v ARTS Ltd [1949] 1 All ER 465; [1949] 1 KB 550 …. 22-30 Beattie v Weine (1908) 9 SR (NSW) 36 …. 5-13 Beatty v Guggenheim Exploration Co 122 NE 378 (1919) …. 13-01 Beaufoy’s Estate, Re (1852) 1 Sm & G 20; 65 ER 9 …. 19-03 Beaumont v Oliveira (1869) LR 4 Ch App 309 …. 10-26, 10-31 Beaven v Beaven (1869) 24 Ch D 649n …. 19-14 Beck v Colonial Staff Super Pty Ltd [2015] NSWSC 723 …. 8-03 — v Henley (2014) 11 ASTLR 457; [2014] NSWCA 201 …. 21-34, 23-08, 2311 Beckbessinger, Re [1993] 2 NZLR 362 …. 5-26, 5-28 Beckett’s Settlement, Re [1940] Ch 279 …. 20-62 Beckford v Beckford (1783) 4 Bro Parl Cas 38; 2 ER 26 …. 5-17, 5-19 — v Wade (1805) 17 Ves 87; 34 ER 34 …. 22-23

Bective v Hodgson (1864) 10 HLC 656; 11 ER 1181; [1861–73] All ER Rep 324 …. 26-17 Beddoe, Re [1893] 1 Ch 547 …. 17-18, 21-07, 21-10, 21-34 Beddoes v Pugh (1859) 26 Beav 407; 53 ER 955 …. 17-03 Bedingheld, Re (1887) 57 LT 332 …. 17-39 Bedingfield and Herring’s Contract, Re [1893] 2 Ch 332 …. 15-20 Beech, Re [1920] 1 Ch 40 …. 19-14 Beggs v Kirkpatrick [1961] VR 764 …. 10-71, 12-08 Belar Pty Ltd (in liq) v Mahaffey [2000] 1 Qd R 477 …. 21-04, 21-12 Belcher, Re [1950] VLR 11; [1950] ALR 138 …. 10-65 Belchier, Ex parte (1754) Amb 218; 27 ER 144 …. 17-23, 17-30, 17-31 Bell, Re [1940] NZLR 15 …. 20-51 Bell v Scott (1922) 30 CLR 387; 28 ALR 238 …. 23-10 — v Keesing (1888) 7 NZLR 155 …. 21-03 Bellamy and Metropolitan Board of Works, Re (1883) 24 Ch D 387 …. 17-23 Belling, Re [1967] Ch 425; [1967] 1 All ER 105 …. 10-69 Bell’s Indenture, Re [1980] 3 All ER 425; [1980] 1 WLR 1217 …. 22-05 Bell’s Settled Estates, Re (1921) 38 WN (NSW) 188 …. 19-03, 19-24 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250; [1979] 1 All ER 118 …. 13-36 — v — (No 2) [1980] 1 All ER 393 …. 13-34, 13-37 Benjamin, Re [1938] VLR 76; [1938] ALR 35 …. 20-45 Benjamin v Leicher (1998) 45 NSWLR 389 …. 6-19 Bennet v Bennet (1879) 10 Ch D 474; [1874–80] All ER Rep Ext 1479 …. 1212 Bennett, Ex parte (1805) 10 Ves 381; 32 ER 893 …. 17-43, 17-48 Bennett, Re [1896] 1 Ch 778 …. 21-07 Bennett, Re (1912) 12 SR (NSW) 695; 29 WN (NSW) 203 …. 20-03 Bennett v Colley (1832) 2 Myl & K 225; 39 ER 930 …. 23-03 — v English, Scottish and Australian Chartered Bank (1888) 9 LR (NSW) L 554 …. 23-03

— v Gaslight and Coke Co (1882) 48 LT 156 …. 17-49 — v Tucker (1882) 8 VLR (E) 20 …. 22-33 — v Wyndham (1862) 4 De G F & J 259; 45 ER 1183 …. 21-04 Bennett (dec’d), Re [1960] Ch 18; [1959] 3 All ER 295 …. 10-61, 10-67 Bennison, Re (1889) 60 LT 859 …. 17-35 Bentley, Re [1955] VLR 33 …. 18-04 Benzija v Adriatic Fisheries Pty Ltd (1984) 37 SASR 545 …. 15-85 Berezovsky v Abramovich [2011] EWCA Civ 153 …. 28-06 Berkley, Re (1874) LR 9 Ch App 720 …. 15-65 Bernard v Josephs [1982] Ch 391; [1982] 3 All ER 162 …. 12-11, 13-50 Berridge, Re (1890) 63 LT 470 …. 10-31 Berry, Re [1961] 1 All ER 529 …. 19-12 Berry v Green [1938] AC 575; [1938] 2 All ER 362 …. 9-34, 20-70, 23-09, 2312 Berry’s Trusts, Re (1893) 7 QLJ 63 …. 21-12 Berton, Re [1939] Ch 200; [1938] 4 All ER 286 …. 19-09 Best, Re [1904] 2 Ch 354 …. 10-63, 10-64 Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 …. 9-36 Beswick v Beswick [1968] AC 58; [1967] 2 All ER 1197 …. 2-20, 6-06 Bethell v Abraham (1873) LR 17 Eq 24; [1861–73] All ER Rep 811 …. 18-35 Betjemann v Betjemann [1895] 2 Ch 474 …. 22-30 Betts, Re (1897) 41 Sol Jo 209 …. 15-86 Betty, Re [1899] 1 Ch 821 …. 17-19, 19-56, 20-31, 20-36 Bevan v Webb [1905] 1 Ch 620 …. 13-19 Beverly, Re [1901] 1 Ch 681 …. 20-72 Bewick, Re [1911] 1 Ch 116 …. 20-06 Bhana v Bhana (2002) 10 BPR 19,545 …. 12-20 BHLSPF Pty Ltd v Brashs Pty Ltd (2001) 8 VR 602 …. 29-56 Biala Pty Ltd v Mallina Holdings Ltd (No 2) (1993) 13 WAR 11; 11 ACSR 785 …. 13-28, 13-39

Bick v Motley (1835) 2 My & K 312; 39 ER 962 …. 22-11 Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 …. 13-42 Biggs, Re; Public Trustee v Schneider [1945] NZLR 303 …. 9-16 Biggs v Peacock (1882) 22 Ch D 284 …. 20-72 Bignell, Re [1892] 1 Ch 59 …. 17-39 Bignold’s Settlement Trusts, Re (1872) LR 7 Ch App 223 …. 15-18, 15-54 Billington, Re [1949] St R Qd 102 …. 16-14 Bindley v Mulloney (1869) LR 7 Eq 343 …. 9-10 Binions v Evans [1972] Ch 359; [1972] 2 All ER 70 …. 13-47, 13-48 Birchall, Re (1889) 40 Ch D 436 …. 15-16 Bird, Re [1892] 1 Ch 279 …. 26-09 Bird, Re [1901] 1 Ch 916 …. 19-09, 19-63 Bird v Harris (1870) LR 9 Eq 204 …. 12-04 — v Philpott [1900] 1 Ch 822; [1900–3] All ER Rep 439 …. 4-07 Birkett, Re (1878) 9 Ch D 576; [1874–80] All ER Rep 242 …. 9-07, 10-61 Birks v Micklethwait (1864) 33 Beav 409; 55 ER 426 …. 21-17 — v — (1864) 34 LJ Ch 362 …. 21-17 Birmingham v Renfrew (1937) 57 CLR 666; [1937] ALR 520 …. 2-22, 7-35, 1342 Biron v Mount (1857) 24 Beav 642; 53 ER 506 …. 5-16 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384; 35 ALR 273 …. 2-07 Biscoe v Jackson (1887) 35 Ch D 460; [1886–90] All ER Ext 1852 …. 10-19 Bishop v Sharp (1704) 2 Vern 469; 23 ER 902 …. 4-05 Bishopsgate Investment Management Ltd (in liq) v Homan [1995] Ch 211; [1995] 1 All ER 347 …. 27-09 Biss, Re [1903] 2 Ch 40; [1900–3] All ER Rep 406 …. 13-12, 13-15, 17-42 Black v S Freedman & Co (1910) 12 CLR 105; 17 ALR 541 …. 13-10, 13-11, 27-07 Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421 …. 9-03, 12-11

Blackburn v Y V Properties Pty Ltd [1980] VR 290 …. 9-08 Blackett v Darcy (2005) 62 NSWLR 392 …. 6-21 Blackham v Haythorpe (1917) 23 CLR 156 …. 17-48 Blacklow v Laws (1842) 2 Hare 40; 67 ER 17 …. 20-12 Blackman v Piper (1889) 10 LR (NSW) Eq 170 …. 12-10 Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 …. 7-04, 7-15, 718, 7-24, 7-32 Bladon, Re [1911] 2 Ch 350 …. 20-36 Blaiberg, Re [1940] Ch 385; [1940] l All ER 632 …. 9-16 Blair v Bromley (1847) 2 Ph 354; 41 ER 979 …. 22-30 — v Duncan [1902] AC 37 …. 10-63 — v Martin [1929] NZLR 225 …. 17-46 Blake, Re (1885) 29 Ch D 913 …. 16-16, 23-06, 23-09 Blake, Re [1917] 1 Ch 18 …. 26-12 Blanchard, Re (1861) 3 De G F & J 131; 45 ER 828 …. 15-56, 15-85, 15-86 Bland, Re [1899] 2 Ch 336 …. 19-07 Blann v Bell (1852) 2 De G M & G 775; 42 ER 1075 …. 19-03, 19-07 Blathwayt v Lord Cawley [1976] AC 397; [1975] 3 All ER 625 …. 9-16 Blausten v IRC [1972] Ch 256; [1972] 1 All ER 41 …. 5-29 BLB Corp v Jacobsen (1974) 48 ALJR 372 …. 2-06 Blinkco v Blinkco [1964–5] NSWR 20; (1964) 81 WN (Pt 1) NSW 109 …. 1212 Bloch v Bloch (1981) 180 CLR 390; 37 ALR 55 …. 7-09, 7-12, 12-11 Blocksidge, Re [1997] 1 Qd R 234 …. 17-07 Blomfield’s Trusts, Re (1918) 35 WN (NSW) 75 …. 15-72 Blomley v Ryan (1956) 99 CLR 362 …. 4-06 Bloye’s Trust, Re [1843–60] All ER Rep 1092; (1849) 1 Mac & G 488; 41 ER 1354 …. 2-04, 17-43 Blundell, Re (1899) 40 Ch D 370 …. 21-04 Blyth, Re [1997] 2 Qd R 567 …. 5-28, 10-51, 10-66

Blyth v Fladgate [1891] 1 Ch 337 …. 21-20, 22-09 Boardman v Phipps [1967] 2 AC 46; [1966] 3 All ER 721 …. 2-06, 13-11, 1321, 13-43, 17-39, 17-42 Boeing Superannuation Pty Ltd v Glanville (2004) 138 FCR 165 …. 29-11 Body Corporate No 12870 v Aldal Pty Ltd (2010) 29 VR 81 …. 13-47 Body Corporate St James Apartments v Renaissance Assets Pty Ltd [2005] V ConvR 54-695 …. 3-15 Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; 260 ALR 71 …. 13-02 Boles and British Land Co’s Contract, Re [1902] 1 Ch 244 …. 17-44 Bolton v Curre [1895] 1 Ch 544 …. 21-24, 21-26 Bona Law Memorial Trust v IRC (1933) 49 TLR 220 …. 10-29 Bond, Re (1876) 4 Ch D 238 …. 5-10, 5-24 Bond, Re [1929] VLR 333; (1929) 35 ALR 300 …. 10-21, 10-65 Bond v Walford (1886) 32 Ch D 238 …. 9-36 Bond Worth Ltd, Re [1980] Ch 223; [1979] 3 All ER 919 …. 2-47, 2-49, 2-51 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 …. 9-19 Boning, Re [1997] 2 Qd R 12 …. 1-08, 2-31, 11-03, 11-07 Booth v Booth (1838) 1 Beav 125; 48 ER 886 …. 21-23 — v Carter (1867) IR 3 Eq 757 …. 10-35 — v Turle (1873) LR 16 Eq 182 …. 7-09 Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3 All ER 961 …. 2-47, 2-51, 27-09 Borough of Burwood v Freehill (1906) 23 WN (NSW) 213 …. 25-10 Borough of Drummoyne v Hogarth (1906) 23 WN (NSW) 243 …. 25-10 Borthwick, Re [1933] 1 Ch 637; [1933] All ER Rep 737 …. 9-14 Boscawen v Bajwa [1995] 4 All ER 769; [1996] 1 WLR 328 …. 27-03, 27-09, 27-13, 27-14 Bostock v Blakeney (1789) 2 Bro CC 653; 29 ER 362 …. 19-32 — v Floyer (1865) LR 1 Eq 26 …. 17-30 Bostock’s Settlement, Re [1921] 2 Ch 469; [1921] All ER Rep 125 …. 8-09

Boston Sand & Gravel Co v United States 278 US 41 (1928) …. 8-01 Boston’s Will Trusts, Re [1956] Ch 395; [1956] 1 All ER 593 …. 20-33 Bosun Pty Ltd (in liq), Re (2000) 34 ACSR 597 …. 22-11 Bosworth, Re (1889) 58 LJ (Ch) 432 …. 17-14 Bouch, Re (1885) 29 Ch D 635 …. 19-36 Bouch v Sproule (1887) 12 App Cas 385; [1886–90] All ER Rep 319 …. 19-36 Boucherett, Re [1908] 1 Ch 180 …. 15-10 Boulter, Re [1922] 1 Ch 75 …. 9-15 Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606; [1963] 2 All ER 716 …. 17-39 Bourk, In the Will of [1907] VLR 171 …. 5-29, 5-30 Bourne v Bourne (1842) 2 Hare 35; 67 ER 15 …. 26-11 — v Keane [1919] AC 815; [1918–19] All ER Rep 167 …. 10-02, 10-13, 10-40, 10-44, 11-05 Bowden, Re (1890) 45 Ch D 444 …. 22-28 Bowden v Phillips [1897] 1 Ch 174 …. 23-04 Bowen v McCormack (1895) 12 WN (NSW) 59 …. 8-07 Bower, Re (1980) 25 SASR 161 …. 10-71 Bowes v East London Water Works Co (1820) Jac 324; 37 ER 873 …. 20-20 Bowmakers Ltd v Barnet Industries Ltd [1944] 2 All ER 579; [1945] KB 65 …. 9-08 Bowman, Re [1955] SASR 98 …. 19-46, 19-49 Bowman v Secular Society Ltd [1917] AC 406; [1916–17] All ER Rep 1 …. 930, 10-13, 11-04 Boyagarra Pty Ltd (in liq), Re (1983) 7 ACLR 612 …. 22-07 Boyce v Mouat [1994] 1 AC 428; [1993] 4 All ER 268 …. 13-30 Boyd v Cowell [1952] VLR 288; [1952] ALR 523 …. 17-06, 18-04 Boydell v James (1936) 36 SR (NSW) 620 …. 2-50 Boyes, Re (1884) 26 Ch D 531 …. 7-21 Boys v Boys (1860) 28 Beav 436; 54 ER 434 …. 19-21 Brace, Re [1954] 2 All ER 354; [1954] 1 WLR 955 …. 2-31, 2-35

Brackenbury’s Trusts, Re (1870) LR 10 Eq 45 …. 15-43 Bradbury, Re [1950] 2 All ER 1150 …. 10-20, 10-21 Bradford v Aitken (1900) 26 VLR 314; 6 ALR 191 …. 18-26 — v Brownjohn (1868) LR 3 Ch App 711 …. 13-43 Bradley v Denne (1911) 29 WN (NSW) 2 …. 19-31 Brady v Stapleton (1952) 88 CLR 322; [1952] ALR 989 …. 9-44, 27-02, 27-06 Braithwaite v A-G [1909] 1 Ch 510 …. 12-07 Brambles Security Services Ltd v Bi-Lo Pty Ltd [1992] Aust Torts Rep 81-161 …. 2-02 Brandon v Robinson (1811) 18 Ves 429; 34 ER 379 …. 9-19, 9-20 Brassey’s Settlement, Re [1955] 1 All ER 577; [1955] 1 WLR 192 …. 18-02 Bray v Ford [1896] AC 44; [1895–9] All ER Rep 1009 …. 2-06, 17-39 Breadner v Granville-Grossman [2001] Ch 523; [2000] 4 All ER 705 …. 16-12 Breakspear v Ackland [2009] Ch 32; [2008] 2 All ER (Comm) 62 …. 16-10, 1716, 17-18, 17-39 Breeds’ Will, Re (1875) 1 Ch D 226 …. 20-58, 20-59 Breen v Williams (1996) 186 CLR 71; 138 ALR 259 …. 16-01, 17-04, 17-16, 17-18 Breskvar v Wall (1971) 126 CLR 376; [1972] ALR 205 …. 13-07 Brett v Hamilton (1900) 21 LR (NSW) Eq 84; 16 WN (NSW) 206 …. 20-43 Brewer’s Settlement, Re [1896] 2 Ch 503 …. 9-20 Brice v Stokes (1805) 11 Ves 319; 32 ER 1111 …. 22-33 Bride v Shire of Katanning [2013] WASCA 154 …. 27-07 Bridgman, Re (1860) 1 Drew & Sm 164; 67 ER 340 …. 15-49, 15-86 Brier, Re (1884) 26 Ch D 238 …. 17-23 Brisbane City Council v A-G (Qld) [1979] AC 411; [1978] 3 All ER 30 …. 1003, 10-53 Bridges v Shepherd (1921) 21 SR (NSW) 220 …. 18-03 Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66 …. 4-06, 9-36, 23-03 Briffa v Hay (1997) 75 FCR 428; 147 ALR 226 …. 29-56

Briggs v Penny (1851) 3 Mac & G 546; 42 ER 371 …. 7-23 Bristol and West Building Society v Mothew [1998] Ch 1; [1996] 4 All ER 698 …. 13-34, 16-01, 17-18, 22-04 Bristol’s Settled Estates, Re [1964] 3 All ER 939; [1965] 1 WLR 469 …. 17-07 British America Elevator Co v Bank of British North America [1919] AC 658 …. 27-17 British Celanese Ltd v Moncrieff [1948] Ch 564; [1948] 2 All ER 44 …. 13-26 British Coal Corp v British Coal Staff Superannuation Scheme Trustees Ltd [1995] 1 All ER 912 …. 29-54, 29-58 British Museum v White (1826) 2 Sim & St 594; 57 ER 473 …. 10-53 British Power Traction & Lighting Co Ltd, Re [1910] 2 Ch 470 …. 21-12 British Red Cross Balkan Fund, Re [1914] 2 Ch 419; [1914–15] All ER Rep 459 …. 12-08, 27-11 British Reinforced Concrete Engineering Co Ltd v Lind (1917) 86 LJ Ch 486 …. 13-26 British School of Egyptian Archaeology, Re [1954] 1 All ER 887; [1954] 1 WLR 546 …. 10-26, 10-28, 10-31 British Traders’ Insurance Co Ltd v Monson (1964) 111 CLR 86; [1964] ALR 845 …. 20-36 Brittlebank, Re (1881) 30 WR 99 …. 16-14 Brittlebank v Goodwin (1868) LR 5 Eq 545 …. 17-15 Broad, Ex parte (1884) 13 QBD 740 …. 2-13 Broad, Re [1953] VLR 49; [1953] ALR 128 …. 20-20, 20-33 Broad v Bevan (1823) 1 Russ 517n; 38 ER 198 …. 5-24 Broadwood’s Settlement, Re [1908] 1 Ch 115 …. 19-61 Brockbank, Re [1948] Ch 206; [1948] 1 All ER 287 …. 15-20, 15-76, 15-86, 1705, 23-13 Brocksopp v Barnes (1820) 5 Madd 90; 56 ER 829 …. 17-39 Brodie v Barry (1811) 3 Mer 695; 36 ER 267 …. 23-05 — v Chandos [Duke] (1773) 1 Bro CC 444n; 21 ER 905 …. 10-35 Brogden, Re (1888) 38 Ch D 546; [1886–90] All ER Rep 927 …. 17-18, 17-20, 20-47

Bromley, Re (1886) 55 LT 145 …. 17-42 Brook v Brook (1839) 1 Beav 531; 48 ER 1046 …. 15-65 Brooke Bond & Co Ltd’s Trust Deed, Re [1963] Ch 357; [1963] 1 All ER 454 …. 3-18 Brookes, Re [1914] 1 Ch 558 …. 18-36, 20-70 Brook’s Settlement, Re [1968] 3 All ER 416; [1968] 1 WLR 1661 …. 17-07 Broome v Monck (1805) 10 Ves 597; [1803–13] All ER Rep 631; (1805) 32 ER 976 …. 13-07, 26-07 Brophy v Bellamy (1873) LR 8 Ch App 798 …. 16-06 Brophy v Brophy (1974) 3 ACTR 57 …. 12-12 Brougham v Poulett (1855) 19 Beav 119; 52 ER 294 …. 2-40 Browell v Reed (1842) 1 Hare 434; 66 ER 1102 …. 23-05 Brown, Re (1885) 29 Ch D 889 …. 18-03 Brown, Re [1904] 1 Ch 120 …. 9-13 Brown, Re (1921) 22 SR (NSW) 90 …. 15-12 Brown, Re [1954] Ch 39; [1953] 2 All ER 1342 …. 9-19 Brown v Brown (1993) 31 NSWLR 582 …. 12-12 — v Burdett (1882) 21 Ch D 667 …. 1-08 — v De Tastet (1821) Jac 284; 37 ER 858 …. 13-43, 17-39 — v Gellatly (1867) LR 2 Ch App 751; [1861–73] All ER Rep Ext 2080 …. 1903, 19-10, 19-12, 19-13 — v Heffer (1967) 116 CLR 344; [1968] ALR 89 …. 13-07, 26-07 — v How (1741) Barn 354; 27 ER 676 …. 23-02 — v Litton (1711) 1 P Wms 140; 24 ER 329 …. 13-43, 17-39 — v Pourau [1995] 1 NZLR 352 …. 7-16, 7-33 — v Smith (1878) 10 Ch D 377 …. 17-04 — v Willoughby (2012) 7 ASTLR 453 …. 7-16 — v Wylie (1980) 6 Fam LR 519 …. 7-12 Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [1996] Ch 51 …. 6-19

— v — [2001] Ch 733 …. 6-19 Browne v Collins (1871) LR 12 Eq 586 …. 19-42 Bruce, Re [1908] 2 Ch 682 …. 21-11 Bruce, Re [1918] NZLR 16 …. 10-53 Bruce v Ailesbury [1892] AC 356 …. 20-16 Brumridge v Brumridge (1858) 27 Beav 5; 54 ER 2 …. 22-02 Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555; [1937] ALR 349 …. 620 Brunninghausen v Glavanics (1999) 46 NSWLR 538 …. 2-03, 13-27 Bryant, Re [1894] 1 Ch 324 …. 16-08, 20-63 Bryant and Barningham’s Contract, Re (1890) 44 Ch D 218 …. 20-11 Bryning, Re [1976] VR 100 …. 10-71 Bryson v Bryant (1992) 29 NSWLR 188 …. 12-13, 12-14, 12-15, 13-48, 13-53 BSH Holdings Pty Ltd v Commissioner of State Revenue (2000) 2 VR 454 …. 10-05 Buchanan v Ayre [1915] 2 Ch 474 …. 21-05 — v Hamilton (1801) 5 Ves 722; 31 ER 824 …. 15-46 Buck (dec’d), Re [1964] VR 284 …. 19-30 Buckby v Speed [1959] Qd R 30 …. 17-23, 17-31 Buckeridge v Glasse (1841) Cr & Ph 126; 41 ER 438 …. 27-06 Buckland v Ibbotson (1902) 28 VLR 688 …. 22-26 Buckley, Re (1883) 22 Ch D 583 …. 20-60 Bucks Constabulary Widows’ & Orphans’ Fund, (No 2), Re [1979] 1 All ER 623; [1979] 1 WLR 936 …. 12-08 Budgett v Budgett [1895] 1 Ch 202 …. 21-08 Buffrey v Buffrey (2006) 12 BPR 23,619 …. 12-11 Bulfin v Bebarfald’s Ltd (1938) 38 SR (NSW) 423; 55 WN (NSW) 136 …. 207, 2-08, 13-27 Bulkeley v Stephens [1896] 2 Ch 241; [1895–9] All ER Rep 196 …. 19-33 Bull v Bull [1955] 1 QB 234; [1955] 1 All ER 253 …. 12-12 — v Wimble (2004) 12 BPR 22,223 …. 25-07

Bullas v Public Trustee [1981] 1 NSWLR 641 …. 21-35 Bulli Coal Mining Co v Osborne [1899] AC 351; [1895–9] All ER Rep 506 …. 22-30 Bullock v Bullock (1886) 55 LT 703 …. 17-30 Bulmer v Hunter (1869) LR 8 Eq 46 …. 9-44 Burdekin, Re (1902) 2 SR (NSW) Eq 76; 19 WN (NSW) 149b …. 20-30, 2032 Burdick v Garrick (1870) LR 5 Ch App 233 …. 2-11, 13-22, 22-08 Burge’s Charity, Re (1905) 22 WN (NSW) 175 …. 10-78 Burgess v Booth [1908] 2 Ch 648 …. 26-06, 26-22 Burke, Re [1908] 2 Ch 248 …. 18-08 Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135 …. 2-40, 20-04 Burley, Re [1910] 1 Ch 215 …. 5-10 Burney v MacDonald (1845) 15 Sim 6; 60 ER 518 …. 7-30 Burney’s Settlement Trusts, Re [1961] 1 All ER 856; [1961] 1 WLR 545 …. 1707 Burns v Burns [1984] Ch 317; [1984] 1 All ER 244 …. 12-14, 12-18 — v Leda Holdings Pty Ltd [1988] 1 Qd R 214 …. 17-37 Burrage, Re (1890) 62 LT 752 …. 16-16 Burrell v Burrell’s Trustees [1915] SC 333 …. 17-44 Burridge v Row (1842) 1 Y & C Ch Cas 183; 62 ER 846 …. 21-11 Burroughs-Fowler, Re [1916] 2 Ch 251 …. 9-20 Burton, Re (1994) 126 ALR 557 …. 15-12 Burton v Mount (1848) 2 De G & Sm 383; 64 ER 171 …. 19-21 Busby v Busby (1893) 14 LR (NSW) Eq 42; 4 WN (NSW) 124 …. 19-03, 19-24 Bushnell (decd), Re [1975] 1 All ER 721; [1975] 1 WLR 1596 …. 10-12, 10-51 Busk v Aldam (1874) 19 LR (NSW) Eq 16 …. 15-05 Butler v Broadhead [1975] Ch 97; [1974] 2 All ER 401 …. 13-27, 27-16 — v Rice [1910] 2 Ch 277 …. 27-13 Butt v Kelson [1952] Ch 197; [1952] 1 All ER 167 …. 17-16, 20-51, 23-13

Buttle v Saunders [1950] 2 All ER 193 …. 20-12 Buxton v Buxton (1835) 1 My & Cr 80; 40 ER 307 …. 20-47 Byng’s Will Trusts, Re [1959] 2 All ER 54; [1959] 1 WLR 375 …. 17-07 Byrne, Re (1902) 19 WN (NSW) 141 …. 20-20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 29-54 — v Reid [1902] 2 Ch 735 …. 2-22 Byrne Australia Pty Ltd, Re [1981] 1 NSWLR 394 …. 21-14 Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 …. 3-06, 5-02, 5-03, 8-02, 8-03, 17-13, 18-01, 22-33

C C v B [2007] 1 Qd R 212 …. 3-14 — v C (Ancillary Relief: Nuptial Settlement) [2005] Fam 250 …. 28-09 C W Enterprises Pty Ltd v Shaw [1967] 1 NSWR 379; (1966) 85 WN (Pt 1) (NSW) 58 …. 20-10 Caboche v Ramsay (1993) 119 ALR 215 …. 8-02, 9-19, 9-20, 11-04 Caborne, Re [1943] Ch 224; [1943] 2 All ER 7 …. 9-14 Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 …. 17-04 Cadd v Cadd (1909) 9 CLR 171; 15 ALR 502 …. 7-09, 13-25 Cadell v Palmer (1883) 1 Cl & Fin 372; 6 ER 956 …. 9-28 Cadogan v Earl of Essex (1854) 2 Drew 227; 61 ER 706 …. 18-02, 18-05 — v Kennett (1776) Cowp 432; 98 ER 1171 …. 23-02 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 …. 2-29 Cafe v Bent (1845) 5 Hare 24; 67 ER 812 …. 15-16, 19-04 Caffoor v Commissioner of Income Tax, Colombo [1961] AC 584; [1961] 2 All ER 436 …. 10-08, 10-30 Caffrey v Darby (1801) 6 Ves 478; 31 ER 1159 …. 2-08, 13-34 Cahill, Re (1862) 1 SCR (NSW) Eq 26 …. 25-04 Cahill, Re (1903) 20 WN (NSW) 192 …. 19-24 Cain, Re [1950] VLR 382 …. 11-08

Caldecott v Caldecott (1842) 1 Y & C Ch Cas 312; 62 ER 903 …. 19-03, 19-06 Caldwell v Fleming [1927] NZLR 145 …. 10-57 Caldy Manor Estate Ltd v Farrell [1974] 3 All ER 753; [1974] 1 WLR 303 …. 919 Callery v Gray [2002] 3 All ER 417 …. 24-05 Calverley v Green (1984) 155 CLR 242; 56 ALR 483 …. 2-29, 5-02, 12-10, 1211, 12-12, 12-13, 12-14, 12-15, 12-17, 13-50 Cameron, Re (1884) 26 Ch D 19 …. 1-08 Cameron v Murdoch (1986) 63 ALR 575; 60 ALJR 280 …. 13-17 — v — (No 2) [1984] WAR 278 …. 22-05 Cameron Brae Pty Ltd v Commissioner of Taxation (2007) 243 ALR 273 …. 29-07 Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners [1954] Ch 672; [1954] 2 All ER 466; [1956] AC 39; [1955] 3 All ER 97 …. 10-59 Camoys v Best (1854) 19 Beav 414; 52 ER 410 …. 15-09 Campbell v Albers 39 NE (2d) 672 (1942) …. 28-22 — v Campbell (1917) 17 SR (NSW) 229; 34 WN (NSW) 229 …. 16-11 — v Walker (1800) 5 Ves 678; 31 ER 801 …. 17-44, 17-48 Campbell (dec’d), Re [1973] 2 NSWLR 146 …. 19-30, 19-31, 20-51 Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; 229 ALR 58 …. 24-05 Campbell’s Trust, Re (1862) 31 Beav 176; 54 ER 1105 …. 15-65 Canadian Oil Works Corporation, Re (1875) LR 10 Ch App 593 …. 17-42 Candler v Tillett (1855) 22 Beav 257; 52 ER 1106 …. 17-20, 17-30 Cane v Perpetual Trustees and Executors Association (1900) 26 VLR 243 …. 22-29 Cann v Cann (1884) 51 LT 770 …. 17-30, 18-01 Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; 153 ALR 163 …. 9-40, 9-42 Cannon v Hartley [1949] Ch 213; [1949] 1 All ER 50 …. 6-04, 6-12, 6-13

Canson Enterprises Ltd v Boughton & Co [1991] 3 SCR 534 …. 22-05 Canterbury Orchestra Trust v Smitham [1978] 1 NZLR 787 …. 10-50 Cant’s Estate, Re (1859) 4 De G & J 503; 45 ER 196; [1843–60] All ER Rep 542 …. 26-15 Capita ATL Pension Trustees Ltd v Gellately [2011] Pens LR 153; [2011] EWHC 485 …. 8-03 Carapiet’s Trusts, Re; Manoogian (Armenian Patriarch of Jerusalem) v Sonsino [2002] WTLR 989 …. 10-59, 10-63, 14-03, 28-07 Carbery v Cox (1852) 3 Ir Ch R 231 …. 10-30 Carkeek v Tate-Jones [1971] VR 691 …. 12-10 Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276; [1969] 2 All ER 367 …. 13-34 Carlyon v Truscott (1875) LR 20 Eq 348 …. 20-11 Carnell v Harrison [1916] 1 Ch 328; [1916–17] All ER Rep 827 …. 4-03 Carr v Carr (1987) 8 NSWLR 492 …. 20-72, 20-73 Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207; [1985] 1 All ER 155 …. 2-16 Carruthers v Carruthers [1896] AC 659 …. 17-20 Carson v Wood (1994) 34 NSWLR 9 …. 13-41 Carter v Palmer (1842) 8 Cl & F 657; 8 ER 256 …. 17-46 — v Sebright (1859) 26 Beav 374; 53 ER 942 …. 21-10 Cartwright, Re (1889) 41 Ch D 532 …. 20-30 Carville, Re [1937] 4 All ER 464 …. 5-29 Cary v Abbot (1802) 7 Ves 490; 32 ER 198 …. 10-71 — v Cary (1804) 2 Sch and Lef 173 …. 5-06 Casella v Casella [1969] VR 49 …. 25-05 Cassidy, Re [1979] VR 369 …. 21-35 Castlemaine Brewery & Wood Bros Ltd, Re (1921) 38 WN (NSW) 45 …. 2504 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 …. 29-54

Cater’s Trusts (No 2), Re (1858) 25 Beav 366; 153 ER 676 …. 21-29 Cathels v Commissioner of Stamp Duties [1962] SR (NSW) 455 …. 2-20 Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 …. 9-15, 9-16 Cattley v Pollard [2007] Ch 353; [2007] 2 All ER 1086 …. 13-02, 22-25 Caus, Re [1934] Ch 162; [1933] All ER Rep 818 …. 10-14, 10-40, 10-41, 10-44 Cave v Mackenzie (1877) 46 LJ Ch 564 …. 2-10, 13-25 Cave-Brown-Cave, Re [1906] VLR 283 …. 21-34 Cavendish-Browne’s Settlement Trusts, Re (1916) 61 Sol Jo 27 …. 6-06 Cavendish-Browne’s Settlement Trusts, Re [1916] WN 341 …. 2-24 Cavion v Cavion [1970] 2 NSWR 20 …. 12-18 CB Darvall & Darvall v Moloney (2006) 236 ALR 796 …. 21-07 Cecil v Langdon (1884) 28 Ch D 1 …. 15-05 Cenco Holdings Pty Ltd, Re (2005) 53 ACSR 484 …. 25-04 Central Bayside General Practice Association Ltd v Commissioner of State Revenue of the State of Victoria (2006) 228 CLR 168; 229 ALR 1 …. 1055 Central Employment Bureau for Women and Students’ Careers Association, Re [1942] 1 All ER 232 …. 10-20 Centrepoint Community Growth Trust v Commissioner of Inland Revenue [1985] 1 NZLR 673 …. 10-33 Centro Retail Australia Ltd, Re (2012) 35 VR 512 …. 21-34 CGU Insurance Ltd v One.Tel Ltd (in liq) (2010) 242 CLR 174; 268 ALR 439 …. 17-02 Chadwick v Heatley (1845) 2 Coll 137; 63 ER 671 …. 21-29 Chahwan v Euphoric Pty Ltd (2009) 73 ACSR 252 …. 23-03 Chaine-Nickson v Bank of Ireland [1976] IR 393 …. 17-14, 17-16 Chalinder and Henington, Re [1907] 1 Ch 58 …. 17-40 Chambers v Goldwin (1804) 9 Ves 254; 31 ER 883 …. 17-39 — v Jones (1902) 2 SR (NSW) Eq 177; 19 WN (NSW) 248 …. 15-17, 15-85, 15-86 — v Minchin (1802) 7 Ves 186; 32 ER 76 …. 17-23

— v Smith (1878) 3 App Cas 795 …. 16-14 Chan v Zacharia (1984) 154 CLR 178; 53 ALR 417 …. 2-07, 13-11, 13-12, 1317, 17-42 Chancellor, Re (1884) 26 Ch D 42 …. 19-21, 20-43 Chandler v Bradley [1897] 1 Ch 315 …. 17-49 Chang v Registrar of Titles (1976) 137 CLR 177; 8 ALR 285 …. 1-02, 13-07, 25-05 Chaplin and Staffordshire Potteries Waterworks Co Ltd’s Contract, Re [1922] 2 Ch 824 …. 20-04 Chapman, Re [1896] 2 Ch 763; [1895–9] All ER Rep 1104 …. 17-18, 18-34 Chapman, Re [1922] 1 Ch 287 …. 5-29, 12-03 Chapman v Brown (1801) 6 Ves 404; 31 ER 1115 …. 9-07 — v Browne [1902] 1 Ch 785 …. 22-13 — v Chapman [1954] AC 429; [1954] 1 All ER 798 …. 17-05, 17-07 — v Verco (1933) 49 CLR 306; [1936] ALR 308 …. 2-09 Chapple, Re (1884) 27 Ch D 584 …. 17-40 Chardon, Re [1928] Ch 464; [1927] All ER Rep 483 …. 10-37 Charity Commission v Framjee [2015] 1 WLR 16 …. 27-12 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598; [1954] ALR 405 …. 3-12 — v Jones (1887) 35 Ch D 544 …. 13-02 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 …. 5-02, 12-10, 12-12, 12-13, 12-16 Charlesworth, Re (1910) 101 LT 908 …. 10-50 Charleton, Re [1911] WN 54 …. 9-10 Charlton v Baber (2003) 47 ACSR 31 …. 17-18 — v Coombes (1863) 4 Giff 382; 66 ER 754 …. 13-34 — v Murray (1909) 10 SR (NSW) 49 …. 26-24 Charter plc v City Index Ltd [2008] Ch 313; [2008] 3 All ER 126 …. 13-34, 2120 Charteris, Re [1917] 2 Ch 379 …. 17-11

Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105; [1979] 3 All ER 1025 …. 27-05 Chase Manhattan Equities Ltd v Goodman [1991] BCLC 897 …. 5-04 Chase National Bank v Chicago Title & Trust Co 279 NYS 327 (1935) …. 320 — v — 284 NYS 472 (1936); 3 NE 2d 205 (1936) …. 3-20 Chattock v Muller (1878) 8 Ch D 177 …. 13-41 Chaytor, Re [1905] 1 Ch 233; [1904–7] All ER Rep 230 …. 19-10, 19-12, 19-13, 19-22 Chellaram v Chellaram [1985] Ch 409; [1985] 1 All ER 1043 …. 28-07, 28-08, 28-20 — v — (No 2) [2002] 3 All ER 17 …. 28-06, 28-07 Chennell, Re (1878) 8 Ch D 492 …. 21-04 Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171 …. 21-04, 21-11 Chester v Urwick (1856) 23 Bev 404; 53 ER 159 …. 7-22 Chesterfield’s (Earl) Trusts, Re (1883) 24 Ch D 643; [1881–5] All ER Rep 737 …. 19-14, 19-43, 19-51 Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317; [1926] AC 128; (1925) 32 ALR 9 …. 10-28, 10-63 — v Mitchell (1923) 24 SR (NSW) 108; 41 WN (NSW) 11 …. 10-36, 10-49 Chetham v Hoare (1870) LR 9 Eq 571 …. 22-30 Chetwynd’s Settlement, Re [1902] 1 Ch 692 …. 15-58, 15-83 Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488 …. 20-62 Chichester v Bickerstaff (1693) 2 Vern 295; 23 ER 791 …. 26-21 Chichester Diocesan Fund and Board of Finance v Simpson [1944] AC 341; [1944] 2 All ER 60 …. 10-61, 10-63, 27-12 Chidgey v Harris (1847) 16 M & W 517; 153 ER 1294 …. 15-73 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; 151 ALR 1 …. 1-09, 3-01, 3-14, 6-01, 21-02, 23-15 — v ISPT Pty Ltd (1998) 45 NSWLR 639 …. 3-13 Chillingworth v Chambers [1896] 1 Ch 685 …. 17-42, 21-17, 21-18, 21-25, 2127

Chipman’s Trusts, Re (1899) 20 LR (NSW) Eq 142 …. 25-04 Chipper v Perpetual Executors Trustees and Agency Co (WA) Ltd [1973] WAR 136 …. 17-07 Chirnside, Re [1974] VR 160 …. 20-70 Chirnside v Fay [2007] 1 NZLR 433 …. 17-39 Chittick v Maxwell (1993) 118 ALR 728 …. 22-11 Christ Church School Lands, Re (1904) 21 WN (NSW) 148 …. 10-78 Christensen v Christensen [1954] QWN 37 …. 17-13 Christian, Re (1882) 3 LR (NSW) Eq 13 …. 20-57 Christmas’ Settlement Trusts, Re [1986] 1 Qd R 372 …. 17-07 Christoforides v Terry [1924] AC 566; [1924] All ER Rep 815 …. 17-43 Christ’s Hospital v Grainger (1849) 1 Mac & G 460; 41 ER 1343; [1843–60] All ER Rep 204 …. 10-81 Church v Talbot (1901) 1 SR (NSW) Eq 13; 18 WN (NSW) 33 …. 17-37, 1738 Church Estate Charity Wandsworth, Re (1871) LR 6 Ch App 296 …. 10-38 Church of England Property Trust v Rossi (1893) 14 LR (NSW) Eq 186; 10 WN (NSW) 1 …. 15-10, 15-13 Church of England Property Trust, Diocese of Canberra and Goulburn v Imley Shire Council [1971] 2 NSWLR 216 …. 10-22 Church of England Property Trust, Diocese of Goulburn v Rossi (No 2) (1893) 14 LR (NSW) Eq 66 …. 23-03 Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120; 49 ALR 65 …. 10-33 Churchill v Churchill (1867) LR 5 Eq 44 …. 12-09 Ciaglia v Ciaglia (2010) 269 ALR 175; 14 BPR 27,479 …. 7-09 Ciro Citterio Menswear plc (in admin), Re [2002] 2 All ER 717; [2002] 1 WLR 2217 …. 13-11 Citicorp Australia Ltd v McLaughney (1984) 35 SASR 375 …. 2-05 City Equitable Fire Insurance Co, Re [1925] Ch 407; [1924] All ER Rep 485 …. 13-27, 22-09

City of Hawthorn v Victorian Welfare Association [1970] VR 205 …. 10-08, 10-11, 10-21, 10-22 City of Sydney Real Estate Co Ltd, Re (1928) 29 SR (NSW) 80; 46 WN (NSW) 67 …. 20-04 Civilian War Claimants Association v R [1932] AC 14; [1931] All ER Rep 432 …. 14-12 CL, Re [1969] 1 Ch 587; [1968] 1 All ER 1104 …. 17-07, 20-58 Clack v Carlon (1861) 30 LJ Ch 639; 4 LT 361 …. 17-40 Claims Direct Test Cases, In the Matter of [2003] 4 All ER 528 …. 24-05 Claremont, Re [1923] 2 KB 718 …. 2-44 Clark, Re [1926] Ch 833; [1925] All ER Rep 219 …. 9-24 Clark v Clark (1884) 9 App Cas 733 …. 17-42, 17-43 — v Cutland [2003] 4 All ER 733; [2004] 1 WLR 783 …. 27-13 — v Dillon [1925] GLR 201 …. 17-11 — v Taylor (1853) 1 Drew 642; 61 ER 596 …. 10-84 Clark (decd), Re [1957] VR 171; [1957] ALR 538 …. 10-21 Clarke, Re (1881) 18 Ch D 160; [1881–5] All ER Rep Ext 1607 …. 19-32 Clarke, Re (1887) 36 Ch D 348 …. 24-04 Clarke, Re [1923] 2 Ch 407; [1923] All ER Rep 607 …. 10-17, 10-19, 10-55, 1063, 10-64 Clarke v Franklin (1858) 4 K & J 257; 70 ER 107 …. 26-16 — v Hilton (1866) LR 2 Eq 810 …. 12-05 — v Hoskins (1868) 37 LJ Ch 561 …. 15-84 — v Ormonde (Earl of) (1821) Jac 108; 37 ER 791 …. 17-13 — v Swaile (1762) 2 Eden 134; 28 ER 847 …. 17-46 Clarke and Solomons’ Agreements Trusts, Re (1905) 5 SR (NSW) 498 …. 2503, 25-04 Clarke’s Will Trusts, Re [1961] 3 All ER 1133; [1961] 1 WLR 1471 …. 17-07 Clarkson v Davies [1923] AC 100; [1922] All ER Rep Ext 809 …. 2-03, 13-27, 22-25 — v Robinson [1900] 2 Ch 722 …. 17-40

Clay v Clay (2001) 202 CLR 410; 178 ALR 193 …. 2-02, 2-07, 3-05, 17-43, 2223 — v Rufford (1852) 5 De G & Sm 768; 64 ER 1337 …. 20-11 Clayton v Montgomery (1897) 18 LR (NSW) Eq 171 …. 19-24, 26-16 — v Ramsden [1943] AC 320; [1943] 2 All ER 16 …. 9-16 Clayton’s case (Devaynes v Noble; Baring v Noble [1814–23] All ER Rep 1; (1816) 1 Mer 572; (1816) 35 ER 781) …. 12-08, 27-08, 27-10, 27-11, 27-12 Cleaver (dec’d), Re [1981] 2 All ER 1018; [1981] 1 WLR 939 …. 13-42 Clegg v Edmondson (1857) 8 De GM & G 787; 44 ER 593 …. 13-17 Clephane v Lord Provost of Edinburgh (1869) LR 1 HL 417 …. 10-72 Clergy Society, Re (1856) 2 K & J 615; 69 ER 928 …. 10-69 Cleveland’s Estate, Re [1895] 2 Ch 542 …. 19-14 Clifford, Re (1911) 81 LJ Ch 220 …. 10-49 Clifford, Re [1912] 1 Ch 29 …. 10-32 Clinton, Re (1910) 10 SR (NSW) 465 …. 23-03 Clore’s Settlement Trusts, Re [1966] 2 All ER 272; [1966] 1 WLR 955 …. 2058, 20-59 Clough v Bird (1838) 3 My & Cr 490; 40 ER 1016 …. 2-08, 17-23 Clough Mill Ltd v Martin [1984] 3 All ER 982; [1985] 1 WLR 111 …. 2-47, 249, 2-50, 2-51 Clout and Frewer’s Contract, Re [1924] 2 Ch 230; [1924] All ER Rep 798 …. 15-16, 15-73 Coaks, Re [1911] 1 Ch 171 …. 19-14, 19-59 Coates v McInerney (1992) 7 WAR 537; 6 ACSR 748; 10 ACLC 616 …. 2104, 21-14 Coates to Parsons, Re (1886) 34 Ch D 370 …. 15-09, 15-14 Coats’ Trusts, Re [1948] Ch 340; [1948] 1 All ER 521; [1947] 2 All ER 422 …. 10-10, 10-34, 10-40, 10-41, 10-43 Cochrane v Moore (1890) 25 QBD 57; [1886–90] All ER Rep 731 …. 6-20 Cock v Aitken (1911) 13 CLR 461; 18 ALR 337 …. 19-58 — v — (1912) 15 CLR 373; 18 ALR 576 …. 19-54, 21-27

— v Smith (1909) 9 CLR 773; 15 ALR 526 …. 16-09, 16-14, 19-58 Cockayne v Harrison (1872) LR 13 Eq 432 …. 19-41 Cockburn v Peel (1861) 3 De G F & J 170; 45 ER 843 …. 18-35 Cockburn’s Will Trusts, Re [1957] Ch 438; [1957] 2 All ER 522 …. 2-40 Cocker v Quayle (1830) 1 Russ & M 535; 39 ER 206 …. 21-23 Cockerell’s Settlement Trusts, Re [1956] Ch 372; [1956] 2 All ER 172 …. 1707, 25-11 Cockerill, Re [1929] 2 Ch 131 …. 9-19 Cocks v Manners (1871) LR 12 Eq 574 …. 10-34, 10-41, 10-42, 10-43 Cogan v Stephens (1835) 1 Beav 482n; 48 ER 1027 …. 26-17 Cohen v Cohen (1929) 42 CLR 91; 35 ALR 204 …. 2-13, 13-02 Cohen’s Will Trusts, Re [1959] 3 All ER 523; [1959] 1 WLR 865 …. 17-07 Cole, Re [1958] Ch 877; [1958] 3 All ER 102 …. 10-18 Cole v Muddle (1852) 10 Hare 186; 68 ER 892 …. 23-05 Cole (decd), In the Estate of (1980) 25 SASR 489 …. 10-33, 10-66 Coleman v Bucks and Oxon Union Bank [1897] 2 Ch 243 …. 27-17 — v Druitt (1881) 2 LR (NSW) Eq 74 …. 17-44 — v Myers [1977] NZLR 225 …. 2-03 Coles v Trecothick (1804) 9 Ves 234; 32 ER 592 …. 17-47 Collard’s Will Trusts, Re [1961] Ch 293; [1961] 1 All ER 821 …. 20-58, 20-62 College of Law (Properties) Pty Ltd v Willoughby Municipal Council (1978) 38 LGRA 81 …. 10-31 Collett v Collett (1866) 35 Beav 312; 55 ER 916 …. 17-05 Collie v Merlaw Nominees Pty Ltd (in liq) (2001) 37 ACSR 361 …. 21-14 Collier (decd), Re [1998] 1 NZLR 81 …. 10-51 Collings v Wade [1896] 1 LR 340 …. 22-29 Collins v AMP Superannuation Ltd (1997) 75 FCR 565; 147 ALR 243 …. 8-02 Collinson v Patrick (1838) 2 Keen 123; 48 ER 575 …. 6-22 Collyer v Isaacs (1881) 19 Ch D 342; [1881–5] All ER Rep 828 …. 24-04 Colonial Bishoprics Fund, 1841, Re [1935] Ch 148 …. 10-59

Colville’s Trustees v Colville SC 225 (1914) …. 18-36 Colyear v Countess of Mulgrave (1836) 2 Keen 81; 48 ER 559 …. 2-20, 2-22, 604 Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487 …. 2-43 Combs, Re (1884) 51 LT 45 …. 15-85, 15-86 Comiskey v Bowring-Hanbury [1905] AC 84 …. 5-08 Commane, Re [1927] SASR 238 …. 17-39 Commissioner of Australian Federal Police v Cornwell (1990) 98 ALR 677 …. 21-02, 21-04 Commissioner of Inland Revenue v Chester Trustee Services Ltd [2003] 1 NZLR 395 …. 21-02 — v NZ Council of Law Reporting [1981] 1 NZLR 683 …. 10-27 — v Ward [1970] NZLR 1 …. 20-62 Commissioner of Stamp Duties v Bone (1976) 135 CLR 223; [1977] AC 511; 9 ALR 11 …. 22-33 — v Buckle (1995) 38 NSWLR 574 …. 21-02 — v Byrnes [1911] AC 386 …. 12-12 — v Livingston (1960) 107 CLR 411; [1961] ALR 534 …. 2-40 — v Pearse [1954] AC 91; [1954] 1 All ER 19 …. 17-40 Commissioner of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR 178; 26 ALR 210 …. 5-03 — v Livingston (1964) 112 CLR 12; [1965] AC 694; [1965] ALR 803; [1964] 3 All ER 692 …. 2-40, 12-02, 23-10 Commissioner of State Revenue v Lam & Kym Pty Ltd (2004) 10 VR 420 …. 601 — v Viewbank Properties Pty Ltd (2004) 55 ATR 50 …. 5-26 Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 90 ALJR 151 …. 21-02 — v Bargwanna (2012) 244 CLR 655; 286 ALR 206 …. 21-34, 22-12 — v ElecNet (Aust) Pty Ltd [2015] FCAFC 178 …. 3-11, 5-24 — v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592; 215 ALR 1 ….

2-07, 12-02 — v Macquarie Health Corporation Ltd (1998) 88 FCR 451 …. 13-34 Commissioner of Taxation (Cth) v Bargwanna (2012) 286 ALR 206; 86 ALJR 406 …. 10-60 Commonwealth v AE Goodwin Ltd [1961] NSWR 1080 …. 6-21 — v Colonial Combing Co (1922) 31 CLR 421; 29 ALR 138 …. 17-42 — v Cornwell (2007) 229 CLR 519; 234 ALR 148 …. 22-30 Commonwealth Bank of Australia v Nabi [2010] NSWSC 1425 …. 25-04 — v Smith (1991) 42 FCR 390; 102 ALR 453 …. 22-33 Compaq Computer Ltd v Abercorn Group Ltd [1991] BCC 484 …. 2-48 Compass Resources Ltd v Sherman (2010) 42 WAR 1 …. 2-15 Compton, Re [1945] Ch 123; [1945] 1 All ER 198 …. 10-06, 10-08, 10-09, 1024, 10-25, 10-30 Compton, Re [1946] 1 All ER 117 …. 10-30 Comptroller of Stamps v Howard Smith (1936) 54 CLR 614; [1936] ALR 198 …. 1-06, 5-13, 6-01, 6-20, 6-24 Congregation of the Religious Sisters of Charity of Australia v AttorneyGeneral (Qld) (2011) 7 ASTLR 51 …. 22-17 Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375; [1952] ALR 729 …. 9-28, 10-63, 10-83, 12-04 Connolly, Re [1910] 1 Ch 219 …. 5-06 Connolly, Re (1914) 110 LT 688 …. 10-71 Conquest, Re [1929] 2 Ch 353; [1929] All ER Rep 608 …. 19-56, 20-31, 20-33 Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42 …. 9-32 — v — [1982] 2 All ER 1; [1982] 1 WLR 522 …. 9-32 Constable (decd), Re [1971] VR 742 …. 10-21, 10-86 Constantinou (decd), Re [2013] 2 Qd R 219 …. 28-06, 28-07 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; 1 ALR 231 …. 2-06, 13-11, 13-34, 13-36, 13-37, 13-38, 13-39, 13-40 Conybeare’s Settlement, Ex parte (1853) 1 WR 458 …. 15-59 Conyngham v Conyngham (1750) 1 Ves Sen 522; 27 ER 1181 …. 15-73

Coode, Re (1913) 108 LT 94 …. 15-59 Cook, Re [1948] Ch 212; [1948] 1 All ER 231 …. 1-07 Cook v Benson (2003) 214 CLR 370; 198 ALR 218 …. 9-39 — v Fountain (1676) 3 Swan 585; 36 ER 984 …. 12-10 Cooke, Re [1916] 1 Ch 480 …. 19-16 Cooke v Head [1972] 2 All ER 38; [1972] 1 WLR 518 …. 12-18, 13-46 Cook’s Settlement Trust, Re [1965] Ch 902; [1964] 3 All ER 898 …. 6-14 Cookson v Lee (1854) 23 LJ Ch 473 …. 17-43, 17-45 Cooper, Re [1913] 1 Ch 350 …. 20-61 Cooper, Re [1939] Ch 811; [1939] 3 All ER 586 …. 7-25 Cooper v Cooper (1901) 26 VLR 649; 7 ALR 147 …. 19-60 — v — (1902) 8 ALR 212 …. 19-60 Cooper & Allen’s Contract for sale to Harlech, Re (1876) 4 Ch D 802 …. 2011, 20-12 Coppin v Fernyhough (1788) 2 Bro CC 291; 29 ER 159 …. 13-43 Coram, Re (1992) 109 ALR 353 …. 29-49 Corbett’s Settlement, Re (1907) 24 WN (NSW) 30 …. 19-54 Corbun, Re [1941] Ch 400; [1941] 2 All ER 160 …. 10-56 Corelli, Re [1943] Ch 332; [1943] 1 All ER 519 …. 10-50 Corin v Patton (1990) 169 CLR 540; 92 ALR 1 …. 3-15, 6-02, 6-17, 6-19, 6-20, 23-12 Cormack, In the Will of (1909) 26 WN (NSW) 174 …. 15-83 Cormack, Re (1911) 11 SR (NSW) 261; 28 WN (NSW) 80 …. 15-03 Cornick v Pearce (1848) 7 Hare 477; 68 ER 197 …. 20-03 Corozo Pty Ltd v Total Australia Ltd [1987] 2 Qd R 11 …. 21-12 — v — [1988] 2 Qd R 366 …. 23-04 Corrigan v Farrelly (1896) 7 QLJ 105 …. 21-04 Corsellis, Re (1887) 34 Ch D 675 …. 17-39, 17-40, 17-41 Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370 …. 3-15 Coshott v Prentice (2014) 221 FCR 450; 311 ALR 428 …. 5-04

— v Royal Society for the Protection of Cruelty to Animals (1996) 40 NSWLR 446 …. 10-05, 10-61 — v Sakic (1998) 44 NSWLR 667 …. 12-10 Costabadie v Costabadie (1847) 6 Hare 410; 67 ER 1225 …. 16-14, 20-63 Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150; [2001] 1 WLR 1437 …. 9-03, 27-07 Costin v Costin (1997) 7 BPR 15,167 …. 6-19 Cottam’s Will Trusts, Re [1955] 3 All ER 704; [1955] 1 WLR 1299 …. 10-21 Cotter, Re [1915] 1 Ch 307 …. 15-19, 15-64, 15-86 Cotton’s Trustees & the School Board for London, Re (1882) 19 Ch D 624; [1881–5] All ER Rep 926 …. 20-06, 23-09 Coulls v Bagot’s Executor and Trustee Co Ltd (1966) 119 CLR 460; [1967] ALR 385 …. 2-20, 6-06 Coulthurst (decd), Re [1951] Ch 661; [1951] 1 All ER 774 …. 10-17, 10-23 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] ALR 362 …. 2-27, 2-31, 5-07 Courage Group’s Pension Schemes, Re [1987] 1 All ER 528; [1987] 1 WLR 495 …. 8-03, 29-53, 29-56 Cousins, Re (1885) 30 Ch D 203 …. 26-15 Cousins v Cousins (1906) 3 CLR 1198 …. 17-05, 20-30 — v Peters (1900) 17 WN (NSW) 61 …. 12-12 Courtenay v Williams (1844) 3 Hare 539; 67 ER 494 …. 21-11 Coventry v Coventry (1837) 1 Keen 758; 48 ER 499 …. 15-83 Cowan v Scargill [1985] Ch 270; [1984] 2 All ER 750 …. 16-06, 16-14, 17-11, 17-18, 18-11, 18-14, 18-17, 20-12, 29-05, 29-19, 29-21, 29-56 Cowan de Groot Properties Ltd v Eagle Trust plc [1992] 4 All ER 700 …. 13-36 Cowcher v Cowcher [1972] 1 All ER 943; [1972] 1 WLR 425 …. 12-11, 12-13, 12-15, 12-18, 13-44 Cowell v Gatcombe (1859) 27 Beav 568; 54 ER 225 …. 17-23 Cowin, Re (1886) 33 Ch D 179 …. 17-16 Cowley v Hartstonge (1813) 1 Dow 361; 3 ER 729 …. 26-09

— v Wellesley (1866) LR 1 Eq 656 …. 19-55 Cox v Archer (1964) 110 CLR 1; [1964] ALR 782 …. 23-09 — v Barnard (1850) 8 Hare 310; 68 ER 379 …. 6-09 Coxen, Re [1948] Ch 747; [1948] 2 All ER 492 …. 5-27, 10-50 Cox’s Trusts, Re (1878) 9 Ch D 159 …. 19-42, 19-43 Cox’s Will, Re (1890) 11 LR (NSW) Eq 124 …. 17-39 Cozens, Re [1913] 2 Ch 478 …. 5-23, 7-07 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; 221 ALR 196 …. 1-07, 3-12, 23-01, 23-08, 23-12, 23-14, 23-15 CRA Exploration Pty Ltd, Ex parte [1983] 1 Qd R 310 …. 25-05 Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865 …. 13-11 Cradock v Piper (1850) 1 Mac & G 664; 41 ER 1422 …. 17-41 Craig, Re (1952) 52 SR (NSW) 265 …. 17-13 Craig v National Trustees Executors and Agency Co of Australasia Ltd [1920] VLR 569 …. 16-06, 20-63 — v Wheeler (1860) 29 LJ Ch 374 …. 19-03 Crago, Re (1908) 8 SR (NSW) 269; 25 WN (NSW) 91 …. 17-05, 20-45 Crago v Mclntyre [1976] 1 NSWLR 729 …. 4-06 Crawford v Forshaw [1891] 2 Ch 261; [1891–4] All ER Rep Ext 1895 …. 10-62 Crawley v Short (2009) 262 ALR 254 …. 2-03 Craven, Re [1914] 1 Ch 358 …. 19-16, 20-70 Craven v Bady (1869) LR 4 Ch App 296 …. 9-19 Craven’s Estate, Re [1937] Ch 431; [1937] 3 All ER 33 …. 17-06 Craven-Sands v Koch (2000) 34 ACSR 341 …. 15-86, 22-22 Crawley, Re (1885) 28 Ch D 431 …. 20-32 Crawley v Crawley (1835) 7 Sim 427; 58 ER 901 …. 19-15 Creak v James Moore & Sons Pty Ltd (1912) 15 CLR 426; 18 ALR 542 …. 1310, 27-07 Creamoata Ltd v Rice Equalization Association Ltd (1953) 89 CLR 286 …. 221 Crest Realty Pty Ltd (in liq), Re [1977] 1 NSWLR 664 …. 15-51

Crichton v Crichton (1930) 43 CLR 536 …. 12-12 Cripps, Re [1941] Tas SR 19 …. 10-58 Croaker, Re (Unreported, SC(NSW), 13 May 1960) …. 25-05 Crociani v Crociani [2014] UKPC 40 …. 28-08 Croome v Croome (1889) 59 LT 582 …. 12-02 Cross, Re [1943] VLR 38; [1943] ALR 126 …. 19-56 Cross v Lloyd-Greame (1909) 102 LT 163 …. 10-23 Crowhurst Park, Re [1974] 1 All ER 991; [1974] 1 WLR 583 …. 15-10 Crowther, Re [1895] 2 Ch 56; [1895–9] All ER Rep 1208 …. 19-05 Crowther v Brophy [1992] 2 VR 97 …. 10-41 Croxon, Re [1915] 2 Ch 290; [1914–15] All ER Rep 816 …. 19-58 Crozier, Re (1906) 50 Sol J 206 …. 20-58 Crunden and Meux’s Contract, Re [1909] 1 Ch 690 …. 15-75 CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 …. 13-09 Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949; [1971] 2 All ER 633 …. 2-05 Cullen v A-G for Ireland (1866) LR 1 HL 190 …. 7-15, 7-33 Cumming, Re [1951] NZLR 498 …. 10-65 Cumming v Austin (1903) 28 VLR 622 …. 21-27 Cummins, Re [1972] Ch 62; [1971] 3 All ER 782 …. 12-18 Cunnack v Edwards [1896] 2 Ch 679 …. 12-07 Cunningham v Foot (1878) 3 App Cas 974 …. 2-31 — v Harrison [1973] QB 942; [1973] 3 All ER 464 …. 13-09 Cunningham and Frayling, Re [1891] 2 Ch 567 …. 3-15 Cunningham’s Settled Estates, Re (1909) 27 WN (NSW) 28 …. 15-59 Cunstance’s Settlements, Re [1946] Ch 42; [1945] 2 All ER 441 …. 9-23 Curnick v Tucker (1874) LR 17 Eq 320 …. 5-06 Currie v Goold (1817) 2 Madd 163; 56 ER 295 …. 17-37 — v Hamilton [1984] 1 NSWLR 687 …. 12-11 Curtis v Pulbrook [2011] 1 BCLC 6387 …. 6-19

Curwen v Vanbreck Pty Ltd (2009) 26 VR 335 …. 16-06, 16-10 Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 …. 21-04

D D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342 …. 1022, 10-23 Da Costa v De Pas (1754) Amb 228; 27 ER 150 …. 10-71 Dacre, Re [1916] 1 Ch 344 …. 21-11 D’Adhemar v Bertrand (1865) 35 Beav 19; 55 ER 801 …. 15-02, 15-16 Dale (dec’d), Re [1994] Ch 31; [1993] 4 All ER 129 …. 7-18, 13-42 Dalrymple v Melville (1932) 32 SR (NSW) 596 …. 22-09, 22-13, 22-20 Dalton v Christofis [1978] WAR 42 …. 7-12 Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371; 65 ALR 193 …. 1302, 13-11 — v Union Trustee Co of Aust Ltd (1898) 24 VLR 460 …. 21-12 Dalziel, Re [1943] Ch 277; [1943] 2 All ER 656 …. 10-36, 10-37 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 …. 9-06, 1213, 12-16, 28-21 D’Amico, Re (1974) 42 DLR (3d) 759 …. 7-16 D’Angibau, Re (1880) 15 Ch D 228; [1874–80] All ER Rep 1184 …. 2-21, 6-11, 6-13, 6-26 Dance v Goldingham (1873) LR 8 Ch App 902 …. 20-14, 23-04 Daniels, Re [1970] VR 72 …. 10-68, 10-71, 10-86 Daniels v Anderson (1995) 37 NSWLR 438 …. 2-07, 13-27 Danish Bacon Staff Pension Fund, Re [1971] 1 All ER 486; [1971] 1 WLR 248 …. 7-08 Darby, Re [1939] Ch 905; [1939] 3 All ER 6 …. 19-58 Dargie, Re [1953] 2 All ER 577 …. 21-09 Darke v Williamson (1858) 25 Beav 622; 53 ER 774 …. 21-04 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council (2006) 203 FLR 396 …. 10-30, 10-47

Darnley, Re [1907] 1 Ch 159 …. 19-09 Dartnall, Re [1895] 1 Ch 474; [1895–9] 1 All ER Rep 890 …. 17-15 Darvill v Terry (1861) 6 H & N 807; 158 ER 333 …. 9-44 Darwin Cyclone Tracy Relief Trust Fund, Re (1979) 39 FLR 260 …. 10-55 Dashwood v Bulkeley (1804) 10 Ves 230; 32 ER 832 …. 9-13 Davenport v Bishopp (1843) 2 Y & C Ch Cas 451; 63 ER 201 …. 6-04, 6-12, 613 — v — (1846) 1 Ph 698; 41 ER 798 …. 6-26 Daveron, Re [1893] 3 Ch 421 …. 20-06, 26-21 Davey v Pein (1884) 10 VLR (E) 306 …. 17-03 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; 109 ALR 57 …. 9-36, 17-37, 23-20, 27-14 Davidson, Re (1879) 11 Ch D 341 …. 20-06 Davidson v Chirnside (1908) 7 CLR 324 …. 6-01 Davies, Re (1932) 48 TLR 539 …. 10-46 Davies, Re [1915] 1 Ch 543 …. 10-39, 10-81 Davies v Hodgson (1858) 25 Beav 177; 53 ER 604 …. 17-35, 22-33 — v Perpetual Trustee Co Ltd [1959] AC 439; [1959] 2 All ER 128 …. 10-06, 10-08, 10-11, 10-24, 10-30 Davies and Kent’s Contract, Re [1910] 2 Ch 35 …. 20-06 Davis, Re [1902] 1 Ch 876; [1900–3] All ER Rep 336 …. 10-86 Davis, Re [1902] 2 Ch 314 …. 22-08 Davis v Heuber (1923) 31 CLR 583 …. 2-09 — v Hutchings [1907] 1 Ch 356 …. 17-30 — v Richards & Wallington Industries Ltd [1991] 2 All ER 563; [1990] 1 WLR 1511 …. 8-04, 8-06, 8-07, 12-08, 15-76, 29-55, 29-57 — v Samuel (1926) 28 SR (NSW) 1; 44 WN (NSW) 100 …. 20-06 — v Vale [1971] 2 All ER 1021; [1971] 1 WLR 1022 …. 12-11, 12-18 Davis (dec’d), In the Estate of (1898) 19 LR (NSW) B & P 18 …. 15-75 Davis (decd), Re [1953] VLR 639; [1953] ALR 1079 …. 19-09, 19-14, 19-21, 19-26

Davis’ Trusts, Re (1871) LR 12 Eq 214 …. 15-03 Dawes, Re [1954] VLR 76; [1954] ALR 174 …. 19-56, 20-30 Dawson, Re (1888) 39 Ch D 155 …. 9-28 Dawson, Re [1906] 2 Ch 211 …. 19-58 Dawson, Re [1941] 1 DLR 790 …. 23-08 Dawson, Re [1959] NZLR 1360 …. 17-06 Dawson v Clark (1809) 18 Ves 247; 34 ER 311 …. 12-03 — v Dawson [1945] VLR 99; [1945] ALR 64 …. 20-51 — v Hearn (1831) 1 Russ & M 606; 39 ER 232 …. 23-09 — v Small (1874) LR 18 Eq 114 …. 10-61 Dawson (dec’d), Re [1966] 2 NSWR 211; (1966) 84 WN (Pt 1) (NSW) 399 …. 22-04, 22-05, 22-07 Day v Day (1903) 4 SR (NSW) 21; 21 WN (NSW) 1 …. 19-55, 20-54 De Beauvoir v De Beauvoir (1852) 3 HL Cas 524; 10 ER 206 …. 26-09 De Bussche v Alt (1878) 8 Ch D 286; [1874–80] All ER Rep 1247 …. 13-25 De Carteret, Re [1933] 1 Ch 103; [1932] All ER Rep 355 …. 10-17 De Clifford’s (Lord) Estate, Re [1900] 2 Ch 707 …. 17-18, 22-12, 22-16 De Cordova v De Cordova (1879) 4 App Cas 602 …. 20-48 De Little v Byrne (1951) 84 CLR 532 …. 19-22 De Manneville v Crompton (1813) 1 Ves & B 354; 35 ER 138 …. 16-06 De Mestre v West [1891] AC 264 …. 6-26, 9-46 De Santis v Aravanis (2014) 227 FCR 404; 322 ALR 475 …. 5-04 De Tabley, Re (1896) 75 LT 328 …. 19-55 De Teissier’s Settled Estates, Re [1893] 1 Ch 153 …. 20-30 De Vedas (decd), Re [1971] SASR 169 …. 9-31, 10-33, 10-63, 10-83 Dean, Re (1889) 41 Ch D 552 …. 7-27, 10-57, 11-01, 11-02, 11-03, 11-08 Dean v Cole (1921) 30 CLR 1 …. 5-07 Dean’s Will Trusts, Re [1950] 1 All ER 882 …. 10-55 Dehnert, Re [1973] VR 449 …. 10-83, 17-06 Delamare’s Settlement Trusts, Re [1984] 1 All ER 584; [1984] 1 WLR 813 ….

20-62 Delany, Re [1902] 2 Ch 642 …. 10-19, 10-42 Delehunt v Carmody (1986) 161 CLR 464; 68 ALR 253 …. 12-10 Delius, Re [1957] Ch 299; [1957] 1 All ER 84 …. 10-50 Delves v Gray [1902] 2 Ch 606 …. 17-43 Demerara Bauxite Co v Hubbard [1923] AC 678; [1923] All ER Rep Ext 841 …. 17-46 Denham Bros Ltd v W Freestone Leasing Pty Ltd [2004] 1 Qd R 500 …. 6-19 Denley’s Trust Deed, Re [1969] 1 Ch 373; [1968] 3 All ER 65 …. 10-08, 11-04 Dennis’ Settlement Trusts, Re [1942] Ch 283; [1942] 1 All ER 520 …. 9-23 Densham, Re [1975] 3 All ER 726; [1975] 1 WLR 1519 …. 12-11 Dent v Dent [1996] 1 All ER 659; [1996] 1 WLR 683 …. 9-36 Denton v Donner (1856) 23 Beav 285; 53 ER 112 …. 17-43 D’Epinoix’s Settlement, Re [1914] 1 Ch 890 …. 18-35 Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32; [1958] ALR 285 …. 27-16 — v Government Insurance Office of New South Wales (1993) 117 ALR 61 …. 24-04 Detmold, Re (1889) 40 Ch D 585 …. 9-20, 9-26 Deutsch v Deutsch (2012) 6 ASTLR 386 …. 23-03 Devaynes v Noble; Baring v Noble (Clayton’s Case) [1814–23] All ER Rep 1; (1816) 1 Mer 572; (1816) 35 ER 781 …. 12-08, 27-08, 27-10, 27-11, 27-13 Devaynes v Robinson (1857) 24 Beav 86; 53 ER 289 …. 20-12, 20-27 Devey v Thornton (1851) 9 Hare 222; 68 ER 483 …. 17-03, 17-35 Devitt v Kearney (1883) 13 LR Ir 45 …. 20-27 Dewar, Re (1885) 52 LT 489 …. 17-30 Dewhirst’s Trusts, Re (1886) 33 Ch D 416 …. 15-58 Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470 …. 5-02, 7-03, 708, 7-09 Diamond Cutting Works v Trifus [1956] 1 Lloyd’s LR 216 …. 6-12 Dibbens & Sons Ltd, Re [1990] BCLC 577 …. 2-02

Dibbs v Goren (1849) 11 Beav 483; 50 ER 904 …. 17-37 Dick, Re [1940] VLR 166; [1940] ALR 47 …. 20-58 Dickie v Torbay Pharmacy (1986) Ltd [1995] 3 NZLR 429 …. 13-21 Dickenson v Teasdale (1862) 1 De GJ & Sm 52; 46 ER 21 …. 22-23 Dickinson’s Trust, Re [1902] WN 104 …. 15-65 Dickson’s Settlement Trusts, Re (1872) 27 LT 671 …. 15-59 Didds v Tuke (1884) 25 Ch D 300 …. 21-10 Dilworth v Commissioner of Stamps [1899] AC 99 …. 10-17, 10-28, 10-30 Dillwyn v Llewelyn [1861–73] All ER Rep 384; (1862) 4 De GF & J 517; 45 ER 1285 …. 6-21, 12-19 Dimes v Scott (1828) 4 Russ 195; 38 ER 778 …. 19-03, 19-10, 19-20 Dimos v Dikeakos Nominees Pty Ltd (1996) 68 FCR 39; 149 ALR 113 …. 2104 Dingle v Turner [1972] AC 601; [1972] 1 All ER 878 …. 10-09, 10-24, 10-25 Dinsdale v Arthur (2006) 12 BPR 23,509 …. 12-11 Diocesan Trustees of Church of England v Solicitor-General (1909) 9 CLR 757; 16 ALR 70 …. 10-69 Dion Investments Pty Ltd, Re (2014) 87 NSWLR 753 …. 17-06 Diplock, Re [1941] Ch 253; [1941] 1 All ER 193 …. 10-65 Diplock, Re [1948] Ch 465; [1948] 2 All ER 318 …. 12-10, 17-37, 23-18, 27-04, 27-12, 27-13 Directors of Central Railway Co of Venezuela v Kisch (1867) LR 2 HL 99 …. 13-28 Disher v Farnworth [1993] 3 NZLR 390 …. 13-30 Dive, Re [1909] 1 Ch 328 …. 18-27, 22-15, 22-16 Dix v Burford (1854) 19 Beav 409; 52 ER 408 …. 22-02 Dixon, Re (1873) 21 WR 220 …. 15-59 Dixon v Butler (1839) 3 All & C Ex 677; 160 ER 874 …. 10-35 — v Williams (1875) 13 SCR (NSW) Eq 7 …. 21-36 D’Jan of London Ltd, Re [1994] 1 BCLC 561 …. 22-13 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)

[1980] 1 NSWLR 510 …. 1-10 — v — (1982) 149 CLR 431; 40 ALR 1 …. 3-07, 12-01, 12-02 Docker v Somes (1834) 2 My & K 655; 39 ER 1095 …. 22-06 Docwra, Re (1885) 29 Ch D 693 …. 3-15 Dodkin v Brunt (1868) LR 6 Eq 580 …. 15-02, 25-04 Dodson, Re [1908] 2 Ch 638 …. 26-06 Dodson v Sandhurst and Northern District Trustees Executors and Agency Co Ltd [1955] VLR 100 …. 21-11 Doe d Phillips v Aldridge (1791) 4 Term Rep 264; 100 ER 1010 …. 10-39 Doe d Thompson v Pitcher (1815) 2 M & S 407; 105 ER 663 …. 10-36 Doering v Doering (1889) 42 Ch D 203 …. 21-26, 21-27 Doherty v Doherty [2006] 2 Qd R 259 …. 1-01 Doig, Will of [1916] VLR 698 …. 7-18 Dolbel v Loudoun [1920] NZLR 131 …. 20-11 Dominion Students’ Hall Trust, Re [1947] Ch 183 …. 10-71, 10-72 Dommett v Bedford (1796) 6 TR 684; 101 ER 771 …. 9-19 Don King Inc v Warren [2000] Ch 291; [1998] 2 All ER 608 …. 1-06, 5-24, 2308, 24-03 Donald, Re [1909] 2 Ch 410; [1908–10] All ER Ext 1224 …. 10-56 Donaldson, Re (1912) 12 SR (NSW) 148 …. 23-07 Doneley v Doneley [1998] 1 Qd R 602 …. 13-34, 17-18, 17-42 Donn, Re [1944] Ch 8; [1943] 2 All ER 564 …. 9-16 Donnelly, Re (1901) 1 SR (NSW) Eq 150; 18 WN (NSW) 227 …. 20-32 Doody, Re [1893] 1 Ch 129 …. 17-41 Dorin v Dorin [1874–80] All ER Rep 71; (1875) LR 7 HL 568 …. 9-09 Dornford v Dornford (1806) 12 Ves 127; 33 ER 49 …. 22-11 Dotter v Evans [1969] VR 41 …. 25-05 Dougan v Macpherson [1902] AC 197; [1900–3] All ER Rep Ext 1312 …. 17-47 Doughty, Re [1947] Ch 263; [1947] 1 All ER 207 …. 19-38 Douglas, Re (1887) 35 Ch D 472; [1886–90] All ER Rep 228 …. 10-57, 10-63,

11-08 Douglas, Re (1928) 29 SR (NSW) 48; 45 WN (NSW) 195 …. 17-44 Douglas v Archbutt (1858) 2 De G & J 148; 44 ER 944 …. 17-40 — v Lawler (1916) 16 SR (NSW) 252; 33 WN (NSW) 82 …. 19-39 Douglas’s Will Trusts, Re [1959] 2 All ER 620; [1959] 1 WLR 744 …. 18-04 Dover v Buck (1865) 5 Giff 57; 63 ER 921 …. 17-43 — v Denne (1902) 30 QLR 664 …. 17-18 Dover Coalfield Extension Ltd, Re [1908] 1 Ch 65; [1904–7] All ER Rep 161 …. 17-49 Dowling, Re [1961] VR 615 …. 17-39 Dowling v Blyth (1917) 22 CLR 486 …. 21-10 Downes v Bullock (1858) 25 Beav 54; 53 ER 556 …. 17-37 — v Maddrell (1941) 41 SR (NSW) 268 …. 9-19 Downing v Federal Commissioner of Taxation (1971) 125 CLR 185 …. 10-17, 10-56, 10-65, 10-69 Downsview Nominees Ltd v First City Corp Ltd [1993] AC 295; [1993] 3 All ER 626 …. 2-05 Dowse v Gorton [1891] AC 190 …. 21-04, 21-13 Dowsett v Reid (1912) 15 CLR 695; 19 ALR 15 …. 2-04, 13-22 Doyle v Blake (1804) 2 Sch & Lef 231 …. 15-73, 17-23, 22-02 DPC Estates Pty Ltd v Grey and Consul Development Pty Ltd [1974] 1 NSWLR 443 …. 13-34, 13-37 Drant v Vause (1842) 1 Y & C Ch Cas 580; 62 ER 1026 …. 26-14 Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; 236 ALR 499 …. 13-02 Drever v Drever [1936] ALR 446 …. 12-12, 12-16 Drew v Martin (1864) 2 Hem & M 130; 71 ER 411 …. 12-12 — v Vickery (1919) 19 SR (NSW) 245; 36 WN (NSW) 100 …. 19-36 Drexel Burnham Lambert UK Pension Plan, Re [1995] 1 WLR 32 …. 17-42, 2958 Driffill, Re [1950] Ch 92; [1949] 2 All ER 933 …. 10-56

Drigden, Re [1938] Ch 205 …. 5-10 Drinan v Drinan (1908) 8 SR (NSW) 109 …. 20-16 Druce’s Settlement Trusts, Re [1962] 1 All ER 563; [1962] 1 WLR 363 …. 1707 Drummond, Re [1914] 2 Ch 90; [1914] All ER Rep 223 …. 10-18, 10-30, 11-04 Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; [2003] 1 All ER 97 …. 308, 13-02 Dudgeon, Re (1896) 74 LT 613 …. 10-20 Dufour v Pereira (1769) 1 Dick 419; 21 ER 332 …. 13-42 Duffus (M’Caig’s Trustees) v Kirk-Session of the United Free Church of Lismore [1915] SC 426 …. 11-03 Duffy v Duffy [1920] 1 IR 122 …. 2-36 Dugdale, Re (1888) 38 Ch D 176; [1886–90] All ER Rep Ext 1505 …. 9-19 Duggan v Kelly (1847) 10 Ir Eq R 295 …. 9-13 Duke v Robson [1973] 1 All ER 481 …. 2-05 Duke Group Ltd (in liq) v Pilmer (1999) 73 SASR 64 …. 22-08 Duke of Marlborough, Re; Davis v Whitehead [1894] 2 Ch 133 …. 7-09 Duke of Norfolk’s Settlement Trusts, Re [1979] Ch 37; [1978] 3 All ER 907 …. 17-39 Duke of Norfolk’s Settlement Trusts, Re [1982] Ch 61; [1981] 3 All ER 220 …. 17-39 Dullow v Dullow (1985) 3 NSWLR 531 …. 12-16 Dulson, Re (1929) 140 LT 470 …. 5-07 Dumbel, Re (1802) 6 Ves 617; 31 ER 1223 …. 17-05 Dumper v Dumper (1862) 3 Giff 583; 66 ER 540 …. 12-16 Dunbar v Dunbar [1909] 2 Ch 639; [1908–10] All ER Rep 76 …. 12-12 Duncan v Cathels (1956) 98 CLR 625; [1956] ALR 1072 …. 12-05 — v Dixon (1890) 44 Ch D 211 …. 4-03 — v Equity Trustees Executors & Agency Co Ltd (1958) 99 CLR 513 …. 1205, 12-09 Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896

…. 16-10, 16-14, 22-16 Dundee Harbour Board Trustees v Nichol [1915] AC 550 …. 23-04 Dundee Magistrates v Dundee Presbytery (1861) 4 Macq 228 …. 10-39 Dunlop, Re (1925) 26 SR (NSW) 126 …. 17-32 Dunlop v Selfridge [1915] AC 847; [1914–15] All ER Rep 333 …. 2-17, 2-24 Dunn v Flood (1885) 28 Ch D 586 …. 20-14 Dunn (decd), In the Estate of [1963] VR 165 …. 2-40, 15-55 Dunne v Byrne [1912] AC 407; [1911–13] All ER Rep 1105 …. 10-46, 10-64 Dunstan, Re [1918] 2 Ch 304; [1918–19] All ER Rep 694 …. 5-24 Dunstan v Houison (1901) 1 SR (NSW) Eq 212; 18 WN (NSW) 302 …. 16-14 Dupree’s Deed Trusts, Re [1945] Ch 16; [1944] 2 All ER 443 …. 10-31 Durour v Motteux (1749) 1 Ves Sen 320; 27 ER 1057 …. 10-39 Dutton, Re (1878) 4 Ex D 54 …. 10-81 Dutton v Thompson (1883) 23 Ch D 278 …. 9-35 Dwyer, Re [1916] VLR 114 …. 5-29, 5-30 Dyer v Dyer [1775–1802] All ER Rep 205; (1788) 2 Cox Eq Cas 92; 30 ER 42 …. 12-10, 12-16

E Eades, Re [1920] 2 Ch 353 …. 10-48, 10-63 Eagle Trust plc v SBC Securities Ltd [1992] 4 All ER 488; [1993] 1 WLR 484 …. 13-36 Earl of Portsmouth v Fellows (1820) 5 Madd 450; 56 ER 967 …. 15-87 Earl of Stamford, Re [1896] 1 Ch 288 …. 15-05, 15-19, 15-64 Earl of Strafford, Re [1978] 3 All ER 18 …. 20-48 East, Re (1873) LR 8 Ch App 735 …. 15-18 Eastes, Re [1948] Ch 257; [1948] 1 All ER 536 …. 10-46 Eaton v Watts (1867) LR 4 Eq 151 …. 5-06 Eaves v Hickson (1861) 30 Beav 136; 54 ER 840 …. 13-34, 17-23, 17-35 Ebbett, Re [1974] 1 NZLR 392 …. 17-06

Ebner, Re (2003) 126 FCR 281; 196 ALR 533 …. 12-12 Eccles v The Salvation Army [2013] WASC 142 …. 10-74 Ede v Ede [2007] 2 Qd R 323 …. 22-14, 22-17 Eden Refuge Trust v Hohepa [Remedies] [2011] 3 NZLR 273 …. 22-07 Eden, Re [1957] 2 All ER 430; [1957] 1 WLR 788 …. 5-26 Eden v Ridsdales Railway Lamp and Lighting Co Ltd (1889) 23 QBD 368 …. 13-27 Edgar, Re [1939] 1 All ER 635 …. 9-17 Edgar v IRC [1978] 1 NZLR 590 …. 12-17 Edge v Pensions Ombudsman [1998] Ch 512; [1998] 2 All ER 547 …. 17-11, 2958 — v — [2000] Ch 602; [1999] 4 All ER 546 …. 17-11, 17-39 Edmonds, Re [1943] VLR 97; [1943] ALR 217 …. 17-40 Edmonds v Millett (1855) 20 Beav 54; 52 ER 522 …. 16-14 Edmondson’s Will Trusts, Re [1971] 3 All ER 1121; [1971] 1 WLR 1652 …. 2062 Edmunds v Pickering (1999) 75 SASR 407 …. 17-47 — v — (No 4) (2000) 77 SASR 381 …. 13-02 Edmundsen v Loudoun [1947] NZLR 321 …. 20-42, 22-22 Edwards, Re [1918] 1 Ch 142; [1916–17] All ER Rep 258 …. 19-28 Edwards v Attorney-General (2004) 208 ALR 605; 60 NSWLR 667 …. 21-34, 22-12, 22-21 — v Carter [1893] AC 360; [1891–4] All ER Rep 1259 …. 4-03 — v Hood-Barrs [1905] 1 Ch 20 …. 22-11 — v Lewis (1747) 3 Atk 538; 26 ER 1110 …. 13-16 — v Muyrick (1842) 2 Hare 60; 67 ER 25 …. 17-46 — v West (1878) 7 Ch D 858 …. 26-15 Efstratiou v Glantschnig [1972] NZLR 594 …. 13-34 Egerton v Lord Brownlow (1853) 4 HL Cas 1; 10 ER 359 …. 8-04 Eggleston, Re [1940] VLR 474 …. 15-81, 25-04 Egmont (Earl) v Smith (1877) 6 Ch D 469 …. 20-20

Eighmie, Re [1935] Ch 524 …. 10-37 El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 …. 13-34, 27-04, 28-22 — v — [1994] 2 All ER 685 …. 13-34 — v — (No 2) [1995] 2 All ER 213 …. 27-11 El Sayed v El Hawach (2015) 88 NSWLR 214; 317 ALR 771 …. 1-09, 17-39, 23-03 Elders Forestry Management Ltd, Re (2012) 90 ACSR 573 …. 21-34 Elders Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 …. 3-11, 13-28, 13-36, 21-03 — v Eastoe [1963] WAR 36 …. 20-58 — v Higgins (1963) 113 CLR 426; [1964] ALR 408 …. 14-04, 16-11, 17-18, 2218 Elford, Re [1910] 1 Ch 814 …. 19-05 Elias v Pacanowski (1992) NSW ConvR 55–641 …. 23-10 Ellaway v Lawson [2006] QSC 170 …. 9-14 Ellenborough, Re [1903] 1 Ch 697 …. 6-12, 7-35 Elliot v Secretary, Department of Education, Employment and Workplace Relations (2008) 249 ALR 182 …. 23-03, 23-15 Elliott, Re (1891) 39 WR 297 …. 10-59 Elliott, Re [1896] 2 Ch 353 …. 9-19 Elliott, Re (1910) 102 LT 528 …. 10-21 Elliott v Elliott (1898) 19 LR (NSW) Eq 162 …. 6-20 Ellis v Rowbotham [1900] 1 QB 740; [1900–3] All ER Rep 299 …. 19-30, 19-31 Ellis & Co v Cross [1915] 2 KB 654 …. 5-14 Ellison v Ellison (1802) 6 Ves 656; 31 ER 1243; [1775–1802] All ER Rep 119 …. 6-02, 6-26 Emmet v Clark (1861) 3 Giff 32; 66 ER 310 …. 15-22 Elmore, Re [1968] VR 390 …. 11-05 Eltham Parish v Warreyn (1634) Duke 67 …. 10-53 Elton v Cavill (No 2) (1994) 34 NSWLR 289 …. 9-18, 9-19 Emery’s Investments Trusts, Re [1959] Ch 410; [1959] 1 All ER 577 …. 12-12

Empress Engineering Co, Re (1880) 16 Ch D 125 …. 2-21 Emuss v Smith (1848) 2 De G & Sm 722; 64 ER 323 …. 26-14 Endacott, Re [1960] Ch 232; [1959] 3 All ER 562 …. 11-03, 11-08 England’s Settlement, Re [1918] 1 Ch 24 …. 21-34 Englebach’s Estate, Re [1924] 2 Ch 348 …. 2-22 Englewood Properties Ltd v Patel [2005] 3 All ER 307; [2005] 1 WLR 1961 …. 13-07 English v Dedham Vale Properties Ltd [1978] 1 All ER 382; [1978] 1 WLR 93 …. 13-09, 13-10 English Scottish Mercantile Investment Co v Brunton [1892] 2 QB 700 …. 1336 Enhill Pty Ltd, Re [1983] 1 VR 561 …. 21-14 EO Farley Ltd, Re (1940) 40 SR (NSW) 240 …. 27-16 Equitable Group Ltd v Pendal Nominees Pty Ltd (1984) 3 ACLC 546 …. 15-85 Equitable Life Assurance Society v Hyman [2002] 1 AC 408 …. 5-20 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50; 11 ACSR 642 …. 2-03, 13-37 Equiticorp Industries Group Ltd v The Crown (No 47) [1996] 3 NZLR 586 …. 27-04 Equititrust Ltd, Re (2011) 288 ALR 800 …. 23-05 Equity Trustees Executors and Agency Co Ltd v Fenwick [1905] VLR 154 …. 22-13 — v Macmeikan (1900) 25 VLR 593 …. 19-61 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 472; 211 ALR 101 …. 3-20, 5-04 — v Haxton (2012) 246 CLR 498; 286 ALR 12 …. 9-02, 9-06 Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218; [1874–80] All ER Rep 271 …. 13-28 Erskine v Pettit (1901) 1 SR (NSW) Eq 204 …. 12-19 Erwin v Shannon’s Brick, Tile and Pottery Co Ltd (1938) 38 SR (NSW) 555 …. 2-02, 2-07, 20-48

Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 …. 5-02 Essery v Cowlard (1884) 26 Ch D 191 …. 9-36, 12-05 Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1999] 3 VR 642 …. 8-03, 16-08 Ethel Pedley Memorial Travelling Scholarship Trust, Re (1949) 49 SR (NSW) 329; 66 WN (NSW) 163 …. 10-78 Ettelson, Re [1946] VLR 217 …. 17-37 Evans, Re (1884) 26 Ch D 58 …. 20-57 Evans, Re (1887) 34 Ch D 597 …. 21-12 Evans, Re [1913] 1 Ch 23 …. 19-38 Evans, Re [1940] Ch 629 …. 9-16 Evans, Re [1967] 3 All ER 343; [1967] 1 WLR 1294 …. 20-61 Evans, Re [1999] 2 All ER 777 …. 22-13 Evans v Benyon (1887) 37 Ch D 329 …. 21-22, 21-23, 22-33 — v Evans (1910) 10 SR (NSW) 594 …. 23-07 — v Jackson (1836) 8 Sim 217; 59 ER 87 …. 20-12 Evans Will Trusts, Re [1921] 2 Ch 309 …. 19-03, 19-12, 19-13 Eve, Re [1909] 1 Ch 796; [1908–10] All ER Rep 131 …. 9-09 Everingham v Everingham (1911) 12 SR (NSW) 5 …. 2-02 Eves v Eves [1975] 3 All ER 768; [1975] 1 WLR 1338 …. 12-18 EVTR, Re [1987] BCLC 646 …. 2-16 Ewen v Gerofsky 382 NYS (2d) 651 (1976) …. 13-52 Ewing v Orr Ewing (1883) 9 App Cas 34 …. 28-20 Executor Trustee & Agency Co of SA v Warbey [1971] SASR 255 …. 10-55 Exhall Coal Co Ltd, Re (1866) 35 Beav 449; 55 ER 970 …. 21-02, 21-04 Expo International Pty Ltd (in liq) v Chant [1979] 2 NSWLR 820 …. 2-02 Ezekiel’s Settlement Trusts, Re [1942] Ch 230 …. 20-48

F Fairbairn, Re [1967] VR 633 …. 17-14, 17-16

Fairweather v Fairweather (1944) 69 CLR 121; [1944] ALR 190 …. 13-07 Faithfull, Re [1967] 2 NSWR 265; 86 WN (NSW) (Pt 1) 161 …. 10-01 Falconer v Falconer [1970] 3 All ER 449; [1970] 1 WLR 1333 …. 12-11, 12-18 Fales, Re [1974] 3 WWR 84 …. 17-18 Fales v Canada Permanent Trust Co (1975) 55 DLR (3rd) 239 …. 22-01 — v — (1976) 70 DLR (3d) 257; [1977] 2 SCR 302 …. 17-18 Falls’ Will Trusts, Re (1874) 12 SCR (NSW) Eq 89 …. 21-34 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 …. 13-02, 13-11, 13-34, 13-35, 13-39 Faraker, Re [1912] 2 Ch 488; [1911–13] All ER Rep 488 …. 10-84, 10-85 Farewell v Farewell (1892) 22 OR 573 …. 10-12, 10-51 Farley v Westminster Bank [1939] AC 430; [1939] 3 All ER 491 …. 10-46, 1064 Farmer v Chard (1905) 5 SR (NSW) 342; 22 WN (NSW) 1109 …. 19-59 Farmer v Dean (1863) 32 Beav 326; 55 ER 128 …. 17-44 Farnell v Cox (1898) 19 LR (NSW) Eq 103 …. 17-43 Farnell’s Estate, Re (1886) 33 Ch D 599 …. 20-20 Farnham’s Trusts, Re [1904] 2 Ch 561 …. 19-56, 20-30, 20-31, 20-33 Farrant v Blanchford (1863) 1 De GJ & Sm 107; 46 ER 42 …. 22-33 Farrar v Farrar’s Ltd (1888) 40 Ch D 395 …. 17-44 Farrow Finance Co Ltd (in liq) v Farrow Properties Pty Ltd (in liq) (1997) 26 ACSR 544 …. 13-39 — v Farrow Properties Pty Ltd (in liq) [1999] 1 VR 584 …. 13-34 Farstad Supply AS v Enviroco Ltd [2011] UKSC 16; [2011] 1 WLR 921 …. 2102 Fauntleroy, Re (1839) 10 Sim 252; 59 ER 610 …. 15-46 Favell, (dec’d), Re (1971) 2 SASR 246 …. 5-07 Faversham v Ryder (1854) 5 De GM & G 350; 43 ER 905 …. 10-62 Fawcett, Re [1940] Ch 402 …. 19-10, 19-11 Fawcett v Whitehouse (1829) Russ & M 132; 39 ER 51 …. 17-42 Faye v Faye [1973] WAR 66 …. 17-07, 28-08

Featherstonhaugh v Fenwick (1810) 17 Ves 298; 34 ER 115 …. 13-17 Federal Commissioner of Taxation v Clarke (1927) 40 CLR 246 …. 5-24 — v Coppleson (1981) 39 ALR 30 …. 10-14 — v Vegners (1989) 90 ALR 547 …. 1-09, 3-14 — v Word Investments Ltd (2008) 236 CLR 204; 251 ALR 206 …. 10-55 Fell v Fell (1922) 31 CLR 268; 29 ALR 31 …. 8-01 Fender v St John-Mildmay [1938] AC 1; [1937] 3 All ER 402 …. 9-17 Fentem, Re [1950] 2 All ER 1073 …. 9-13 Fenton v Perpetual Trustee Co Ltd (1940) 64 CLR 52; [1940] ALR 325 …. 2060, 20-61 Fenwicke v Clark (1862) 4 De G F & J 240; 45 ER 1176 …. 17-11 Ferguson, Re [1957] VR 635 …. 5-24 Ferguson v Ferguson (1940) 40 SR (NSW) 595; 57 WN (NSW) 216 …. 19-41, 19-57 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 …. 13-43 FHR European Ventures LLP v Cedar Capital Partners LLC [2015] AC 350; [2014] 4 All ER 79 …. 13-11, 13-22 — v Mankarious [2014] Ch 1; [2013] 3 All ER 29 …. 7-33 Field v Field [1894] 1 Ch 425 …. 17-02, 17-21 — v Moore (1855) 7 De G M & G 691; 44 ER 269 …. 4-02 Filshie, Re [1939] NZLR 91 …. 10-36, 11-03 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; 271 ALR 236 …. 8-02, 803, 29-01, 29-21, 29-53, 29-55 Finden v Stephens (1846) 2 Ph 142; 41 ER 896 …. 5-17, 5-19 Findlay’s Estate, Re (1995) 5 Tas R 333 …. 10-86 Finger’s Will Trusts, Re [1972] Ch 286; [1971] 3 All ER 1050 …. 10-84 Firth v Centrelink (2002) 55 NSWLR 451 …. 2-29 Firth’s Estate, Re [1938] Ch 517; [1938] 2 All ER 217 …. 19-33 Fischer v Nemeske Pty Ltd [2016] HCA 11 …. 17-02, 20-59, 20-62 Fish, Re [1893] 2 Ch 413 …. 17-40

Fisher, Re [1943] Ch 377; [1943] 2 All ER 615 …. 19-06, 19-15 Fisher v Fisher (1917) 23 CLR 337; 23 ALR 318 …. 19-36, 19-38 Fisk v Attorney-General (1867) LR 4 Eq 521 …. 9-07, 10-36, 10-61 Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 …. 13-10, 13-34, 23-20, 27-07 Fitch v Weber (1848) 6 Hare 145; 67 ER 1117 …. 26-17 Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; 143 ALR 569 …. 9-06 — v Fitzgerald (1910) 10 SR (NSW) 488 …. 2-13 Fitzgerald’s Settlement, Re (1887) 37 Ch D 18 …. 5-14 Fitzwood v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566 …. 13-28, 15-85, 16-20 Flatman, Re [1953] VLR 33; [1952] ALR 980 …. 10-33 Flavell, Re (1883) 25 Ch D 89; [1881–5] All ER Rep 267 …. 2-19, 2-21, 2-22, 6-12 Flavelle (dec’d), Re [1969] 1 NSWR 361 …. 23-06 Flavel’s Will Trusts, Re [1969] 2 All ER 232; [1969] 1 WLR 444 …. 10-08, 1104 Fleetwood, Re (1880) 15 Ch D 594 …. 7-18, 7-24 Fletcher v Ashburner (1779) 1 Bro CC 497; 28 ER 1259 …. 26-02 — v Collis [1905] 2 Ch 24 …. 21-22, 22-33 — v Eden Refuge Trust [2012] 2 NZLR 227 …. 13-35 — v Fletcher (1844) 4 Hare 67; 67 ER 564 …. 6-09, 6-10, 6-13, 23-03 — v Green (1864) 33 Beav 426; 55 ER 433 …. 22-05, 22-09 Flinn, Re [1948] Ch 241; [1948] 1 All ER 541 …. 10-46 Flood, Re (1912) 12 SR (NSW) 144; 29 WN (NSW) 399 …. 19-43 Flood v Williscroft [1987] 2 Qd R 358 …. 14-10 Flower and Metropolitan Board of Works, Re (1884) 27 Ch D 592 …. 17-23, 20-49 Foord, Re [1922] 2 Ch 519; [1922] All ER Rep 166 …. 2-27 Forbes v Forbes (1854) 18 Beav 552; 52 ER 216 …. 10-53 Forder, Re [1927] 2 Ch 291; [1927] All ER Rep 324 …. 9-23, 9-24

Foreman v Kingstone [2004] 1 NZLR 841 …. 17-14, 17-16 Forest of Dean Coal Mining Co, Re (1878) 10 Ch D 450 …. 17-02 Forrest, In the Will of [1913] VLR 425; [1913] ALR 414 …. 10-65 Forrest v Attorney-General (Vic) [1986] VR 187 …. 10-71, 10-74 — v Commissioner of Taxation [2010] FCAFC 6 …. 2-46 — v Forrest (1865) 11 Jur NS 317 …. 12-16 Forsaith’s Settled Estates, Re (No 3) (1903) 20 WN (NSW) 194 …. 17-06 Forshaw v Higginson (1855) 20 Beav 485; 52 ER 690 …. 15-81, 15-83, 15-84 Forster, Re [1939] Ch 22; [1938] 3 All ER 767 …. 10-39 Forster v Abraham (1874) LR 17 Eq 351 …. 15-57 — v Davies (1861) 4 De GF & J 133; 45 ER 1134 …. 15-85 — v Hale (1798) 3 Ves 696; 30 ER 1226 …. 7-03, 7-06, 7-08 — v Ridley (1864) 4 De GJ & S 452; 46 ER 993 …. 17-39 Forster-Brown, Re [1914] 2 Ch 584 …. 19-16, 20-70 Forster’s Settlement, Re [1942] Ch 199; [1942] 1 All ER 180 …. 9-26 Forster’s Settlement, Re [1954] 3 All ER 714; [1954] 1 WLR 1540 …. 17-06 Forsyth v Blundell (1973) 129 CLR 477; 1 ALR 68 …. 2-05 Foskett v McKeown [2001] 1 AC 102; [2000] 3 All ER 97 …. 23-17, 27-01, 2702, 27-03, 27-09, 27-14 Foster, Re (1890) 45 Ch D 629 …. 19-60 Foster, Re (1916) 17 SR (NSW) 42; 33 WN (NSW) 191 …. 17-05 Foster v Genowlan Shale Co (1895) 16 LR (NSW) Eq 59 …. 2-22 Foster’s Trusts, Re (1886) 55 LT 479 …. 15-49 Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203; 218 ALR 166 …. 24-05 Fouche v Superannuation Fund Board (1952) 88 CLR 609; 25 ALJR 778 …. 108, 17-18, 18-12, 18-26 Fountaine, Re [1909] 2 Ch 382; [1908–10] All ER Rep 969 …. 22-29 Fountaine v Pellet (1791) 1 Ves Jun 337; 30 ER 374 …. 19-56 Foveaux, Re [1895] 2 Ch 501 …. 10-06, 10-16

Fowkes v Pascoe (1875) LR 10 Ch App 343; [1874–80] All ER Rep 521 …. 1202, 12-10, 12-12, 12-16, 12-20, 12-21 Fowler, Re (1881) 16 Ch D 723 …. 20-31, 23-05 Fox, Re [1904] 1 Ch 480 …. 20-59 Fox v Fox (1870) LR 11 Eq 142 …. 23-04 Foxhall, Re (1847) 2 Ph 281; 41 ER 951 …. 15-46 Francis, Re (1905) 74 LJ Ch 198; [1904–7] All ER Rep 556 …. 17-49 Franklin v Green (1690) 2 Vern 137; 23 ER 696 …. 20-58 Fraser, Re (1883) 22 Ch D 827 …. 10-59 Fraser v Gough [1975] 1 NZLR 138 …. 12-18 — v Murdoch (1881) 6 App Cas 855 …. 16-14, 20-72 — v Power [2001] Aust Contract R 90–127 …. 7-08 Freeman v A-G (NSW) [1973] 1 NSWLR 729 …. 17-06 — v Fairlie (1812) 3 Mer 29; 36 ER 12 …. 17-13, 23-03 — v Pope (1870) LR 5 Ch App 538 …. 9-41, 9-45 — v Whitbread (1865) LR 1 Eq 266 …. 19-32 Freeman’s Settlement Trusts, Re (1887) 37 Ch D 148 …. 15-67, 17-39 Freeston’s Charity, Re [1978] 1 All ER 481; [1978] 1 WLR 120 …. 10-67 French, Re (1902) 19 WN (NSW) 230 …. 25-04 French v Davidson (1818) 3 Madd 396; 56 ER 550 …. 16-06, 16-09 — v French [1902] 1 IR 172 …. 7-18 French Caledonia Travel Service Pty Ltd (in liq), Re (2003) 59 NSWLR 361; 204 ALR 353 …. 17-39, 21-14, 21-15, 27-08, 27-10, 27-11 French Protestant Hospital, Re [1951] Ch 567; [1951] 1 All ER 938 …. 17-39 Friend’s Trusts, Re (1904) 21 WN (NSW) 166 …. 15-59 Frith, Re [1902] 1 Ch 342 …. 20-44, 21-12 Fry v Fry (1859) 27 Beav 144; 54 ER 56 …. 17-04, 17-19 — v Tapson (1884) 28 Ch D 268 …. 17-23 Fuller v Knight (1843) 6 Beav 205; 49 ER 804 …. 21-23 Fullwood v Hurley [1928] 1 KB 498; [1927] All ER Rep 610 …. 13-25

Funnell v Stewart [1996] 1 All ER 715; [1996] 1 WLR 288 …. 10-28, 10-33, 1044 Furs Ltd v Tomkies (1936) 54 CLR 583 …. 13-11, 13-27 Fyffes Group Ltd v Templeman [2000] 2 Lloyds Rep 643 …. 13-34 Fyler v Fyler (1841) 3 Beav 500; 49 ER 216 …. 13-34 Fysh v Page (1956) 96 CLR 233; [1956] ALR 474 …. 17-43, 22-33

G Gadd, Re (1883) 23 Ch D 134 …. 15-20, 15-86 Galligan v Maher (1902) 19 WN (NSW) 299 …. 10-67 Gamble, In the Estate of (1915) 32 WN (NSW) 121 …. 17-43, 20-70 Gamble, Re (1925) 57 OLR 504 …. 17-19 Game, Re [1897] 1 Ch 881 …. 19-10 Gandy v Gandy (1885) 30 Ch D 57 …. 2-21 Gardiner, Re [1971] 2 NSWLR 494 …. 2-32 Gardiner v Chief Commissioner of State Revenue (2004) 59 NSWLR 549 …. 6-17, 6-19 — v Downes (1856) 22 Beav 395; 52 ER 1160 …. 15-83 Gardiner’s Trusts, Re (1886) 33 Ch D 590 …. 15-58 Gardner, Re [1920] 2 Ch 523; [1920] All ER Rep 723 …. 7-19, 7-24 Gardner, Re [1923] 2 Ch 230 …. 7-19, 7-24, 7-33, 7-34, 7-35 Gardner v Rowe (1828) 5 Russ 258; 38 ER 923 …. 7-08 Gardom, Re [1914] 1 Ch 662 …. 10-17 Garnac Grain Co v HMF Fame and Fairclough Ltd and Bunge Corp [1966] 1 QB 650; [1965] 3 All ER 273 …. 2-20 Garnett, Re (1885) 31 Ch D 1 …. 22-33 Garrard, Re [1907] 1 Ch 382; [1904–7] All ER Rep 237 …. 10-46 Garrett, Re (1905) 93 LT 117 …. 9-36 Garrett v Noble (1834) 6 Sim 504; 58 ER 683 …. 16-14, 20-43 Gartside v Inland Revenue Commissioners [1968] AC 553; [1968] 1 All ER 121 …. 17-16, 23-03, 23-15

Gartside’s Estate, Re (1853) 1 WR 196 …. 14-02 Gas and Fuel Corp of Victoria v Fitzmaurice (1990) 22 ATR 10 …. 25-11 Gascoigne v Gascoigne [1916–17] All ER Rep Ext 1143; [1918] 1 KB 223 …. 12-12 Gasquoine, Re [1894] 1 Ch 470 …. 17-20, 17-30, 22-09 Gates, Re [1933] 1 Ch 913; [1931] All ER Rep 546 …. 17-40 Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (in liq) (2002) ATPR 41-864 …. 21-04, 21-07 Gaudiya Mission v Brahmachary [1998] Ch 341; [1997] 4 All ER 957 …. 10-59 GB Nathan & Co Pty Ltd (in liq), Re (1991) 24 NSWLR 674 …. 21-14 GE Capital Australia v Davis (2002) 11 BPR 20,529 …. 2-05 Geaves, Ex parte; Strahan, Re (1856) 8 De G M & G 291; 44 ER 402 …. 17-02 Geck, Re (1932) 69 LT 819 …. 10-59 Gee, Re [1948] Ch 284; [1948] 1 All ER 498 …. 17-49 Geere’s Will Trusts, Re (No 2) [1954] CLY 388 …. 10-32 Geering, Re [1964] 1 Ch 136; [1962] 3 All ER 1043 …. 20-61 Gellibrand’s Will, Re (1938) 34 Tas LR 1 …. 19-01 General Accident Assurance Corporation Ltd, Re [1904] 1 Ch 147 …. 25-03, 25-04 General Accident Fire & Life Assurance Corp Ltd v IRC [1963] 3 All ER 259; [1963] 1 WLR 1207 …. 9-24 General Communications Ltd v Development Finance Corp of New Zealand Ltd [1990] 3 NZLR 406 …. 2-16 General Credits Limited v Tawilla Pty Ltd [1984] 1 Qd R 388 …. 21-12 General Investment Pty Ltd v Tyson [1967] Tas SR 96 …. 15-77 Geologists’ Association v Inland Revenue Commissioners (1928) 14 Tax Cas 271 …. 10-31 George v Bank of England (1819) 7 Price 646; 146 ER 1089 …. 12-21 — v Fletcher (Trustee) [2010] FCAFC 53 …. 6-22 Gerbich, Re [2002] 2 NZLR 791 …. 20-59 Gerhardy v South Australian Auxiliary to the British and Foreign Bible Society

Inc (1982) 30 SASR 12 …. 10-65 German v Chapman (1877) 7 Ch D 271 …. 10-30 German Mining Co, Re (1854) 4 De G M & G 19; 43 ER 415 …. 21-06 Gertsch v Atsas (1999) 10 BPR 97,855 …. 27-14 Gertsman, Re [1966] VR 45 …. 20-57 Gertzenstein Ltd, Re [1937] Ch 115; [1936] 3 All ER 341 …. 17-41 Gibbins v Taylor (1856) 22 Beav 344; 52 ER 1140 …. 22-10 Gibbon v Mitchell [1990] 3 All ER 338; [1990] 1 WLR 1304 …. 9-36 Gibbons v Moltyard (1592) Poph 6; 79 ER 1129 …. 10-28 — v Wright (1954) 91 CLR 423; [1954] ALR 383 …. 4-06 Gibbons’ Trusts, Re (1882) 30 WR 287 …. 15-19, 15-46 Gibbs v Guild (1882) 9 QBD 59 …. 22-30 Gibson, Re [1922] VLR 715; (1922) 28 ALR 368 …. 18-37 Gibson v Bott (1802) 7 Ves 89; 32 ER 37 …. 19-10, 19-13 — v Jeyes (1801) 6 Ves 266; 31 ER 1044 …. 17-46 — v South American Stores Ltd [1950] Ch 177; [1949] 2 All ER 985 …. 10-06, 10-23, 10-24 Gilbert v Overton (1864) 2 H & M 110; 71 ER 402 …. 24-02 — v Shanahan [1998] 3 NZLR 528 …. 22-05 Gilchrist, Re (1867) 6 SCR (NSW) Eq 74 …. 21-34 Gilchrist Education Trust, Re [1895] 1 Ch 367 …. 10-28 Gill v Gill (1921) 21 SR (NSW) 400; 38 WN (NSW) 130 …. 2-35, 2-36, 13-50 Gillespie, Re [1965] VR 402 …. 10-66 Gillett v Holt [2001] Ch 210; [2000] 2 All ER 289 …. 13-11 Gillies v Keogh [1989] 2 NZLR 327 …. 12-14, 13-50 Gillim v Gillim (No 2) [2014] Fam CA 701 …. 12-10, 12-13, 12-16 Gillingham Bus Disaster Fund, Re [1958] Ch 300; [1958] 1 All ER 37 …. 10-65, 12-08 Gillingham Bus Disaster Fund, Re [1959] Ch 62; [1958] 2 All ER 749 …. 10-65 Gilmore v Uniting Church (1984) 36 SASR 475 …. 10-68

Gilmour v Coats [1949] AC 426; [1949] 1 All ER 848 …. 10-02, 10-06, 10-13, 10-34, 10-40, 10-41, 10-43, 10-44 Gilroy v Stephens (1882) 46 LT 761 …. 22-08 — v — (1882) 51 LJ Ch 834; 30 WR 745 …. 18-01 Girardet v Crease & Co (1987) 11 BCLR (2d) 361 …. 17-18 Gisborne v Gisborne (1877) 2 App Cas 300; [1874–80] All ER Rep Ext 1698 …. 13-11, 13-44, 16-06, 16-14 Giumelli v Giumelli (1999) 196 CLR 101; 161 ALR 473 …. 2-29, 3-08, 13-01, 13-02, 13-11 Gjers, Re [1899] 2 Ch 54 …. 19-56, 20-31 Gladding v Yap (1820) 5 Madd 56; 56 ER 816 …. 12-02 Gladdon v Stoneman (1815) 1 Madd 143; 56 ER 54 …. 23-04 Glandon Pty Ltd v Strata Consolidated Pty Ltd (1993) 11 ACSR 543 …. 13-27 Gleeson v Fitzpatrick (1920) 29 CLR 29 …. 21-36 — v Phelan (1914) 15 SR (NSW) 30; 32 WN (NSW) 2 …. 10-34, 10-40 Glegg v Bromley [1911–13] All ER Rep 1138; [1912] 3 KB 474 …. 24-05 Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490; 21 ALR 465 …. 1-02, 1-07, 20-70 Glennon v Federal Commissioner of Taxation (1972) 127 CLR 503 …. 17-44, 21-02 Glenorchy v Bosville (1733) Cases t Talbot 4; 25 ER 628; [1558–1774] All ER Rep 328 …. 8-10 Gliderol v Hall (2001) 80 SASR 541 …. 2-15 Global Finance Group Pty Ltd (in liq), Re (2002) 26 WAR 385 …. 27-02, 2709, 27-15 Global Funds Management (NSW) Ltd v Burns Philp Trustee Co Ltd (1990) 3 ACSR 183 …. 15-51, 15-57 Glover, Re (1902) 19 WN (NSW) 228 …. 19-24 Glover v Blumer [2008] ACTCA 1 …. 2-13 Glubb v A-G (1759) Amb 373; 27 ER 248 …. 10-35 Gluckstein v Barnes [1900] AC 240 …. 2-06, 13-28

Glyn’s Will Trusts, Re [1950] 2 All ER 1150 …. 10-20, 10-21 Gnych v Polish Club Ltd (2015) 89 ALJR 658 …. 9-02, 9-06, 9-09 Godden, Re [1893] 1 Ch 292 …. 19-14 Godfree, Re [1914] 2 Ch 110 …. 19-12, 19-21 Godfrey, Re (1883) 23 Ch D 483 …. 17-18 Godfrey v Poole (1888) 13 App Cas 497 …. 5-14 Godfrey’s Trusts, Re (1883) 23 Ch D 205 …. 15-59 Golay’s Will Trusts, Re [1965] 2 All ER 660; [1965] 1 WLR 969 …. 5-24 Gold v Hill [1999] 1 FLR 54 …. 7-24 Goldcorp Exchange Ltd, Re [1995] 1 AC 74; [1994] 2 All ER 806 …. 2-02, 215, 13-10, 13-11 Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2015) 319 ALR 151 …. 13-07 Goley v Cannon (1936) 53 WN (NSW) 223 …. 19-56 Gollin, Re [1969] 3 All ER 1591; [1969] 1 WLR 1858 …. 20-70 Gompertz v Kensit (1872) LR 13 Eq 369 …. 21-10 Good, Re [1905] 2 Ch 60; [1904–7] All ER Rep 476 …. 10-56 Goode, Re [1960] VR 117 …. 9-19, 11-08 Goodchild (decd), Re [1996] 1 All ER 670; [1996] 1 WLR 694 …. 13-42 Goodchild (decd), Re [1997] 3 All ER 63; [1997] 1 WLR 1216 …. 13-42 Goode, Re (1974) 4 ALR 579 …. 27-16 Goodenough, Re [1895] 2 Ch 537 …. 19-14 Goodenough v Tremamondo (1840) 2 Beav 512; 48 ER 1280 …. 19-21 Goodier v Edmunds [1893] 3 Ch 455 …. 20-06 Goodman v Mayor of Saltash (1882) 7 App Cas 633 …. 2-31 Goodson, Re [1971] VR 801 …. 9-32, 10-84, 11-04 Goodwin v Duggan (1996) 41 NSWLR 158 …. 21-20 — v Goodwin (1916) 16 SR (NSW) 503 …. 2-22 Goodwin’s Settlement, Re (1918) 87 LJ Ch 645 …. 22-05 Gordon, Re (1877) 6 Ch D 531 …. 15-16, 15-73

Gordon, Re [1940] 1 Ch 851 …. 2-22 Gordon v Australian & New Zealand Theatres Ltd (1940) 40 SR (NSW) 512; 57 WN (NSW) 126 …. 16-14 — v Campbell (1842) 1 Bell App 428 …. 21-03 — v Commissioner of Stamp Duties [1946] NZLR 625 …. 10-55 — v Gonda [1955] 2 All ER 762 …. 2-08 Gore v Justice Corporation (2002) 119 FCR 429; 189 ALR 712 …. 24-05 Gosling, Re (1900) 16 TLR 152 …. 10-17 Gosling, Re (1900) 48 WR 300 …. 10-23 Gosling v Gosling (1859) John 265; 70 ER 423 …. 23-08, 23-09 Goss v Chilcott [1996] AC 788; [1997] 2 All ER 110 …. 27-14 Gosselin, Re [1906] 1 Ch 120 …. 26-25 Gosset’s Settlement, Re (1854) 19 Beav 529; 52 ER 456 …. 20-58 Gottfried Banking Co, Re 312 F Supp 643 (1970) …. 27-15 Gould v Fleetwood (1732) 2 Eq Ca Abr; 22 ER 386 …. 17-39 — v O’Carroll [1964] NSWR 803; (1963) 81 WN (Pt 1) (NSW) 170 …. 15-84, 17-47 Goulding v James [1997] 2 All ER 239 …. 17-07, 23-08 Gourju’s Will Trusts, Re [1943] Ch 24; [1942] 2 All ER 605 …. 9-23, 9-26, 1616 Government Employees Superannuation Board v Martin (1997) 19 WAR 224 …. 29-20 Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2009] QB 22 …. 27-07 Gower’s Settlement, Re [1934] Ch 365; [1934] All ER Rep 796 …. 25-11 Graham, Re (1938) 55 WN (NSW) 168 …. 15-18, 15-52, 25-04 Graham, Pitt & Bennett, Re (1891) 9 NZLR 617 …. 21-02 Grange, Re [1907] 2 Ch 20 …. 26-06, 26-11 Grant, Re [1933] VLR 263 …. 19-57 Grant, Re [1979] 3 All ER 359; [1980] 1 WLR 360 …. 11-04 Grant v Edwards [1986] Ch 638; [1986] 2 All ER 426 …. 12-14, 13-50

— v Grant (1914) 14 SR (NSW) 271; 31 WN (NSW) 103 …. 20-03, 20-72 Graves v Dolphin (1826) 1 Sim 66; 57 ER 503 …. 9-19, 9-20 Gray, Re [1925] Ch 362; [1925] All ER Rep 250 …. 10-32, 10-49, 10-56 Gray v BNY Trust Company Australia Ltd (2009) 76 NSWLR 586 …. 17-16 — v Haig (1854) 20 Beav 219; 52 ER 587 …. 17-13 — v Siggers (1880) 15 Ch D 74 …. 19-06 Grayson v Grayson [1922] St R Qd 155 …. 9-19 Greasley v Cooke [1980] 3 All ER 710; [1980] 1 WLR 1306 …. 13-50 Great Eastern Railway Co v Turner (1872) LR 8 Ch App 149 …. 2-07 Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143 …. 13-02 Greater West Insurance Brokers Pty Ltd, Re (2001) 39 ACSR 301; [2001] NSWSC 825 …. 21-14 Greaves’ Settled Estates, Re [1900] 2 Ch 683 …. 20-57 Green, Re [1951] Ch 148; [1950] 2 All ER 913 …. 13-42 Green, Re [1970] VR 442 …. 10-57, 10-58 Green, Re [1985] 3 All ER 455 …. 9-29, 10-57 Green v Green (1989) 17 NSWLR 343 …. 12-14, 13-50 — v Russell [1959] 2 QB 226; [1959] 2 All ER 525 …. 2-22, 2-23 — v Spicer (1830) 1 Russ & Myl 395; 39 ER 153 …. 9-19 — v Trustees of the Property of the Church of England in Tasmania (Unreported, SC (Tas), Crawford J, 31 August 1992) …. 10-46 Green and Clara Pty Ltd v Bestobell Industries Pty Ltd [1982] WAR 1; (1982) 1 ACLC 1 …. 2-06, 13-31, 13-34 Greenhouse, Ex parte (1815) 1 Madd 92; 56 ER 36 …. 10-67, 15-86 Greenwood, Re [1901] 1 Ch 887; [1900–3] All ER Rep 97 …. 9-24 Greenwood, Re (1911) 105 LT 509 …. 17-20, 20-47 Greer, Re (1911) 11 SR (NSW) 21; 28 WN (NSW) 17 …. 17-43 Gregg v Coates (1856) 23 Beav 33; 53 ER 13 …. 2-35 Gregory v Williams (1817) 3 Mer 582; 36 ER 224 …. 2-21, 2-22 Grenfell v Deans and Canons of Windsor (1840) 2 Beav 544; 48 ER 1292 ….

24-05 Gresley v Mousley (1859) 4 De G & J 78; 45 ER 31 …. 17-46 Grey v Grey (1677) 2 Swan 594; 36 ER 742 …. 12-10, 12-16 — v Inland Revenue Commissioners [1958] Ch 375; [1958] 2 All ER 246; [1958] 2 All ER 428 …. 23-12 — v — [1958] Ch 690 …. 23-12 — v — [1960] AC 1; [1959] 3 All ER 603 …. 6-24, 7-05 Grieveson v Kirsopp (1838) 2 Keen 653; 48 ER 780 …. 26-09 Griffith, Re (1879) 12 Ch D 655 …. 19-31 Griffith v Owen [1907] 1 Ch 195; [1904–7] All ER Rep 718 …. 13-12, 13-19 — v Ricketts (1849) 7 Hare 299; 68 ER 122 …. 26-16 Griffiths, Re [1926] VLR 212; (1926) 32 ALR 917 …. 10-65 Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 …. 2-18, 13-09 — v Porter (1858) 25 Beav 236; 53 ER 627 …. 17-05 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; 287 ALR 22 …. 13-02, 13-10, 13-11, 13-22, 13-24, 13-34, 13-35, 13-36, 13-37, 13-39, 13-43, 27-05, 27-07 Grime Carter & Co Pty Ltd v Whytes Furniture (Dubbo) Pty Ltd [1983] 1 NSWLR 158; (1983) 7 ACLR 540 …. 21-14 Grindey, Re [1898] 2 Ch 593 …. 21-34, 22-13 Grissel v Money (1869) 33 LJ Ch 312 …. 21-04 Grose, Re [1949] SASR 55 …. 21-34 Grossman v E Katz Manufacturing Jewellers (ACT) Pty Ltd (2005) 213 ALR 373 …. 21-14 Grove v Search (1906) 22 TLR 290 …. 20-12 Grove-Grady, Re [1929] 1 Ch 557; [1929] All ER Rep 158 …. 10-10, 10-16, 1057 Groves v Wright (1856) 2 K & J 347; 69 ER 815 …. 19-41 Grundy, Re (1917) 117 LT 470 …. 19-31 Guazzini v Pateson (1918) 18 SR (NSW) 275; 35 WN (NSW) 106 …. 15-86, 16-14, 17-02, 17-39, 17-49

— v — (1923) 24 SR (NSW) 40; 40 WN (NSW) 142 …. 19-38 Guibert’s Trust, Re (1852) 16 Jur 852 …. 14-03 Guild v Inland Revenue Commissioners [1992] 2 AC 310; [1992] 2 All ER 10 …. 10-49 Guinness plc v Saunders [1990] 2 AC 663; [1990] 1 All ER 652 …. 13-11 Gulbenkian’s Settlement Trusts, Re [1970] AC 508; [1968] 3 All ER 785 …. 526, 5-27, 5-28, 5-29, 8-02, 16-07 Gulbenkian’s Settlements Trusts (No 2), Re [1970] Ch 408; [1969] 2 All ER 1173 …. 1-07 Gully v Cregoe (1857) 24 Beav 185; 53 ER 327 …. 5-06 Gunning v Buckfast Abbey Trustees (The Times, 9 June 1994) …. 10-67 Gunter v Commissioner of Stamp Duties (1932) 33 SR (NSW) 95 …. 5-06 Gurfinkel v Bentley (1966) 116 CLR 98 …. 2-50 Gurney, Re [1893] 1 Ch 590 …. 22-28 Guthrie v Radio Frequency Systems Pty Ltd (2000) 34 ACSR 572 …. 2-47 Gwyon, Re [1930] 1 Ch 255 …. 10-18

H H & W Wallace Ltd (in liq), Re [1994] 1 NZLR 235 …. 2-29 Haberley (decd), Re [1971] NZLR 325 …. 1-07 Habershon v Vardon (1851) 4 De G & Sm 467; 64 ER 916 …. 7-28 Hackett v Hackett [1922] NZLR 242 …. 15-86 Hadden, Re [1932] 1 Ch 133; [1931] All ER Rep 539 …. 10-49, 10-53 Hadley, Re; Ex parte Hadley (1851) 5 De G & Sm 67; 64 ER 1021 …. 15-05, 15-13 Hagan v Waterhouse (1991) 34 NSWLR 308 …. 7-03, 20-42, 22-05, 22-07, 2318, 27-08, 27-09, 27-11, 27-12 Hagger, Re [1930] 2 Ch 190; [1930] All ER Rep 620 …. 13-42 Haigh v Kaye (1872) LR 7 Ch App 469 …. 9-08 Hale v Pew (1858) 25 Beav 335; 53 ER 665 …. 20-06 Haley v Perkins [2010] NSWSC 1091 …. 12-13

Halifax Building Society v Thomas [1996] Ch 217; [1995] 4 All ER 673 …. 1311 Halifax Joint Stock Banking Co v Gledhill [1891] 1 Ch 31 …. 9-44 Hall, Re [1944] Ch 46; [1943] 2 All ER 753 …. 9-23 Hall v Busst (1960) 104 CLR 206; [1961] ALR 508 …. 9-19 — v Guardian Trust and Executors Co of New Zealand Ltd [1938] NZLR 922 …. 12-12 — v Hallet (1784) 1 Cox Eq Case 134; 29 ER 1096 …. 17-48 Hallett v Hallett (1879) 13 Ch D 232 …. 21-11 Hallett’s Estate, Re; Knatchbull v Hallett (1880) 13 Ch D 696; 1874-80 All ER Rep 793 …. 2-02, 21-10, 27-04, 27-06, 27-08, 27-09, 27-12, 27-15 Halley, Re (1959) 43 MPR 79 …. 6-21 Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545; 224 ALR 79 …. 13-07 Hallows v Lloyd (1888) 39 Ch D 686 …. 15-84, 17-01, 17-17 Hamilton, Re [1895] 2 Ch 370 …. 5-06 Hamilton v Al Fayed (No 2) [2003] QB 1175; [2002] 3 All ER 641 …. 24-05 — v Kaljo (1987) 17 NSWLR 381 …. 22-30 — v Wright (1842) 9 Cl & F 111; 8 ER 357 …. 17-47 Hamilton-Grey, Re (1938) 38 SR (NSW) 262; 55 WN (NSW) 45 …. 11-03 Hammat v Chapman (1914) 14 SR (NSW) 416 …. 5-02 Hammond, Re (1903) 3 SR (NSW) 270; 20 WN (NSW) 123 …. 16-16, 20-27, 20-43 Hammond v Hammond [2007] NSWSC 106 …. 2-34, 2-38 Hampden’s Settlement Trusts, Re [2001] WTLR 195 …. 20-58 Hampton, Re (1918) 88 LJ Ch 103 …. 15-42 Hanbey’s Will Trusts, Re [1956] Ch 244; [1955] 3 All ER 874 …. 10-71, 10-81 Hanchett v Briscoe (1856) 22 Beav 496; 52 ER 1199 …. 21-23 Hanchett-Stamford v Attorney-General [2009] Ch 173; [2008] 4 All ER 323 …. 9-32, 10-12, 11-04, 12-08 Hancock v Rinehart (2015) 106 ACSR 207 …. 3-18, 15-11, 15-57, 15-67, 17-

06, 17-13, 17-14 — v Smith (1889) 41 Ch D 456; [1886–90] All ER Rep 306 …. 27-09 — v Watson [1902] AC 14; [1900–3] All ER Rep 87 …. 12-09 Hancock Family Memorial Foundation Ltd v Porteous (1999) 32 ACSR 124 …. 12-10, 13-37, 13-39 — v — (2000) 22 WAR 198 …. 13-02, 13-11 Hann v Linton (1967) 52 LSJS 231 …. 12-16 Hanover v Bank of England (1869) LR 8 Eq 350 …. 15-51 Harari’s Settlement Trusts, Re [1949] 1 All ER 430 …. 18-02, 18-03 Harbin v Darby (1860) 28 Beav 325; 54 ER 391 …. 17-40 — v Masterman [1894] 2 Ch 184 …. 10-82 — v — [1896] 1 Ch 351; [1895–9] All ER Rep 695 …. 10-82, 20-70, 23-09 Hardaker v Moorhouse (1884) 26 Ch D 417 …. 15-07, 15-20 Harding, Re [1923] 1 Ch 182; [1922] All ER Rep 557 …. 15-07 Harding, Re [2008] Ch 235; [2007] 1 All ER 747 …. 5-29 Harding (decd), Re [2008] Ch 235; [2007] 1 All ER 747 …. 10-58 Hardoon v Belilios [1901] AC 118 …. 1-02, 21-02, 21-05, 21-06 Hardwicke v Vernon (1799) 4 Ves 411; 31 ER 209 …. 17-48 Hardy v Shaw [1976] Ch 82; [1975] 2 All ER 1053 …. 20-58 Hargrave v Newton [1971] 3 All ER 866; [1971] 1 WLR 1611 …. 12-18 Hargreaves, Re (1903) 88 LT 100; [1900–3] All ER Rep 80 …. 19-16, 19-17, 19-19 Harmer v Armstrong [1934] Ch 65; [1933] All ER Rep 778 …. 6-06 — v Federal Commissioner of Taxation (1991) 173 CLR 264; 104 ALR 117 …. 1-08, 21-30 Harnett, Re (1907) 7 SR (NSW) 463; 24 WN (NSW) 104 …. 10-40 Harnett v Yielding (1805) 2 Sch & Lef 549; [1803–13] All ER Rep 704 …. 1334 Harpur’s Will Trusts, Re [1962] Ch 78; [1961] 3 All ER 588 …. 10-65 Harrington v Atherton (1864) 2 De G J & S 352; 46 ER 411 …. 19-03 Harris, Re [1945] Ch 316; [1945] 1 All ER 702 …. 9-23

Harris v Ashdown (1985) 3 NSWLR 193 …. 9-09 — v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 …. 13-43 — v Harris (1919) 20 SR (NSW) 61; 37 WN (NSW) 10 …. 17-37, 17-38, 2118 — v — (No 1) (1861) 29 Beav 107; 54 ER 567 …. 18-04 — v King (1936) 56 CLR 177; [1937] ALR 78 …. 20-06 — v Jenkins (1922) 31 CLR 341 …. 17-42, 17-47 — v Rothery [2013] NSWSC 1275 …. 3-20 — v Skevington [1978] 1 NSWLR 176 …. 10-68 — v Tubb (1889) 42 Ch D 79 …. 9-44 Harris’ Settlement, Re (1940) 162 LT 358 …. 20-62 Harrison v Mills [1976] 1 NSWLR 42 …. 21-34 — v Randall (1852) 9 Hare 387; 68 ER 562 …. 17-04 — v Southampton Corp (1854) 2 Sm & G 387; 65 ER 448 …. 10-31 — v Thexton (1858) 4 Jur NS 550 …. 18-09 — v Walker (1792) Peake 150; 170 ER 111 …. 27-04 Harrison Jones & Devlin v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266 …. 21-34 Harrison’s Settlement Trusts, Re [1965] 3 All ER 795; [1965] 1 WLR 1492 …. 15-53 Harrison’s Trusts, Re (1852) 22 LJ Ch 69 …. 14-03, 15-18 Harrods v Stanlon [1923] 1 KB 516; [1923] All ER Rep 592 …. 9-44 Harrop’s Trusts, Re (1883) 24 Ch D 717 …. 15-59 Hart, Re [1954] VLR 239; [1954] ALR 552 …. 17-06 Hart v Brewer (1595) Cro Eliz 449 …. 10-35 — v Denham [1871] WN 2 …. 23-05 Hart (decd), Re (1972) 3 SASR 147 …. 10-21, 10-82 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 …. 16-10, 16-14, 17-15, 17-16, 21-34 Harvard Securities Ltd, Re [1997] 2 BCLC 369 …. 5-24

Harvell v Foster [1954] 1 All ER 851 …. 2-40 — v — [1954] 2 QB 367; [1954] 2 All ER 736 …. 2-40, 15-03 Harvey, Re [1941] 3 All ER 284 …. 17-06 Harvey v Olliver (1887) 57 LT 239 …. 15-43, 17-01 Hasham v Zenab [1960] AC 316 …. 13-07 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; 311 ALR 494 …. 3-08, 13-02, 13-35, 13-39, 22-12 Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd & Ball (1952) 86 CLR 513; [1953] ALR 77 …. 19-01, 19-22, 19-31, 19-58 Hastie, Re (1887) 35 Ch D 728 …. 9-09 Hastings-Bass, Re [1975] Ch 25; [1974] 2 All ER 193 …. 16-12 Hatch, Re [1919] 1 Ch 351 …. 17-38 Hatton, Re [1917] 1 Ch 357 …. 19-39 Hatton v May (1876) 3 Ch D 148 …. 9-19 Hauxwell v Barton-Upon-Umber Urban District Council [1974] Ch 432; [1973] 2 All ER 1022 …. 10-67 Hawkesley v May [1956] 1 QB 304; [1955] 3 All ER 353 …. 17-15 Hawkins, Re (1906) 22 TLR 521 …. 10-28 Hawkins, Re (1915) 15 SR (NSW) 199; 32 WN (NSW) 47 …. 19-38 Hawkins v Barkley-Brown (No 2) [2010] NSWSC 395 …. 21-11 — v Clayton (1988) 164 CLR 539; 78 ALR 69 …. 17-15 — v Hawkins (1920) 20 SR (NSW) 550; 37 WN (NSW) 177 …. 19-38, 19-40 Hayes’ Will Trusts, Re [1971] 2 All ER 341; [1971] 1 WLR 758 …. 2-40, 17-39 Hayim v Citibank NA [1987] AC 730 …. 1-06, 16-18, 23-03, 23-13 Hayman v Equity Trustees Ltd (2003) 8 VR 557 …. 21-02, 21-04 Hayne’s Will Trusts, Re [1949] Ch 5; [1948] 2 All ER 423 …. 9-23 Hay’s Settlement Trusts, Re [1981] 3 All ER 786; [1982] 1 WLR 202 …. 2-46, 5-29, 16-06, 16-07 Hayward, Re [1934] SASR 364 …. 19-01 Hayward, Re [1957] Ch 528; [1957] 2 All ER 474 …. 20-58 Hazeldine, Re [1918] 1 Ch 433 …. 19-13

Hazeldine’s Trusts, Re [1908] 1 Ch 34; [1900–3] All ER Rep Ext 1134 …. 17-05 Hazell v Hazell [1972] 1 All ER 923; [1972] 1 WLR 301 …. 12-18 Hazlewood v Webber (1934) 52 CLR 268; [1935] ALR 76 …. 20-36 HCK China Investments Ltd v Solar Honest Ltd (1999) 165 ALR 680 …. 1201 He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449 …. 13-36 Head v Gould [1898] 2 Ch 250 …. 15-84, 18-30, 21-20 Headrick’s Will, Re [1953] QWN 23 …. 1-08 Head’s Trustees and Macdonald, Re (1890) 45 Ch D 310 …. 20-02 Heard v Pilley (1869) LR 4 Ch App 548 …. 12-10, 12-13 Heath v Chapman (1854) 2 Drew 417; 61 ER 781 …. 10-63, 10-64 Heazlewood v Joie de Vivre Canterbury Ltd [2015] NZCA 213 …. 5-04 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 …. 17-17 Heid v Reliance Finance Corp (1983) 154 CLR 326; 49 ALR 229 …. 13-32 Heitman v Guardian Assurance Co Ltd (1992) 7 ANZ Ins Cases 61-107 …. 2955 Helena Partnerships Ltd v Revenue and Customs Commissioners (AG intervening) [2012] 4 All ER 111 …. 10-58 Helvetic Investment Corp Pty Ltd v Knight (1982) 7 ACLR 225 …. 21-03 — v — (1984) 9 ACLR 773 …. 21-03 Henderson, Re [1940] Ch 368; [1940] 1 All ER 623 …. 19-28, 19-29, 19-33, 1934 Henderson, Re [1940] Ch 764; [1940] 3 All ER 295 …. 15-56, 15-85, 15-86 Henderson v Cross (1861) 29 Beav 216; 54 ER 610 …. 5-24 — v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 All ER 506 …. 13-30, 17-18 — v M’Iver (1818) 3 Mod 275; 56 ER 510 …. 17-13 — v Woodroofe [1921] NZLR 411 …. 17-44 Henderson’s Trusts, Re [1969] 3 All ER 769; [1969] 1 WLR 651 …. 20-62 Hendry v Hendry [1960] NZLR 48 …. 12-11

Hendy Lennox (Industrial Engines) Ltd v Grahame Puttick Ltd [1984] 2 All ER 152; [1984] 1 WLR 485 …. 2-47 Heneker v Heneker [1954] SASR 181 …. 12-10 Hengler, Re [1893] 1 Ch 586 …. 19-45, 19-51 Henry, Re [1907] 1 Ch 30 …. 19-53 Henry v Hammond [1913] 2 KB 515; [1911–13] All ER Rep Ext 1478 …. 13-22 Hepburn v A Tomlinson (Hauliers) Ltd [1966] AC 451; [1966] 1 All ER 418 …. 2-20 Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; 258 ALR 727 …. 13-10, 23-20, 27-07 Hepworth v Hepworth (1963) 110 CLR 309; [1964] ALR 259 …. 12-12 Herbert v Badgery (1894) 15 LR (NSW) Eq 236; 11 WN (NSW) 113 …. 20-72 Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 …. 1-06, 315, 5-24, 5-28, 8-04 Herring, Ex parte (1880) 1 LR (NSW) Eq 12 …. 25-04 Herrod v Johnston [2013] 2 Qd R 102 …. 22-08 Heseltine v Heseltine [1971] 1 All ER 952; [1971] 1 WLR 342 …. 12-18, 13-46 Hespe v Surfers Paradise Forests Ltd (1985) 10 ACLR 182 …. 20-51 Hetherington (decd), Re [1990] Ch 1; [1989] 2 All ER 129 …. 10-10, 10-40 Hetherington’s Trusts, Re (1886) 34 Ch D 211 …. 15-35 Hetley, Re [1902] 2 Ch 866; [1900–3] All ER Rep 292 …. 7-24 Hetling and Merton’s Contract, Re [1893] 3 Ch 269 …. 17-31 Hewett, Re [1918] 1 Ch 458; [1918–19] All ER Rep 530 …. 9-13 Hewett v Court (1983) 149 CLR 639; 46 ALR 87 …. 2-29 Hewitt v Morris (1824) T & R 241; 37 ER 1090 …. 19-10 Hewson v Sydney Stock Exchange Ltd [1968] 2 NSWR 224; (1967) 87 WN (Pt 1) (NSW) 422 …. 17-42 Heydon v Gell (1900) 21 LR NSW (Eq) 265 …. 23-06 — v Perpetual Executors & Agency Co (WA) Ltd (1930) 45 CLR 111; 37 ALR 65 …. 12-10 Hey’s Settlement Trust and Will Trusts, Re [1945] Ch 294; [1945] 1 All ER 618

…. 19-14, 19-15 Heywood v Pryor (1905) 23 WN (NSW) 44 …. 17-44 Heyworth’s Contingent Reversionary Interest, Re [1956] Ch 364; [1956] 2 All ER 21 …. 17-07, 25-11 Hicks v Trustees Executors and Agency Co Ltd (1900) 26 VLR 339 …. 22-01 Higginbottom, Re [1892] 3 Ch 132; [1891–4] All ER Rep 1070 …. 15-19, 23-13 Higgins v Wingfield [1987] VR 689 …. 12-14, 13-50 Higginson, Re [1899] 1 QB 325; [1895–9] All ER Ext 1565 …. 12-07 Higinbotham v Holme (1812) 19 Ves 88; 34 ER 451 …. 9-20 Hilder v Church of England Deaconess’ Institution Sydney Ltd [1973] 1 NSWLR 506 …. 10-22 Hilditch (decd), Re (1985) 39 SASR 469 …. 10-09 Hill, Re [1923] 2 Ch 259 …. 5-07, 5-10 Hill, Re [1934] Ch 623; [1934] All ER Rep 617 …. 17-40 Hill v Crook [1874–80] All ER Rep 62; (1873) LR 6 HL 265 …. 9-09 — v Hill [1897] 1 QB 483 …. 5-08 — v — (1901) 1 SR (NSW) Eq 228; 18 WN (NSW) 298 …. 20-43 — v Permanent Trustee Co of NSW Ltd [1930] AC 720; [1930] All ER Rep 87 …. 19-36, 19-37, 19-38 — v — (1933) 33 SR (NSW) 527; 50 WN (NSW) 209 …. 20-51 Hilliard v Fulford (1876) 4 Ch D 389; [1874–80] All ER Rep 247 …. 17-35 Hillier, Re [1944] 1 All ER 480 …. 10-55 Hillier, Re [1954] 2 All ER 59; [1954] 1 WLR 700 …. 12-07, 12-08 Hill’s Trusts, Re [1874] WN 228 …. 14-03 Hillsdown Holdings plc v Pensions Ombudsman [1997] 1 All ER 862 …. 8-03, 29-55 Hilton, Re [1909] 2 Ch 548 …. 16-16, 18-34 Hilton v Barker Booth & Eastwood [2005] 1 All ER 651; [2005] 1 WLR 567 …. 16-01, 17-18 Hindley v Westmeath (1827) 6 B & C 200; 108 ER 427 …. 9-10 Hinsch, In the Will of (1896) 17 LR (NSW) B & P 21 …. 20-70

Hinton, Ex parte (1808) 14 Ves 598; 33 ER 650 …. 9-19 Hinves v Hinves (1844) 3 Hare 609; 67 ER 523 …. 19-04 Hirst, Re [1954] St R Qd 344 …. 16-14 Hitch v Leworthy (1842) 2 Hare 200; 67 ER 83 …. 16-14 Hixon v Campbell (1924) 24 SR (NSW) 436; 41 WN (NSW) 104 …. 10-71 Hoare v Hoare (1886) 56 LT 147; [1886–90] All ER Rep 553 …. 10-35 — v Osborne (1866) LR 1 Eq 585; [1861–73] All ER Rep 675; 78 ER 688 …. 10-14, 10-35, 10-36, 10-38, 10-63 Hobbs v Wayet (1887) 36 Ch D 256 …. 21-05 Hobday v A-G (NSW) [1982] 1 NSWLR 160 …. 17-39 — v Peters (No 1) (1860) 28 Beav 349; 54 ER 400 …. 17-46 Hobkirk v Ritchie (1934) 29 Tas LR 14 …. 15-57, 15-86 Hobson’s Settlement, Re (1899) 25 VLR 370 …. 17-40 Hobourn Aero Components Ltd’s Air Raid Distress Fund, Re [1946] Ch 194; [1946] 1 All ER 501 …. 10-06, 10-18 Hockin v Bank of British Columbia (1990) 71 DLR (4th) 11 …. 29-56 Hoddel v Pugh (1864) 33 Beav 489; 55 ER 458 …. 26-07 Hodge, Re [1940] Ch 260 …. 2-36 Hodge, Re [1960] SASR 237 …. 10-70 Hodges v Waters (No 7) (2015) 232 FCR 97 …. 21-34 Hodges, Re (1878) 7 Ch D 754 …. 16-14, 20-63 Hodson’s Settlement, Re (1851) 9 Hare 118; 68 ER 439 …. 15-19, 15-85 Hoey, Re [1994] 2 Qd R 510 …. 10-49 Hogarth v Hogarth (1894) 15 LR (NSW) Eq 93 …. 8-07 Hogden v Hogden (1956) 74 WN (NSW) 67 …. 2-31 Hohler v Aston [1920] 2 Ch 420 …. 2-20 Hohol v Hohol [1981] VR 221 …. 12-14 Holder v Holder [1968] Ch 353; [1968] 1 All ER 665 …. 17-44 Holding and Management Ltd v Property Holding and Investment Trust plc [1989] 1 WLR 1313 …. 21-09

Holland, Re [1902] 2 Ch 360 …. 7-08, 9-42 Holland v Administrator of German Property [1937] 2 All ER 807 …. 22-12, 22-16 — v Hughes (1809) 16 Ves 111; 32 ER 926 …. 19-06 Hollebone, Re [1919] 2 Ch 93; [1918–19] All ER Rep 323 …. 19-14 Hollis v Burton [1892] 3 Ch 226 …. 23-03 Hollole, Re [1945] VLR 295; [1946] ALR 78 …. 5-29, 10-65 Holloway v Radcliffe (1857) 23 Beav 163; 53 ER 64 …. 26-22 Holmes v Dring (1788) 2 Cox Eq Cas 1; 30 ER 1 …. 18-05 — v Holmes (1906) 28 ALT 22 …. 19-60 — v Penny (1857) 3 K & J 90; 69 ER 1035 …. 9-42 Holroyd v Marshall (1862) 10 HLC 191; 11 ER 99 …. 24-04 Holt, Re [1897] 2 Ch 525 …. 21-28 Holt v Heatherfield Trust Ltd [1942] 2 KB 1; [1942] 1 All ER 404 …. 6-20 Holt’s Settlement, Re [1969] 1 Ch 100; [1968] 1 All ER 470 …. 17-07 Homemaker Retail Management Ltd, Re (2001) 187 ALR 520 …. 21-34 Homestake Gold of Australia v Peninsular Gold Pty Ltd (1996) 20 ACSR 67 …. 4-02 Homeward Bound Gold Mining Co NL v McPherson (1897) 14 WN (NSW) 99; 17 NSWR 281 …. 13-41 Honeyfield v Honeyfield [1933] NZLR 183 …. 12-12 Honywood v Honywood [1902] 1 Ch 347 …. 19-53 Hood, Re [1931] 1 Ch 240; [1930] All ER Rep 215 …. 10-33, 10-58, 10-63, 1064 Hood, Re (1939) 40 SR (NSW) 449; 57 WN (NSW) 175 …. 19-31, 19-34 Hood v Clapham (1854) 19 Beav 90; 52 ER 282 …. 19-03, 19-20 — v Oglander (1865) 34 Beav 513; 55 ER 733 …. 9-19 Hood’s Will, Re (1899) 16 WN (NSW) 20 …. 15-72 Hooper, Re [1932] 1 Ch 38; [1931] All ER Rep 129 …. 11-03, 11-08 Hope v D’Hedouville [1893] 2 Ch 361 …. 19-09 Hope-Johnstone, Re [1904] 1 Ch 470 …. 9-10

Hope’s Will Trust, Re [1929] 2 Ch 136; [1929] All ER Rep 561 …. 17-06 Hopkins Trusts, Re (1874) LR 18 Eq 696 …. 19-38 Hopkins’ Will Trusts, Re [1965] Ch 669; [1964] 3 All ER 46 …. 10-26, 10-29 Hopkinson, Re [1949] 1 All ER 346 …. 10-29 Horan, Re (1936) 53 WN (NSW) 146 …. 15-03 Horan v James [1982] 2 NSWLR 376 …. 5-28 Hordern v Bull (1905) 5 SR (NSW) 518; 22 WN (NSW) 163 …. 17-44 Hordern v Hordern [1910] AC 465 …. 16-20, 17-39, 17-44 Horn, Re [1924] 2 Ch 222 …. 19-61 Horne, Re [1905] 1 Ch 76 …. 17-37 Horne v Horne (1906) 26 NZLR 1208 …. 20-11 Hornsby v Playoust (2005) 11 VR 522 …. 17-06 Horsley & Weight Ltd, Re [1982] Ch 442; [1982] 3 All ER 1045 …. 13-27 Horsnaill, Re [1909] 1 Ch 631 …. 23-11 Horton v Jones (1935) 53 CLR 475; [1935] ALR 177 …. 13-42, 23-10 — v Public Trustee [1977] 1 NSWLR 182 …. 9-04 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 …. 4-03 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; 55 ALR 417 …. 1-02, 2-02, 2-06, 2-09, 2-50, 13-01, 13-04, 13-10, 13-11, 1330, 13-31, 13-34, 13-38, 13-43, 17-42, 27-05 Hostick v New Zealand Railway & Locomotive Society Waikata Branch Inc [2006] 3 NZLR 842 …. 12-10 Hotchkys, Re (1886) 32 Ch D 408; [1886–90] All ER Rep 1104 …. 19-56, 2030, 20-31, 20-33 Hotham, Re [1902] 2 Ch 575 …. 20-16 Houghton, Re [1904] 1 Ch 622; [1904–7] All ER Rep 486 …. 2-43, 20-48 Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619; [1934] ALR 283 …. 2-27, 2-31, 22-29, 22-33 House v Caffyn [1922] VLR 67; (1921) 28 ALR 3 …. 12-20 Houston, Re [1954] St R Qd 130 …. 12-03 Houston v Burns [1918] AC 337; [1918–19] All ER Rep 817 …. 10-61, 10-63

How v Earl Winterton [1896] 2 Ch 626 …. 22-27, 22-28, 22-29 — v — (1902) 51 WR 262 …. 21-07 Howard v Papera (1815) 1 Madd 142; 56 ER 54 …. 23-05 — v Rhodes (1837) 1 Keen 581; 48 ER 431 …. 15-83 Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821; [1974] 1 All ER 1126 …. 13-27 Howden v Yorkshire Miners’ Association [1903] 1 KB 308 …. 23-03, 23-04 Howe v Lord Dartmouth (1802) 7 Ves 137; 32 ER 56 …. 19-02, 19-03, 19-04, 19-05, 19-07, 19-08, 19-09, 19-10, 19-11, 19-14, 19-21, 20-03 Howell v Hyde (2003) 47 ACSR 230 …. 7-16, 7-18 Howes, Re [1971] 2 NSWLR 387 …. 20-61 Hoyle, Re [1893] 1 Ch 84 …. 7-08 Hoyles, Re [1912] 1 Ch 67; [1908–10] All ER Rep Ext 1107 …. 19-03, 19-25 Hubbuck, Re [1896] 1 Ch 754 …. 19-62 Hudson v Cook (1872) LR 13 Eq 417 …. 26-07 — v Gray (1927) 39 CLR 473 …. 23-07 Huen v Official Receiver (2008) 248 ALR 1 …. 13-11, 13-51 Hughes v Fripp (1922) 30 CLR 508; 28 ALR 278 …. 19-43 — v Howard (1858) 25 Beav 575; 53 ER 756 …. 13-18 — v Key (1855) 20 Beav 395; 52 ER 655 …. 21-10 — v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 …. 21-32, 21-34 Hughs-Hallett v Indian Mammoth Gold Mines Co (1882) 22 Ch D 561 …. 2105 Hulkes, Re (1886) 33 Ch D 552; [1886–90] All ER Rep 659 …. 17-35 Hull v Christian (1874) LR 17 Eq 546 …. 17-39 Hulme v Hulme (1833) 2 My & K 682; 39 ER 1105 …. 15-22 Hummeltenberg, Re [1923] 1 Ch 237; [1923] All ER Rep 49 …. 10-04, 10-10, 10-15, 10-28 Hunt v McLaren [2006] WTLR 1817 …. 11-04 — v Severs [1994] 2 AC 350; [1994] 2 All ER 385 …. 13-09

Hunter v A-G [1899] AC 309; [1895–9] All ER Rep 558 …. 10-63 — v Bullock (1872) LR 14 Eq 45 …. 9-07, 10-61 — v Hunter [1937] NZLR 794 …. 15-86 — v — [1938] NZLR 520 …. 15-85 — v Moss [1994] 3 All ER 215; [1994] 1 WLR 452 …. 5-24 — v Public Trustee [1924] NZLR 882 …. 5-02 Hurley’s Settled Estates, Re (1920) 37 WN (NSW) 88 …. 25-10 Hurst, Re (1892) 67 LT 96 …. 17-11, 17-18, 22-12 Hurst v Bryk [1999] Ch 1; [1997] 2 All ER 283 …. 21-05 Hussey’s Charities, Re (1861) 7 Jur (NS) 325 …. 10-39 Hutchings v Snowden (1897) 23 VLR 118; 3 ALR 1670 …. 18-26 Hutchinson, Re [1953] Ch 387; [1953] 1 All ER 996 …. 10-84, 10-85 Hutter, Re [1965] NZLR 1008 …. 17-07 Huxtable, Re [1902] 2 Ch 793; [1900–3] All ER Rep 799 …. 7-15, 7-33, 10-61 Hyett v Mekin (1884) 25 Ch D 735 …. 26-06 Hyman v Permanent Trustee Co of NSW Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 …. 20-72

I ICI New Zealand Ltd v Agnew [1998] 2 NZLR 129 …. 2-47, 2-51 Ideal Bedding Co Ltd v Holland [1907] 2 Ch 157 …. 9-45 Ierino v Gutta (2012) 43 WAR 372 …. 13-10, 27-07 Iffla v Beany (1881) 1 W & W (E) 110 …. 15-18 Imobilari Pty Ltd v Opes Price Stockbroking Ltd (in liq, recs and mgrs apptd) (2008) 252 ALR 41 …. 13-39 Imperial Foods Pension Scheme, Re [1986] 2 All ER 802; [1986] 1 WLR 717 …. 29-57 Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597; [1991] 1 WLR 589 …. 8-03, 29-49, 29-53, 29-54, 29-55, 29-57 In de Braekt v Powell (2007) 33 WAR 389 …. 13-02, 22-25 Income Tax Acts (No 1), Re [1930] VLR 211; (1930) 36 ALR 192 …. 10-07

Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531; [1891–4] All ER Rep 28 …. 10-01, 10-02, 10-04, 10-06, 10-12, 10-23, 10-30, 10-57 Incorporated Council of Law Reporting for England & Wales v A-G [1972] Ch 73; [1971] 3 All ER 1029 …. 10-03, 10-27, 10-58 Incorporated Council of Law Reporting of Queensland v Federal Commissioner of Taxation (1924) 34 CLR 580 …. 10-27 — v — (1971) 125 CLR 659; [1972] ALR 127 …. 10-03, 10-27, 10-58 Independent Trustee Services Ltd v G P Noble Trustees Ltd [2013] Ch 91; [2012] 3 All ER 210 …. 13-02, 13-09 Industrial Development Consultants Ltd v Cooley [1972] 2 All ER 162; [1972] 1 WLR 443 …. 2-07, 13-27 Inge v Inge (1990) 3 ACSR 63 …. 13-27 Ingram, Re [1951] VLR 424; [1951] ALR 900 …. 10-57, 10-69 Ingram v Ingram [1941] VLR 95; [1941] ALR 120 …. 12-11, 13-50 Inland Revenue Commissioners v Baddeley [1955] AC 572; [1955] 1 All ER 525 …. 10-11, 10-47, 10-56 — v Bernstein [1961] Ch 399; [1961] 1 All ER 320 …. 20-61, 20-62 — v City of Glasgow Police Athletic Association [1953] AC 380; [1953] 1 All ER 747 …. 10-49 — v Educational Grants Association [1967] Ch 993; [1967] 2 All ER 893 …. 10-08 — v Fisher [1926] AC 395 …. 19-40 — v Glasgow Musical Festival Association SC 920 [1926] …. 10-31 — v Holmden [1968] AC 685; [1968] 1 All ER 148 …. 17-07 — v McMullen [1981] AC 1; [1980] 1 All ER 884 …. 10-32 — v National Anti-Vivisection Society [1946] 1 KB 185; [1946] 1 All ER 205 …. 10-16 — v Peeblesshire Nursing Association SC 215 (1927) …. 10-55 — v Raphael [1935] AC 96 …. 5-02 — v Silverts Ltd [1951] Ch 521; [1951] 1 All ER 703 …. 22-03 — v Temperance Council of Christian Churches of England and Wales (1926) 136 LT 27 …. 10-58

— v Yorkshire Agricultural Society [1928] 1 KB 611 …. 10-03 Inman, Re (1914) 59 Sol Jo 161 …. 19-21 Inman (decd), Re [1965] VR 238 …. 10-16, 10-21, 10-57, 10-66 Institution of Civil Engineers v Inland Revenue Commissioners [1932] 1 KB 149; [1931] All ER Rep 454 …. 10-31 International Art Holdings Pty Ltd (admin apptd), Re (2011) 85 ACSR 1 …. 21-34 International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 …. 2-10 International Sales & Agencies Ltd v Marcus [1982] 3 All ER 551 …. 13-37 International Vending Machines Pty Ltd and the Companies Act 1961, Re [1962] NSWR 1408; (1961) 80 WN (NSW) 465 …. 2-07, 22-14 Interwest Hotels Pty Ltd (in liq), Re (1993) 12 ACSR 78 …. 21-03 Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd (2006) 15 VR 87 …. 29-18, 29-21 Investa Properties Ltd, Re (2001) 187 ALR 462 …. 3-10, 22-12, 22-14 Isaac v Wall (1877) 6 Ch D 706 …. 13-43 Irismay Holdings Pty Ltd, Re [1996] 1 Qd R 172 …. 20-48 Ironmongers’ Co v A-G (1844) 10 Cl & F 908; 8 ER 983 …. 10-69, 10-73 Irons v Smallpiece (1819) 2 B & Ald 551; 106 ER 467 …. 12-21 Irving v Irving (1901) 18 WN (NSW) 63 …. 17-44 Irvine v Sullivan (1869) LR 8 Eq 673 …. 7-32, 12-02 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 59 NSWLR 196; 53 ATR 527 …. 3-13, 7-09, 7-13, 24-02

J J Leslie Engineers Co Ltd, Re [1976] 2 All ER 85; [1976] 1 WLR 292 …. 27-13 JA Pty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691 …. 21-02, 21-06 Jack v Smail (1905) 2 CLR 684; 11 ALR 372 …. 9-39 Jackson v Crosby (No 2) (1979) 21 SASR 280 …. 13-50 — v Dickinson [1903] 1 Ch 947 …. 21-20

— v Horizon Holidays Ltd [1975] 3 All ER 92; [1975] 1 WLR 1468 …. 2-20, 221 Jacob, Re (1897) 16 NZLR 52 …. 5-24 Jaffray v Marshall [1994] 1 All ER 143; [1993] 1 WLR 1285 …. 22-05 James, Ex parte (1803) 8 Ves 337; 32 ER 385 …. 17-44, 17-45 James, Re [1949] SASR 143; [1949] ALR 637 …. 17-43 James v Dean (1805) 11 Ves 383; 32 ER 1135 …. 13-43 — v Gammon (1846) 15 LJ Ch 217 …. 19-03, 19-07 — v Smith [1891] 1 Ch 384 …. 13-25 — v Williams [2000] Ch 1; [1999] 3 All ER 309 …. 13-03 James N Kirby Foundation Ltd v A-G (NSW) (2004) 62 NSWLR 276 …. 1705, 17-06 James Roscoe (Bolton) Ltd v Winder [1915] 1 Ch 62 …. 27-09, 27-15 Jarvis v Duke (1681) 1 Vern 19; 23 ER 274 …. 9-13 Jarvis (dec’d), Re [1958] 2 All ER 336; [1958] 1 WLR 815 …. 13-11, 13-31 Jasmine Trustees Ltd v Wells & Hind (a firm) [2008] Ch 194; [2007] 1 All ER 1142 …. 13-02, 22-25 Jeffery, Re [1951] SASR 237 …. 7-21 Jeffray v Webster (1895) 17 ALT 72 …. 21-04 Jeffrey Estate v Rowe (1989) 36 ETR 217 …. 17-19 Jeffries, Re [1936] 2 All ER 626 …. 10-82 Jenkins, Re [1915] 1 Ch 46 …. 9-26 Jenkins v Milford (1820) 1 J & W 629; 37 ER 508 …. 23-02 Jenkins v Wynen [1992] 1 Qd R 40 …. 12-10 Jenkins and Randall & Co’s Contract, Re [1903] 2 Ch 362 …. 20-04 Jenkins’ Will Trusts, Re [1966] Ch 249; [1966] 1 All ER 926 …. 10-68 Jenner v Turner (1880) 16 Ch D 188 …. 9-13 Jenner and Keighran’s Contract, Re [1925] VLR 283 …. 17-23 Jennings v Mather [1901] 1 KB 108 …. 21-04 — v — [1902] 1 KB 1 …. 21-02, 21-04

Jenyns v Public Curator (Qld) (1953) 90 CLR 113 …. 17-47 Jesus College Case (1615) Duke ed Bridgman 363 …. 10-28 Jessopp v Watson (1833) 1 My & K 665; 39 ER 832 …. 26-17 Jessup v Queensland Housing Commission [2002] 2 Qd R 270 …. 2-11 Jetivia SA v Bilta (UK) Ltd [2015] 2 All ER 1083; [2015] 2 WLR 1168 …. 2-03, 9-02, 9-08 Jewell’s Settlement, Re [1919] 2 Ch 161; [1918–19] All ER Rep 1161 …. 21-11 Jex-Blake, Re [1939] NZLR 256 …. 19-45 Joaquin v Hall [1976] VR 788 …. 12-10 Job v Job (1877) 6 Ch D 562 …. 17-35 Jobson v Palmer [1893] 1 Ch 71 …. 17-30, 17-35, 22-17 Joel v Mills (1857) 3 K & J 458; 69 ER 1189 …. 9-19 John v Dodwell [1918] AC 563 …. 23-18 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; 266 ALR 462 …. 13-02, 13-11 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334 …. 9-19 Johns v James (1878) 8 Ch D 744 …. 5-14 Johnson, Re (1880) 15 Ch D 548 …. 21-02, 21-04, 21-12, 21-15 Johnson, Re [1904] 1 KB 134 …. 9-26 Johnson, Re [1939] 2 All ER 458 …. 5-07 Johnson v Baber (1845) 8 Beav 233; 50 ER 91 …. 17-04 — v Ball (1851) 5 De G & Sm 85; 64 ER 1029 …. 7-35 — v Buttress (1936) 56 CLR 113; [1936] ALR 390 …. 9-36 — v Routh (1857) 27 LJ Ch 305 …. 19-03, 19-14 Johnson’s Will Trusts, Re [1967] 1 All ER 553 …. 9-14 Johnston, Re (1906) 25 NZLR 564 …. 13-07 Johnston v Johnston (1884) 52 LT 76 …. 9-36 — v — (1903) 4 SR (NSW) 8; 20 WN (NSW) 271 …. 17-39, 18-02 — v Moore (1858) 27 LJ Ch 453 …. 19-21

Johnstone v Johnstone (1902) 2 SR (NSW) Eq 90 …. 15-59 Jones, Re (1883) 49 LT 91 …. 18-01 Jones, Re [1917] St R Qd 74 …. 21-07 Jones, Re (1929) 45 TLR 259 …. 10-29 Jones, Re (1929) 30 SR (NSW) 26; 46 WN (NSW) 190 …. 19-03, 19-21 Jones, Re [1932] 1 Ch 642; [1932] All ER Rep 804 …. 20-60 Jones, Re [1942] Ch 238; [1942] 1 All ER 642 …. 7-21, 7-24 Jones, Re; Ex parte Mayne (1953) 16 ABC 169 …. 2-11, 27-09 Jones v Bouffier (1911) 12 CLR 579 …. 13-22 — v Davies (1878) 8 Ch D 205 …. 26-11 — v Foxhall (1852) 15 Beav 388; 51 ER 588 …. 22-06, 22-08 — v Gordon (1877) 2 App Cas 616 …. 13-36, 16-08 — v Higgins (1866) LR 2 Eq 538 …. 22-33 — v Julian (1890) 25 LR Ir 54 …. 18-26 — v Kernott [2012] 1 AC 776; [2012] 1 All ER 1265 …. 12-18, 13-54 — v Krawczyk [2011] NSWSC 139 …. 9-14 — v Lewis (1751) 2 Ves Sen 240; 28 ER 155 …. 17-35 — v Lock (1865) 1 Ch App 25 …. 7-05 — v Ogle (1872) LR 8 Ch App 192; [1861–73] All ER Rep 919 …. 19-42 — v Parkinson [1952] NZLR 89 …. 12-10 — v Shipping Federation of British Columbia (1963) 37 DLR (2d) 273 …. 1613 — v T Eaton Co (1973) 35 DLR (3d) 97; [1973] SCR 635 …. 10-09, 10-63 — v Turner (1904) 4 SR (NSW) 368; 21 WN (NSW) 125 …. 20-30, 20-32, 20-33 — v Williams (1767) Amb 651; 27 ER 422 …. 10-53 Jones & Sons (Trustee) v Jones [1997] Ch 159; [1996] 4 All ER 721 …. 27-04 Joscelyne, Re [1963] Tas SR 4 …. 27-09 Joseph Rowntree Memorial Trust Housing Association Ltd v A-G [1983] Ch 159; [1983] 1 All ER 288 …. 10-10, 10-22

Josselyn v Josselyn (1837) 9 Sim 63; 59 ER 281 …. 23-09 Jowitt, Re [1922] 2 Ch 442; [1922] All ER Rep 331 …. 19-31 Joy, Re (1888) 60 LT 175; [1886–90] All ER Rep 1111 …. 10-43, 10-44 Joyce v Ashfield Municipal Council (1959) 4 LGRA 195 …. 10-05 — v — [1975] 1 NSWLR 744 …. 10-44 Jubilee Cotton Mills Ltd v Lewis [1924] AC 958 …. 2-02 Judd’s Contract, Re [1906] 1 Ch 684 …. 20-12 Judkin, Re (1884) 25 Ch D 743; [1881–5] All ER Rep 979 …. 20-60 Jury, Re (1999) 92 FCR 68 …. 9-40 Juul v Northey [2010] NSWCA 211 …. 15-85 J W Broomhead (Vic) Pty Ltd (in liq) v J W Broomhead Pty Ltd [1985] VR 891 …. 3-13, 5-02, 15-73, 21-05 JWH Group Pty Ltd v Kimpura Pty Ltd (2004) 61 IPR 295 …. 2-25

K K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312 …. 13-37, 23-19, 27-14 Kaikoura County Council v Boyd [1949] NZLR 233 …. 10-53 Kane v Radley-Kane [1999] Ch 274; [1998] 3 All ER 753 …. 17-43 KAP Motors Pty Ltd v Commissioner of Taxation (2008) 168 FCR 319; 246 ALR 395 …. 13-01 Karak Rubber Co Ltd v Burden (No 2) [1972] 1 All ER 1210; [1972] 1 WLR 602 …. 13-04, 13-34, 13-40 Karger v Paul [1984] VR 161 …. 16-06, 16-08, 16-10, 29-55 Kars v Kars (1996) 187 CLR 354; 141 ALR 37 …. 2-18, 5-12, 13-09 Karsten (decd), Re [1953] NZLR 456 …. 7-24, 7-33 Katingal Pty Ltd v Amor (1999) 162 ALR 287 …. 13-11 Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 337 …. 13-34 Kauter v Hilton (1953) 90 CLR 86 …. 5-01 Kay, Re [1897] 2 Ch 518 …. 22-12 Kay, Re [1927] VLR 66 …. 15-67

Kay, Re [1939] Ch 329; [1939] 1 All ER 245 …. 6-14 Kaye v Powel (1791) 1 Ves Jun 408; 30 ER 410 …. 23-02 — v Zeital [2010] 2 BCLC 1 …. 6-19 Kayford Ltd (in liq), Re [1975] 1 All ER 604; [1975] 1 WLR 279 …. 2-15, 2-16, 5-02 Kean Memorial Trust Fund, Re Trusts of (2003) 86 SASR 449 …. 10-74 Kearins v Kearins (1956) 57 SR (NSW) 286; 74 WN (NSW) 63 …. 10-32 Kearns v Hill (1990) 21 NSWLR 107 …. 17-04 Keech v Sandford (1726) Sel Cas t King 61; 25 ER 223 …. 13-02, 13-11, 13-12, 13-19, 13-20, 13-30, 17-42 Keefe v Law Society of New South Wales (1998) 44 NSWLR 451 …. 21-15, 27-08, 27-11 Keeler’s Settlement Trusts [1981] Ch 156; [1981] 1 All ER 888 …. 17-39 Keen, Re [1937] Ch 236; [1937] 1 All ER 452 …. 7-24 Keenan, Re (1913) 30 WN (NSW) 214 …. 10-40 Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 …. 13-11 Kekewick v Manning (1851) 1 De GM & G 176; 42 ER 519 …. 6-20 Kellett v Kellett (1811) 3 Dow 248; 3 ER 1055 …. 12-04 Kells Enterprises Pty Ltd (in liq) v Balaglow (2007) 63 ACSR 557 …. 13-34 Kelly v Perpetual Trustee Co Ltd (1963) 109 CLR 258 …. 19-44, 19-49 Kelly, Re [1932] IR 255 …. 11-08 Kemp v Burn (1863) 4 Giff 348; 66 ER 740 …. 17-13, 17-14 Kemp’s Settled Estates, Re (1883) 24 Ch D 485 …. 15-64 Kempson, Re (1791) 3 Bro CC 197; 29 ER 487 …. 22-06 Kemtron Industries Pty Ltd v Commissioner of Stamp Duties (Qld) [1984] 1 Qd R 576 …. 21-02, 21-04, 21-06 Kendell v Carnegie (2006) 68 NSWLR 193 …. 3-13 Kendall v Granger (1842) 5 Beav 300; 49 ER 593 …. 10-64 Kennedy v De Trafford [1897] AC 180; [1895–9] All ER Rep 408 …. 2-10 Kenning’s Will, Re (1899) 20 LR (NSW) Eq 139; 16 WN (NSW) 31 …. 15-69

Kennon v Spry (2008) 238 CLR 366; 251 ALR 257 …. 3-14, 17-16 Kenny, In the Will of (1889) 6 WN (NSW) 106 …. 10-78 Keren Kayemeth Le Jisroel Ltd v Inland Revenue Commissioners [1931] 2 KB 465 …. 10-33, 10-42 — v — [1932] AC 650; [1932] All ER Rep 971 …. 10-59 Kern Corp Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164; 71 ALR 417 …. 13-07 Kerrigan, Re (1935) 35 SR (NSW) 242; 52 WN (NSW) 79 …. 17-40 Kerrigan, Re (1946) 47 SR (NSW) 76; 63 WN (NSW) 288 …. 12-12, 12-16 Kerrison’s Trusts, Re (1871) LR 12 Eq 422 …. 20-63 Ker’s Settlement Trusts, Re [1963] Ch 553; [1963] 1 All ER 801 …. 17-07, 2808 Kershaw’s Trusts, Re (1868) LR 6 Eq 322 …. 20-58 Kevan v Crawford (1877) 6 Ch D 29 …. 9-44 Khoo Tek Keong v Ch’ng Joo Tuan Neoh [1934] AC 529 …. 16-11, 18-03, 1804, 18-05, 22-13 Khoury v Khouri (2006) 66 NSWLR 241 …. 7-03 Kiang Po Hoh v Frost Hollow Pty Ltd [2014] VSC 77 …. 16-01 Kilbee v Sneyd (1828) 2 Moll 186 …. 17-23 Kilpin v Kilpin (1834) 1 My & K 520; 39 ER 777 …. 7-05 Kilvert’s Trusts, Re (1871) LR 12 Eq 183 …. 10-61 Kinahan’s Trusts, Re [1921] 1 IR 210 …. 17-19 King, Re [1907] 1 Ch 72 …. 20-54 King, Re [1917] 2 Ch 420; [1916–17] All ER Rep 786 …. 10-67 King, Re [1923] 1 Ch 243; [1923] All ER Rep 688 …. 10-14, 10-38 King v Denison (1813) 1 Ves & B 260; 35 ER 102 …. 2-27, 12-05, 12-08 — v Mullins (1852) 1 Drew 308; 61 ER 469 …. 21-29 — v Victor Parsons & Co [1973] 1 All ER 206; [1973] 1 WLR 29 …. 22-30 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (2008) 69 ACSR 172 …. 13-39 Kingham v Kingham [1897] IR 170 …. 17-19

Kingsmill v Lyne (1910) 13 CLR 292 …. 2-02, 2-07 Kingston, Ex parte (1871) LR 6 Ch App 632 …. 27-15 Kingston v Lady E Pierepont (1681) Vern 5; 23 ER 264 …. 9-17 Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619 …. 520, 5-21 Kinsela v Caldwell (1975) 132 CLR 458; 5 ALR 337 …. 5-26 — v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 …. 2-03 Kipping, Re [1914] 1 Ch 62 …. 20-72, 23-11 Kirby v Wilkins [1929] 2 Ch 444; [1929] All ER Rep 356 …. 20-51 Kiriri Cotton Co Ltd v Dewani [1960] AC 192; [1960] 1 All ER 177 …. 9-08 Kirkegaard, Re [1950] St R Qd 144 …. 21-34 Kirkman v Booth (1848) 11 Beav 273; 50 ER 821 …. 19-03, 20-42 Kirwan, Re (1869) 8 SCR Eq 21 …. 20-57 Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21 …. 21-09 Kitchen v Royal Air Forces Assn [1958] 2 All ER 241 …. 22-30 KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) (1984) 155 CLR 288; 56 ALR 337 …. 1-02, 13-08, 25-05 Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349; [1998] 4 All ER 513 …. 9-36, 17-37 Klewer v Official Trustee in Bankruptcy (No 2) [2008] FCA 1788 …. 7-06 Klug v Klug [1918] 2 Ch 67 …. 16-01, 16-06, 20-63 Knatchbull v Fearnhead (1837) 3 My & Cr 122; 40 ER 871 …. 22-10 Knight v Biss [1954] NZLR 55 …. 12-12 — v Browne (1861) 7 Jur NS 894 …. 9-20 — v Knight (1840) 3 Beav 148; 49 ER 58 …. 5-24 — v Marjoribanks (1849) 2 Mac & G 10; 42 ER 4 …. 17-47 Knight’s Will, Re (1884) 26 Ch D 82 …. 15-19 Knocker v Youle [1986] 2 All ER 914; [1986] 1 WLR 934 …. 17-07 Knollys’ Trusts, Re [1912] 2 Ch 357 …. 16-10, 16-16 Knott, Re (1887) 56 LJ Ch 318 …. 21-10

Knott, Re [1937] VLR 244; [1937] ALR 456 …. 19-60, 19-61 Knott v Cotte (1852) 16 Beav 77; 51 ER 705 …. 22-08 Knowles v Ballarat Trustees, Executors and Agency Co Ltd (1916) 22 CLR 212; 22 ALR 431 …. 19-36 — v Commissioner of Stamp Duties [1945] NZLR 522 …. 10-58 — v Scott [1891] 1 Ch 717 …. 2-02, 13-27 Knowles’ Settled Estates, Re (1884) 27 Ch D 707 …. 15-61 Knowles’ Will Trusts, Re [1948] 1 All ER 866 …. 13-13 Knox v Gye (1872) LR 5 HL 656 …. 2-07 — v Mackinnon (1888) 13 App Cas 753 …. 16-18, 17-11, 17-18, 18-02 — v Phillips (1918) 19 SR (NSW) 7; 36 WN (NSW) 14 …. 19-60, 19-61 — v Roberts (1900) 21 LR (NSW) Eq 231 …. 19-55, 20-31 Knox’s Trusts, Re [1895] 2 Ch 483 …. 21-09 Koeppler’s Will Trusts, Re [1984] Ch 243; [1984] 2 All ER 111 …. 10-51 Koeppler’s Will Trusts, Re [1986] Ch 423; [1985] 2 All ER 869 …. 10-51 Koettgen’s Will Trusts, Re; Westminster Bank Ltd v Family Welfare Association Trustee Ltd [1954] Ch 252; [1954] 1 All ER 581 …. 10-08, 1030 Kolb’s Will Trusts, Re [1962] Ch 531; [1961] 3 All ER 811 …. 17-07 Koorootang Nominees Pty Ltd v Australia & New Zealand Banking Group Ltd [1998] 3 VR 16 …. 13-36, 13-37 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 …. 3-06, 5-01, 5-02 Kowalczuk v Kowalczuk [1973] 2 All ER 1042; [1973] 1 WLR 930 …. 12-18 Krendel v Frontwell Investments Ltd (1967) 64 DLR (2d) 471 …. 17-18 Kronheim v Johnson (1877) 7 Ch D 60 …. 7-07 Ku v Song (2007) 63 ACSR 661 …. 3-05 Ku-ring-gai Municipal Council v A-G (1953) 19 LGR (NSW) 105 …. 17-07 — v — (1954) 55 SR (NSW) 65 …. 17-05, 17-07 Kurzmann v McKee (1896) 2 ALR 113 …. 19-55 Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56; [1959]

ALR 5 …. 10-55, 10-59, 10-72

L Labe v Bayliss [1974] 1 All ER 1114 …. 27-06 Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574 …. 13-11, 17-18 Lacey, Ex parte (1802) 6 Ves 625; 31 ER 1228 …. 17-47 Lagunas Nitrate Co v Lagunas Syndicate [1899] 2 Ch 392; [1895–9] All ER Rep 1349 …. 13-28 Laing v Commissioner of Stamp Duties [1948] NZLR 154 …. 10-49 Lake v Bayliss [1974] 2 All ER 1114; [1974] 1 WLR 1073 …. 13-07 Lamb v Vice (1840) 6 M & W 466; 151 ER 495 …. 2-24 Lambe v Eames (1871) LR 6 Ch App 597 …. 5-07 Lambell, Re (1870) 9 SCR (NSW) Eq 94 …. 11-03 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 …. 23-03 Lancet Pty Ltd v Olholm Developments Pty Ltd [2001] 1 Qd R 22 …. 2-02 Landau, Re [1998] Ch 223; [1997] 3 All ER 322 …. 8-02 Lander v Whitbread [1982] 2 NSWLR 530 …. 10-59 Lands Allotment Co, Re [1894] 1 Ch 616; [1891–4] All ER Rep 1032 …. 13-34, 22-30 Lane v Dighton (1762) Amb 409; 27 ER 274 …. 27-06 Langdon v Korff (1885) 6 LR (NSW) Eq 30 …. 16-05 Langford v Gascoyne (1805) 11 Ves 333; 32 ER 1116 …. 17-23, 17-30 Langham v Peterson (1903) 87 LT 744 …. 10-63 — v Sandford (1811) 17 Ves 442; 34 ER 169 …. 12-02 Langston v Ollivant (1807) Coop G 33; 35 ER 467 …. 18-05 Lanham v Pirie (1857) 3 Jur NS 704 …. 9-35 Lantsbery v Collier (1856) 2 K & J 709; 69 ER 967 …. 20-06 Larkin, Re (1913) 13 SR (NSW) 691 …. 5-18 Lashmar, Re [1891] 1 Ch 258 …. 23-12 Laskar v Laskar [2008] 1 WLR 2695 …. 12-12, 12-16, 12-18

Lassence v Tierney [1843–60] All ER Rep 47; (1849) 1 Mac & G 551; 41 ER 1379 …. 12-05, 12-09 Last v Rosenfeld [1972] 2 NSWLR 923 …. 7-09, 13-41 Lathwell v Lathwell [2008] WASCA 256 …. 21-10 Latimer v Commissioner of Inland Revenue [2004] 3 NZLR; [2004] 4 All ER 558; [2004] 1 WLR 1466 …. 2-15, 10-02, 10-63 Lavin v Toppi (2015) 254 CLR 459; 316 ALR 366 …. 21-18, 22-32 Lawes v Bennett (1785) 1 Cox 167; 29 ER 1111 …. 26-12, 26-15 Lawlor, Re [1934] VLR 22 …. 10-65 Lawrence, Re (1908) 25 WN (NSW) 79 …. 20-57 Lawrence v Maggs (1759) 1 Eden 453; 28 ER 760 …. 13-43 Lawrie v Bankes (1858) 4 K & J 142; 70 ER 59 …. 20-59 Lawson’s Settled Estates, Re (1890) 7 WN (NSW) 71 …. 17-06 Laycock v Registrar-General of New South Wales (2012) 16 BPR 30,367 …. 15-75 Lazarus, Re (1897) 19 ALT 35 …. 20-57 Le Compte v Public Trustee [1983] 2 NSWLR 109 …. 13-09 Le Page v Gardom (1915) 113 LT 475 …. 7-21 Lea, Re (1887) 34 Ch D 528 …. 10-33, 10-61 Leach, Re [1912] 2 Ch 422 …. 9-20 Leahy v A-G (NSW) (1959) 101 CLR 611; [1959] AC 457; [1959] 2 All ER 300 …. 9-30, 9-31, 10-08, 10-41, 10-66, 11-04, 11-06, 11-08 Learoyd v Whiteley (1887) 12 App Cas 727 …. 17-18, 18-12, 18-26 Ledger v Petagna Nominees Pty Ltd (1989) 1 WAR 300 …. 22-08 Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 …. 7-24, 7-30, 7-33, 7-36 Lee, In the Estate of (1986) 84 FLR 268 …. 23-12 Lee v Sankey (1873) LR 15 Eq 204 …. 17-30, 20-49 — v Young (1843) 2 Y & C Ch Cas 532; 63 ER 238 …. 15-85, 15-86 Leeds and Hanley Theatres of Varieties, Re [1902] 2 Ch 809 …. 13-28 Leeds City Brewery Ltd’s Trusts, Re [1925] Ch 532 …. 22-09

Lees v Nuttall (1829) 1 Russ & M 53; 39 ER 21 …. 13-25 Lees’ Settlement Trusts, Re [1896] 2 Ch 508 …. 15-53 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; 300 ALR 430 …. 2-15, 5-01, 5-26 Legard v Hodges (1792) 1 Ves Jun 478; 30 ER 447 …. 13-42 Legge v Legge (1904) 23 NZLR 350 …. 6-20 Legh’s Settled Estates, Re [1902] 2 Ch 274 …. 20-30 Legum Furniture Corp v Levine 232 SE (2d) 782 (1977) …. 13-52 Lehman Brothers International (Europe), Re [2012] 3 All ER 1; [2012] 1 BCLC 487 …. 1-02 Leicester, Re [1947] NZLR 420 …. 20-31 Leigh v Burnett (1885) 29 Ch D 231 …. 13-18 — v Pantin [1914] 2 Ch 701 …. 15-69 Leitch, Re [1965] VR 204 …. 10-28 Lemann’s Trusts, Re (1883) 22 Ch D 633 …. 15-18, 15-53 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 …. 15-43, 21-04, 21-11 Leon, Re [1892] 1 Ch 348 …. 15-53, 15-58, 15-69 Leong v Lim Beng Chye [1955] 2 All ER 903 …. 9-13 Lepine, Re [1892] 1 Ch 210; [1891–4] All ER Rep 945 …. 17-11, 20-72 Lepton’s Charity, Re [1972] Ch 187; [1971] 1 All ER 799 …. 10-74 Les Affreteurs Reunis SA v Leopold Walford (London) Ltd [1919] AC 801 …. 2-21 Les Laboratoires Servier v Apotex Inc [2015] AC 430 …. 9-02 Leslie’s Hassop Estates, Re [1911] 1 Ch 611 …. 15-69 Lesser, Re [1954] VLR 435; [1954] ALR 951 …. 20-57 Lester, Re [1942] Ch 324; [1942] 1 All ER 646 …. 2-36 Letterstedt v Broers (1884) 9 App Cas 371; [1881–51] All ER Rep 882 …. 1585, 28-20 Leuty v Hillas (1858) 2 De G & J 110; 44 ER 929 …. 13-02 Lever, Re [1897] 1 Ch 32 …. 20-32

Lever Bros Ltd v Bell [1931] 1 KB 557; [1931] All ER Rep 1 …. 2-02 Leverhulme, Re [1943] 2 All ER 274 …. 10-28 Levien, Re [1937] VLR 80; [1937] ALR 39 …. 19-06, 19-22 Levien, Re [1955] 3 All ER 35 …. 10-31 Levin v Ikiua [2010] 1 NZLR 400 …. 3-16 Levy, Re [1960] Ch 346; [1960] 1 All ER 42 …. 10-83, 23-08 Levy, Re (1989) 58 DLR (4th) 375 …. 10-59 Lewin, Re [1961] VR 528 …. 19-14 Lewis, Ex parte (1819) 1 Gl & J 69 …. 20-11 Lewis, Re [1907] 2 Ch 296 …. 19-62 Lewis, Re (1910) 103 LT 495 …. 17-49 Lewis, Re [1910] WN 217; [1908–10] All ER Rep 281 …. 17-42 Lewis, Re [1955] Ch 104; [1954] 3 All ER 257 …. 10-21 Lewis v Allenby (1870) LR 10 Eq 668 …. 10-62 — v Condon (2013) 85 NSWLR 99; 304 ALR 410 …. 1-01, 3-20, 5-04, 21-02 — v Hillman (1852) 3 HL Cas 607; 10 ER 239 …. 9-36, 17-43 — v Nobbs (1878) 8 Ch D 591 …. 17-02, 17-20, 17-22 — v Nortex Pty Ltd (in liq) (2004) 214 ALR 634 …. 9-03 Leyton v Sneyd (1818) 8 Taunt 532; 129 ER 489 …. 16-14 LGSS Pty Ltd v Egan [2002] NSWSC 1171 …. 29-11 Lichfield v Baker (1840) 13 Beav 447; 51 ER 172 …. 19-20 Lidden v Composite Buyers Ltd (1996) 67 FCR 560; 139 ALR 549 …. 23-03 Liddiard, Re (1880) 14 Ch D 310 …. 15-67 Life Association of Scotland v Siddal (1861) 3 De G F & J 58; 45 ER 800; [1861–73] All ER Rep 892 …. 13-03, 22-33 Liebelt, Re (1983) 32 SASR 138 …. 10-70 Lillis v Lillis (1912) 29 WN (NSW) 91 …. 17-05 Lincoln v Windsor (1851) 9 Hare 158; 68 ER 456 …. 17-41 Lind, Re [1915] 2 Ch 345; [1914–15] All ER Rep 527 …. 24-04 Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] AC 85; [1993]

All ER 417 …. 2-20 Lindsay v Miller [1949] VLR 13 …. 28-07 Lingard, Re [1908] WN 107 …. 19-03 Lingard v Bromley (1812) 1 V & B 114; 35 ER 45 …. 21-17 Linsley, Re [1904] 2 Ch 785 …. 21-19 Linter Group Ltd v Goldberg (1992) 7 ACSR 580 …. 13-34 Linton, Re [1944] VLR 118; [1944] ALR 259 …. 20-61 Linton v Telnet Pty Ltd (1999) 30 ACSR 465 …. 2-03 Lion Nathan Brewing Investments Pty Ltd v Commissioner for ACT Revenue (1997) 79 FCR 177; 149 ALR 335 …. 13-07 Lipinski, Re [1976] Ch 235; [1977] 1 All ER 33 …. 9-32, 11-04 Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548; [1992] 4 All ER 512 …. 13-10, 27-04, 27-14 — v — [1992] 4 All ER 409; [1989] 1 WLR 1340 …. 13-36 List, Re [1949] NZLR 78 …. 10-86 Lister & Co v Stubbs (1890) 45 Ch D 1; [1886–90] All ER Rep 797 …. 13-23 Litchfield, Re (1961) 2 FLR 454; [1961] ALR 750 …. 10-21 Lithgow, Re (1921) 22 SR (NSW) 150; 38 WN (NSW) 267 …. 10-78 Little v Little (1988) 15 NSWLR 43 …. 12-11 Littlejohn v Davies (1916) 16 SR (NSW) 183; 33 WN (NSW) 33 …. 19-47, 19-57, 20-31 Liverpool and District Hospital for Diseases of the Heart v A-G [1981] Ch 193; [1981] 1 All ER 994 …. 10-84 Livesey v Livesey (1830) 3 Russ 287; 38 ER 583 …. 17-37 Livesey’s Settlement Trusts, Re [1953] 2 All ER 723 …. 20-58 Llewellin’s Will Trusts, Re [1949] Ch 225; [1949] 1 All ER 487 …. 17-49 Llewellyn’s Trust, Re (1861) 29 Beav 171; 54 ER 592 …. 19-10, 19-12 Lloyd, Re (1893) 10 TLR 66 …. 10-63 Lloyd, Re [1958] VR 523; [1958] ALR 1042 …. 10-66 Lloyd v Branton (1817) 3 Mer 108; 36 ER 42 …. 9-13 — v Cocker (1860) 27 Beav 645; 54 ER 256 …. 20-58

— v Lloyd (1852) 2 Sim (NS) 255; 61 ER 338 …. 9-11, 9-13, 11-01 — v Spillet (1740) 2 Atk 148; 26 ER 493 …. 12-04, 12-10 — v Tedesco (2002) 25 WAR 360 …. 13-52 Lloyd-Jones v Clark-Lloyd [1919] 1 Ch 424 …. 2-05, 13-15 Lloyd’s v Harper (1880) 16 Ch D 290 …. 2-20, 2-21, 2-22, 2-24, 6-06, 6-13, 626 Lloyds & Scottish Finance Ltd v Cyril Lord Carpets Sales Ltd [1992] BCLC 609 …. 5-02 Lloyds Bank Ltd v Marcan [1973] 3 All ER 754; [1973] 1 WLR 1387 …. 9-41 Lloyds Bank NZA Ltd v National Safety Council of Australia Victorian Division (in liq) (1993) 115 ALR 93 …. 13-02 Lloyds Bank Plc v Duker [1987] 3 All ER 193; [1987] 1 WLR 1324 …. 23-11 — v Rosset [1991] 1 AC 107; [1990] 1 All ER 1111 …. 12-14, 12-19, 13-54 Lloyd’s Trustees, Re (1888) 57 LJ Ch 246 …. 15-05 Local Government Superannuation Board v Thorne (2002) 76 ALD 569 …. 802 Lock v Westpac Banking Corp (1991) 25 NSWLR 593 …. 8-02, 29-05, 29-53, 29-54, 29-55, 29-56, 29-57, 29-58 Locker’s Settlement, Re [1978] 1 All ER 216; [1977] 1 WLR 1323 …. 16-05 Lockett, In the Will of (1920) 20 SR (NSW) 213; 37 WN (NSW) 50 …. 17-39 Lockhart v Reilly (1856) 25 LJ Ch 697 …. 21-19 Lockie Guardian, Re [1945] NZLR 230 …. 9-16 Lockwood v White (2005) 23 ACLC 379 …. 2-29 Lockyer v Savage (1733) 2 Stra 947; 93 ER 959 …. 9-19 Lodge v Permanent Trustee Co Ltd (1918) 18 SR (NSW) 112 …. 26-24 Lofthouse, Re (1885) 29 Ch D 921 …. 16-08, 20-63 Lofts v MacDonald (1974) 3 ALR 404 …. 27-09, 27-15 Lomax v Ripley (1855) 3 Sm & G 48; 65 ER 558 …. 7-32 Londesborough v Somerville (1854) 19 Beav 295; 52 ER 363 …. 19-33 London Hospital Medical College v Inland Revenue Commissioners [1976] 2 All ER 113; [1976] 1 WLR 613 …. 10-32

Londonderry’s Settlement, Re [1965] Ch 918; [1964] 3 All ER 855 …. 16-08, 16-10, 16-14, 17-16, 21-34 Longfield Parish Council v Robson (1913) 29 TLR 357 …. 13-25 Longhurst v Waite [1920] SALR 407 …. 18-26 Longley v Longley (1871) LR 13 Eq 133 …. 5-02 Longton v Wilsby (1897) 76 LT 770 …. 13-19 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627; [1981] 2 All ER 456 …. 2-03 Lonrho plc v Fayed (No 2) [1991] 4 All ER 961; [1992] 1 WLR 1 …. 13-02, 1311, 13-41 Lonsdale v Beckett (1850) 4 De G & Sm 73; 64 ER 740 …. 15-22 Lopes, Re [1931] 2 Ch 130; [1930] All ER Rep 45 …. 10-31 Lord and Fullerton’s Contract, Re [1896] 1 Ch 228 …. 15-16, 15-73 Lord Cable (dec’d), Re [1976] 3 All ER 417; [1977] 1 WLR 7 …. 28-06 Lord Grimthorpe, Re [1908] 2 Ch 675 …. 26-19 Lord Nunburnholme, Re [1912] 1 Ch 489 …. 23-08, 23-09 Lord Ranelagh’s Will, Re (1884) 26 Ch D 590 …. 13-12, 13-43 Lord Stratheden and Campbell, Re [1894] 3 Ch 265 …. 10-56 Lord Sudeley and Baines and Co, Re [1894] 1 Ch 334 …. 20-06 Lord Walpole v Lord Orford (1797) 3 Ves 402; 30 ER 1076 …. 13-42 Lorking, Re (1924) 25 SR (NSW) 46 …. 8-09 Louis, Re (1916) 32 TLR 313 …. 7-24 Love, Re (1885) 29 Ch D 348 …. 21-09 Loveland, Re [1906] 1 Ch 542 …. 9-09 Low v Bouverie [1891] 3 Ch 82; [1891–4] All ER Rep 348 …. 17-17 — v Carter (1839) 1 Beav 426; 48 ER 1005 …. 22-10 Lowin, Re [1965] NSWR 1624; [1967] 2 NSWR 140 …. 10-59 Lowry, Re (1872) 15 LR (NSW) Eq 78 …. 25-04 Lowson v Coombes [1999] Ch 373 …. 9-02, 9-03 Lowther v Bentinck (1874) LR 19 Eq 166; [1874–80] All ER Rep 362 …. 20-58, 20-59

Lubavitch Mazal Pty Ltd v Yeshiva Properties (No 1) Pty Ltd (2003) 47 ACSR 179 …. 15-21 Lucas, Re [1922] 2 Ch 52; [1922] All ER Rep 317 …. 10-20, 10-21, 10-23 Lucas, Re [1948] Ch 424; [1948] 2 All ER 22 …. 10-84, 10-85 Lucas v Telegraph Construction and Maintenance Co Ltd [1925] LN 211 …. 928 Lucking’s Will Trusts, Re [1967] 3 All ER 726; [1968] 1 WLR 866 …. 17-18 Luddy’s Trust v Pearl (1886) 33 Ch D 500; [1886–90] All ER Rep 968 …. 17-46 Luke v South Kensington Hotel Co (1879) 11 Ch D 121; [1874–80] All ER Rep 1293 …. 16-14 Lumsden v Buchanan (1865) 4 Macq 950 …. 21-03 Lunham v Blundell (1857) 27 LJ Ch 179 …. 17-20 Lupton v White (1808) 15 Ves 432; 33 ER 817 …. 17-20, 21-10 Lutheran Church of Australia South Australia District Inc v Farmers Cooperative Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545 …. 2-46, 10-61, 16-08 Lyell, Re [1977] 1 NZLR 713 …. 17-07 Lyon v Baker (1852) 5 De G & Sm 622; 64 ER 1271 …. 17-40 Lysaght, Re [1898] 1 Ch 115 …. 19-31 Lysaght, Re [1966] Ch 191; [1965] 2 All ER 888 …. 10-72 Lysaght v Edwards (1876) 2 Ch D 499 …. 13-07, 26-07

M Macadam, Re [1946] Ch 73; [1945] 2 All ER 664 …. 17-49 Macansh v Fisher (1916) 16 SR (NSW) 636; …. 19-38 Macartney v Macartney [1908] VLR 649 …. 17-30 — v — (1911) 18 ALR 1 …. 19-61 Macedonian Orthodox Community Church St Petka v His Eminence Petar (2008) 237 CLR 66; 249 ALR 250 …. 21-10, 21-34, 22-12 MacCullock v Anderson [1904] AC 55 …. 20-72 Macdonald v Irvine (1878) 8 Ch D 101 …. 19-02, 19-04, 19-07

Macduff, Re [1896] 2 Ch 451; [1895–9] All ER Rep 154 …. 10-15, 10-26, 10-33 Macgregor, Re (1932) 32 SR (NSW) 483; 49 WN (NSW) 179 …. 10-46 Machu, Re (1882) 21 Ch D 838 …. 9-19 Macfadyen, Re [1908] 2 KB 817 …. 22-11 MacFarlane v Brown [1919] NZLR 218 …. 23-06 Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 …. 16-10, 29-55 MacIver’s Settlement, Re [1936] Ch 198; [1935] All ER Rep 889 …. 19-31, 1938 Mackay, Re [1911] 1 Ch 300 …. 22-16, 22-21 Mackay, Re (1951) 16 ABC 18 …. 9-43 Mackay v Douglas (1872) LR 14 Eq 106 …. 9-43 Mackenzie v Mackenzie (1894) 12 NZLR 590 …. 22-28 Mackie v Mackie (1845) 5 Hare 70; 67 ER 831 …. 19-05 MacKinnon v Stewart (1850) 1 Sim NS 76; 61 ER 30 …. 5-15 MacLachlan, Re (1900) 26 VLR 548; 6 ALR 243 …. 19-41 Maclaren’s Settlement Trusts, Re [1951] 2 All ER 414 …. 19-34 Macleay, Re (1875) LR 20 Eq 186 …. 9-19 Macnamara v Macnamara (1929) 30 SR (NSW) 245 …. 15-03 MacPherson, Re [1913] SALR 207 …. 19-31 Macphillamy v Fox (1932) 32 SR (NSW) 427; 49 WN (NSW) 191 …. 17-37, 17-38, 21-18 Maddever, Re (1884) 27 Ch D 523 …. 9-42 Maddock, Re [1902] 2 Ch 220 …. 7-19 Maddock v Registrar of Titles (1915) 19 CLR 681; 21 ALR 122 …. 15-75 Magarley Farlam Lawyers Trust Accountants (No 3), Re (2007) 96 SASR 337 …. 27-11 Magrath v Morehead (1871) LR 12 Eq 491 …. 8-07 Maguire, Re (1870) LR 9 Eq 632 …. 10-86 Maguire v Makaronis (1997) 188 CLR 449; 144 ALR 729 …. 1-02, 2-08, 9-36, 17-18, 22-05 Maharaj v Chand [1986] AC 898; [1986] 3 All ER 107 …. 12-14, 13-50

Mahkutai, The [1996] AC 650; [1996] 3 All ER 502 …. 2-20 Mahony v Commissioner of Taxation (1967) 41 ALJR 232 …. 29-07 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113 …. 8-02 Maitland v Bateman (1844) 13 LJ Ch 273 …. 20-47 Malam, Re [1894] 3 Ch 578 …. 19-38 Malcolm v O’Callaghan (1837) 3 My & Cr 52; 40 ER 844 …. 21-10 Malik v Bank of Credit and Commerce International SA (in liq); Mahmud v Bank of Credit and Commerce International SA [1998] AC 20; [1997] 3 All ER 1 …. 29-54 Mallott v Wilson [1903] 2 Ch 494; [1900–3] All ER Rep 326 …. 15-02, 15-73 Malsbury v Malsbury [1982] 1 NSWLR 226 …. 13-06 Manchester and Southport Railway Co, Re (1854) 19 Beav 365; 52 ER 391 …. 26-07 Mandelson’s Will, Re (1894) 15 LR (NSW) Eq 160; 11 WN (NSW) 35 …. 2052 Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325 …. 16-10 Manfred v Maddrell (1950) 51 SR (NSW) 95; 68 WN (NSW) 80 …. 20-72, 2311 Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd (2011) 282 ALR 167 …. 29-20, 29-21 Manistys Settlement, Re [1974] Ch 17; [1973] 2 All ER 1203 …. 2-46, 5-29, 1608, 16-21, 17-15 Mann, Re [1903] 1 Ch 232; [1900–3] All ER Rep 93 …. 10-69 Manning v Commissioner of Taxation (1928) 40 CLR 506; 34 ALR 165 …. 1714 Manor Foundation Ltd v Commissioner of Land Tax (NSW) (1983) 14 ATR 676 …. 10-33 Mansell, Re [1930] 1 Ch 352; [1929] All ER Rep 189 …. 19-17 Manser, Re [1905] 1 Ch 68 …. 10-36 Manson v Public Trustee [1925] GLR 153 …. 17-11 Mansour v Mansour (2009) 24 VR 498 …. 15-86

Mapp v Elcock (1849) 2 Ph 793; 41 ER 1150 …. 12-04 Mara v Browne [1895] 2 Ch 69 …. 22-29 — v — [1896] 1 Ch 199 …. 13-03, 22-29 Marac Finance Ltd v Virtue [1981] 1 NZLR 586 …. 5-04 March v March (1945) 62 WN (NSW) 111 …. 12-12, 12-17 Marcolongo v Chen (2011) 242 CLR 546; 274 ALR 634 …. 9-41 Mariette, Re [1915] 2 Ch 284; [1914–15] All ER Rep 794 …. 10-28, 10-32, 1049 Marjoribanks, Re [1923] 2 Ch 307 …. 19-31 Marks v Marks (1910) 10 SR (NSW) 843 …. 15-05 Marlay, Re [1915] 2 Ch 264 …. 26-12 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 …. 21-34 — v Rawlings [2015] AC 129; [2014] 1 All ER 807 …. 8-01 Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd (2001) 38 ACSR 404 …. 13-39 Marquess of Abergavenny’s Estate Act Trusts, Re [1981] 2 All ER 643; [1981] 1 WLR 843 …. 20-62 Marquis of Salisbury v Keymer [1909] WN 31; 25 TLR 278 …. 18-27 Marr’s Will Trusts, Re [1936] Ch 671 …. 10-59 Marsden, In the Will of (1926) 43 WN (NSW) 170 …. 17-40 Marsden v Stein (1906) 6 SR (NSW) 368 …. 22-12 Marshall, Re [1914] 1 Ch 192; [1911–13] All ER Rep 671 …. 20-72, 23-11 Marshall, Re [1920] 1 Ch 284; [1920] All ER Rep 190 …. 4-06, 9-23 Marshall v Blew (1741) 2 Atk 217; 26 ER 534 …. 23-02 — v Crowther (1874) 2 Ch D 199 …. 19-53 — v Holloway (1820) 2 Swan 432; 36 ER 681 …. 17-39 — v Williams [1974] VR 592 …. 25-05 Martin v Martin (1903) 3 SR (NSW) 156; 20 WN (NSW) 62 …. 2-40, 15-55 — v — (1959) 110 CLR 297 …. 12-12, 12-13 Martinez’ Trusts, Re (1870) 22 LT 403 …. 15-73

Martyn, Re (1884) 26 Ch D 745 …. 15-53, 15-58, 15-69 Maryon-Wilson’s Estate, Re [1912] 1 Ch 55 …. 18-02 Mascall v Mascall (1984) 50 P & CR 119 …. 6-19 Mason, Re [1928] Ch 385 …. 23-20 Mason, Re [1929] 1 Ch 1 …. 14-12 Mason v Farbrother [1983] 2 All ER 1078 …. 17-05, 17-07 Massingberd’s Settlement, Re (1890) 63 LT 296 …. 18-30, 22-05 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44 …. 9-02, 9-06 Mateo v Official Trustee in Bankruptcy (2002) 117 FCR 179; 188 ALR 667 …. 9-39 Matheson, Re (1994) 49 FCR 454; 121 ALR 605 …. 21-14 Mathew, Re [1951] VLR 226; [1951] ALR 518 …. 10-55 Matthews, Re (1859) 26 Beav 463; 53 ER 976 …. 15-02 Matthews, Re [1993] 2 NZLR 92 …. 12-10 Matthews v Baxter (1873) 8 Exch 132 …. 4-06 — v Ruggles-Brise [1911] 1 Ch 194 …. 21-04, 21-05 — v Trustees Executors and Agency Co Ltd (1898) 24 VLR 58 …. 22-29 — v Tyson (1900) 21 LR (NSW) Eq 268 …. 17-04 Matthison v Clarke (1854) 3 Drew 3; 61 ER 801 …. 17-40 Maurice v Lyons [1969] 1 NSWR 307 …. 9-04 Mavaddat v Lee (2007) 24 WAR 67 …. 27-09 Mavromates, Re [1964] VR 612 …. 9-19 Maxwell v Chittick [1994] NSWCA 196 …. 22-11 Mayhew, Re (1877) 5 Ch D 596 …. 21-10 Mayne, Re (1928) 28 SR (NSW) 157; 45 WN (NSW) 46 …. 15-67, 15-69, 1605 Mayne v Jaques (1960) 101 CLR 169; [1960] ALR 289 …. 17-39 Mayo, Re [1943] Ch 302; 2 All ER 440 …. 16-14 Mayor of Coventry v A-G (1720) 7 Bro CC 235; 3 ER 153 …. 15-86

May’s Will Trusts, Re [1941] Ch 109 …. 15-18, 15-54 McArdle, Re [1951] Ch 669; [1951] 1 All ER 905 …. 6-17 McArdle v Gaughran [1903] 1 IR 106 …. 22-27 McBlain v Cross (1871) 25 LT (NS) 804 …. 7-08 McBride v Hudson (1962) 107 CLR 604; [1963] ALR 226 …. 19-49 McCarter, Re (Unreported, SC(NSW), McLelland CJ, 14 December 1961) …. 25-04 McCarthy v McCarthy (1919) 19 SR (NSW) 122; 36 WN (NSW) 45 …. 1705, 20-45 McCormack v Stevens [1978] 2 NSWLR 517 …. 10-68, 10-71 McCormick v Grogan (1869) LR 4 HL 82 …. 7-09, 7-18, 7-22 McCracken v Attorney-General (Vic) [1995] 1 VR 67 …. 5-28, 10-33, 10-66 McCready, Re (2004) 12 BPR 22,327 …. 25-04, 25-07 McCutcheon (dec’d), In the Will and Estate of [1960] VR 289 …. 19-30 McDonald v Ellis (2007) 72 NSWLR 605 …. 17-16 McDonnel v White (1865) 11 HL Cas 570; 11 ER 1454 …. 22-33 McDougall’s Will Trusts, Re [1956] 3 All ER 867 …. 10-26 McEachern, Re (1911) 103 LT 900 …. 17-19 McEmery, Re [1941] 1 IR 9 …. 10-30 McFadden v Jenkyns (1842) 1 Hare 458; 41 ER 589 …. 7-05 — v Public Trustee for Victoria [1981] 1 NSWLR 15 …. 7-35 McGachen v Dew (1851) 15 Beav 84; 51 ER 468 …. 21-23 McGarvie-Smith Institute v Campbelltown Municipal Council (1965) 83 WN (NSW) 191 …. 10-05 McGeorge, Re [1963] Ch 544; [1963] 1 All ER 519 …. 20-60 McGovern v A-G [1982] Ch 321; [1981] 3 All ER 493 …. 10-51 McGowan v Commissioner of Stamp Duties [2002] 2 Qd R 499 …. 1-06, 5-24, 24-03 McGrath v Cohen [1978] 1 NSWLR 621 …. 10-32, 10-59 McGregor v McGregor (No 2) [1919] NZLR 286 …. 17-03, 21-09 McInnes, Re [1925] VLR 496 …. 20-03

McIntosh v Dallwood (No 3) (1930) 30 SR (NSW) 332 …. 21-05 — v — (No 4) (1930) 30 SR (NSW) 415 …. 21-05 — v Pogose [1895] 1 Ch 505 …. 9-20 McIntyre v McIntyre (1914) 15 SR (NSW) 45; 31 WN (NSW) 132 …. 19-46, 19-47, 19-48, 19-49, 19-55 McKay v McKay (1902) 22 NZLR 121 …. 9-19 McKenna v Lowe (1878) 1 SCR(NS) (NSW) Eq 10 …. 15-86 McKenzie v McDonald [1927] VLR 134 …. 22-04 McKeown v Byron (1903) 4 SR (NSW) 13 …. 17-42 McKie v McKie (1898) 23 VLR 489; 4 ALR 98 …. 12-16 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 …. 16-19, 2106, 23-06 McMahon, Re [1901] 1 IR 489 …. 2-35, 2-36 McMahon v Cooper (1904) 4 SR (NSW) 433 …. 22-16, 22-22 — v Hermann (1893) 14 LR (NSW) Eq 77 …. 20-12, 23-03 — v The Sydney City Council (1940) 40 SR (NSW) 427; 57 WN (NSW) 142 …. 13-08 McManus Re Pty Ltd v Ward (2009) 74 NSWLR 622 …. 12-06 McNally v Harri [2008] NSWSC 659 …. 21-20 McPhail v Doulton [1971] AC 424; [1970] 2 All ER 228 …. 2-46, 5-26, 5-27, 528, 5-29, 16-21 McPhee v Saunders (1940) 57 WN (NSW) 101 …. 5-07 McPhillamy’s Trusts, Re (1909) 10 SR (NSW) 42; 26 WN (NSW) 188 …. 1404, 15-19, 15-68 McQuade v Morgan (1927) 39 CLR 222; 33 ALR 258 …. 9-23 McTiernan, Re [1954] QWN 29 …. 20-51 McWilliam v McWilliams Wines Pty Ltd (1964) 114 CLR 656 …. 13-07 Mead v Watson (2005) 23 ACLC 718 …. 21-09 Mead’s Trust Deed, Re [1961] 2 All ER 836; [1961] 1 WLR 1244 …. 10-06, 1030 Meagher, Re [1910] VLR 407; (1910) 16 ALR 551 …. 18-02

Medforth v Blake [2000] Ch 86; [1999] 3 All ER 97 …. 2-05 Medway’s Will, Re (1897) 14 WN (NSW) 29 …. 15-83 Medworth v Pope (1859) 27 Beav 71; 54 ER 28 …. 7-27 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 …. 22-04 Meek v Bennie [1940] NZLR 1 …. 20-11 — v Devenish (1877) 6 Ch D 566 …. 26-22 Mehrtens v Andrews (1839) 3 Beav 72; 49 ER 28 …. 19-10, 19-20 Meinck, Re [1944] SASR 202 …. 19-06, 19-21 Meinertzhagen v Davis (1844) 1 Coll 335; 63 ER 444 …. 14-03, 15-19 Meinhard v Salmon 164 NE 545 (1928) …. 13-29 Melbourne Banking Corp Ltd v Brougham (1884) 7 App Cas 307 …. 2-05 Meldrum v Scorer (1887) 56 LT 471 …. 23-03 Mellick v President of the Asylum (1821) 1 Jac 180; 37 ER 818 …. 10-36 Mellody, Re [1918] 1 Ch 228; [1916–17] All ER Rep 324 …. 10-32, 10-58 Mendelssohn v Centrepoint Community Growth Trust [1999] 2 NZLR 88 …. 15-20, 15-57 Mendes v Guedalle (1862) 2 J & H 259; 70 ER 1054 …. 22-09 Mennard v Welford (1853) 1 Sm & G 426; 65 ER 187 …. 15-18 Mercedes Holdings Pty Ltd v Waters (No 2) (2010) 186 FCR 450; 78 ACSR 118 …. 23-03 Mercer, Ex parte (1886) 17 QBD 290 …. 9-41, 9-42 Mercier v Mercier [1903] 2 Ch 98; [1900–3] All ER Rep 375 …. 12-17 Merchant Taylors’ Co v A-G (1871) LR 6 Ch App 512 …. 2-31 Merriman v Perpetual Trustee Co Ltd (1895) 17 LR (NSW) Eq 325; 13 WN (NSW) 134 …. 17-37, 17-38, 26-20 Messenger v Andrews (1828) 4 Russ 478; 38 ER 885 …. 2-36 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; [1989] 3 All ER 14 …. 13-10, 13-11, 13-34 Metcalf v Permanent Building Society (1992) 10 WAR 145 …. 22-12 Methodist Theological College Council v Guardian, Trust, and Executors Co of New Zealand Ltd [1927] GLR 294 …. 10-45

Metlej v Kavanagh [1981] 2 NSWLR 339 …. 13-20 Metropolitan Bank v Heiron (1880) LR 5 Ex D 319 …. 22-30 Metropolitan Fire Brigade v Commissioner of Taxation (1990) 27 FCR 279; 97 ALR 335 …. 10-55 Metropolitan Gas Co v Federal Commissioner of Taxation (1932) 47 CLR 621 …. 16-07 Metropolitan Petar v Mitreski [2012] NSWSC 16 …. 13-35 Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513; [1990] 1 WLR 1587 …. 2-04, 8-02, 16-12, 16-21, 29-53, 29-55 Meux, Re [1958] Ch 154; [1957] 2 All ER 630 …. 25-11 Meyer v Simonsen (1852) 5 De G & Sm 723; 64 ER 1316 …. 19-03, 19-12, 1913 MF Global Australia Ltd (in liq), Re (2012) 267 FLR 27 …. 21-34 MF Global Australia Ltd (in liq) (No 2), Re [2012] NSWSC 1426 …. 21-14 Michael v Callil (1945) 72 CLR 509 …. 19-22 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; 282 ALR 685 …. 13-34, 13-39 Michelham’s Will Trusts, Re [1964] Ch 550; [1963] 2 All ER 188 …. 17-07 Michel’s Trusts, Re (1860) 28 Beav 39; 54 ER 280 …. 10-30, 10-40 Middleton, Ex parte [1983] 1 Qd R 170 …. 23-03 Middleton v Dodswell (1806) 13 Ves 266; 33 ER 294 …. 23-05 — v Pollock (1876) 2 Ch D 104 …. 1-07, 5-23 — v Reay (1849) 7 Hare 106; 68 ER 43 …. 15-20 Midgley v Midgley [1893] 3 Ch 282 …. 13-34 Midland Bank plc v Cooke [1995] 4 All ER 562 …. 12-18 Midland Counties Institution of Engineers v Inland Revenue Commissioners (1928) 14 Tax Cas 285 …. 10-26 Midland Silicones Ltd v Scruttons Ltd [1962] AC 446; [1962] 1 All ER 1 …. 217 Mihalopulos, Re (1956) 5 DLR (2d) 628 …. 7-24 Miles, Re (1988) 20 FCR 194; 85 ALR 216 …. 2-16

Miles v Bull [1969] 1 QB 258 …. 5-04 Miles v Harford (1879) 12 Ch D 691 …. 8-04 Millard, Re (1895) 72 LT 823 …. 21-13 Millard v Eyre (1793) 2 Ves 94; 30 ER 540 …. 15-86 Miller v Cameron (1936) 54 CLR 572; [1936] ALR 301 …. 15-17, 15-46, 1549, 15-51, 15-85, 15-86 — v Miller (1872) LR 13 Eq 263 …. 19-06, 19-21, 26-09 Milligan v Mitchell (1837) 1 My & K 446; 39 ER 750 …. 23-04 Mills, Re (1981) 27 SASR 200 …. 10-06 Mills v Farmer (1815) 1 Mer 55; 35 ER 597 …. 10-61, 10-69 — v IRC [1973] Ch 225; [1972] 3 All ER 977 …. 4-02 — v Mills (1938) 60 CLR 150 …. 2-03, 2-07, 2-08, 13-27 — v Osborne (1834) 7 Sim 30; 58 ER 748 …. 18-04 Mill’s Declaration of Trust, Re [1950] 1 All ER 789 …. 9-07 Mill’s Declaration of Trust, Re [1950] 2 All ER 292 …. 9-07 Milne v Parker (1848) 17 LJ Ch 194 …. 19-02, 19-04 Milroy v Lord (1862) 4 De GF & J 264; 45 ER 1185; [1861–73] All ER Rep 783 …. 6-01, 6-15, 6-16, 6-17, 6-18, 6-19, 6-20, 6-21, 6-22 Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 …. 29-55 Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101 FCR 91 …. 10-55 Ministry of Health v Simpson [1951] AC 251; [1950] 2 All ER 1137 …. 17-37, 23-18, 23-19, 23-20, 27-12, 27-14 Minors v Battison (1876) 1 App Cas 428; [1874–80] All ER Rep 1069 …. 26-09 Mirrlees Charity, Re [1910] 1 Ch 163 …. 10-59 Mirvac Ltd, Re (1999) 32 ACSR 107 …. 3-10 Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296 …. 6-26 Mitchell, Re (1913) 30 WN (NSW) 137 …. 21-34 Mitchell, Re (1962) 1 W & W (E) 167 …. 19-60 Mitchell, Re [1963] NZLR 934 …. 10-24

Mitchell v Harr (1914) 19 CLR 33; 21 ALR 42 …. 19-38 — v — (1913) 16 SR (NSW) 250 …. 20-52, 20-53 Mitchell’s Trust, Re (1900) 17 WN (NSW) 164 …. 15-67 Mitford v Reynolds (1842) 1 Ph 185; 41 ER 602 …. 9-07 — v — (1848) 16 Sim 105; [1843–60] All ER Rep 118 …. 7-27, 11-02 Moate v Moate [1948] 2 All ER 486 …. 12-11, 12-12 Moffatt, Re (1910) 11 SR (NSW) 202; 28 WN (NSW) 70 …. 18-02 Moggridge v Thackwell (1792) 7 Ves 36; 30 ER 440 …. 10-61 — v — (1803) 7 Ves 36; 32 ER 15 …. 10-69 Moir, Re [1909] 2 Ch 280 …. 9-23 Molyneux v Fletcher [1898] 1 QB 648 …. 17-42 Moncrieff’s Settlement Trusts, Re [1962] 1 WLR 1344; [1962] 3 All ER 838 …. 17-07 Monds v Stackhouse (1948) 77 CLR 232; [1949] ALR 299 …. 10-53 Monk, Re [1927] 2 Ch 197; [1927] All ER Rep 157 …. 10-19, 10-23, 10-68 Montagu’s Settlement Trusts, Re [1987] Ch 264; [1992] 4 All ER 308 …. 13-37 Montford v Cadogan (1816) 19 Ves 635; 34 ER 651 …. 15-73, 21-23 Montgomerie’s Brewery Co Ltd v Blyth (1901) 27 VLR 175 …. 22-13 Monty Financial Services Ltd v Delmo [1996] 1 VR 49 …. 15-17 — v — [1996] 1 VR 65 …. 15-86 Moody v Cox [1917] 2 Ch 71; [1916–17] All ER Rep 548 …. 17-47 Moore, Re (1882) 21 Ch D 778 …. 15-03 Moore, Re (1886) 54 LT 231 …. 5-24 Moore, Re (1888) 39 Ch D 116; [1886–90] All ER Rep Ext 187 …. 9-10 Moore, Re [1907] VLR 639; 13 ALR 507 …. 19-57 Moore, Re [1956] VLR 132; [1956] ALR 483 …. 17-39, 19-42 Moore, Re (1991) 55 SASR 439 …. 10-19 Moore, Re Will of (1896) 17 LR (NSW) B 78 …. 17-39 Moore v Clench (1875) 1 Ch D 447 …. 16-14 — v Curtis (1862) 1 SCR Eq 1 …. 22-33

— v Knight [1891] 1 Ch 547 …. 22-26, 22-28, 22-30 — v McGlynn [1894] 1 IR 74 …. 15-86 — v McKelvey (1906) 23 WN (NSW) 100 …. 15-69 — v Whyte (No 2) (1922) 22 SR (NSW) 570; 39 WN (NSW) 194 …. 12-12, 12-21 Moore’s Will, Re (1901) 1 SR (NSW) Eq 148; 18 WN (NSW) 201 …. 15-58, 15-83, 25-04 Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414; 56 ALR 193 …. 13-30 Mordecai v Mordecai (1988) 12 NSWLR 58 …. 13-13, 17-39 Morgan, Re (1881) 18 Ch D 93 …. 13-14 Morgan, Re [1955] 2 All ER 632 …. 10-49 Morgan v Lariviere (1875) LR 7 HL 423 …. 2-13 — v Morgan (1851) 14 Beav 72; 51 ER 214 …. 19-03, 19-07, 19-10 — v Swansea Urban Sanitary Authority (1878) 9 Ch D 582 …. 3-15 — v Wright [1925] NZLR 689; [1926] AC 788; [1926] All ER Rep 201 …. 2233 Moriarty v Various Customers of BA Peters Plc [2010] 1 BCLC 142; [2011] WTLR 1661 …. 21-27 Morice v Bishop of Durham (1804) 9 Ves 399; 32 ER 656 …. 10-63, 11-06, 1107 — v — (1805) 10 Ves 522; 32 ER 947 …. 7-23, 10-04, 10-15, 10-33, 10-48, 1063, 11-06, 11-07, 12-05 Morish, Re [1939] SASR 305 …. 20-42, 20-43, 23-06 Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (1999) 96 FCR 217; 169 ALR 419 …. 17-02, 22-25, 23-03 Morley, Re [1895] 2 Ch 738; [1895–9] All ER Rep Ext 2027 …. 19-14 Morley v Hawke (1801) …. 22-33 — v Rennoldson (1843) 2 Hare 570; 67 ER 235 …. 9-12 Moroney, Re (1939) 39 SR (NSW) 249; 56 WN (NSW) 105 …. 10-33, 10-46 Morrin v Morrin (1886) 19 LR Ir 37 …. 5-02

Morris, Re (1885) 52 LT 462 …. 20-52 Morris v Livie (1842) 1 Y & C Ch Cas 380; 62 ER 934 …. 21-27 — v Morris [1982] 1 NSWLR 61 …. 2-29, 13-50 — v — (1993) 9 WAR 150 …. 17-16 Morrison, In the Will of (1933) 50 WN (NSW) 88 …. 17-39 Morris’s Will Trusts, Re [1960] 3 All ER 548 …. 19-60 Mort, Re (1904) 4 SR (NSW) 760; 21 WN (NSW) 259 …. 18-04 Mortimer v Picton (1864) 41 De G F & J 166; 46 ER 880 …. 18-35 Morton v A-G (1911) 11 SR (NSW) 473; 28 WN (NSW) 131 …. 10-71 — v Tewart (1842) 2 Y & C Ch Cas 67; 63 ER 29 …. 7-08 Morton and Hallett, Re (1880) 15 Ch D 143 …. 15-75 Moss, Re [1949] 1 All ER 495 …. 10-57 Moss v Cooper (1861) 1 John & H 352; 70 ER 782 …. 7-18, 7-30 — v Moss (1898) 19 LR (NSW) Eq 146 …. 22-08 Moss’ Trusts, Re (1888) 37 Ch D 513 …. 15-35, 15-70 Moss’s Trusts, Re [1945] 1 All ER 207 …. 9-16 Motor Auction Pty Ltd v John Bryce Wholesale Cars Pty Ltd (1997) 23 ACSR 647 …. 6-19, 12-10 Mountain, Re [1934] NZLR 399 …. 19-45 Mountain v Stayak [1922] NZLR 131 …. 7-07 Mower v Orr (1849) 7 Hare 473; 68 ER 195 …. 20-03 Moxon’s Will Trusts, Re [1958] 1 All ER 386; [1958] 1 WLR 165 …. 20-58 Moyle v Moyle (1831) 2 Russ & Myl 710; 39 ER 565 …. 18-01 MTM Funds Management Ltd v Cavalone Holdings Pty Ltd (2000) 35 ACSR 440 …. 3-10 Mucklow v Fuller (1821) Jac 198; 37 ER 824 …. 22-02 Mufitt, Re (1888) 39 Ch D 534 …. 19-58 Muir v Archdall (1918) 19 SR (NSW) 10; 36 WN (NSW) 4 …. 7-27, 10-38, 10-61, 10-63, 11-03 — v City of Glasgow Bank (1879) 4 App Cas 337 …. 21-02, 21-03

Muirhead, Re [1916] 2 Ch 181; [1916–17] All ER Rep 771 …. 19-31, 19-33 Mulcahy, Re [1969] VR 545 …. 10-71 Mulholland’s Will Trusts, Re [1949] 1 All ER 460 …. 17-39, 17-44 Mulkana Corp NL (in liq) (1983) 1 ACLC 1143 …. 2-07 Muller, Re [1953] NZLR 879 …. 14-02 Mulligan (decd), Re [1998] 1 NZLR 481 …. 17-11, 17-18, 18-18, 21-19, 22-05, 22-12 Multinational Gas & Petrochemical Co v Multinational Gas & Petrochemical Services Ltd [1983] Ch 258; [1983] 2 All ER 563 …. 2-03, 13-27 Mulvenna v Admiralty Commissioners [1926] SC 842 …. 24-05 Mundy, Re [1938] VLR 119; [1938] ALR 277 …. 17-40 Munro’s Settlement Trusts, Re [1963] 1 All ER 209; [1963] 1 WLR 145 …. 1707 Munton, Re [1927] 1 Ch 262 …. 15-84 Murad v Al-Saraj [2005] WTLR 1573 …. 13-34 Murakami v Wiryadi (2010) 268 ALR 377 …. 28-22 Murdoch v Attorney-General (1992) 1 Tas R 117 …. 10-57 Murdock v Aherne (1878) 4 VLR (E) 244 …. 12-12 Murless v Franklin (1818) 1 Swan 13; 36 ER 278 …. 12-12 Murphy v Murphy [1998] 3 All ER 1; [1999] 1 WLR 282 …. 17-16 Murray v Glasse (1854) 23 LJ Ch 126 …. 18-34 Murray v Thomas [1937] 4 All ER 545 …. 10-58 Muschinski v Dodds (1985) 160 CLR 583; 62 ALR 429 …. 2-29, 12-10, 12-14, 12-19, 13-01, 13-02, 13-11, 13-32, 13-50, 13-51, 13-52 Musgrave, Re [1916] 2 Ch 417 …. 17-37 Mussett v Bingle [1876] WN 170 …. 11-03 Mussoorie Bank v Raynor (1882) 7 App Cas 321 …. 5-07 Myers, Re [1947] NZLR 828 …. 9-16 Mylne, Re [1941] Ch 204; [1941] 1 All ER 405 …. 10-39

N

Nairn, Re [1935] NZLR 134 …. 19-45 Nant-y-Glo and Blaina Ironworks Co Ltd v Grave (1878) 12 Ch D 738 …. 1327 Napier v Public Trustee (WA) (1980) 32 ALR 153; 55 ALJR 1 …. 12-10, 12-16 Nash, Re (1881) 16 Ch D 503 …. 15-53, 15-58 Nash v Smith (1810) 17 Ves 29; 34 ER 12 …. 12-04 Nathan, Re [1938] VLR 72; [1938] ALR 145 …. 20-61 National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31; [1947] 2 All ER 217 …. 10-04, 10-10, 10-12, 10-13, 10-16, 10-57 National Australia Bank Ltd v Maher [1995] 1 VR 318 …. 12-14, 13-52 National Bank of New Zealand Ltd v Development Finance Corp of NZ [1990] 3 NZLR 257 …. 22-07 National Commercial Bank v Wimbourne (1978) 5 BPR 11,958 …. 28-22 National Crime Agency v Robb [2015] Ch 520 …. 27-07 National Grid Co plc v Mayes [2001] 2 All ER 417; [2001] 1 WLR 864 …. 8-02, 29-53, 29-54, 29-57 National Provincial Bank Ltd v Hyam [1942] 2 All ER 224 …. 20-48 National Trustees Co of Australasia Ltd v General Finance of Australasia Ltd [1905] AC 373 …. 16-12, 17-04, 22-02, 22-12, 22-14, 22-17 National Trustees Executors & Agency Co of Australasia Ltd v A-G (Vic) [1973] VR 610 …. 17-06 — v — [1978] VR 374 …. 10-67 — v Barnes (1941) 64 CLR 268; [1941] ALR 58 …. 15-43, 21-09 — v Dwyer (1940) 63 CLR 1; [1940] ALR 86 …. 16-06, 20-48 — v Federal Commissioner of Taxation (1923) 33 CLR 491 …. 16-06 — v Peile [1964] VR 325 …. 21-20 Natural Extracts Pty Ltd v Stotter (1997) 24 ACSR 110 …. 13-34, 13-43 Naylor v Arnitt (1830) 1 Russ & Myl 501; 39 ER 193 …. 20-20 Neazor v Hoyle (1962) 32 DLR (2d) 131 …. 12-20 Neill v Public Trustee [1977] 1 NSWLR 290; [1978] 2 NSWLR 65 …. 20-06 Nelan v Downes (1917) 23 CLR 546; 23 ALR 354 …. 10-10, 10-33, 10-40

Nelson v Larholt [1948] KB 339; [1947] 2 All ER 751 …. 23-18 — v Nelson (1994) 33 NSWLR 740 …. 12-12 — v Nelson (1995) 184 CLR 538; 132 ALR 133 …. 3-07, 9-02, 9-03, 9-05, 908, 12-10, 12-12, 12-15 Nemesis Australia Pty Ltd v Federal Commissioner of Taxation (2005) 61 ATR 119 …. 9-29 Neo v Neo (1875) LR 6 CP 381 …. 5-29 Nesbitt v Tredennick (1808) 1 B & B 29 …. 13-12 Nestlé v National Westminster Bank plc (29 June 1988, Hoffmann J, unreported) …. 17-11, 17-18 — v — [1994] 1 All ER 118; [1993] 1 WLR 1260 …. 16-14, 17-01, 17-11, 1718, 18-36, 22-05 Neville v Matthewman [1894] 3 Ch 345 …. 23-03 Neville Estates Ltd v Madden [1962] Ch 832; [1961] 3 All ER 769 …. 9-32, 1034, 10-44, 11-04 New, Re [1901] 2 Ch 534; [1900–3] All ER Rep 763 …. 17-05, 20-43 New v Bonaker (1867) 36 LJ Ch 846; (1867) LR 4 Eq 655 …. 10-59, 10-86 — v Jones (1833) 1 Mac & G 668 …. 17-39 — v Jones (1833) 47 ER 1562; 1 H & Tw 632 …. 17-39, 17-40 New Brunswick and Canada Railway Co v Muggeridge (1860) 1 Dr & Sm 362; 62 ER 418 …. 13-28 New South Wales v Commonwealth (No 3) (1932) 46 CLR 246 …. 5-20 New South Wales Nursing Service & Welfare Assoc for Christian Scientists v Willoughby Municipal Council (1968) 88 WN (Pt 1) (NSW) 75; [1968] 2 NSWR 791 …. 10-22 New Zealand and Australian Land Co v Watson (1881) 7 QBD 374 …. 27-06 New Zealand Forest Products v Pongakawa Sawmill Ltd (1991) 5 NZCLC 67,085 …. 2-51 New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 1 All ER 1015 …. 2-20 New Zealand Society of Accountants v Commissioner of Inland Revenue [1986] 1 NZLR 147 …. 10-58

Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 …. 12-20 Newen, Re [1894] 2 Ch 297 …. 15-12 Newey (dec’d), Re [1994] 2 NZLR 590 …. 13-42 Newlon Housing Trust v Alsulaimen [1999] 1 AC 313; [1998] 4 All ER 1 …. 624 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193 …. 13-39 Newsome v Flowers (1861) 30 Beav 461; 54 ER 968 …. 17-03 New South Wales v Commonwealth Bank of Australia (2001) 217 ALR 691 …. 27-04 Newton, Re (1936) 53 WN (NSW) 117 …. 25-11 Newton v Porter 69 NY 133 (1877) …. 27-07 Ngurli Ltd v McCann (1953) 90 CLR 425 …. 13-27 Niak v Macdonald [2001] 3 NZLR 334 …. 17-23 Nicholls v Louisville Investments Pty Ltd (1991) 10 ACSR 723 …. 15-86 — v Michael Wilson and Partners Ltd (2010) 243 FLR 177 …. 28-22 Nicholson, Re [1909] 2 Ch 111; [1908–10] All ER Rep 669 …. 19-06 Nicholson, Re [1974] 2 All ER 386; [1974] 1 WLR 476 …. 12-18 Nicholson v Field [1893] 2 Ch 511 …. 15-10, 15-13 — v Gander (1909) 8 CLR 648 …. 17-44 — v Permakraft (NZ) Ltd [1985] 1 NZLR 242; (1985) 3 ACLC 453 …. 2-03, 13-27 Nick Kritharas Holdings Ltd (in liq) v Gatsios Holdings Pty Ltd (2001) 38 ACSR 57 …. 8-02 Nickels, Re [1898] l Ch 630; [1895–9] All ER Rep 783 …. 20-70 Nicol v Chant (1909) 7 CLR 569 …. 26-12 Nightingale v Goulburn (1848) 2 Ph 594; [1843–60] All ER Rep 420; 41 ER 1072 …. 10-54 Nilant, Re (2004) 204 ALR 674 …. 17-07 Niles v Lake [1947] 2 DLR 248 …. 12-20 Nillant, Ex parte (2003) 28 WAR 81 …. 21-34

Ninety Five Pty Ltd (in liq) v Banque Nationale de Paris [1988] WAR 132 …. 13-36, 13-37, 22-08 Nissan v Attorney-General [1970] AC 179; [1969] 1 All ER 629 …. 14-12 Nissen v Grunden (1912) 14 CLR 297; 18 ALR 254 …. 15-84, 17-04, 17-39, 17-44, 17-49, 21-09, 22-12 Niyazi’s Will Trusts, Re [1978] 3 All ER 785; [1978] 1 WLR 910 …. 10-19, 1020, 10-59 Nixon, Re [1904] 1 Ch 638 …. 20-54 No 9 Bomore Road, Re [1906] 1 Ch 359 …. 15-51, 25-04 Noack v Noack [1959] VR 137; [1959] ALR 389 …. 12-12 Noble v Meymott (1851) 14 Beav 471; 51 ER 367 …. 15-05, 15-73 Nocton v Lord Ashburton [1914] AC 932; [1914] All ER Rep 45 …. 2-08, 2204, 22-26 Nolan v Collie (2003) 7 VR 287 …. 1-02, 13-07, 21-07 — v Nolan [2004] VSCA 109 …. 22-25 Norman, Re [1947] Ch 349; [1947] 1 All ER 400 …. 10-46 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9; [1964] ALR 131 …. 6-20, 24-04 Norrington, Re (1879) 13 Ch D 654 …. 16-06, 17-43 Norris, Re (1884) 27 Ch D 333 …. 15-09, 15-19, 15-61 North, Re [1909] 1 Ch 625 …. 19-21 North Devon and West Somerset Relief Fund Trusts, Re [1953] 2 All ER 1032; [1953] 1 WLR 1260 …. 10-71, 12-08 North Food Catering Pty Ltd, Re [2014] NSWSC 77 …. 21-14 North of England Zoological Society v Chester Rural District Council [1959] 3 All ER 116; [1959] 1 WLR 773 …. 10-31 Northage, Re (1891) 60 LJ Ch 488 …. 19-38 Northcote’s Will Trusts, Re [1949] 1 All ER 442 …. 17-39 Northern v Carnegie (1859) 4 Drew 587; 62 ER 225 …. 12-04 Northwest Capital Management v Westate Capital Ltd (2012) 264 FLR 424 …. 15-46, 15-57

Norton’s Will Trusts, Re [1948] 2 All ER 842 …. 10-37 Nottage, Re [1895] 2 Ch 649; [1895–9] All ER Rep 1203 …. 7-27, 10-02, 10-32, 10-49 Nourse, Re [1899] 1 Ch 63 …. 9-13 Novoship (UK) Ltd v Mikhaylyuk [2015] QB 499 …. 13-02, 13-34 NSW Masonic Youth Property Trust v Attorney-General for NSW (2010) 5 ASTLR 211 …. 22-22 Nugent v Nugent [1908] 1 Ch 546 …. 2-02 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; 116 ALR 26 …. 9-19 Num-Hoi v Num Pon Soon Inc (2001) 4 VR 527 …. 10-67

O Oakden’s Trusts, Re (1882) 26 Sol Jo 563 …. 15-19 Oakes’ Settlement Trusts, Re [1959] 2 All ER 58; [1959] 1 WLR 502 …. 17-07 Oatley v Oatley (1898) 19 LR (NSW) Eq 129; 15 WN (NSW) 75 …. 20-72 Oatway, Re [1903] 2 Ch 356 …. 27-09 Occleston v Fullalove (1874) 9 Ch D 147 …. 9-09 Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236 …. 20-11 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; 27 ALR 129 …. 21-02, 21-04, 21-14, 21-16 Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289 …. 13-11 Oesterlin v Sands (1969) 120 CLR 346; [1971] ALR 37 …. 10-08 Officer v Haines (1877) 3 VLR Eq 115 …. 15-86 Official Assignee v Jarvis [1923] NZLR 1009 …. 21-05 — v NZI Life Superannuation Nominees Ltd [1995] 1 NZLR 684 …. 29-49 — v Wilson [2008] 3 NZLR 45 …. 5-04 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 96 ALR 327 …. 1-09, 2-40, 23-10 Official Trustee in Bankruptcy v Lopatinsky (2003) 129 FCR 234 …. 9-39 Ogden, Re [1933] Ch 678; [1933] All ER Rep 720 …. 9-30, 11-04

Ogilvie, Re (1910) 11 SR (NSW) 11; 27 WN (NSW) 165 …. 19-54, 21-10 O’Grady, Re [1916] 2 AC 231 …. 26-25 O’Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 …. 22-01, 22-05 O’Hanlon v Logue [1906] 1 IR 247 …. 10-41 O’Keeffe v Calthorpe (1739) 1 Atk 17; 26 ER 12 …. 15-86 — v Hayes Knight GTO Pty Ltd (2005) 218 ALR 604 …. 21-07 O’Kelly v Davies [2015] 1 WLR 2725 …. 9-08, 12-18, 13.54 Oldfield (No 2), Re [1949] 2 DLR 175 …. 10-36, 10-58, 10-59 Oldham, Re [1925] Ch 75 …. 13-42 Oldham v Oldham (1867) LR 3 Eq 404 …. 9-19 Oldham Borough Council v Attorney-General [1993] Ch 210; [1993] 2 All ER 432 …. 10-49 Olins v Walters [2009] Ch 212 …. 13-42 Oliver, Re (1890) 62 LT 533 …. 2-31 Oliver, Re [1908] 2 Ch 74; [1908–10] All ER Rep Ext 1377 …. 19-09 Oliver v Court (1820) 8 Price 127; 146 ER 1152 …. 13-25, 20-12 Oliveri v Oliveri (1993) 38 NSWLR 665 …. 12-12 Olsen v Olsen [1977] 1 NSWLR 189 …. 9-04 Olsson v Dyson (1969) 120 CLR 365; [1969] ALR 443 …. 6-13, 6-17, 6-20, 621 Ommanney v Butcher (1823) Turn & R 260; 37 ER 1098 …. 10-06 Omnium Electric Palaces Ltd v Baines [1914] 1 Ch 332 …. 2-02, 13-28 O’Neill v Coffill (1920) 20 SR (NSW) 264; 37 WN (NSW) 90 …. 20-33 One.Tel Networks Holdings Pty Ltd, Re (2001) 40 ACSR 83 …. 17-44 Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; 304 ALR 651 …. 12-10 Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; [1951] 1 All ER 31 …. 10-01, 10-06, 10-08, 10-09, 10-24, 10-30 Oppenheimer, Re [1907] 1 Ch 399; [1904–7] All ER Rep Ext 1172 …. 19-31, 19-33 Ord v Noel (1820) 5 Madd 438; 56 ER 962 …. 20-12, 20-14

Orde, Re (1883) 24 Ch D 271 …. 15-64 O’Reilly v Alderson (1849) 8 Hare 101; 68 ER 289 …. 15-18, 15-86 Organ v Sandwell [1921] VLR 622 …. 7-09 Oriental Inland Steam Co, Re (1874) 30 LT 317 …. 21-15 Oriental Inland Steam Co, Re (1874) LR 9 Ch App 557 …. 21-15 Orloff, In the Will of (2010) 24 VR 603 …. 2-40 O’Rourke v Darbishire [1920] AC 581; [1920] All ER Rep 1 …. 17-16 Orphan Working School and Alexandra Orphanage’s Contract, Re [1912] 2 Ch 167 …. 10-68 Orr v Ford (1989) 167 CLR 316; 84 ALR 146 …. 9-02, 22-33 — v Kaines (1750) 2 Ves Sen 194; 28 ER 125 …. 23-18 Osborn, Re (1989) 25 FCR 547; 91 ALR 135 …. 13-11 Osborne, Re (1863) 2 SCR (NSW) Eq 89 …. 21-34 Osborne v Rowlett (1880) 13 Ch D 774 …. 15-75 Osoba (dec’d), Re [1978] 2 All ER 1099; [1978] 1 WLR 791 …. 12-08 O’Sullivan v Management Agency and Music Ltd [1985] QB 428; [1985] 3 All ER 351 …. 22-07 Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325 …. 7-19, 7-32, 13-06 Ottley v Gilby (1845) 8 Beav 602; 50 ER 237 …. 17-14 Oughtred v Inland Revenue Commissioners [1960] AC 206; [1959] 3 All ER 623 …. 7-05, 13-08 Outen’s Will Trusts, Re [1963] Ch 291; [1962] 3 All ER 478 …. 19-38 Overland (decd), Re [1960] QWN 25 …. 17-44 Overmyer Industrial Brokers Pty Ltd v Campbells Cash and Carry Pty Ltd [2003] Aust Contract Rep 90-181 …. 7-13 Ovey, Re (1885) 29 Ch D 560 …. 10-84 Ovey v Ovey [1900] 2 Ch 524 …. 18-02, 18-08 Owen, Re [1912] 1 Ch 519; [1911–13] All ER Rep 261 …. 19-10, 19-12, 19-13, 19-20 Owen v Williams (1773) Amb 734; 27 ER 474 …. 13-12, 13-15 Owens, Re (1882) 47 LT 61 …. 20-47

Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission (2004) 137 LGERA 7 …. 26-07, 26-25 Owners of St John’s Court Rivervale Strata Plan 6012 v Western Australian Planning Commission [2004] WASC 196 …. 26-25 Oxley, Re [1914] 1 Ch 604 …. 21-12, 21-13 Oxley v Hiscock [2004] 3 All ER 703; [2005] Fam 211 …. 12-14, 13.54

P P & P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167 …. 21-02 P T Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515; 107 ALR 199 …. 940, 9-41, 9-42 Packe, Re [1918] 1 Ch 437 …. 10-86 Paget’s Settlement, Re [1965] 1 All ER 58; [1965] 1 WLR 1046 …. 17-07, 28-08 Pain, Re [1919] 1 Ch 38 …. 21-10 Paine v Countess of Warwick [1914] 2 KB 486 …. 19-41 — v Hall (1812) 18 Ves 475; 34 ER 397 …. 7-32 — v Meller (1801) 6 Ves 349; [1775–1802] All ER Rep 155 …. 13-07 Paine’s Trusts, Re (1885) 28 Ch D 725 …. 15-35, 15-70 Paine’s Trusts, Re (1885) 33 WR 564 …. 15-59 Page v Cox (1851) 10 Hare 163; 68 ER 882 …. 2-22 Pagels v MacDonald (1936) 54 CLR 519; [1936] ALR 224 …. 2-40, 20-03, 2004, 20-76 Paice v Archbishop of Canterbury (1807) 14 Ves 364; 33 ER 560 …. 10-68 Palairet v Carew (1863) 32 Beav 564; 55 ER 222 …. 15-86, 15-87, 21-10 Palatine Estate Charity, Re (1888) 39 Ch D 54 …. 10-38 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1; [1937] ALR 432 …. 6-25 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; 215 ALR 253 …. 3-20 Palk, Re (1892) 41 WR 28 …. 22-10 Pallant v Morgan [1953] Ch 43 …. 13-41, 22-25 Palmer, Re (1912) 28 TLR 301 …. 19-38

Palmer v Emerson [1911] 1 Ch 758 …. 18-26, 18-27, 22-15 — v McAllister (1991) 4 WAR 206 …. 17-06 — v Permanent Trustee Co (1915) 16 SR (NSW) 162 …. 9-19, 21-18 Pannell v Hurley (1845) 2 Coll 241; 63 ER 716 …. 27-17 Para Wirra Syndicate v Mather (1934) 51 CLR 582 …. 13-28 Paradise Motor Co Ltd, Re [1968] 2 All ER 625; [1968] 1 WLR 1125 …. 15-73 Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 …. 3-08, 13-02, 13-11, 22-23, 22-25 Paramasivam v Flynn (1998) 90 FCR 489; 160 ALR 203 …. 28-06, 28-22 Pardoe, Re [1906] 2 Ch 184 …. 10-36, 10-45, 10-62 Park v Dawson [1965] NSWR 298 …. 17-30, 23-04 Parker, Re [1949] VLR 133; [1949] ALR 545 …. 10-71 Parker v Dowling (1916) 16 SR (NSW) 234; 33 WN (NSW) 75 …. 20-57, 2060 — v Higgins [2012] NSWSC 1516 …. 2-11 — v McKenna (1874) LR 10 Ch App 96; [1874–80] All ER Rep 443 …. 17-42 — v Moseley [1965] VR 580 …. 10-71 Parkers, Re (1887) 19 QBD 84 …. 22-11 Parker-Tweedale v Dunbar Bank [1991] Ch 12; [1990] 2 All ER 577 …. 2-05, 23-03 Parkes Management Ltd v Perpetual Trustees Co Ltd (1977) 3 ACLR 303 …. 16-10, 23-03 — v — [1977] ACLC 29,545 …. 16-06 Parkes-Linnegar v Watson [2011] NSWSC 37 …. 2-40 Parkin, Re [1892] 3 Ch 510 …. 2-24 Parnall v Parnall (1878) 9 Ch D 96 …. 5-24 Parry, Re [1947] Ch 23; [1946] 2 All ER 413 …. 19-10, 19-11, 19-12, 19-13 Parry and Hopkins, Re [1900] 1 Ch 160 …. 20-31 Parsons, Re [1940] Ch 973; [1940] 4 All ER 65 …. 15-07, 15-69 Parsons v The Queen (1999) 195 CLR 619; 160 ALR 531 …. 27-04 — v McBain (2001) 109 FCR 120; 192 ALR 772 …. 13-02, 13-11

— v Spooner (1846) 5 Hare 102; 67 ER 845 …. 21-02 Partington, Re (1887) 57 LT 654 …. 21-19 Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149; [1947] ALR 552 …. 16-06, 16-08, 20-47 — v Preddey (1903) 4 SR (NSW) 36; 21 WN (NSW) 11 …. 17-03 Pary v Juxon (1669) 3 Rep Ch 38; 22 ER 1108 …. 7-05 Pascoe v Turner [1979] 2 All ER 945; [1979] 1 WLR 431 …. 13-50 Pass v Mills (1886) 7 LR (NSW) Eq 34 …. 8-07 Passingham v Sherborn (1846) 9 Beav 424; 50 ER 407 …. 15-86, 17-44 Patel v Mirza [2015] Ch 271; [2015] All ER 326 …. 9-08 Pateman v Heyen (1993) 33 NSWLR 188 …. 17-19, 22-07, 22-13, 22-17, 22-22 Patience, Ex parte; Makinson v The Minister (1940) 40 SR (NSW) 96 …. 2-29 Patros v Patros (2007) 16 VR 182 …. 17-44 Patten, Re [1929] 2 Ch 276; [1929] All ER Rep 416 …. 10-32, 10-49 Patten and Edmonton Union Poor Guardians, Re (1883) 52 LJ Ch 787 …. 2004 Patterson, Re [1939] VLR 66 …. 9-19 Patterson, Re [1941] VLR 233; [1941] ALR 307 …. 20-58, 20-61, 20-62 Paul v Constance [1977] 1 All ER195; [1977] 1 WLR 527 …. 5-02 — v Paul (1882) 20 Ch D 742 …. 6-02, 9-35 Paul A Davies (Australia) Pty Ltd (in liq) v Davies [1983] 1 NSWLR 440 …. 17-42, 27-09 Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495; 94 ALR 225 …. 13-30 Pauling’s Settlement Trusts, Re [1961] 3 All ER 713; [1962] 1 WLR 86 …. 2122 Pauling’s Settlement Trusts (No 1), Re [1964] Ch 303; [1963] 3 All ER 1 …. 16-08, 16-09, 21-22, 22-13, 22-14, 22-17, 22-33 Pauling’s Settlement Trusts (No 2), Re [1963] Ch 576; [1963] 1 All ER 857 …. 18-16, 21-04 Paylings Will Trusts, Re [1969] 3 All ER 698; [1969] 1 WLR 1595 …. 10-21

Payne, Re [1943] 2 All ER 675 …. 19-03, 19-15 Payne v Evens (1874) LR 18 Eq 356 …. 17-13 Peachdart Ltd, Re [1984] Ch 131; [1983] 2 All ER 204 …. 2-47, 2-50, 2-51 Peacock v Colling (1885) 54 LJ Ch 743 …. 15-22 Peake’s Settled Estate, Re [1894] 3 Ch 520 …. 15-65 Pearce, Re (1887) 56 LT 228 …. 21-10 Pearce, Re [1936] SASR 137 …. 20-12 Pearce v Bulteel [1916] 2 Ch 544 …. 9-44 — v Pearce (1856) 22 Beav 248; 52 ER 1103 …. 13-03, 15-20, 15-84 — v Pearce [1977] 1 NSWLR 170 …. 9-04 — v Wright (1926) 39 CLR 16 …. 2-33 Pearse, Re (1917) 34 WN (NSW) 97 …. 15-15, 15-70, 15-83 Pearse’s Settlement, Re [1909] 1 Ch 304 …. 28-19 Pearson, Re (1877) 3 Ch D 807 …. 9-20 Pearson v Commissioner of Taxation (2002) 116 FCR 357 …. 23-03 — v Pearson [1961] VR 693 …. 12-13 Peatfield v Benn (1853) 17 Beav 522; 51 ER 1137 …. 15-86 Peczenik’s Settlement, Re [1964] 2 All ER 339; [1964] 1 WLR 720 …. 18-04 Pedulla v Nasti (1990) 20 NSWLR 720 …. 10-36, 11-03 Peel, Re [1936] Ch 161 …. 20-58, 25-11 Peel’s Settled Estates, Re [1910] 1 Ch 389; [1908–10] All ER Rep 168 …. 19-31, 19-32 Peffer v Rigg [1978] 3 All ER 745; [1977] 1 WLR 285 …. 13-04 Peggs v Lamb [1994] Ch 172; [1994] 2 All ER 15 …. 10-53, 10-58 Pehrsson’s Trustee in Bankruptcy v von Greyerz (1999–2000) 2 ITELR 230 …. 6-17 Peldan v Anderson (2006) 227 CLR 471; 229 ALR 432 …. 12-02 Pelham v Pelham [1955] SASR 53 …. 16-14 Pember v Knighton (1639) Duke 381 …. 10-39 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676;

18 ALR 124 …. 2-05 Pengelly v Pengelly [2008] Ch 375 …. 8-07 Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189 …. 2-08, 13-27 Pennell, Re [1945] VLR 302; [1946] ALR 75 …. 17-16 Pennell v Deffell (1853) 4 De GM & G 372; 43 ER 551 …. 21-10 Pennington v Buckley (1848) 6 Hare 451; 67 ER 1242 …. 10-39 — v Waine [2002] 1 WLR 2075; [2002] 4 All ER 215 …. 6-19 Penola & District Ratepayers’ & Residents’ Assn Inc v Wattle Range Council [2011] SASCFC 62 …. 8-02 Penton, Re [1924] 2 Ch 192; [1924] All ER Rep 598 …. 23-02 People v North River Sugar Refining Co 24 NE 834 (1890) …. 3-21 Peoples Prudential Assurance Co Ltd v Australian Federal Life and General Assurance Co Ltd (1935) 35 SR (NSW) 253; 52 WN (NSW) 72 …. 17-43 Peppercorn v Wayman (1852) 5 De G & Sm 230; 64 ER 1094 …. 15-73 Percival v Wright [1902] 2 Ch 421 …. 2-03, 13-27 Perkins, Ex parte (1891) 8 WN (NSW) 43 …. 15-69 Perkins, Re [1907] 2 Ch 596; [1904–7] All ER Rep 273 …. 19-53, 19-58 Perkins v Permanent Trustee Company Ltd (1923) 23 SR (NSW) 358; 40 WN (NSW) 62 …. 18-09, 19-03, 19-24 Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 …. 17-18 Permanent Trustee Australia Ltd v Perpetual Trustee Co Ltd (1994) 15 ACSR 722 …. 17-02 Permanent Trustee Co v Scales (1930) 30 SR (NSW) 391 …. 7-03 Permanent Trustee Co (Canberra) Ltd v Permanent Trustee Co of New South Wales Ltd (1969) 14 FLR 246 …. 28-07 Permanent Trustee Co Ltd v Angus (1917) 17 SR (NSW) 364; 34 WN (NSW) 141 …. 20-12, 20-16 — v Fels (1919) 19 SR (NSW) 87 …. 21-10 — v Presbyterian Church (NSW) Property Trust (1946) 64 WN (NSW) 8 …. 10-30

— v Cormack (1920) 21 SR (NSW) 1 …. 9-24 — v University of Sydney [1983] 1 NSWLR 578 …. 9-24 Permanent Trustee Co of NSW Ltd v Fraser (1922) 22 SR (NSW) 606 …. 1961 — v Macphillamy (1938) 38 SR (NSW) 541; 55 WN (NSW) 212 …. 19-60, 19-61 — v Pym (1938) 39 SR (NSW) 1; 56 WN (NSW) 1 …. 20-60 Perpetual Executors and Trustees Association v Simpson (1906) 27 ALT 179 …. 17-37 Perpetual Executors and Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185; 25 ALR 177 …. 7-08 — v Roberts [1970] VR 732 …. 28-08 Perpetual Trustee Co v Watson (No 1) (1927) 28 SR (NSW) 39 …. 23-07 — v — (No 2) (1927) 28 SR (NSW) 43 …. 22-02, 22-09, 22-16 Perpetual Trustee Co Ltd v A-G (1937) 54 WN (NSW) 95 …. 14-05 — v Adams (1923) 24 SR (NSW) 87; 40 WN (NSW) 158b …. 20-36 — v Allen (1921) 38 WN (NSW) 220 …. 19-57 — v Beaton (1903) 20 WN (NSW) 188 …. 19-55, 20-33 — v Champion (1921) 21 SR (NSW) 501; 38 WN (NSW) 162 …. 19-36, 1940 — v — (1923) 23 SR (NSW) 544; 40 WN (NSW) 119 …. 19-39, 19-40 — v Cheyne (2011) 42 WAR 209 …. 18-08, 20-62 — v Cohen (1916) 16 SR (NSW) 242; 33 WN (NSW) 77 …. 19-39 — v Cowan (No 2) (1900) 21 LR (NSW) Eq 278 …. 17-42 — v Dickinson (1936) 53 WN (NSW) 187 …. 14-05 — v Ferguson (1951) 51 SR (NSW) 256; 68 WN (NSW) 236 …. 10-23 — v Godsall [1979] 2 NSWLR 785 …. 2-35, 17-06 — v Griffin (1924) 41 WN (NSW) 150 …. 19-11 — v Groth (1985) 2 NSWLR 278 …. 10-31 — v Holdsworth (1953) [1966] 2 NSWR 755 …. 9-24 — v Holt (1894) 15 LR (NSW) Eq 18 …. 19-24

— v — (1895) 11 WN (NSW) 141 …. 19-54 — v Lassetter (1934) 34 SR (NSW) 172; 51 WN (NSW) 49 …. 19-59 — v Molloy (1923) 23 SR (NSW) 395; 40 WN (NSW) 76 …. 18-02 — v Noyes (1925) 25 SR (NSW) 226; 42 WN (NSW) 56 …. 17-11, 20-52 — v Shelley (1921) 21 SR (NSW) 426; 38 WN (NSW) 132 …. 10-04, 20-57 — v Smith (1906) 6 SR (NSW) 542; 23 WN (NSW) 112 …. 20-58 — v — (1938) 39 SR (NSW) 19 …. 9-24 — v St Luke’s Hospital (1939) 39 SR (NSW) 408; 56 WN (NSW) 181 …. 1055 — v Tasker (1913) 13 SR (NSW) 322; 30 WN (NSW) 82 …. 15-03 — v Thomas (1903) 3 SR (NSW) 277 …. 15-03 — v Willers (1955) 72 WN (NSW) 244 …. 6-14 — v Wittscheibe (1940) 40 SR (NSW) 501; 57 WN (NSW) 166 …. 10-40 Perpetual Trustees Queensland Ltd, Re [2000] 2 Qd R 647 …. 10-31, 10-50 Perpetual Trustees Victoria Ltd v Barns (2012) 34 VR 387 …. 17-07 Perpetual Trustees WA Ltd v A-G (WA) (1992) 8 WAR 441 …. 17-06 Perrin v Lyon (1807) 9 East 170; 103 ER 538 …. 9-13 Perrins v Bellamy [1899] 1 Ch 797 …. 16-12, 16-20, 17-04 Perry v Commissioner of Stamps (1913) 32 NZLR 1194 …. 7-08 Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 …. 2-14, 2-15 Peterborough Royal Foxhound Show Society v Inland Revenue Commissioners [1936] 1 All ER 813; [1936] 2 KB 497 …. 10-32, 10-49, 11-05 Petersen, Re [1920] St R Qd 42 …. 21-34 Petit, Re [1988] 2 NZLR 513 …. 10-19 Pettifor’s Will Trusts, Re [1966] Ch 257; [1966] 1 All ER 913 …. 17-07 Pettingall v Pettingall (1842) 11 LJ Ch 176 …. 10-57, 11-02 Pettitt v Pettitt [1970] AC 777; [1969] 2 All ER 385 …. 12-12, 12-13, 12-16, 12-17, 12-18, 13-44 Petty v Petty (1853) 22 LJ Ch 1065 …. 7-05 Peyton v Robinson (1823) 1 LJ Ch (OS) 191 …. 17-42

Phair, In the Will of (1933) 50 WN (NSW) 207 …. 17-40 Phelps, Ex parte (1742) 9 Mod Rep 357; 88 ER 505 …. 15-86 Philips New Zealand Ltd, Re [1997] 1 NZLR 93 …. 17-06 Phillimore, Re [1903] 1 Ch 942 …. 19-60 Phillips, Re [1931] WN 271 …. 14-05 Phillips v Beal (No 1) (1862) 32 Beav 25; 55 ER 10 …. 19-41 — v Mullings (1871) LR 7 Ch App 244 …. 9-35 — v Phillips (1853) Kay 40; 69 ER 18 …. 20-58 — v — (1885) 29 Ch D 673 …. 13-19 — v — [1993] 3 NZLR 159 …. 13-50 — v Roberts [1975] 2 NSWLR 207 …. 10-33, 10-73 Philpott v St George’s Hospital (1859) 27 Beav 107; 54 ER 45 …. 10-69 Phipps v Boardman [1964] 2 All ER 187; [1964] 1 WLR 993 …. 13-11, 13-31, 13-43 — v Lovegrove (1873) LR 16 Eq 80 …. 15-84, 17-17 Piatek v Piatek (2010) 245 FLR 137 …. 28-22 Pickard v Anderson (1872) LR 13 Eq 608 …. 18-04, 18-05 Pickup v Atkinson (1846) 4 Hare 624; 67 ER 797 …. 19-04 Piddocke v Burt [1894] 3 Ch 343 …. 13-22 Pieper (decd), Re [1951] VLR 42; [1951] ALR 64 …. 10-23, 10-59, 10-69 Piercy, Re [1898] 1 Ch 565 …. 10-61, 10-62 Pilkington v IRC [1964] AC 612; [1962] 3 All ER 622 …. 16-08, 20-58, 20-59, 20-62, 23-16, 25-11 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; 180 ALR 249 …. 22-04 Pinion, Re [1965] Ch 85; [1964] 1 All ER 890 …. 10-26 Piper, Re [1946] 2 All ER 503 …. 9-15 Pirbright v Salwey [1896] WN 86 …. 7-27, 11-03, 11-08 Pitcairn, Re [1896] 2 Ch 199; [1895–9] All ER Rep 1244 …. 19-06 Pitt, Re (1928) 44 TLR 371 …. 15-03 Pitt v Holt [2012] Ch 132; [2011] 2 All ER 450 …. 16-01

— v Holt [2013] 2 AC 108; [2013] 3 All ER 429 …. 16-01, 16-12, 17-04 Pitt (decd), Re Estate of (2002) 84 SASR 109 …. 10-74 Pittari (decd), Re [1967] VR 800 …. 17-07 Piwinski v Corporate Trustee of the Diocese of Armidale [1977] 1 NSWLR 266 …. 22-25 Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266 …. 12-13 Playfair v Cooper (1853) 17 Beav 187; 51 ER 1004 …. 19-53 Pleasants, Re (1923) 39 TLR 675 …. 10-03, 10-32, 10-58 Plimsoll v Drake (1995) 4 Tas R 334 …. 17-05 Plomley v Richardson & Wrench Ltd [1894] AC 632 …. 25-04 — v Shepherd (1896) 17 LR (NSW) Eq 215; 13 WN (NSW) 94 …. 17-39 Plowright v Lambert (1885) 52 LT 646 …. 17-47 Plumptre’s Marriage Settlement, Re [1910] 1 Ch 609 …. 6-26 Pocock v A-G (1876) 3 Ch D 342 …. 10-61 — v Reddington (1801) 5 Ves 794; 31 ER 862 …. 22-06 Polanski v Conde-Nast Publications Ltd [2005] 1 All ER 945; [2005] 1 WLR 637 …. 9-02 Pollexfen v Moore (1745) 3 Atk 272; 26 ER 959 …. 15-73 Polley v Seymour (1837) 2 Y & C Ex 708; 160 ER 578 …. 26-09 Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769 …. 13-34, 1336 Polly Peck International plc (No 2), Re [1998] 3 All ER 812 …. 13-10, 13-11 Ponder, Re [1921] 2 Ch 59; [1921] All ER Rep 164 …. 2-40, 15-03, 15-55 Poole Bathurst’s Estate, Re (1854) 2 Sm & G 169; 65 ER 351 …. 15-22 Poole’s Settlement Trusts, Re [1959] 2 All ER 340; [1959] 1 WLR 651 …. 17-07 Pooley, Re (1889) 40 Ch D 1; [1886–90] All ER Rep 157 …. 17-40 Pooley v Quilter (1858) 2 De G & J 327; 44 ER 1016 …. 17-48 — v Royal Alexandra Hospital (1932) 32 SR (NSW) 459; 49 WN (NSW) 156 …. 7-27, 10-38, 10-61, 11-03 Pope, Re [1901] 1 Ch 64 …. 19-15 Pope v DRP Nominees Pty Ltd (1999) 74 SASR 78 …. 15-19, 15-46, 23-06

Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (The New York Star) (1980) 144 CLR 300; [1980] 3 All ER 257 …. 2-20 Port of Brisbane Corporation v ANZ Securities Ltd [2003] 2 Qd R 661 …. 1-06 Porteous v Rhinehart (1998) 19 WAR 495 …. 15-86 Porter, Re [1892] 3 Ch 481 …. 9-23 Porter, Re [1925] Ch 746; [1925] All ER Rep 179 …. 9-07 Porter v Baddeley (1877) 5 Ch D 542 …. 19-03 — v Moore [1904] 2 Ch 367 …. 17-17 — v Porter (1930) 31 SR (NSW) 115; 48 WN (NSW) 17 …. 19-47, 19-48, 1949, 19-50 — v Watts (1852) 21 LJ Ch 211 …. 15-83 Postlethwaite, Re (1886) 60 LT 514 …. 17-43 Potter, Re [1970] VR 352 …. 2-32 Powell, Re (1907) 7 SR (NSW) 874; 24 WN (NSW) 217 …. 17-37, 17-38 Powell, Re [1921] 1 Ch 178 …. 19-41 Powell v Powell (1932) 32 SR (NSW) 407 …. 2-07 — v Powell and Thomas v Evan Jones and Co [1905] 1 KB 11 …. 17-42, 17-46 Powell-Cotton’s Re-settlement, Re [1956] 1 All ER 60; [1956] 1 WLR 23 …. 17-06 Powell’s Trusts, Re (1902) 19 WN (NSW) 199 …. 15-72 Power, Re [1947] Ch 572; [1947] 2 All ER 282 …. 18-04 Power v Banks [1901] 2 Ch 487 …. 20-04 Power’s Settlement Trusts, Re [1951] Ch 1074; [1951] 2 All ER 513 …. 15-12 Powerscourt v Powerscourt (1824) 1 Mol 616 …. 10-33 Powlet v Herbert (1791) 1 Ves Jun 297; 30 ER 352 …. 21-20 Powys v Blagrave (1854) Kay 495; 69 ER 210 …. 20-30, 20-43 Poyser, Re [1908] 1 Ch 828; [1908–10] All ER Rep Ext 1381 …. 19-16, 19-17, 19-19 Poyser, Re [1910] 2 Ch 444; [1908–10] All ER Rep 374 …. 19-53, 19-58 Prasad v Parai [2013] 1 NZLR 444 …. 17-39

Pratt’s Will Trusts, Re [1943] Ch 326; [1943] 2 All ER 375 …. 18-08, 20-03 Prentice v Cummins (No 5) (2002) 124 FCR 67 …. 9-40 — v — (No 6) (2003) 134 FCR 449; 203 ALR 449 …. 12-13 Presbyterian Church (NSW) Property Trust v Ryde Municipal Council [1978] 2 NSWLR 387 …. 10-63 Price, Re (1887) 34 Ch D 603 …. 20-58 Price, Re (1902) 19 WN (NSW) 15 …. 25-04 Price, Re (1935) 35 SR (NSW) 444; 52 WN (NSW) 139 …. 10-65, 21-10, 2136 Price, Re [1943] Ch 422; [1943] 2 All ER 505 …. 10-33, 11-04, 11-08 Price v Loaden (1856) 21 Beav 508; 52 ER 955 …. 21-10, 21-11 Primary Producers Finance v Dixon (1938) 40 WALR 34 …. 21-03 Primeau v Granfield 184 F 480 (1911) …. 27-09 Prince v Hine (No 2) (1859) 27 Beav 345; 54 ER 135 …. 21-17 Princess Ann of Hesse v Field [1963] NSWR 998; (1962) 80 WN (NSW) 66 …. 15-86, 17-39, 19-01, 19-58 Printers’ and Transferers’ Society, Re [1899] 2 Ch 184 …. 12-08 Prison Charities, Re (1873) LR 16 Eq 129 …. 10-72 Prodger v Langham (1662) 1 Keb 486; 83 ER 1068 …. 9-46 Producer’s Defence Fund, Re [1954] VLR 246; [1954] ALR 541 …. 11-08, 1207, 12-08 Protheroe v Protheroe [1968] 1 All ER 1111; [1968] 1 WLR 519 …. 13-20 Prudential Staff Pensions Ltd v The Prudential Assurance Company Ltd [2011] Pens LR 239; [2011] EWHC 960 …. 8-03 Prudential Staff Union v Hall [1947] KB 685 …. 2-24 Pryce, Re [1917] 1 Ch 234; [1916–17] All ER Rep 573 …. 6-11, 6-12, 6-13, 6-14 PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 …. 7-05 Public Curator of Queensland v The Union Trustee Co of Australia Ltd (1922) 31 CLR 66; 28 ALR 438 …. 1-06, 5-19 Public Trustee v Attorney-General for New South Wales (1997) 42 NSWLR 600 …. 10-51, 10-66, 10-70

— v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496 …. 10-84 — v Clayton (1985) 38 SASR 1 …. 10-57 — v Commissioner of Stamp Duties [1925] NZLR 237 …. 12-12 — v Federal Commissioner of Taxation (1934) 51 CLR 75 …. 10-63 — v Gower [1924] NZLR 1233 …. 9-16 — v Larkman (1999) 21 WAR 295 …. 20-57 — v Nolan (1943) 43 SR (NSW) 169; 60 WN (NSW) 84 …. 7-27, 10-53, 1103, 11-06 — v Optus Capital Ltd (2013) 96 ACSR 493 …. 3-18 — v Smith (1944) 44 SR (NSW) 348; 61 WN (NSW) 206 …. 10-40, 10-63 — v Steven [1921] NZLR 441 …. 12-17 — v Young (1980) 23 SASR 239 …. 10-30 — v — (1980) 24 SASR 407 …. 10-08 Pugh, Re [1887] WN 143 …. 20-53 Pugh v Stringfield (1858) 4 CB (NS) 364; 140 ER 1125 …. 2-24 Pugh’s Will Trusts, Re [1967] 3 All ER 337; [1967] 1 WLR 1262 …. 5-10, 5-29, 12-03 Pullan v Koe [1913] 1 Ch 9; [1911–13] All ER Rep 334 …. 6-26 Pulsford v Devenish [1903] 2 Ch 625 …. 13-27 Pulteney v Darlington (1796) 7 Bro PC 530; 3 ER 344 …. 26-21 Puma Australia Pty Ltd v Sportsmen’s Australia Ltd (No 2) [1994] 2 Qd R 159 …. 17-20 Pumfrey, Re (1882) 22 Ch D 255 …. 21-02, 21-04 Purcell, Re (1895) 21 VLR 249; 1 ALR 57 …. 10-40 Purkiss, Re [1999] 3 VR 223 …. 25-05 Purton, Re (1935) 53 WN (NSW) 148 …. 17-31, 17-40 Purves v Smith [1944] VLR 186 …. 2-22 Pyle v Pyle [1895] 1 Ch 724 …. 26-14 Pyne, Re [1903] 1 Ch 83 …. 10-67

Q Q v Q [2009] 1 FLR 935 …. 9-08 Queensland Mines Ltd v Hudson [1976] CLC 40–258 …. 22-25 Queensland Oil Shale Mining Industry (Superannuation) Ltd, Re [1999] 2 Qd R 524 …. 17-39 Queensland Trustees Ltd v Halse [1949] St R Qd 270 …. 10-46 Quesnel, Re [1959] SASR 106 …. 10-84 Quicke’s Trusts, Re [1908] 1 Ch 887 …. 20-36 Quigley, Re (1906) 6 SR (NSW) 360; 23 WN (NSW) 104 …. 19-24 Quigley, Re (1908) 8 SR (NSW) 124 …. 20-06, 20-20 Quigley’s Will, Re (1895) 16 LR (NSW) Eq 45; 11 WN (NSW) 161 …. 20-43 Quinney, Re (1905) 25 NZLR 593 …. 20-43 Quinton v Proctor [1998] 4 VR 469 …. 15-85 Quistclose Investments Ltd v Rolls Razor Ltd (in liq) [1968] Ch 540; [1968] 1 All ER 613 …. 2-14

R R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289 …. 13-07 — v District Auditor; Ex parte West Yorkshire Metropolitan County Council [1986] RVR 24 …. 5-29, 11-04 — v Holl (1881) 7 QBD 575 …. 16-08 — v Hopkins (1915) 20 CLR 464 …. 13-25 — v Mayor of Blenheim (1908) 28 NZLR 249 …. 14-12 — v Special Commissioners of Income Tax; Ex parte University College of North Wales (1909) 78 LJ (KB) 576 …. 10-26 R (Factortame) v Transport Secretary (No 8) [2003] QB 381; [2002] 4 All ER 97 …. 24-05 R Griggs Group Ltd v Evans [2005] Ch 153 …. 28-21 R (Independent Schools Council) v Charity Commission [2012] Ch 214; [2012] 1 All ER 127 …. 10-04, 10-10, 10-14, 10-30

R W G Management Ltd v Commissioner for Corporate Affairs [1985] VR 385 …. 21-04, 21-06, 21-07 Rabaiotti’s Settlements, Re [2000] WTLR 953 …. 17-16 Raby v Ridehalgh (1855) 7 De GM & G 104; 44 ER 41 …. 17-04, 21-23 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 …. 10-33, 11-04 Radnor’s (Earl) Will Trusts, Re (1890) 45 Ch D 402 …. 16-06 Rae v Meek (1889) 14 App Cas 558 …. 17-18, 22-02 Raffaele v Raffaele [1962] WAR 29 …. 6-21 Raftland Pty Ltd v Commissioner of Taxation (2006) 227 ALR 598 …. 1-01, 15-02 Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation (2008) 238 CLR 516; 246 ALR 406 …. 5-04, 19-45 Rain v Fullarton (1900) 21 LR (NSW) Eq 311 …. 9-36 Raine, Re [1929] 1 Ch 716 …. 20-60 Raine, Re [1956] Ch 417; [1956] 1 All ER 355 …. 10-71 Rakestraw v Brewer (1728) 2 P Wms 511; 24 ER 839 …. 13-18 Ramage v Waclaw (1988) 12 NSWLR 84 …. 23-03 Ramsay v Gilchrist [1892] AC 412 …. 9-46 — v McElroy [2004] 1 Qd R 667 …. 21-14 — v National Australia Bank Ltd [1989] VR 59 …. 21-14 — v Trustee Executors and Agency Co Ltd (1948) 77 CLR 321; [1949] ALR 105 …. 9-14 Ramsden v Dyson (1866) LR 1 HL 129 …. 13-11 Randall v Errington (1805) 10 Ves 423; 32 ER 909 …. 17-43 — v Lubrano (1975) 72 NSWLR 621 …. 17-16 — v Russell (1817) 3 Mer 190; 36 ER 73 …. 13-19 Rank’s Settlement Trusts, Re [1979] 1 WLR 1242 …. 3-20 Raphael, Re (1903) 3 SR (NSW) 196; 20 WN (NSW) 84 …. 20-06 Raphael v Boehm (1805) 11 Ves 92; 32 ER 1023 …. 22-08 — v — (1807) 13 Ves 407; 33 ER 347 …. 22-08 Rasch Nominees Pty Ltd v Bartholomaeus (2012) 114 SASR 448 …. 13-39

Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407; 90 WN (Pt 2) (NSW) 154 …. 13-10, 13-11 Raulfs v Fishy Bite Pty Ltd [2008] NSWSC 1195 …. 27-13 — v — [2012] NSWCA 135 …. 2-14 Rawcliffe v Johnstone [1921] NZLR 470 …. 20-11, 22-05 Rawe v Chichester (1773) Amb 715; 27 ER 463 …. 13-43 Rawsthorne v Rowley [1909] 1 Ch 409n …. 18-36 Rawstron (Executrices of the Estate of Lucian Freud) v Freud [2014] WTLR 1453 …. 7-15, 7-23 Raybould, Re [1900] 1 Ch 199 …. 21-04, 21-12 Rayner, Re (1920) 89 LJ Ch 369 …. 10-30 Rayner v Preston (1881) 18 Ch D 1 …. 13-07 Read v Chown (1929) 46 WN (NSW) 154 …. 21-10, 21-36 — v Stedman (1859) 26 Beav 495; 53 ER 989 …. 12-04 Reade-Revell, Re [1930] 1 Ch 52 …. 20-60 Reading, Re (1916) 60 Sol Jo 655 …. 17-37 Recher, Re [1972] Ch 526; [1971] 3 All ER 401 …. 9-32, 11-04 Redden v Lillis [1979] WAR 161 …. 7-12 Rede v Oakes (1864) 4 De GJ & Sm 505; 46 ER 1015 …. 20-11 Redgate, Re [1903] 1 Ch 356 …. 15-05 Re-Engine Pty Ltd v Ferguson (2007) 209 FLR 1 …. 13-35 Rees, Re [1950] Ch 204; [1949] 2 All ER 1003 …. 2-27, 5-02, 12-04 Rees v Dominion Insurance Co of Australia Ltd (in liq) (1981) 6 ACLR 71 …. 12-08, 29-57 — v Engelbach (1871) LR 12 Eq 225 …. 2-36 Rees’ Will Trusts, Re [1954] Ch 202; [1954] 1 All ER 7 …. 9-22, 20-62 Reeve v A-G (1843) 3 Hare 191; 67 ER 351 …. 10-23 Regal Castings Ltd v Lightbody [2009] 2 NZLR 433 …. 9-41 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134; [1942] 1 All ER 378 …. 1321, 13-27, 17-42

Regier v Campbell-Stuart [1939] Ch 766; [1939] 3 All ER 235 …. 13-25 Registered Securities Ltd, Re [1991] 1 NZLR 545 …. 27-11, 27-15 Rehden v Wesley (1861) 29 Beav 213; 54 ER 609 …. 17-31 Reid, Re [1943] SASR 254 …. 19-56 Reid v Deane [1906] VLR 138; (1906) 12 ALR 46 …. 17-37, 19-57 — v Fitzgerald (1926) 48 WN (NSW) 25 …. 20-36 — v Reid (1862) 30 Beav 388; 54 ER 939 …. 15-22 Reis, Re [1904] 2 KB 769 …. 9-44 Relfo Ltd (in liq) v Varsani [2015] 1 BCLC 14 …. 27-07 Remnant’s Settlement Trusts, Re [1970] Ch 560; [1970] 2 All ER 554 …. 17-07 Resch’s Will Trusts, Re; Le Cras v Perpetual Trustee Co Ltd [1969] 1 AC 514; (1967) 68 SR (NSW) 89; (1969) 87 WN (Pt 2) (NSW) 53; [1967] 2 NSWR 706; [1967] 3 All ER 915 …. 10-22, 10-55 Revel v Watkinson (1748) 1 Ves Sen 93; 27 ER 912 …. 19-53 Reynard v Arnold (1875) LR 10 Ch App 386 …. 26-15 Reynolds, Ex parte (1800) 5 Ves 707; 31 ER 816 …. 15-86, 17-48 Reynolds, Re [1942] VLR 158; [1942] ALR 251 …. 19-06, 19-45, 19-51 Rhodesia Goldfields Ltd, Re [1910] 1 Ch 239 …. 21-11 Richard Mills & Co (Brierly Hill) Ltd, Re [1905] WN 36 …. 25-03 Richards, Re (1931) 31 SR (NSW) 565; 48 WN (NSW) 172 …. 20-57 Richards, Re [1974] 2 NZLR 60 …. 19-49 Richards v Delbridge (1874) LR 18 Eq 11 …. 6-17 — v Dove [1974] 1 All ER 888 …. 12-18 — v Perkins (1838) 3 Y & C Ex 299; 160 ER 716 …. 23-05 — v Richards [1958] 3 All ER 513; [1958] 1 WLR 1116 …. 12-17 Richardson, Re (1887) 4 TLR 153 …. 10-71 Richardson, Re [1896] 1 Ch 512; [1895–9] All ER Rep Ext 2000 …. 17-43, 2070 Richardson, Re [1911] 2 KB 705 …. 21-05 Richardson v Allen (1870) 10 SCR (NSW) Eq 1 …. 17-39

Richardson’s Will Trusts, Re [1958] Ch 504; [1958] 1 All ER 538 …. 9-24 Ricketson, Ex parte (1873) 12 SCR (NSW) Eq 1 …. 25-04 Riddle v Riddle (1952) 85 CLR 202; [1952] ALR 167 …. 17-06 Rider v Kidder (1806) 12 Ves 202; 33 ER 77 …. 12-12 Ridler, Re (1882) 22 Ch D 74 …. 9-42, 9-44 Ridsdel, Re [1947] Ch 597; [1947] 2 All ER 312 …. 20-48 RIL Aviation HL 7740 and HL 7741 Pty Ltd v Alliance & Leicester plc [2011] NSWCA 423 …. 24-04 Rinehart v Welker [2012] NSWCA 95 …. 16-20 Riordan v Banon (1876) 10 Ir R Eq 469 …. 7-18 Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36; 324 ALR 240 …. 1-02, 1-07 Rizos v Rizos [1970] VR 150 …. 25-05 Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327 …. 13-07 Roadley, Re [1930] 1 Ch 524 …. 10-23 Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 …. 2-15, 13-10, 13-34, 13-40, 23-03, 27-02, 27-03, 27-07 Robbins, Re [1907] 2 Ch 8 …. 23-09 Robbins, Re [1928] Ch 721 …. 19-55 Roberts, Re [1963] 1 All ER 674; [1963] 1 WLR 406 …. 10-71, 10-84, 10-85 Roberts, Re (1983) 20 NTR 13; 70 FLR 158 …. 15-46, 15-60, 15-66 Roberts v Roberts (1915) 16 SR (NSW) 6 …. 19-56, 20-31 — v Tunstall (1845) 4 Hare 257; 67 ER 645 …. 22-29 — v University of Sydney [1960] NSWR 702; 78 WN (NSW) 541 …. 10-83 Robertson, Re [1930] 2 Ch 71 …. 10-35 Robertson, Re [1953] VLR 685; [1954] ALR 53 …. 17-37, 17-38 Robertson v Allen (2003) 11 BPR 21,213 …. 9-34, 23-12 — v Wait (1853) 8 Ex 299; 155 ER 1360 …. 6-06, 6-13 Robertson’s Will Trusts, Re [1960] 3 All ER 146 …. 17-07 Robins v Incentive Dynamics Pty Ltd (in liq) (2003) 175 FLR 286; 45 ACSR

244 …. 13-02, 13-34 Robinson, Re (1931) 100 LJ Ch 321 …. 10-59 Robinson, Re [1897] 1 Ch 85 …. 10-39 Robinson, Re [1911] 1 Ch 502; [1911–13] All ER Rep 296 …. 17-37, 23-20 Robinson, Re [1923] 2 Ch 332 …. 10-72 Robinson, Re [1931] 2 Ch 122 …. 10-59, 10-68, 10-69 Robinson, Re [1951] Ch 198; [1950] 2 All ER 1148 …. 10-20, 10-21 Robinson v Harkin [1896] 2 Ch 415 …. 17-18, 17-20, 17-30, 17-32, 21-18, 2119, 22-32 — v Ommanney (1883) 23 Ch D 285 …. 13-42 — v Pett (1734) 3 P Wms 249; 24 ER 1049 …. 15-73, 17-39 — v Robinson (1848) 11 Beav 371; 50 ER 860 …. 22-05 — v — (1851) 1 De GM & G 247; 42 ER 547 …. 18-34, 22-06 — v — [1961] WAR 56 …. 12-12 — v Waite (1853) 8 Ex 299; 155 ER 1360 …. 2-24 Robinson’s Settlement, Re [1912] 1 Ch 717 …. 21-03 Robinson’s Settlement Trusts, Re [1976] 3 All ER 61; [1976] 1 WLR 806 …. 1707 Robinson’s Trusts, Re [1974] Qd R 243 …. 23-07 Robison v Stuart (1891) 12 LR (NSW) Eq 47 …. 10-04 Robson v Flight (1865) 4 De GJ & Sm 608; 46 ER 1054 …. 15-73, 15-75 Rochefoucauld v Boustead [1897] 1 Ch 196 …. 3-06, 7-03, 7-08, 7-09, 7-12, 1325, 22-25 Rodger v Rodger (1893) 12 NZLR 392 …. 5-24 Rogers v Ingham (1876) 3 Ch D 351; [1874–80] All ER Rep 209 …. 17-37 Rogerson, Re [1901] 1 Ch 715; [1900–3] All ER Rep Ext 1552 …. 10-61 Rolfe v Gregory (1865) 4 De GJ & Sm 576; 46 ER 1042 …. 13-04, 22-30 Rolled Steel Products Ltd v British Steel Corporation [1986] Ch 246; [1985] 3 All ER 52 …. 13-34 Rolls v Miller (1884) 27 Ch D 71; [1881–5] All ER Rep 915 …. 10-19 Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; [1934]

ALR 202 …. 10-33, 10-65 Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439 …. 21-05, 23-19, 23-21 Ronori Pty Ltd v ACN 101 071 998 Pty Ltd [2008] NSWSC 246 …. 21-04 Roper-Curzon v Roper-Curzon (1871) LR 11 Eq 452 …. 20-58 Roper’s Trusts, Re (1879) 11 Ch D 272 …. 20-63 Ropner’s Settlements Trusts, Re [1956] 3 All ER 332; [1956] 1 WLR 902 …. 1707 Rose, Re [1952] Ch 499; [1952] 1 All ER 1217 …. 6-19 Rose v Rose (1986) 7 NSWLR 679 …. 1-07, 2-15, 5-23 Rosebanner Pty Ltd v EnergyAustralia (2009) 223 FLR 406 …. 26-25 Rostirolla v Fiakos (No 2) [2002] FCA 1562 …. 5-14 Roth, Re (1896) 74 LT 50; [1895–9] All ER Rep 455 …. 16-14 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484 …. 17-16 Rouse’s Will Trusts, Re [1959] 2 All ER 50; [1959] 1 WLR 372 …. 17-07 Rousset v Antunovich [1963] WAR 52 …. 20-11 Routledge’s Trusts, Re [1909] 1 Ch 280 …. 15-07, 15-75 Rowbotham v Dunnett (1878) 8 Ch D 430 …. 7-29, 7-32 Rowe v Rowe (1861) 29 Beav 276; 54 ER 633 …. 19-21 Rowell, Re (1982) 31 SASR 361 …. 10-19 Rowlandson v National Westminster Bank Ltd [1978] 3 All ER 370; [1978] 1 WLR 798 …. 13-34 Rowley v Ginnever [1897] 2 Ch 503 …. 13-43 Rowlls v Bebb [1900] 2 Ch 107; [1900–3] All ER Rep 756 …. 16-11, 19-10, 1914 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97 …. 13-34, 13-35, 13-39 Royal Choral Society v Inland Revenue Commissioners [1943] 2 All ER 101 …. 10-31, 10-50 Royal College of Nursing v St Marylebone Corp [1958] 1 All ER 129 …. 10-31 Royal College of Surgeons of England v National Provincial Bank Ltd [1952]

AC 631; [1952] 1 All ER 984 …. 10-02, 10-31, 10-55 Royal Exchange Assurance v Hope [1928] Ch 179; [1927] All ER Rep 67 …. 222 Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486; 48 ALJR 304 …. 10-03, 10-47 Royal North Shore Hospital, Re (1904) 21 WN (NSW) 161 …. 10-78 Royal North Shore Hospital of Sydney v A-G (1938) 60 CLR 396; [1938] ALR 434 …. 10-12, 10-29, 10-51, 10-70, 10-71 Royal Society for the Prevention of Cruelty to Animals, NSW v Benevolent Society of New South Wales (1960) 102 CLR 629; [1960] ALR 223 …. 1010, 10-37, 10-57 Royal Society of London v Thompson (1881) 17 Ch D 407 …. 10-31 Royal Society’s Charitable Trusts, Re [1956] Ch 87; [1955] 3 All ER 14 …. 1078, 17-06 Royce, Re [1940] Ch 514; [1940] 2 All ER 291 …. 10-45 Royce’s Will Trusts, Re [1959] Ch 626; [1959] 3 All ER 278 …. 17-40 Rubery v Rubery [2003] WASC 164 …. 25-11 Ruddington Land, Re [1909] Ch 701; [1908–10] All ER Rep 377 …. 15-51 Ruddock, Re (1910) 102 LT 89; [1908–10] All ER Rep 725 …. 20-72 Rugby School, Case of (1627) Duke 80 …. 10-28 Rumball, Re [1955] 3 All ER 71; [1955] 1 WLR 1037 …. 10-46 Russell, Ex parte (1882) 19 Ch D 588 …. 9-43 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375 …. 7-35, 12-12 — v Durie [1920] NZLR 91 …. 13-15, 13-43 — v Jackson (1868) LR 3 Ch App 362 …. 7-30 — v Perpetual Trustee Company (Ltd) (1956) 95 CLR 389; [1956] ALR 952 …. 12-05, 12-09 Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; 313 ALR 367 …. 27-02, 27-03 Russell-Cooke Trust Co v Prentis [2003] 2 All ER 478 …. 27-08, 27-11 Rutherford, Re (1913) 13 SR (NSW) 729; 30 WN (NSW) 213 …. 19-20

Ryall v Ryall (1739) 1 Atk 59; 26 ER 39 …. 12-10 Ryan v Dries [2003] ANZ ConvR 45 …. 12-11 — v Hopkinson (1990) 14 Fam LR 151 …. 12-20 — v The Public Trustee of Queensland [1998] 1 Qd R 679 …. 17-08 Ryder v A-G (NSW) (2004) 62 NSWLR 38 …. 10-01, 10-61 — v Taylor (1935) 36 SR (NSW) 31 …. 2-22, 7-08 Ryland v Federal Commissioner of Taxation (1973) 128 CLR 404; 1 ALR 232 …. 10-60 Rymer, Re [1895] 1 Ch 19; [1891–4] All ER Rep 328 …. 10-71, 10-84, 10-85 Ryrie’s Settled Estates (No 2), Re (1907) 24 WN (NSW) 87 …. 17-44

S S v P (2006) 198 FLR 1 …. 7-08 Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 …. 8-04, 8-05, 808 Sahal, Re [1958] 3 All ER 428; [1958] 1 WLR 1243 …. 10-18 Sainsbury v IRC [1970] Ch 712; [1969] 3 All ER 919 …. 23-15 Sainsbury’s Settlement, Re [1967] 1 All ER 878; [1967] 1 WLR 476 …. 17-07 Sajan Singh v Sardara Ali [1960] AC 167; [1960] 1 All ER 269 …. 9-08 Sale, Re [1913] 2 Ch 697 …. 19-31 Sale v Moore (1827) 1 Sim 534; 57 ER 678 …. 5-24, 5-30 Salmen, Re (1912) 107 LT 108 …. 17-44 Salmon, Re (1889) 42 Ch D 351 …. 18-30 Salomons, Re [1920] 1 Ch 290; [1920] All ER Rep 768 …. 20-70, 20-76 Salomons v Pender (1865) 3 H & C 639; 159 ER 682 …. 13-25 Salt v Marquess of Northampton [1892] AC 1 …. 2-50 Salting, Re [1932] 2 Ch 57; [1932] All ER Rep 857 …. 17-06 Salusbury v Denton (1857) 3 K & J 529; 69 ER 1219 …. 10-62, 10-63, 10-64, 10-69 Salvo v New Tel Ltd [2005] NSWCA 281 …. 2-15, 2-23 Samford Hall Trust, Re [1995] 1 Qd R 60 …. 10-49

Samuel v Farrah Timber & Wood Paving Corp Ltd [1904] AC 323 …. 2-05 Sandbach, Re [1933] Ch 505; [1932] All ER Rep 801 …. 19-31 Sandbrook, Re [1912] 2 Ch 471; [1911–13] All ER Rep 559 …. 9-15 Sandeman’s Will Trusts, Re [1937] 1 All ER 368 …. 20-51, 20-72, 23-11 Sanders’ Will Trusts, Re [1954] 1 All ER 667; [1954] 1 WLR 1078 …. 10-18 Sanderson v Walker (1807) 13 Ves 601; 33 ER 419 …. 17-48 Sanderson’s Trust, Re (1857) 3 K & J 497; 69 ER 1206 …. 12-08 Sands v Thompson (1883) 22 Ch D 614 …. 22-23 Sanger, Re (1903) 3 SR (NSW) 284 …. 26-09 Sarflax Ltd, Re [1979] Ch 592; [1979] 1 All ER 529 …. 9-42 Sargeant v National Westminster Bank plc (1990) 61 P & CR 518 …. 17-39 SAS Trustee Corporation v Cox (2011) 285 ALR 623 …. 17-15 Satterthwaite’s Will Trusts [1966] 1 All ER 919; [1966] 1 WLR 277 …. 10-84, 10-86 Saul v Lin (No 2) (2004) 60 NSWLR 275 …. 15-57, 15-60 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 …. 9-34, 10-67, 10-82 — v — (1841) Cr & Ph 240; 41 ER 482 …. 23-08, 23-12, 23-13, 23-14, 23-15, 23-16, 28-08, 28-09 Savage, Re [1918] 2 Ch 146; [1918–19] All ER Rep 700 …. 21-11 Savage v Dunningham [1974] Ch 181; [1973] 3 All ER 429 …. 12-11 — v Union Bank of Australasia Ltd (1906) 3 CLR 1170; 12 ALR 285 …. 21-04 Saxone Shoe Co Ltd’s Trust Deed, Re [1962] 2 All ER 904; [1962] 1 WLR 943 …. 5-26 Sayer v McHugh (1985) 1 NSWLR 440 …. 25-04 Scales, The Will of [1972] 2 NSWLR 108 …. 10-05 Scandrett v Dowling (1992) 27 NSWLR 483 …. 23-04 Scarfe, Re [1923] SASR 459 …. 19-60 Scarisbrick’s Will Trusts, Re [1951] Ch 622; [1951] 1 All ER 822 …. 10-24 Schar, Re [1951] Ch 280; [1950] 2 All ER 1069 …. 15-73 Schebsman, Re [1944] 1 Ch 83; [1943] 2 All ER 768 …. 2-20, 2-21, 2-22, 2-23,

5-02 Schellenberger v Trustees Executors and Agency Co Ltd (1952) 86 CLR 454; [1953] ALR 39 …. 10-53 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] 3 All ER 76 …. 2-46, 16-21, 17-14, 17-16 Schneider, Re (1906) 22 TLR 223 …. 16-10 Schoales, Re [1930] 2 Ch 75 …. 10-33 Scholefield v Redfern (1863) 2 Dr & Sm 173; 62 ER 587 …. 19-32 Schreuder v Murray (No 2) (2009) 41 WAR 169 …. 17-16 Schubert v Schubert (1949) 66 WN (NSW) 173 …. 12-12 Schweitzer v Schweitzer [2012] VSCA 260 …. 7-12 Scientific Investment Pension Plan Trusts, Re [1999] Ch 53; [1998] 3 All ER 154 …. 8-02, 29-49 Sclanders v Cole (1918) 18 SR (NSW) 216; 35 WN (NSW) 67 …. 20-30, 2043 Scott, Re [1903] Ch 1; [1900–3] All ER Rep 221 …. 20-58 Scott, Re [1919] SALR 74 …. 19-57 Scott v Scott (1963) 109 CLR 649; [1964] ALR 946 …. 27-01, 27-09, 27-13 — v Davis (2000) 204 CLR 333; 175 ALR 717 …. 2-10 — v FCT (No 2) (1966) 40 ALJR 265 …. 29-07 — v Milne (1884) 25 Ch D 710 …. 19-54, 21-04, 21-10 — v Murray (1888) 14 VLR 708 …. 17-44 — v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705 …. 16-01, 16-10, 17-23 — v Pauly (1917) 24 CLR 274; 24 ALR 27 …. 12-12 — v Surman (1742) Willes 400; 125 ER 1235 …. 27-04 — v Tyler (1788) Dick 712; 5 ER 241 …. 9-13 Scottish Burial Reform and Cremation Society v Glasgow Corp [1968] AC 138; [1967] 3 All ER 215 …. 10-03, 10-10, 10-36, 10-58 Scottish Woollen Technical College v Inland Revenue Commissioners SC 934 [1926] …. 10-31

Scowcroft, Re [1898] 2 Ch 638; [1895–9] All ER Rep 274 …. 10-29 Scully v Commissioner of Taxation (1998) 84 FCR 41; 164 ALR 281 …. 8-03 Scurfield v Howes (1790) 3 Bro C 90; 29 ER 425 …. 17-20 Seafarers’ Retirement Fund Pty Ltd v Oppenhuis (1999) 94 FCR 594 …. 29-11 Seale’s Marriage Settlement, Re [1961] Ch 574; [1961] 3 All ER 136 …. 15-67, 17-07 Sear v Ashwell (1739) 3 Swan 411n; 36 ER 928 …. 9-35 Searle, Re [1900] 2 Ch 829 …. 19-09 Seaton v Seddon [2013] 1 All ER 29; [2012] 1 WLR 3636 …. 22-25 Second East Dulwich, etc, Building Society, Re (1899) 68 LJ Ch 196 …. 22-20 Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs v Elliott (2009) 174 FCR 387; 254 ALR 223 …. 23-15 Secretary, Department of Social Security v Agnew (2000) 96 FCR 357 …. 1302 — v James (1990) 95 ALR 615 …. 7-03 Secure Parking (WA) Pty Ltd v Wilson (2008) 38 WAR 350 …. 1-10 Seeley v Jago (1717) 1 P Wms 389; 24 ER 438 …. 26-21, 26-22 Segelman (decd), Re [1996] Ch 171; [1995] 3 All ER 676 …. 10-24 Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431 …. 17-15, 21-29, 22-09 Seidler v Schallhofer [1982] 2 NSWLR 80 …. 9-09 Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073; [1968] 1 WLR 1555 …. 3-08, 13-02, 13-11, 13-34, 13-40 Selby’s Will Trusts, Re [1965] 3 All ER 386; [1966] 1 WLR 43 …. 9-16 Seldon v Davidson [1968] 2 All ER 755; [1968] 1 WLR 1083 …. 12-10 Selkirk v McIntyre [2013] 3 NZLR 265 …. 21-18, 21-19 Sellack v Harris (1708) 5 Vin Abr 521; 22 ER 40 …. 7-22 Senior, Re [1936] 3 All ER 196 …. 20-63 Sewell, Re [1909] 1 Ch 806 …. 21-18, 21-27 Sexton v Horton (1926) 38 CLR 240; 32 ALR 373 …. 8-04, 8-09 Shafto’s Trusts, Re (1885) 29 Ch D 247 …. 15-10

Shakespeare Memorial Trust, Re [1923] 2 Ch 389; [1923] All ER Rep 106 …. 10-31 Shalfoon v Potts [1948] NZLR 1214 …. 15-86 Shalson v Russo [2005] Ch 281 …. 13-02, 13-10, 27-02, 27-07 Shanahan v Fitzgerald [1982] 2 NSWLR 513 …. 13-07 Shanklin Pier Ltd v Petel Products Ltd [1951] 2 KB 854; [1951] 2 All ER 471 …. 2-20 Sharman’s Will Trusts, Re [1942] Ch 311; [1942] 2 All ER 74 …. 15-16, 15-73 Sharp, Re [1906] 1 Ch 793 …. 17-37, 22-28 Sharp, Re [1945] VLR 31 …. 17-49 Sharp v Anderson (1994) 6 BPR 13,801 …. 7-11, 7-12 Sharpe, Re [1980] 1 All ER 198; [1980] 1 WLR 219 …. 13-11 Sharpe v Jackson [1899] AC 419; [1895–99] All ER Rep 755 …. 5-14 — v San Paulo Railway Co (1873) LR 8 Ch App 597 …. 21-04, 23-03 Sharp’s Settlement Trusts, Re [1973] Ch 331; [1972] 3 All ER 151 …. 20-61 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; 82 ALR 530 …. 5-04 Shaw v Cates [1909] 1 Ch 389 …. 18-26, 18-27, 18-28, 22-15 — v Foster (1872) LR 5 HL 321 …. 13-07 — v Halifax Corporation [1915] 2 KB 170 …. 10-02, 10-17, 10-23 — v Holland [1900] 2 Ch 305; [1900–3] All ER Rep Ext 1686 …. 13-27 — v Lawless (1838) 5 Cl & F 129; 7 ER 353 …. 5-17, 5-19 Shaw’s Settlement, Re [1951] Ch 833; [1951] 1 All ER 656 …. 20-62 Shaw’s Trusts, Re (1871) LR 12 Eq 124 …. 20-20 Shaw (decd), Re [1957] 1 All ER 745; [1957] 1 WLR 729 …. 10-12, 10-29, 1105 Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102; [1995] 2 All ER 558 …. 22-26, 22-30 Shelley’s case (1581) 1 Co Rep 93; 76 ER 206 …. 8-09 Shelmerdine, Re (1864) 33 LJ Ch 424 …. 14-02 Shepard, Re [1911] 1 Ch 50 …. 17-31

Shephard v Cartwright [1955] AC 431; [1954] 3 All ER 649 …. 5-02, 12-12, 1213, 12-16 Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385; [1966] ALR 969 …. 6-20 — v Harris [1905] 2 Ch 310 …. 22-09 Sheppard’s Settlement Trusts, Re [1888] WN 234 …. 15-08 Shergill v Khaira [2015] AC 359; [2014] 3 All ER 243 …. 10-33, 10-68, 15-12 Sherrard v Lord Harborough (1753) Amb 165; 27 ER 110 …. 12-04 Sherriff, In the Will of [1971] 2 NSWLR 438 …. 18-04, 18-07 Sherwood, Re (1840) 3 Beav 338; 49 ER 133 …. 17-39 Shields, Re [1912] 1 Ch 591 …. 7-20 Shipwrecked Fishermen & Mariners’ Royal Benevolent Society, Re [1959] Ch 220; [1958] 3 All ER 465 …. 10-78, 17-06 Shirlaw v Taylor (1991) 31 FCR 222; 102 ALR 551 …. 2-29 Shortall v White [2007] NSWCA 372 …. 5-24 Shrewsbury and Hereford Railway, Re (1853) 1 Drew 508; 61 ER 546 …. 26-07 Sichel v O’Shanassy (1877) 3 VLR (E) 208 …. 21-07 Sichel’s Settlements, Re [1916] 1 Ch 358 …. 15-07 Sick & Funeral Society of St John’s Sunday School Golcar, Re [1973] Ch 51; [1972] 2 All ER 439 …. 12-08 Sidey v Huntly (1900) 21 LR (NSW) Eq 104; 17 WN (NSW) 98 …. 18-03, 1806 Sidmouth v Sidmouth (1840) 2 Beav 447; 48 ER 1254; [1835–42] All ER Rep 339 …. 12-16 Sieff v Fox [2005] 3 All ER 693; [2005] 1 WLR 3811 …. 16-01, 16-10, 16-12 Silkstone and Haigh Moor Coal Co v Edey [1900] 1 Ch 167 …. 17-48 Silver v Silver [1958] 1 All ER 523; [1958] 1 WLR 259 …. 12-12, 12-17 Silverwood v Silverwood (1997) 74 P&CR 453 …. 9-02 Simes & Martin Pty Ltd (in liq) v Dupree (1990) 55 SASR 278 …. 29-56, 2957 Simersall, Re (1992) 35 FCR 584; 108 ALR 375 …. 17-16

Simonson Properties Pty Ltd v Hardy [2014] NSWSC 229 …. 23-02 Simpson, Re [1897] 1 Ch 256 …. 15-67 Simpson, Re [1913] 1 Ch 277; [1911–13] All ER Rep 301 …. 19-23 Simpson v Brown (1865) 13 WR 312 …. 20-59 Simpson (dec’d), Re [1961] QWN 50 …. 10-55, 10-69 Simson, Re [1946] Ch 299 …. 10-46 Sinclair v Brougham [1914] AC 398; [1914–15] All ER Rep 622 …. 27-04, 2705, 27-12 Sinclair Investments (UK) Ltd v Versailles Trade Finance plc [2012] Ch 453; [2011] 4 All ER 335 …. 13-11 Singer v Williams [1921] 1 AC 41 …. 18-04 Singlehurst v Tapscott Steamship Co Ltd (No 2) [1899] WN 133 …. 22-22 Sinnett v Herbert (1872) LR 7 Ch App 232 …. 10-35, 10-63 Sinnott v Hockin (1882) 8 VLR (E) 205 …. 14-13 Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406 …. 9-34, 10-67, 10-84, 23-08, 23-15 Sisson v Giles (1863) 3 De GJ & S 614; 46 ER 775 …. 26-22 Sisson’s Settlement, Re [1903] 1 Ch 262 …. 17-20 Sivritas v Sivritas (2008) 23 VR 349 …. 12-11, 13-50 Sjoquist v Rock Eisteddfod Productions Pty Ltd (1996) 19 ACSR 339 …. 15-06 Skeats’ Settlement, Re (1889) 42 Ch D 522; [1886–90] All ER Rep 989 …. 1512 Skett v Whitmore (1705) Freem Ch 280; 22 ER 1211 …. 7-06 Skinner v Trustees Executors and Agency Co Ltd (1901) 27 VLR 218; 7 ALR 199 …. 17-20, 20-47 — v — (1901) 26 VLR 670 …. 18-04 Sky v Body (1970) 92 WN (NSW) 934 …. 16-14, 20-51 Slade v Chaine [1908] 1 Ch 522 …. 19-03, 19-25 Slaney v Watney (1866) LR 2 Eq 418 …. 15-73 Slater v Global Finance Group Pty Ltd (1999) 150 FLR 264 …. 14-10, 17-16 Slatter, Re (1905) 21 TLR 295 …. 10-58

Slatter, Re [1964] Ch 512; [1964] 2 All ER 469 …. 10-71, 10-84, 10-85 Sleeman v Wilson (1871) LR 13 Eq 36 …. 22-33 Sleiman v Alwan [2009] NSWSC 484 …. 17-14 Slevin, Re [1891] 2 Ch 236; [1891–41] All ER Rep 200 …. 10-86 Small v Attwood (1828) 2 Y & J 512; 148 ER 1021 …. 22-33 Smart’s Settlement, Re (1933) 33 SR (NSW) 412 …. 19-59 Smethurst v Hastings (1885) 30 Ch D 490 …. 17-18 Smidmore v Makinson (1908) 6 CLR 243; 14 ALR 442 …. 23-08, 23-09 Smidmore’s Charity, Re (1901) 18 WN (NSW) 146 …. 10-78 Smirthwaite’s Trusts, Re (1871) LR 11 Eq 251 …. 15-02 Smith, Re [1896] 1 Ch 71 …. 17-49, 18-14 Smith, Re [1896] 1 Ch 171; [1895–9] All ER Rep 1175 …. 19-06, 22-09 Smith, Re [1904] 1 Ch 139 …. 15-42 Smith, Re [1914] 1 Ch 397 …. 9-31, 10-40 Smith, Re (1916) 16 (NSW) 422; 33 WN (NSW) 134 …. 17-40 Smith, Re [1916] 1 Ch 369 …. 9-23 Smith, Re [1928] Ch 915 …. 23-09, 23-15 Smith, Re [1930] 1 Ch 88 …. 19-46, 19-55, 20-31, 20-33 Smith, Re [1932] 1 Ch 153; [1931] All ER Rep 617 …. 10-01, 10-54 Smith, Re [1936] 2 All ER 1210 …. 19-31 Smith, Re [1967] VR 341 …. 2-33 Smith, Re [1971] 1 OR 584 …. 16-06, 16-09 Smith, Re [1971] 2 OR 541 …. 16-06, 16-09 Smith v Anderson (1880) 15 Ch D 247; [1874–80] All ER Rep 1121 …. 3-11 — v Claxton (1820) 4 Madd 484; 65 ER 784 …. 26-20 — v Cock [1911] AC 317; (1911) 12 CLR 30 …. 16-06, 20-63 — v Cooke [1891] AC 297 …. 12-07 — v Green (1903) 22 NZLR 976 …. 17-44 — v Hassall (1899) 20 LR (NSW) Eq 165; 16 WN (NSW) 138 …. 17-18, 1731, 18-26, 18-27

— v Hurst (1852) 10 Hare 30; 68 ER 826 …. 5-13, 5-14 — v Kerr [1902] 1 Ch 774 …. 10-67, 10-81, 10-86 — v Longford (1844) 2 Beav 362; 48 ER 1221 …. 17-49 — v Matthews (1861) 3 De GF & J 139; 45 ER 831 …. 7-08 — v Patrick [1901] AC 282 …. 18-05 — v Perpetual Trustee Co Ltd (1910) 11 CLR 148 …. 9-24 — v Smith (1903) 3 SR (NSW) 571 …. 5-08 — v West Australian Trustee Executor & Agency Co Ltd (1950) 81 CLR 320; [1950] ALR 735 …. 10-61 Smith (dec’d), Re [1967] VR 341 …. 10-53 Smith’s Settled Estates, Re [1901] 1 Ch 689 …. 20-30 Smith’s Trusts, Re (1905) 5 SR (NSW) 500; 22 WN (NSW) 161a …. 18-27 Smith’s Will Trusts, Re [1962] 2 All ER 563; [1962] 1 WLR 763 …. 10-55 Smithson v Hamilton [2008] 1 All ER 1216; [2008] 1 WLR 1453 …. 9-35, 1612, 17-01 Smits v Roach (2004) 60 NSWLR 711 …. 9-09 Smyth, Re [1898] 1 Ch 89 …. 28-07 Snelling v John G Snelling [1973] QB 87; [1972] 1 All ER 79 …. 6-06 Snowden (decd), Re [1970] Ch 700; [1969] 3 All ER 208 …. 10-78 Snowden (decd), Re [1979] Ch 528; [1979] 2 All ER 172 …. 5-02, 7-16, 7-22, 7-32 Snowdon v Dales (1834) 6 Sim 524; 58 ER 690 …. 9-19, 9-20 Soar v Ashwell [1893] 2 QB 390; [1891–4] All ER Rep 991 …. 15-03 — v Foster (1858) 4 K & J 152; 70 ER 64 …. 12-12 Solicitor-General v Wylde (1945) 46 SR (NSW) 83 …. 13-35 Solomon, Re [1908] SALR 107 …. 9-20 Solomon, Re [1912] 1 Ch 261 …. 18-26, 18-27 Somerset, Re [1894] 1 Ch 231 …. 18-27, 21-25, 22-29 Somerville v A-G (1920) 21 SR (NSW) 450 …. 10-04 Somes, Re [1896] 1 Ch 250 …. 2-04

Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105; 89 ALR 437 …. 6-17, 13-07 Songest, Re [1956] 2 All ER 765; [1956] 1 WLR 897 …. 10-86 Sonley v Clockmakers’ Co (1780) 1 Bro CC 81; 28 ER 998 …. 14-13 Sorna Pty Ltd v Flint (2000) 21 WAR 563 …. 12-13, 13-11 Souter v Souter [1923] NZLR 1078 …. 17-43 South Australian Insurance Co v Randell (1869) LR 3 PC 101 …. 2-09 South Australian Perpetual Forests Ltd 1964 Trust Deed, Re (1995) 64 SASR 343 …. 17-19 South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259 …. 7-27, 10-36, 10-37, 11-03 South Place Ethical Society, Re [1980] 3 All ER 918; [1980] 1 WLR 1565 …. 10-31, 10-33 Southern Cross Commodities Pty Ltd (in liq) v Ewing (1987) 11 ACLR 818; 5 ACLC 1,110 …. 22-07, 22-08 Southern Pacific Mortgages Ltd v Scott [2015] AC 385; [2015] 1 All ER 277 …. 1-02 Southhampton’s Estate, Re (1880) 16 Ch D 178 …. 17-35 Southwell v Martin (1901) 1 SR (NSW) Eq 32 …. 20-27, 20-43 Southwood v A-G [2000] TLR 541 …. 10-12 Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 3 All ER 75; [1986] 1 WLR 1072 …. 17-39, 27-06 Sparkes, Re (1911) 56 Sol J 90 …. 20-58 Spedding v Spedding (1913) 30 WN (NSW) 81 …. 13-10, 27-07 Spehr, Re [1965] VR 770 …. 10-58, 10-65 Speight, Re (1883) 22 Ch D 727 …. 17-18, 17-23 Speight v Gaunt (1883) 9 App Cas 1 …. 17-18, 17-23, 17-30, 17-31 Speir, Re [1924] 1 Ch 359; [1923] All ER Rep 640 …. 19-40 Spellson v George (1987) 11 NSWLR 300 …. 17-13, 17-16 — v — (1992) 26 NSWLR 666 …. 22-33 Spence, Re [1938] 1 Ch 96; [1937] 3 All ER 684 …. 10-53

Spencer, Re (1916) 33 TLR 16 …. 15-51 Spencer v Topham (1856) 22 Beav 573; 52 ER 1229 …. 17-46 Spencer’s Settled Estates, Re [1903] 1 Ch 75 …. 15-64 Spensley’s Will Trusts, Re [1954] Ch 233; [1954] 1 All ER 178 …. 10-15, 10-50 Spirett v Willows (1865) 3 De GJ & S 293; 46 ER 649 …. 9-41, 9-45 Sprange v Barnard (1789) 2 Bro CC 585; 29 ER 320 …. 5-24 Spread Trustee Co Ltd v Hutcheson [2012] 2 AC 194; [2012] 1 All ER 281 …. 16-01, 16-20, 17-18 Spring v Pride (1864) 4 De GJ & S 395; 46 ER 971 …. 17-44, 17-47 Sproule v Sproule (2009) 2 ASTLR 80 …. 22-13 Spurling’s Will Trusts, Re [1966] 1 All ER 745; [1966] 1 WLR 920 …. 15-43 St Andrews’ (Cheam) Lord Tennis Club Trust, Re [2012] 3 All ER 746; [2012] 1 WLR 3487 …. 9-32, 10-49 St Vincent de Paul Society Qld v Ozcare Ltd (2009) 74 ACSR 676 …. 1-06 Stacey v Elph (1833) 1 My & K 195; 39 ER 655 …. 15-16, 15-73 Stack v Dowden [2007] 2 AC 432; [2007] 2 All ER 929 …. 12-18, 13-54 Stackpole v Beaumont (1796) 3 Ves 89; 30 ER 909 …. 9-13 Stacpoole v Stacpoole (1816) 4 Dow 209; 3 ER 1140 …. 22-08 Stack’s Settled Estates, Re (1909) 26 WN (NSW) 181 …. 17-06 Staff Benefits Pty Ltd, Re [1979] 1 NSWLR 207 …. 21-04, 21-12 Stafford v Fiddon (1857) 23 Beav 386; 53 ER 151 …. 18-01 — v Kekatos (No 4) [2008] NSWSC 1338 …. 21-07 Stafford Felt Co, Re (1919) 19 SR (NSW) 461; 36 WN (NSW) 147 …. 13-27 Stainton v Carron Co (1857) 24 Beav 346; 53 ER 391 …. 17-13 Stamford and Warrington, Re [1916] 1 Ch 404 …. 19-55 Standard Insurance Co, Re [1968] Qd R 118 …. 21-15 Standing v Bowring (1885) 31 Ch D 282; [1881–5] All ER Rep 702 …. 6-02, 935, 12-21, 15-73 Stanford, Re [1924] 1 Ch 73; [1923] All ER Rep 589 …. 5-02, 12-08 Stapleton, Re [1946] 1 All ER 323 …. 20-60, 20-61

Stapleton-Bretherton, Re [1941] Ch 482; [1941] 3 All ER 5 …. 2-20, 2-22 State v Standard Oil Co 30 NE 279 (1892) …. 3-21 State Bank of New South Wales v Chia (2000) 50 NSWLR 587 …. 2-05 State Trustees Ltd v Attorney-General (2013) 301 ALR 798 …. 10-31, 10-57, 10-58 Statewide Developments Pty Ltd (in liq) v Azure Property Group (Holdings) Pty Ltd (2012) 84 NSWLR 133 …. 15-04, 15-21, 25-02 Staughton, Re [1909] VLR 174 …. 19-55, 19-57 Stead, Re [1900] 1 Ch 237 …. 7-29, 7-30 Stead v Mellor (1877) 5 Ch D 225 …. 5-30 — v Preece (1874) LR 18 Eq 192 …. 26-06 Steed’s Will Trusts, Re [1959] Ch 354; [1959] 1 All ER 609 …. 17-07 Steed’s Will Trusts, Re [1960] Ch 407; [1960] 1 All ER 487 …. 16-06, 17-07 Steel v Wellcome Custodian Trustees Ltd [1988] 1 WLR 167 …. 17-07 Steele’s Will Trusts, Re [1948] Ch 603; [1948] 2 All ER 193 …. 5-08 Stein v Blake [1996] AC 243; [1995] 2 All ER 961 …. 24-05 — v Sybmore Holdings Pty Ltd (2006) 64 ATR 325 …. 17-06 Stephen v Stallworthy (1881) 2 LR (NSW) Eq 55 …. 12-12 Stephen Parbery Nicholas Martin and Mark Robinson as liquidators of Trio Capital Limited (in liq), Re (2012) 88 ACSR 700 …. 21-34 Stephens, Re (1892) 8 TLR 792 …. 10-56 Stephenson v Barclays Bank Trust Co Ltd [1975] 1 All ER 625; [1975] 1 WLR 882 …. 23-11 Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536; 76 ALR 485 …. 12-10, 13-11 Stephenson’s Settled Estates, Re (1906) 6 SR (NSW) 420; 23 WN (NSW) 153 …. 16-14, 20-11 Sterling Engineering Co v Patchett [1955] 1 All ER 369 …. 13-26 Stevens v Bell [2002] PLR 247; [2002] EWCA Civ 672 …. 8-02, 8-03 — v Hince (1914) 110 LT 935 …. 21-12 — v Keogh (1946) 72 CLR 1 …. 9-09

Stevenson v McPhillamy (1949) 23 ALJ 649 …. 17-06 Stewart, Re [2003] 1 NZLR 809 …. 17-11 Stewart v Latec Investments Ltd [1968] 1 NSWR 432 …. 21-11 Stillman and Wilson, Re (1950) 15 ABC 68 …. 27-11, 27-15 Stock v McAvoy (1872) LR 15 Eq 55 …. 12-13, 12-16 Stokes v Churchill [1994] NSW ConvR ¶55–694 …. 20-03, 20-76 Stone, Re (1970) 91 WN (NSW) 704 …. 10-59 Stone v Godfrey (1854) 6 De GM & G 76; 43 ER 798 …. 17-37 — v Hoskins [1905] P 194 …. 13-42 Stoneham’s Settlement Trusts, Re [1952] Ch 59; [1952] 2 All ER 694 …. 15-14 Stones v Rowton (1853) 17 Beav 308; 51 ER 1052 …. 15-09 Store v Ford (1844) 7 Beav 333; 49 ER 1093 …. 23-03 Story v Gape (1856) 2 Jur NS 706 …. 22-33 Straker v Wilson (1871) LR 6 Ch App 503 …. 19-42, 19-43 Strakosch (decd), Re [1949] Ch 529; [1949] 2 All ER 6 …. 10-58, 10-59 Strang, Re (1941) 41 SR (NSW) 114; 58 WN (NSW) 108 …. 17-06 Strang v Owens (1925) 42 WN (NSW) 183 …. 27-13 — v Strang [2009] NSWSC 760 …. 21-07 Strathalbyn Show Jumping Club Inc v Mayes (2001) 79 SASR 54 …. 10-49, 11-04 Stratton, Re Will of [1981] WAR 58 …. 17-39 Stratton v Simpson (1970) 125 CLR 138; [1971] ALR 117 …. 10-05, 10-08, 1066 Stratton’s Deed of Disclaimer, Re [1958] Ch 42; [1957] 2 All ER 594 …. 15-73 Straus v Goldsmid (1837) 8 Sim 614; 59 ER 243 …. 10-33 Stretton, Re [1942] WN 95 …. 25-04 Strickland v Aldridge (1804) 9 Ves 519; 32 ER 703 …. 7-22 — v Strickland (1907) 7 SR (NSW) 657 …. 5-07 — v Weldon (1885) 28 Ch D 426 …. 10-67 Stroud v Gwyer (1860) 28 Beav 130; 54 ER 315 …. 19-03, 19-25

Stroughill v Anstey (1852) 1 De GM & G 635; 42 ER 700 …. 20-27 Stuart, Re [1897] 2 Ch 583 …. 18-27, 22-15, 22-22 Stuart v Armourguard Security Ltd [1996] 1 NZLR 484 …. 16-14 — v Kingston (1924) 34 CLR 394; 31 ALR 45 …. 17-42 — v Norton (1860) 4 Moo PC 17; 15 ER 212 …. 17-32 Struss v Wykes [1916] VLR 200 …. 17-39 Styles v Guy (1849) 1 Mac & G 422; 41 ER 1328 …. 17-20, 18-04 Suco Gold Pty Ltd (in liq), Re (1983) 33 SASR 99; 7 ACLR 873 …. 21-04, 2114, 21-15, 21-16 Suenson-Taylor’s Settlement, Re [1974] 3 All ER 397; [1974] 1 WLR 1280 …. 20-28 Suffert’s Settlement, Re [1961] Ch 1; [1960] 3 All ER 561 …. 17-07 Sugden v Crossland (1856) 3 Sm & G 192; 65 ER 620 …. 15-84 Sumitomo Bank Ltd v Katika Rattna Thahir [1993] 1 SLR 735 …. 13-22 Super 1000 v Pacific General Securities (2008) 221 FLR 427 …. 21-03 Sutcliffe, Re [1982] 2 NZLR 330 …. 9-16 Sutherland, Re (1910) 11 SR (NSW) 5; 27 WN (NSW) 217 …. 19-24 Sutherland, Re (2004) 50 ACSR 297 …. 17-39 Sutherland v Cooke (1844) 1 Coll 498; 63 ER 516 …. 19-10, 19-13 Sutton, Re (1885) 28 Ch D 464 …. 10-63 Sutton, Re [1901] 2 Ch 640 …. 10-19 Sutton v England [2012] 1 WLR 326 …. 17-07, 20-59 Svenson v Payne (1945) 71 CLR 531 …. 20-20 Swale v Swale (1856) 22 Beav 584; 52 ER 1233 …. 23-05 Swan, Re (2014) 120 SASR 149 …. 10-55 Swan v Perpetual Executors and Trustees Association of Australia Ltd (1897) 23 VLR 293; 3 ALR 188 …. 17-31 Swain, Re [1891] 3 Ch 233 …. 22-28 Swain v The Law Society [1983] 1 AC 598; [1982] 2 All ER 827 …. 5-02 Swanson v Emmerton [1909] VLR 387; (1909) 15 ALR 368 …. 17-30, 17-40

Sweetapple v Bindon (1705) 2 Vern 536; 23 ER 947 …. 26-25 Sweeting, Re [1988] 1 All ER 1016 …. 26-12 Swift v Dairywise Farms Ltd [2000] 1 All ER 320; [2000] 1 WLR 1177 …. 1-06, 24-01 Swifte v A-G (Ireland) (No 2) [1912] 1 IR 133 …. 10-57 Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377; 26 ALR 41 …. 10-05 Swinnock v Crisp (1681) Freem Ch 78; 22 ER 1069 …. 20-58 Swires v Renton [1991] STC 490 …. 6-01 Synergy Concepts Pty Ltd v Rylegrove Pty Ltd (in liq) (1997) 8 BPR 15, 555 …. 15-21 Sydney Homoeopathic Hospital v Turner (19598) 102 CLR 188; [1959] ALR 782 …. 10-83, 10-84 Sydney Markets Credit Services Co-operative Ltd v Taylor [2015] NSWSC 499 …. 25-04 Sykes, Re [1909] 2 Ch 241; [1908–10] All ER Rep Ext 1236 …. 17-49 Sykes v Beadon (1879) 11 Ch D 170 …. 3-11 Sykes (dec’d), Re [1974] 1 NSWLR 597 …. 17-06 Symes v Hughes (1870) LR 9 Eq 475 …. 12-05 Symon, Re [1944] SASR 102 …. 20-27 Synnot v Simpson (1854) 5 HL Cas 121; 10 ER 844 …. 5-14 Sze Tu v Lowe (2014) 89 NSWLR 317 …. 12-13, 12-16, 13-10, 13-11, 13-34, 22-25, 23-20, 27-01, 27-07

T T A Mclntyre & Co, Re 181 F 960 (1910) …. 27-15 T Choithram SA v Pagarini [2001] 2 All ER 492; [2001] 1 WLR 1 …. 6-01, 602, 6-13 Tabone (decd), Re [1968] VR 168 …. 17-44 Tabor v Brooks (1878) 10 Ch D 273 …. 16-14 Tacon, Re [1958] Ch 447; [1958] 1 All ER 163 …. 10-71

Tailby v Official Receiver (1888) 13 App Cas 523; [1886–90] All ER Rep 486 …. 24-04 Tait v Jenkins (1842) 1 Y & C Ch Cas 492; 62 ER 985 …. 23-05 Talbot v Marshfield (1868) LR 3 Ch App 622 …. 20-58 Tancred, Re [1903] 1 Ch 715; [1900–3] All ER Rep 251 …. 9-23 Tanti v Carlson [1948] VLR 401 …. 17-11, 17-44 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; 201 ALR 359 …. 13-07 Target Holdings Ltd v Redferns [1996] 1 AC 421; [1995] 3 All ER 785 …. 1334, 22-01, 22-04, 22-05 Tasmania v Victoria (1935) 52 CLR 157; [1935] ALR 157 …. 10-67 Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation (2005) 142 FCR 371; 219 ALR 647 …. 10-03 Tasmanian Seafoods Pty Ltd v MacQueen (2005) 15 Tas R 1 …. 1-06, 13-34 Tate v Williamson (1866) LR 2 Ch App 55 …. 17-45 Tatham v Drummond (1864) 4 De GJ & Sm 484; 46 ER 1006 …. 10-57 Taylor, Re (1854) 18 Beav 165; 52 ER 65 …. 17-40 Taylor, Re [1894] 1 Ch 671 …. 21-11 Taylor, Re (1900) 81 LT 812 …. 22-29 Taylor, Re [1950] VLR 476; [1950] ALR 984 …. 17-49 Taylor v Clark (1841) 1 Hare 161; 66 ER 990 …. 19-10, 19-20 — v Coenen (1876) 1 Ch D 636 …. 9-45 — v Davies [1920] AC 636 …. 22-25 — v Johnston (1882) 19 Ch D 603 …. 4-03 — v Lewis (1891) 12 LR (NSW) Eq 258 …. 5-18 — v London & County Banking Co [1901] 2 Ch 231 …. 27-15 — v Plumer (1815) 3 M & S 62; 105 ER 721 …. 27-02, 27-04 — v Princess Margaret Hospital for Children Foundation Inc [2012] WASC 83 …. 10-74 — v Tabrum (1833) 6 Sim 281; 58 ER 599 …. 20-12, 22-01, 22-09 — v Taylor (1853) 3 De GM & G 190; 43 ER 76 …. 26-17

— v — (1875) LR 20 Eq 155 …. 20-58 — v — (1875) LR 20 Eq 297 …. 20-20, 23-02 — v — (1910) 10 CLR 218; 16 ALR 129 …. 10-04, 10-13, 10-47, 10-55 Taylor’s Agreement Trusts, Re [1904] 2 Ch 737 …. 25-03 Taylor’s Settlement, Re (1852) 9 Hare 596; 68 ER 650 …. 26-10 Taylor’s Trusts, Re [1905] 1 Ch 734 …. 19-31 Te Huango, Re [1993] 3 NZLR 77 …. 9-09 Tebbs v Carpenter (1816) 1 Madd 290; 56 ER 107 …. 17-20, 22-06 Tedlie, Re (1922) 91 LJ Ch 346 …. 19-38 Tee v Ferris (1856) 2 K & J 357; 69 ER 819 …. 7-18, 7-29, 7-32 Tegg, Re (1866) 15 LT 236 …. 15-16 Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276 …. 29-55 Tempest, Re (1866) LR 1 Ch App 485 …. 15-57, 15-60 Tempest v Lord Camoys (1882) 21 Ch D 571; [1881–5] All ER Rep 836 …. 1614, 16-16 Templeton v Leviathan Pty Ltd (1921) 30 CLR 34; 28 ALR 95 …. 17-05 Tennant, Re (1942) 65 CLR 473 …. 19-17, 19-18, 22-07 Tennant v Trenchard (1869) LR 4 Ch App 537 …. 17-44 Tetley, Re [1923] 1 Ch 258 …. 10-47 Thacker v Key (1869) LR 8 Eq 408 …. 16-14 Thackrah, Re [1939] 2 All ER 4 …. 10-33 Tharp v Tharp [1916] 1 Ch 142 …. 7-22 Thatcher’s Trusts, Re (1884) 26 Ch D 426 …. 20-61 Thellusson v Viscount Valentia [1907] 2 Ch 1 …. 8-03 — v Woodford (1799) 4 Ves 227; 31 ER 117 …. 9-33, 10-54 Themis Holdings Pty Ltd v Canehire Pty Ltd (2014) 17 ITELR 75 …. 22-08 Theodore v Mistford Pty Ltd (2005) 221 CLR 612; 219 ALR 296 …. 7-09 Thetford School Case [1609] 8 Co Rep 130; 77 ER 671 …. 10-28 Thomas, Re [1891] 3 Ch 482; [1891–4] All ER Rep 471 …. 19-12, 19-21, 19-22 Thomas, Re [1916] 2 Ch 331 …. 19-38

Thomas, Re [1930] 1 Ch 194; [1929] All ER Rep 129 …. 17-06 Thomas v Arthur Hughes Pty Ltd (2015) 107 ACSR 443 …. 13-02 — v D’Arcy [2005] 1 Qd R 666 …. 23-03 — v Howell (1874) LR 18 Eq 198 …. 10-31 — v Perpetual Trustee Co Ltd (1955) 94 CLR 537; [1956] ALR 85 …. 9-34, 2309 — v Thomas [1939] St R Qd 301 …. 19-31, 19-57 Thomas & Agnes Carvel Foundation v Carvel [2008] Ch 395 …. 13-42 Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391; [1963] ALR 378 …. 9-08 Thomas Hare Investments Ltd v Hare (2012) 34 VR 656 …. 17-06 Thomas’ Will, Re (1884) 10 VLR (E) 25 …. 19-31 Thompson, Re (1909) 28 NZLR 356 …. 15-62 Thompson, Re [1930] 1 Ch 203 …. 13-13 Thompson, Re [1934] Ch 342; [1933] All ER Rep 805 …. 10-32, 11-05 Thompson v Corby (1860) 27 Beav 649; 54 ER 257 …. 10-20 — v Federal Commissioner of Taxation (1959) 102 CLR 315; [1960] ALR 184 …. 10-08, 10-09, 10-10 — v Finch (1856) 22 Beav 316; 8 De GM & G 560; 52 ER 1130 …. 21-19 — v Griffin (1841) Cr & Ph 317; 41 ER 512 …. 20-63 — v Thompson (1844) 1 Coll 381; 63 ER 464 …. 10-23, 10-28 Thompson’s Settlement, Re [1986] Ch 99; [1985] 2 All ER 720 …. 17-44 Thompson’s Settlements, Re [1905] 1 Ch 229 …. 14-04 Thompson’s Trustee v Heaton [1974] 1 All ER 1239; [1974] 1 WLR 605 …. 1317 Thomson, Re [1927] VLR 98 …. 19-03 Thomson v Clydesdale Bank Ltd [1893] AC 282 …. 27-17 — v Eastwood (1877) 2 App Cas 215 …. 17-47 — v Shakespear (1860) 1 De GF & J 399; 45 ER 413 …. 5-30 — v Whittard (1925) 25 SR (NSW) 430; 42 WN (NSW) 132 …. 10-40 Thorley, Re [1891] 2 Ch 613 …. 17-39

Thorne v Heard [1894] 1 Ch 599 …. 22-30 — v Heard & Marsh [1895] AC 495 …. 22-26, 22-27, 22-30 Thornley v Boyd (1925) 36 CLR 526; 31 ALR 425 …. 19-46 Thorner v Major [2009] 3 All ER 945; [2009] 1 WLR 776 …. 13-11 Thornton v Hawley (1804) 10 Ves 129; 32 ER 793 …. 26-10 — v Howe (1862) 31 Beav 14; 54 ER 1042 …. 10-33 Thorpe, Re [1891] 2 Ch 360 …. 17-40 Thorpe v Bristile Ltd (1996) 16 WAR 500 …. 3-15 Thos Franklin & Sons Ltd v Cameron (1935) 36 SR (NSW) 286; 53 WN (NSW) 30 …. 2-02, 2-07, 13-27 Throp v Trustees, Executors and Agency Co of New Zealand Ltd [1945] NZLR 483 …. 17-44 Throsby’s Settlement, Re (1868) 7 SCR (NSW) Eq 10 …. 25-04 Thureau, Re [1948] 2 ALR 487 …. 10-65 Thursby v Thursby (1875) LR 19 Eq 395 …. 19-04 Thwaites v Ryan [1984] VR 65 …. 12-14 Tickle v Tickle (1987) 10 NSWLR 581 …. 25-11 Tickner v Old (1874) LR 18 Eq 422 …. 19-20 Tidd, Re [1893] 3 Ch 154 …. 2-13 Tidex v Trustees Executors & Agency Co Ltd [1971] 2 NSWLR 453 …. 11-04 Tierney v King [1983] 2 Qd R 580 …. 17-16 — v Wood (1854) 19 Beav 330; 52 ER 377 …. 4-01, 7-07, 7-08 Tiger v Barclays Bank Ltd [1951] 2 KB 556; [1951] 2 All ER 262 …. 15-84, 1714, 21-29 — v — [1952] 1 All ER 85 …. 21-29 Tilley’s Will Trusts, Re [1967] Ch 1179; [1967] 2 All ER 303 …. 27-09 Tillott, Re [1892] 1 Ch 86 …. 17-14, 17-15, 17-16 Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488 …. 13-11, 13-31, 13-34, 13-43 Timber Top Realty Pty Ltd v Mullens [1974] VR 312 …. 13-47

Timmis, Re [1902] 1 Ch 176 …. 22-27, 22-28 Timpson’s Executors v Yerbury [1936] 1 KB 645; [1936] All ER 186 …. 6-24 Tindal, Re (1933) 34 SR (NSW) 8; 50 WN (NSW) 247 …. 19-03, 19-11, 1913, 19-14, 19-20 Tinsley v Milligan [1992] Ch 310; [1992] 2 All ER 391 …. 9-03 — v — [1994] 1 AC 340; [1993] 3 All ER 65 …. 9-02, 9-03, 9-08 Tito v Waddell (No 2) [1977] Ch 106; [1977] 3 All ER 129 …. 5-02, 5-20, 1412, 17-43 Titterton v Oates (1998) 143 FLR 467 …. 15-85, 15-86 Todd v Moorhouse (1874) LR 19 Eq 69 …. 19-55 Todd (No 2), Re (1910) 10 SR (NSW) 490; 27 WN (NSW) 110 …. 17-20 Tognetti v Tognetti (1905) 5 SR (NSW) 619 …. 20-57 Toksoz v Westpac Banking Corporation (2012) 289 ALR 577 …. 13-10, 27-07 Tollemache, Re [1903] 1 Ch 457 …. 17-05, 22-12, 22-21 Tomkins, Re [1958] VR 310; [1958] ALR 693 …. 10-46, 10-66 Tomlins, Re [1961] VR 552 …. 9-27 Tomlinson v Gill (1756) Amb 330; 27 ER 221 …. 2-21, 2-24 Tong, Re [1907] VLR 338; (1907) 13 ALR 119 …. 20-48 Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 …. 29-55 Toohey, Re (1906) 6 SR (NSW) 538; 23 WN (NSW) 111 …. 17-05 Toomelah Cooperative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 …. 10-84 Tooth v Power [1891] AC 284; (1891) 8 WN (NSW) 1 …. 12-10 Topham, Re [1938] 1 All ER 181 …. 10-50 Totten, Re 71 NE 748 (1904) …. 5-03 Towley v Unwin (1855) 2 K & J 138; 69 ER 726 …. 19-38 Town Investments Ltd v Department of the Environment [1978] AC 359; [1977] 1 All ER 813 …. 5-20 Towndrow, Re [1911] 1 Ch 602 …. 21-18 Townley v Bedwell (1808) 14 Ves 591; 33 ER 648 …. 26-13

Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575 …. 15-73 Tracy v Mandalay Pty Ltd (1953) 88 CLR 215 …. 13-28 Trafford v Boehm (1746) 3 Atk 440; 26 ER 1054 …. 21-23 Transphere Pty Ltd, Re (1986) 5 NSWLR 309 …. 12-02 Travis, Re [1900] 2 Ch 541; [1900–3] All ER Ext 1660 …. 12-05 Travis v Illingworth (1865) 2 Dr & Sm 344; 62 ER 652 …. 15-09 Tree, Re [1945] Ch 325; [1945] 2 All ER 65 …. 10-06, 10-08, 10-24 Trevelyan v Charter (1835) 4 LJ (NS) Ch 209 …. 22-30 Tribe v Tribe [1996] Ch 107; [1995] 4 All ER 236 …. 9-08 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 …. 2-25 — v — (1988) 165 CLR 107; 80 ALR 574 …. 2-17, 2-21, 2-23, 5-02, 6-06 Triffitt’s Settlement, Re [1958] Ch 852; [1958] 2 All ER 299 …. 15-05 Trimble v Kirkland (1913) 13 SR (NSW) 417; 30 WN (NSW) 121 …. 15-55, 15-83, 21-36 Trinkler v Beale (2009) 72 NSWLR 365 …. 17-47 Triplex Safety Glass Co v Scorah [1938] Ch 211; [1937] 4 All ER 693 …. 13-26 Trollope’s Will, Re [1927] All ER Rep 365 …. 19-09 Trust Company Fiduciary Services Ltd v Challenger Managed Investments Ltd (2008) 68 ACSR 356 …. 17-06 Trustees Executors and Agency Co Ltd v Jope (1902) 27 VLR 706 …. 20-30 — v Margottini [1960] VR 417 …. 9-27 — v Smith (1903) 28 VLR 707 …. 23-07 Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339 …. 9-14, 9-16, 9-17 — v Lake Macquarie Shire Council [1975] 1 NSWLR 521 …. 10-22 Trustees of the British Museum v A-G [1984] 1 All ER 337; [1984] 1 WLR 418 …. 17-07 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; 224 ALR 280 …. 12-13 Trusts of Kean Memorial Trust Fund, Re (2003) 86 SASR 449 …. 17-02, 17-06

Truthful Endeavour Pty Ltd v Condon (Trustee); Re Rayhill (Bankrupt) (2015) 321 ALR 483 …. 2-26 T’s Settlement Trusts, Re [1964] Ch 158; [1963] 3 All ER 759 …. 17-07 Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54; [1983] 1 WLR 1349 …. 17-44 Tucker, Re [1894] 1 Ch 724 …. 18-05 Tuck’s Settlement Trusts, Re [1978] Ch 49; [1978] 1 All ER 1047 …. 9-16 Tufnell, Re (1902) 18 TLR 705 …. 22-26 Tufnell v Constable (1838) 7 Ad & E 798; 112 ER 670 …. 14-13 Tulley, Re [1918] VLR 556 …. 7-32 Tunstall, Re [1921] VLR 559 …. 15-46 Tunstall’s Will, Re (1851) 4 De G & Sm 421; 64 ER 896 …. 15-69 Turbo Resources Ltd v Paperny [1982] 2 WWR 372 …. 20-11 Turner, Re [1907] 2 Ch 126 …. 21-10 Turner, Re [1923] VLR 189 …. 15-17 Turner, Re; Barker v Ivimey [1897] 1 Ch 536 …. 18-26, 18-28, 21-19, 22-12, 22-13, 22-19, 22-20 Turner v Bladin (1951) 82 CLR 463 …. 13-07 — v Hancock (1882) 20 Ch D 303 …. 21-09 — v Noyes (1903) 20 WN (NSW) 266 …. 23-02 — v Ogden (1787) 1 Cox 316; 29 ER 1183 …. 10-45 — v Turner [1984] Ch 100; [1983] 2 All ER 745 …. 17-01 Turner’s Will Trusts, Re [1960] Ch 122; [1959] 2 All ER 689 …. 17-07 Turtle, Re (1895) 11 WN (NSW) 153 …. 19-31 Turton v Turton [1988] Ch 542; [1987] 2 All ER 641 …. 12-18 Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762 …. 2-17, 2-24 Tweedie and Miles, Re (1884) 27 Ch D 315 …. 20-06, 26-10 Twigg v Kung (2002) 55 NSWLR 485 …. 2-29 Twining v Powell (1845) 2 Coll 262; 63 ER 726 …. 19-41 Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377 …. 2-14, 2-15, 3-06, 3-07, 5-03, 12-01, 12-06, 13-37

Tyler, Re [1891] 3 Ch 252; [1891–4] All ER Rep Ext 1996 …. 10-37, 10-81 Tyler’s Fund Trusts, Re [1967] 3 All ER 389; [1967] 1 WLR 1269 …. 7-08 Tyndall, Re [1913] SALR 39 …. 28-07 Tyrell v Bank of London (1862) 10 HL Cas 26; 11 ER 934 …. 17-49 Tyrie (dec’d), Re [1970] VR 264 …. 10-35, 10-68, 10-71, 20-03 Tyson, Re (1906) 7 SR (NSW) 91; 24 WN (NSW) 6 …. 10-48 Tyson v Tyson (1901) 1 SR (NSW) Eq 18 …. 22-33

U UBAF Ltd v European American Banking Corp [1984] QB 713; [1984] 2 All ER 226 …. 22-30 UEB Industries Ltd Pension Plan, Re [1992] 1 NZLR 294 …. 8-02, 29-53, 29-56 Ulrich v Treasurer Solicitor [2005] 1 All ER 1059; [2006] 1 WLR 33 …. 10-65 Ulverston and District New Hospital Building Fund, Re [1956] Ch 622; [1956] 3 All ER 164 …. 12-08 Umphelby v Grey (1898) 24 VLR 979; 5 ALR 66 …. 20-43 Ungurian v Lesnoff [1990] Ch 206 …. 13-48 Uniacke, Re (1844) 1 Jo & Lat 1 …. 15-73 Union Bank v Harrison Jones and Devlin (1910) 11 CLR 492 …. 2-43 Union Bank of London v Kent (1888) 59 LT 714 …. 9-44 Union of London and Smith’s Bank v Litchfeld [1916] 1 Ch 511; [1916–17] All ER Rep 750 …. 17-11 Union Trustee Co of Australia Ltd v Barlam [1948] AC 495 …. 19-49 — v Church of England Property Trust (1946) 46 SR (NSW) 298; 63 WN (NSW) 153 …. 10-18, 10-46, 10-65 — v Eckford (1930) 31 SR (NSW) 92; 48 WN (NSW) 40 …. 19-49, 19-51, 1957, 20-31 — v Federal Commissioner of Taxation (1962) 108 CLR 451; [1963] ALR 123 …. 10-20 — v Graham (1931) 31 SR (NSW) 528; 48 WN (NSW) 194 …. 19-11, 19-20 — v Watson (1930) 48 WN (NSW) 102 …. 19-40

United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741 …. 13-29, 13-30, 13-52 United Nation Bank v Weatherly 75 NYS 3 (1902) …. 27-15 United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 …. 13-31, 22-04 — v — [1983] 2 NSWLR 157 …. 13-04, 13-31, 13-34, 13-36, 13-38, 13-39, 1341, 13-43 Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575 …. 10-67 Universal Distributing Co Ltd (in liq), Re (1933) 48 CLR 171; [1933] ALR 107 …. 2-29 University College of North Wales v Taylor [1908] P 140 …. 10-28 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; 41 ALJR 348 …. 5-05, 5-24 Upton v Browne (1884) 26 Ch D 588 …. 19-45 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [1997] 1 VR 667 …. 2405 Uvedale v Ettrick (1682) 2 Cas Ch 130; 22 ER 880 …. 15-86

V Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1946] ALR 50 …. 2044, 21-02, 21-04, 21-13 Vale v Sutherland (2009) 237 CLR 638; 258 ALR 1 …. 9-39 Vallance, Re (1876) 2 Seton’s Judgments 7th ed …. 10-57 Vallance v R (1961) 108 CLR 56; [1963] ALR 461 …. 1-02 Van Gruisen’s Will Trusts, Re [1964] 1 All ER 843; [1964] 1 WLR 449 …. 1707 Van Ingen, Matter of 100 NYS 2d 244 (1950) …. 27-15 Van Rassel v Kroon (1953) 87 CLR 298; [1953] ALR 190 …. 13-21, 17-02 Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70; [1932] All ER Rep 527 …. 2-22, 2-23 Vandervell v Inland Revenue Commissioners [1967] 2 AC 291; [1967] 1 All ER

1 …. 7-05, 12-01, 12-02 Vandervell’s Trusts, Re; White v Vandervell Trustees Ltd [1974] Ch 269; [1974] 1 All ER 47 …. 3-07, 12-01 Vandervell’s Trusts (No 2), Re; White v Vandervell Trustees Ltd [1974] Ch 269; [1974] 3 All ER 205 …. 12-01 Vane v Vane (1873) 8 Ch D 383 …. 22-30 Varsani v Jesani [1999] Ch 219; [1998] 3 All ER 273 …. 10-74 Vasenelak v Vasenelak (1921) 57 DLR 370 …. 12-10 Vatcher v Paull [1915] AC 372; [1914–15] All ER Rep 609 …. 2-04, 17-43 Vaughan, Re (1886) 33 Ch D 187 …. 10-36 Vaughn, Re (1893) 14 LR (NSW) Eq 166 …. 25-04 Vedejs v Public Trustee [1985] VR 569 …. 12-10 Venture, The [1908] P 218 …. 12-10 Verge v Somerville [1924] AC 496; [1924] All ER Rep 121 …. 10-01, 10-06, 10-56, 10-69 Verner v General and Commercial Investments Trust [1894] 2 Ch 239; [1891– 4] All ER Rep Ext 1409 …. 19-40 Vernon’s Will Trusts, Re [1972] Ch 300; [1971] 3 All ER 1061 …. 10-84 Verrall, Re [1916] 1 Ch 100; [1914–15] All ER Rep 546 …. 10-58 Verran v Public Trustee [1976] 1 NZLR 518 …. 26-12, 26-14 Vezey v Jamson (1822) 1 S & S 69; 57 ER 27 …. 10-63 Vicat, Re (1886) 33 Ch D 103 …. 15-58 Vickery, Re [1931] 1 Ch 572; [1931] All ER Rep 562 …. 17-31, 22-09 Vickery v Evans (1863) 33 Beav 376; 55 ER 413 …. 18-34 Victoria v Sutton (1998) 195 CLR 291; 156 ALR 579 …. 9-32 Vigliaroni v CPS Investment Holdings Pty Ltd (2009) 74 ACSR 282 …. 3-13 Vinden v Vinden [1982] 1 NSWLR 618 …. 13-50 Vinogradoff, Re [1935] WN 68 …. 12-10, 14-02 Vipont v Butler [1893] WN 64 …. 17-40 Viscount Furness, Re [1943] Ch 415 …. 23-06 Visnic v Sywak (2009) 257 ALR 517 …. 2-02, 2-08

Viveash, Re [1971] WAR 62 …. 17-07 Voges v Monaghan (1954) 94 CLR 231 …. 3-06, 7-04, 7-16, 7-18, 7-19 Von Ernst & Cie SA v IRC [1980] 1 All ER 677; [1980] 1 WLR 468 …. 10-84 Voulis v Kozary (1975) 180 CLR 177; 7 ALR 126 …. 13-21 Vyse v Foster (1874) LR 7 HL 318 …. 17-39

W W & R Holmes and Cosmopolitan Press Ltd’s Contract, Re [1944] Ch 53; [1943] 2 All ER 716 …. 20 W D Fairway (No 3), The [2009] 2 Lloyd’s Rep 420 …. 28-14 Wade v Cox (1835) 4 LJ Ch 105 …. 22-33 — v Wade [2009] WASC 118 …. 3-15, 7-09, 13-06 Wakley, Re [1920] 2 Ch 205; [1920] All ER Rep 749 …. 19-31 Walden, Re (1903) 3 SR (NSW) 375 …. 21-07 Walker, Re (1890) 62 LT 449 …. 18-26, 18-27, 18-35, 20-72 Walker, Re (1901) 1 SR (NSW) Eq 237; 19 WN (NSW) 3 …. 19-22, 19-47, 19-55, 20-31 Walker, Re [1901] 1 Ch 879 …. 21-07 Walker, Re [1905] 1 Ch 160 …. 4-06 Walker, Re [1908] 2 Ch 705 …. 26-09 Walker, Re [1934] WN 104 …. 19-32 Walker, Re [1939] Ch 974; [1939] 3 All ER 902 …. 9-24 Walker, Re; Summers v Barrow [1901] 1 Ch 259 …. 15-05, 15-11, 15-14 Walker v Corboy (1990) 19 NSWLR 382 …. 2-11, 5-02 — v Southall (1887) 56 LT 882 …. 20-12 — v Stones [2001] QB 902; [2000] 4 All ER 412 …. 16-20 — v Symonds (1818) 3 Swan 1; 36 ER 751 …. 22-33 — v Webb (1845) 1 Legge 253 …. 13-41 — v Wimborne (1976) 137 CLR 1 …. 2-03, 13-27 Walker (No 2), Re (1903) 3 SR (NSW) 163; 20 WN (NSW) 86 …. 18-37

Wall, Re (1889) 42 Ch D 510 …. 10-23 Wall, Re (1979) 25 ALR 615 …. 5-22 Wall v Bright (1820) 1 Jac & W 494; 37 ER 456 …. 13-07 Wallace v Love (1922) 31 CLR 156; 28 ALR 405b …. 20-72 Wallace’s Settlements, Re [1968] 2 All ER 209; [1968] 1 WLR 711 …. 17-07 Waller v Barrett (1857) 24 Beav 413; 53 ER 417 …. 22-10 Wallersteiner v Moir (No 2) [1975] QB 373; [1975] 1 All ER 849 …. 22-07, 2208 Wallgrave v Tebbs (1855) 2 K & J 313; 69 ER 800 …. 7-18, 7-20, 7-35 Wallis v Solicitor-General (New Zealand) [1903] AC 173 …. 10-86 Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 …. 2-15, 5-02 Walter J Schmidt & Co, Re 298 F 314 (1923) …. 27-10 Walters v Woodbridge (1878) 7 Ch D 504 …. 21-09 Wambo Coal Pty Ltd v Ariff (2007) 63 ACSR 429 …. 13-10, 27-05 Want v Stallibrass (1873) LR 8 Exch 175 …. 20-02 Ward, Re [1941] Ch 308; [1941] 1 All ER 315 …. 10-65 Ward v Hipwell (1862) 3 Giff 547; 66 ER 525 …. 10-67 — v Van de Loeff [1924] AC 653; [1924] All ER Rep 542 …. 9-28 Ward’s Will Trusts, Re [1936] Ch 704; [1936] 2 All ER 773 …. 19-38, 19-40 Ware v Cann (1830) 10 B & C 433; 109 ER 511 …. 9-19 — v — (1855) 20 Beav 503; 52 ER 697 …. 10-67 — v Polhill (1805) 11 Ves 257; 32 ER 1087 …. 26-22 Warman International Ltd v Dwyer (1995) 182 CLR 544; 128 ALR 201 …. 1311, 13-34, 17-42 Warner v Sampson [1958] 1 QB 404; [1958] 1 All ER 44 …. 2-43 Warr v Warr (1702) Prec Ch 213; 104 ER 24 …. 20-58 Warren v Gurney [1944] 2 All ER 472 …. 12-12, 12-13 — v Ruddall (1860) 1 John & H 1; 70 ER 637 …. 15-73 Warre’s Will Trust, Re [1953] 2 All ER 99; [1953] 1 WLR 725 …. 10-44

Warter v Anderson (1853) 11 Hare 301; 68 ER 1289 …. 21-29 Warwick v Richardson (1842) 10 M & W 284; 154 ER 477 …. 21-20 Wassell v Leggatt [1896] 1 Ch 554 …. 22-27 Waterhouse v Waterhouse (1998) 46 NSWLR 449 …. 17-13 Waters, Re [1889] WN 39 …. 20-70 Watkins v L’Estrange (1863) 2 SCR (NSW) Eq 85 …. 17-44 Watling v Lewis [1911] 1 Ch 414 …. 21-03 Watson, Re (1881) 19 Ch D 384 …. 15-53 Watson, Re [1896] 1 Ch 925 …. 21-11 Watson, Re (1899) 18 NZLR 368 …. 15-54 Watson v Dolmark Industries Ltd [1992] 3 NZLR 311 …. 13-34 — v Hayes (1839) 5 Myl & Cr 125; 41 ER 319 …. 12-05 — v Holland (Inspector of Taxes) [1985] 1 All ER 290 …. 12-09 — v Little (1921) 38 WN (NSW) 143 …. 19-46, 19-57 — v Royal Insurance Co [1896] 1 QB 41 …. 19-54 Watson (decd), Re [1973] 3 All ER 678; [1973] 1 WLR 1472 …. 10-33, 10-34, 10-44 Watson’s Bay & South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268 …. 16-14 Watt, Re [1932] 2 Ch 243 …. 10-85 Watts v Watts (1873) LR 17 Eq 217 …. 26-07 Watt’s Settlement, Re (1851) 9 Hare 106; 68 ER 434 …. 15-18 Waugh v Wyche (1854) 2 Drew 318; 61 ER 742 …. 17-20 Weall, Re (1889) 42 Ch D 674 …. 17-23 Weatherall v Thornburgh (1878) 8 Ch D 261; [1874–80] All ER Rep 382 …. 23-14 Weaver, Re [1963] VR 257 …. 10-57, 10-83 Webb, In the Estate of (1992) 57 SASR 193 …. 17-13, 28-02, 28-08, 28-20 Webb, Re [1941] Ch 225; [1941] 1 All ER 321 …. 2-22, 2-23 Webb v Ledsam (1855) 1 K & J 385; 69 ER 508 …. 20-16, 20-49

— v Shaftesbury (1802) 7 Ves 480; 32 ER 194 …. 17-39 Webber, Re [1954] 3 All ER 712 …. 10-31 Webster v Christian (1918) 18 SR (NSW) 615; 35 WN (NSW) 183 …. 19-43 Wedgwood, Re [1915] 1 Ch 113; [1914–15] All ER Rep 322 …. 7-19, 10-57 Weeding v Weeding (1861) 1 J & H 424; 70 ER 812 …. 26-13 Weiner’s Will Trusts, Re [1956] 2 All ER 482; [1956] 1 WLR 759 …. 23-11 Weir, Re (1910) 28 WN (NSW) 9 …. 19-47 Weir, Re [1971] Ch 145; [1970] 1 All ER 297 …. 23-15 Weir v Crum-Brown [1908] AC 162 …. 10-31 Weir Hospital, Re [1910] 2 Ch 124; [1908–10] All ER Rep 690 …. 10-72 Welby v Rockcliffe (1830) 1 Russ & My 571; 39 ER 219 …. 2-36 Weldtech Equipment Ltd, Re [1991] BCLC 393 …. 2-48 Wellbeloved v Jones (1822) 1 Sim & St 40; 57 ER 16 …. 10-67, 10-69 Weller v Kerr (1866) LR 1 HL (Sc) 11 …. 16-14 Wells, Re [1962] 2 All ER 826; [1962] 1 WLR 874 …. 17-39 Wells v Wily (2004) 50 ACSR 103 …. 15-51, 15-57 Welsh Hospital (Netley) Fund, Re [1921] 1 Ch 655 …. 10-55 Wentworth, Re (1915) 15 SR (NSW) 384; 32 WN (NSW) 130 …. 19-55 Wentworth v De Montfort (1988) 15 NSWLR 348 …. 17-16 — v Wentworth [1900] AC 163 …. 19-03, 19-09, 19-13 — v — (1903) 4 SR (NSW) 45; 21 WN (NSW) 17 …. 19-13 Wernher v Boehm (1890) 16 VLR 73 …. 15-85 Wernher’s Charitable Trust v Inland Revenue Commissioners [1937] 2 All ER 488 …. 10-53 West, Re [1900] 1 Ch 84 …. 12-08 West v Federal Commissioner of Taxation (1949) 79 CLR 319 …. 5-06 — v Houghton (1879) 4 CPD 197 …. 2-18, 2-20 — v Shuttleworth (1835) 2 My & K 684; 39 ER 1106 …. 10-13, 10-40 — v Weston (1998) 44 NSWLR 657 …. 5-26 West Australian Baptist Hospital & Homes Trust Inc v City of South Perth

[1978] WAR 65 …. 10-21, 10-22 West Mercia Safetywear Ltd (in liq) v Dodd [1988] BCLC 250 …. 2-03 West Sussex Constabulary’s Widows Children & Benevolent (1930) Fund Trusts, Re [1971] Ch 1; [1970] 1 All ER 544 …. 12-08 Westby’s Settlement, Re [1950] Ch 296; [1950] 1 All ER 479 …. 9-23 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; [1996] 2 All ER 961 …. 3-07, 12-01, 12-04, 12-05, 12-10, 12-13, 13-10, 13-11, 27-05 Westfield Holdings Ltd, Re (2004) 49 ACSR 734 …. 3-10 Weth v Attorney-General [1999] 1 WLR 686 …. 23-05 Westdeutsche Landesbank v Islington London Borough Council [1994] 4 All ER 890; [1994] 1 WLR 938 …. 27-05 Westley v Clarke (1759) 1 Eden 357; 28 ER 723 …. 22-09 Westmeath v Westmeath (1830) 1 Dow & Cl 519 …. 9-10 Weston, Re [1900] 2 Ch 164 …. 21-11 Weston v Carling Constructions Pty Ltd (in prov liq) (2000) 35 ACSR 100 …. 2-29 Weston’s Settlements, Re [1969] 1 Ch 223; [1968] 3 All ER 338 …. 17-07 Westpac Banking Corporation v Bell Group (in liq) (No 3) (2012) 44 WAR 1 …. 13-39, 16-01 Westralian Farmers Co-operative Ltd v Southern Meat Packers Ltd [1981] WAR 241 …. 2-25 West’s Will, Re (1896) 17 LR (NSW) Eq 176; 13 WN (NSW) 57 …. 15-58, 15-69, 25-04 Whakatane Paper Mills Ltd v Public Trustee (1939) 39 SR (NSW) 426; 56 WN (NSW) 177 …. 20-72, 23-09 Wharton v Masterman [1895] AC 186; [1895–9] All ER Rep 687 …. 9-34, 1082, 17-05, 18-01, 23-08, 23-09 Wheal Ellen Gold Mining Co v Read (1908) 7 CLR 34 …. 13-28 Wheelwright v Walker (1883) 23 Ch D 75 …. 15-64 Wheldale v Partridge (1800) 5 Ves 388; 31 ER 643 …. 26-25 Wheller and De Rochow, Re [1896] 1 Ch 315 …. 15-07

Whichelow, Re [1953] 2 All ER 1558; [1954] 1 WLR 5 …. 20-51, 23-13 Whicker v Hume (1858) 7 HLC 124; 11 ER 50 …. 10-26 Whitbread v Smith (1854) 3 De GM & G 272; 43 ER 286 …. 19-53 Whitchurch, Re [1990] VR 719 …. 15-52 White, Re [1893] 2 Ch 41; [1891–4] All ER Rep 242 …. 10-43, 10-61 White, Re [1898] 1 Ch 297 …. 17-40 White, Re [1898] 2 Ch 217; [1895–9] All ER Rep 229 …. 17-40 White, Re (1910) 10 SR (NSW) 295; 27 WN (NSW) 88 …. 17-49 White, Re [1913] 1 Ch 231 …. 19-31 White, Re [1959] VR 661 …. 20-62, 25-11 White, Re [1963] NZLR 788 …. 5-29, 10-65 White v Grane (1854) 18 Beav 571; 52 ER 224 …. 20-63 — v Lady Lincoln (1803) 8 Ves 363; 32 ER 395 …. 17-13 — v Shortall (2006) 68 NSWLR 650 …. 5-24, 12-10 — v Thompson [2011] NSWCA 161 …. 22-04 Whitehead, Re [1894] 1 Ch 688; [1891–4] All ER Rep 636 …. 19-15 Whitehead’s Will Trusts, Re [1959] Ch 579; [1959] 2 All ER 497 …. 19-39 Whitehead’s Will Trusts, Re [1971] 2 All ER 1334; [1971] 1 WLR 833 …. 15-19 Whitehouse, Re [1982] Qd R 196 …. 15-20, 15-86, 16-15, 17-14 Whiteley, Re (1886) 33 Ch D 347 …. 17-18, 18-02 Whiteley, Re [1910] 1 Ch 600 …. 16-14 White’s Will Trusts, Re [1955] Ch 188; [1954] 2 All ER 620 …. 10-71 Whitfield, Re (1920) 125 LT 61; [1920] All ER Rep 668 …. 20-53 Whiting’s Settlement, Re [1905] 1 Ch 96 …. 9-13 Whitney v Smith (1869) 4 Ch D 513 …. 17-49 Whittall, Re [1973] 3 All ER 35; [1973] 1 WLR 1027 …. 17-07 Whittingham v Proudfoot [1861–72] Mac 457 …. 21-09 Whitton v ACN 003 266 886 Pty Ltd (1996) 14 ACLC 1799 …. 15-85 Whitworth Art Gallery Trusts, Re [1958] Ch 461; [1958] 1 All ER 176 …. 1071

Whywait Pty Ltd v Davison [1997] 1 Qd R 225 …. 13-29 Wicks v Bennett (1921) 30 CLR 80; 28 ALR 30 …. 2-07, 17-42 Wightwick’s Will Trust, Re [1950] Ch 260; [1950] 1 All ER 689 …. 22-16 Wiglesworth v Wiglesworth (1852) 16 Beav 269; 51 ER 782 …. 23-03 Wigley v Crozier (1909) 9 CLR 425 …. 20-70, 20-72 Wilcox, Re [1940] SASR 217 …. 19-11, 19-12, 19-14, 19-22 Wilcox v Poole [1974] 2 NSWLR 693 …. 9-27 Wilden Pty Ltd v Green (2009) 38 WAR 429 …. 16-20, 17-04 Wilding v Bolder (1855) 21 Beav 222; 52 ER 845 …. 15-60 — v Richards (1845) 1 Coll 655; 63 ER 584 …. 5-15 Wiles v Gresham (1854) 2 Drew 258; 61 ER 718 …. 22-05 — v — (1854) 5 De GM & G 770; 43 ER 1069 …. 17-20 Wilkes (Beloved) Charity, Re (1851) 3 Mac & G 440; 42 ER 330 …. 16-10 Wilkie v Equity Trustees Executors and Agency Co Ltd [1909] VLR 277; (1909) 15 ALR 208 …. 19-56, 20-30, 20-31 Wilkins v Hogg (1861) 31 LJ Ch 41 …. 16-17, 16-18 — v Wilkins [2007] VSC 100 …. 12-13 Wilkinson, Re [1954] VLR 486; [1954] ALR 666 …. 19-39 Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469; 152 ALR 332 …. 29-42 — v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 …. 17-18, 1723, 22-02, 22-05, 22-08, 22-09 — v Parry (1828) 4 Russ 272; 38 ER 808 …. 15-22, 17-05, 22-33, 23-09 — v Wilkinson (1825) 2 Sim & St 237; 57 ER 337 …. 17-23 William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454; [1904–7] All ER Rep 345 …. 6-20 William Felton & Co Pty Ltd, Re (1998) 145 FLR 211 …. 24-05 William Just (No 1), Estate of (1973) 7 SASR 508 …. 23-05 Williames, Re (1885) 54 LT 105 …. 2-35 Williams, Re (1877) 5 Ch D 735 …. 9-07, 10-61 Williams, Re [1897] 2 Ch 12 …. 1-02, 5-05, 5-08

Williams, Re (1910) 26 TLR 307 …. 10-35 Williams, Re [1912] 1 Ch 399 …. 9-23 Williams, Re (1916) 115 LT 689; [1916–17] All ER Rep 354 …. 6-17 Williams, Re [1927] 2 Ch 283 …. 10-39 Williams, Re [1933] Ch 244; [1932] All ER Rep 724 …. 7-22, 7-32 Williams, Re (1934) 50 CLR 341 …. 9-42 Williams, Re [1955] VLR 65 …. 10-83, 12-04 Williams v A-G (NSW) (1913) 16 CLR 404; 19 ALR 378 …. 14-12 — v Allen (No 2) (1863) 32 Beav 650; 55 ER 255 …. 21-23 — v Barton [1927] 2 Ch 9; [1927] All ER Rep 751 …. 17-49 — v Central Bank of Nigeria [2014] AC 1189; [2014] 2 All ER 489 …. 3-05, 308, 13-02, 13-11, 13-35, 22-25 — v Commissioner of Inland Revenue [1965] NZLR 395 …. 6-17 — v Commissioner of Stamp Duties [1943] NZLR 88 …. 7-19 — v Lloyd (1933) 50 CLR 341 …. 6-17, 9-43 — v Papworth [1900] AC 563 …. 23-03 — v Powell (1852) 15 Beav 416; 51 ER 616 …. 22-08 — v Scott [1900] AC 499; (1900) 17 WN (NSW) 104 …. 17-43, 17-47 Williams’ Settlement, Re (1858) 4 K & J 87; 70 ER 37 …. 15-16 Williams’ Trustees v Inland Revenue Commissioners [1947] AC 447; [1947] 1 All ER 513 …. 10-10, 10-50, 10-58 Williams-Ashman v Price [1942] Ch 219; [1942] 1 All ER 310 …. 15-03 Williamson v Codrington (1750) 1 Ves Sen 512; 27 ER 1174 …. 6-09 Willis, Re [1902] 1 Ch 15 …. 20-30 Willis v Barron [1902] AC 271; [1900–3] All ER Rep 876 …. 17-49 — v Howe [1893] 2 Ch 545 …. 22-30 — v Kibble (1839)1 Beav 559; 48 ER 1057 …. 17-40 — v Stephens [1934] VLR 19 …. 15-17 Willoughby City Council v Roads and Maritime Services (2014) 201 LGERA 177 …. 10-67

Wills, Re [1939] 2 All ER 775 …. 19-17 Wills v Trustees, Executors and Agency Co Ltd (1900) 25 VLR 391; 6 ALR 37 …. 17-31 Wilson, Re (1885) 28 Ch D 457 …. 23-06 Wilson, Re [1913] 1 Ch 314; [1911–13] All ER Rep 1101 …. 10-68, 10-85 Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43; [1956] ALR 311 …. 2-17, 2-21, 2-22, 2-23, 5-02 — v Dent (1830) 3 Sim 385; 57 ER 1042 …. 7-08 — v Law Debenture Trust Corporation plc [1995] 2 All ER 337 …. 8-02, 16-10, 17-16 — v Metro-Goldwyn-Mayer (1980) 18 NSWLR 730 …. 16-07, 29-56 — v Moore (1834) 1 My & K 126; 39 ER 629 …. 22-09 — v Thomas (1834) 4 LJ Ch 25 …. 20-58 — v Turner (1883) 22 Ch D 521 …. 16-06, 16-09, 20-63 — v Wilson (1848) 1 HL Cas 538; 9 ER 970 …. 9-10 — v — (1854) 5 HL Cas 40; 10 ER 811 …. 9-10 — v — (1950) 51 SR (NSW) 91; 68 WN (NSW) 78 …. 20-72, 23-11 Wilson (dec’d), Re [1923] VLR 277 …. 15-57 Wilson’s Grant, Re [1960] VR 514 …. 10-47 Wilton’s Settled Estates, Re [1907] 1 Ch 50 …. 20-11 Wimbush, Re [1940] Ch 92; [1940] 1 All ER 229 …. 19-31 Winch v Brutton (1844) 14 Sim 379; 60 ER 404 …. 5-24 Windeatt’s Will Trusts, Re [1969] 2 All ER 324; [1969] 1 WLR 692 …. 17-07 Windoval Pty Ltd v Donelly (2014) 314 ALR 622 …. 9-40 Windsor Mortgage Nominees Pty Ltd v Cardwell [1979] ACLC 32,195 …. 2711 Windsor Steam Coal Co, Re [1929] 1 Ch 151 …. 22-14, 22-16, 22-17 Winkfield, The [1902] P 42; [1900–3] All ER Rep 346 …. 2-20, 6-12 Winslow, Re (1890) 45 Ch D 249 …. 17-11 Winter v Grady (1921) 21 SR (NSW) 686 …. 5-24 — v Rudge (1847) 15 Sim 596; 60 ER 751 …. 15-05

Winter Holdings (WA) Pty Ltd [2015] WASC 162 …. 21-04 Winterstroke’s Will Trusts, Re [1938] Ch 158; [1937] 4 All ER 63 …. 19-33 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 …. 5-02 Wintle, Re [1896] 2 Ch 711 …. 20-03 Wirth v Wirth (1956) 98 CLR 228 …. 12-12, 12-20 Wise, Re [1896] 1 Ch 281 …. 16-14 Wise v Perpetual Trustee Co [1903] AC 139 …. 21-05, 21-06 Withall, Re [1932] 2 Ch 236 …. 10-85 Withington v Withington (1848) 16 Sim 104; 61 ER 812 …. 15-18 Wittke, Re [1944] Ch 166; [1944] 1 All ER 384 …. 9-22, 9-23 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 …. 9-19 Wolmershausen v Gullick [1893] 2 Ch 514; [1891] All ER Rep 740 …. 21-18, 22-32 Wonall Pty Ltd v Clarence Property Corp Ltd (2003) 58 NSWLR 23 …. 1-06, 24-01 Wong v Burt [2005] 1 NZLR 91 …. 16-19 Wood, Re [1894] 3 Ch 381 …. 9-28, 20-06 Wood, Re [1949] Ch 498; [1949] 1 All ER 1100 …. 11-06 Wood v Weightman (1872) LR 13 Eq 434 …. 17-23, 17-30 Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 All ER 571; [1980] 1 WLR 277 …. 2-17, 2-20 Woodhams, Re [1981] 1 All ER 202; [1981] 1 WLR 493 …. 10-68 Woodhill v Woodhill (1917) 17 SR (NSW) 647; 34 WN (NSW) 245 …. 17-44 Woodhouse, Re [1941] 2 All ER 265 …. 19-14 Woods, Re [1904] 2 Ch 4 …. 19-10, 19-12, 19-13 Wood’s Ship’s Woodite Protection Co, Re (1890) 62 LT 760 …. 13-27 Wood’s Trusts, Re (1870) LR 11 Eq 155 …. 21-10 Woollnough, Re [1953] Tas SR 25 …. 10-71 Worrell v Power and Power (1993) 46 FLR 214; 118 ALR 237 …. 2-29

Wragg, Re [1919] 2 Ch 58; [1918–19] All ER Rep 233 …. 18-03, 18-04 Wratten v Hunter [1978] 2 NSWLR 367 …. 7-09 Wright, Re [1954] Ch 347; [1954] 2 All ER 98 …. 10-71, 10-86 Wright, Re [1971] VLR 127 …. 10-83 Wright v Gater [2012] 1 WLR 802 …. 17-07 — v Morgan [1926] AC 788; [1926] All ER Rep 201 …. 17-44 — v Rose (1825) 2 Sim & St 323; 57 ER 369 …. 26-11 — v Tuckett (1860) 1 John & H 266; 70 ER 747 …. 19-30, 19-31 — v Wilkin (1860) 7 Jur NS 441 …. 2-36 — v Wilkin (1862) 2 B & S 232; 121 ER 1070 …. 2-31 Wright’s Trusts, Re (1857) 3 K & J 419; 69 ER 1173 …. 21-29 Wrightson, Re [1908] 1 Ch 789 …. 15-86, 15-87 Wrightson Ltd v Fletcher Challenge Nominees Ltd [2002] 2 NZLR 1 …. 8-03, 29-49, 29-57 Wroe v Seed (1863) 4 Giff 425; 66 ER 773 …. 17-13, 22-08 WT Ramsay v Inland Revenue Commissioners [1982] AC 300; [1981] 1 All ER 865 …. 5-04 Wykes (decd), Re; Riddington v Spencer [1961] Ch 229; [1961] 1 All ER 470 …. 10-66 Wyld, Re [1912] SALR 190 …. 10-55, 19-06, 19-22 Wylde v A-G (NSW) (1948) 78 CLR 224; [1949] ALR 153 …. 10-39, 10-67, 23-04 Wyman v Paterson [1900] AC 271 …. 17-30 Wynn’s Will Trusts, Re [1952] Ch 271; [1952] 1 All ER 341 …. 16-13 Wyvern Developments Ltd, Re [1974] 2 All ER 535; [1974] 1 WLR 1097 …. 20-12

X X v A [2000] 1 All ER 490 …. 17-11, 17-15, 18-09, 18-16, 21-04 — v — [2006] 1 All ER 952; [2006] 1 WLR 741 …. 20-59 Xebec Pty Ltd (in liq) v Enthe Pty Ltd (1987) 18 ATR 893 …. 15-20

Y Yara Australia Pty Ltd v Oswal (No 2) [2013] WASCA 187 …. 21-02 Yass Pastoral and Agricultural Association, Re (1902) 19 WN (NSW) 249 …. 10-78 Yates v University College London (1875) LR 7 HL 438 …. 10-01, 10-28, 1031, 10-86 — v Yates (1860) 28 Beav 637; 54 ER 511 …. 26-09 Yaxley v Gotts [2000] Ch 162; [2000] 1 All ER 711 …. 13-02, 13-41 Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 …. 10-33 Yeo v Rotton (1865) 4 SCR (NSW) Eq 110 …. 18-26 York v Fraser (1894) 11 WN (NSW) 12 …. 15-69 Yorkshire Miners’ Association v Howden [1904–7] All ER Rep 602; [1905] AC 256 …. 23-03, 23-04 Young, Re (1905) 5 SR (NSW) 394; 22 WN (NSW) 135 …. 19-43 Young, Re [1951] Ch 344; [1950] 2 All ER 1245 …. 7-15, 7-30, 7-33 Young v Murphy (1994) 12 ACLC 558 …. 21-14 — v Murphy [1996] 1 VR 279 …. 17-02 — v Sealey [1949] Ch 278; [1949] 1 All ER 92 …. 12-13 — v Young (2014) 10 ASTLR 292 …. 7-09 Young’s Will Trusts, Re [1955] 3 All ER 689 …. 10-24 Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; 196 ALR 482 …. 17-04, 17-18, 22-01, 22-04, 22-05 Yunghanns v Candoora No 19 Pty Ltd (No 2) (2000) 35 ACSR 34 …. 23-05

Z Z v Z (2005) 34 Fam LR 296 …. 12-12 Zamora [No 2], The [1921] 1 AC 801 …. 13-36 Zen Ridgeway Pty Ltd v Adams [2009] 2 Qd R 298 …. 21-12 Ziliani v Sydney City Council (1985) 56 LGRA 58 …. 10-53 Zimpel, Re [1963] WAR 171 …. 19-01 Zinck v Walker (1777) 2 Wm Bl 1154; 96 ER 681 …. 27-04

Zobory v Federal Commissioner of Taxation (1995) 64 FCR 86; 129 ALR 484 …. 13-10

Table of Statutes References are to paragraph numbers

COMMONWEALTH Aboriginal Land Rights (Northern Territory) Act 1976 s 19 …. 9-02

Australian Consumer Law see Competition and Consumer Act 2010 Australian Prudential Regulation Authority Act 1998 s 8(1) …. 29-03

Australian Securities and Investments Commission Act 2001 s 12A(2)–(4) …. 29-03

Bankruptcy Act 1966 …. 9-38, 9-42 s 94 …. 9-26 s 116(2)(a) …. 21-14 s 120 …. 9-38, 9-39, 9-41, 13-11 s 120(2) …. 9-39 s 120(3) …. 9-39 s 120(4) …. 9-39 s 120(5)(c) …. 9-39 s 120(6) …. 9-39 s 121 …. 9-38, 9-40, 9-41 s 121(2) …. 9-40 s 121(4) …. 9-40

s 121(5) …. 9-40 s 122 …. 2-16, 21-16 s 153(2)(b) …. 22-11 s 302A …. 29-49 s 302B …. 9-20

Charities Act 2013 …. 10-87 Pt 3 …. 10-87 s 4 …. 10-87 s 5 …. 10-29, 10-87 s 6 …. 10-87 ss 7–10 …. 10-87 s 11 …. 10-87 s 12(1) …. 10-87 s 14 …. 10-87 s 15 …. 10-87

Commonwealth Inscribed Stock Act 1911 s 52 …. 18-23 Competition and Consumer Act 2010 Sch 2 …. 28-10 s 67 …. 28-10

Constitution …. 10-12 s 51(xx) …. 29-05

Corporations Act 2001 …. 2-28, 2-48, 14-14, 20-54, 21-14 Ch 5C …. 3-10 Ch 5D …. 14-05 Pt 2D.1 …. 29-22 s 124(1) …. 4-08 s 125 …. 4-08 s 241 …. 29-10

s 420A …. 2-05 s 556 …. 21-14, 21-15 s 588FA …. 2-16 s 601AD(2) …. 25-04 s 601FC(2) …. 3-10, 21-34 s 609(2) …. 3-15 s 1017C …. 29-28 s 1017C(2) …. 29-28 s 1017C(3) …. 29-28 s 1017C(4) …. 29-28 ss 1042A–1043O …. 13-27 s 1318 …. 22-12 s 1346 …. 9-28, 10-08

Defence Service Homes Act 1918 s 35 …. 9-04

Defence Service Homes Amendment Act 1988 s 10 …. 9-04

Family Law Act 1975 …. 3-14, 9-10, 9-47, 12-17 Pt VIII …. 9-47 s 74 …. 9-47 s 78 …. 9-47 s 79 …. 9-24, 9-47, 12-12 s 80 …. 12-12 s 85 …. 9-47

Income Tax Assessment Act 1936 …. 8-03, 27-16 s 218 …. 9-24

Income Tax Assessment Act 1997 …. 1-01 Lands Acquisition Act 1989 s 41(4) …. 26-07

Native Title Act 1993 s 56 …. 1-02

Personal Property Securities Act 2009 …. 2-47 Public Governance, Performance and Accountability Act 2013 Pt 2 Div 3 Subdiv A …. 29-22

Racial Discrimination Act 1975 s 8 …. 9-13 s 8(2) …. 10-72 s 9 …. 9-13

Sex Discrimination Act 1984 s 36(a) …. 10-72

Social Security Act 1991 s 66 …. 9-02 s 128 …. 9-02 s 170 …. 9-02 s 220 …. 9-02 s 280 …. 9-02 s 339 …. 9-02 s 387 …. 9-02 s 571 …. 9-02 s 654 …. 9-02 s 724 …. 9-02 s 757 …. 9-02 s 806 …. 9-02 s 870 …. 9-02 s 976 …. 9-02 s 1052 …. 9-02 s 1061W …. 9-02

Superannuation Act 1990

s 41 …. 9-02, 24-06

Superannuation Guarantee (Administration) Charge Act 1992 Pt 3 …. 29-01

Superannuation Industry (Supervision) Act 1993 …. 29-02, 29-03, 29-05, 29-06, 29-07, 29-08, 29-09, 29-13, 29-15, 29-39, 29-41, 29-59 Pt 8 …. 29-06 Pt 16 …. 29-06 s 6 …. 29-03 s 10(1) …. 29-05, 29-07, 29-14 s 16 …. 29-14 s 19(2) …. 29-05 s 19(3) …. 29-05 s 19(4) …. 29-05 s 19(7) …. 29-05 s 29BO …. 29-37 s 29E …. 29-41 s 29VN …. 29-18, 29-37 s 29VO …. 29-18, 29-37 s 31(1) …. 29-12, 29-40, 29-41 ss 34B–34F …. 29-22 s 34C …. 29-39, 29-41 s 34C(4) …. 29-39 s 34C(6) …. 29-39 s 34D …. 29-39 s 34D(2) …. 29-39 s 51A …. 29-18 s 52 …. 29-09, 29-18, 29-21, 29-32 ss 52–53 …. 29-36, 29-37, 29-39 s 52(1) …. 29-18, 29-20, 29-30, 29-31

s 52(2) …. 29-18, 29-29 s 52(2)(a) …. 29-19, 29-32 s 52(2)(a)–(c) …. 29-33 s 52(2)(b) …. 29-20, 29-21, 29-32 s 52(2)(c) …. 29-21, 29-32 s 52(2)(d) …. 29-21, 29-22, 29-32 s 52(2)(e) …. 29-23 s 52(2)(f) …. 29-24, 29-27 s 52(2)(g) …. 29-25 s 52(2)(g)–(j) …. 29-33 s 52(2)(h) …. 29-26, 29-32 s 52(2)(i) …. 29-27 s 52(2)(j) …. 29-28 s 52(3) …. 29-20 s 52(4) …. 29-22 s 52(5) …. 29-26, 29-33 s 52(6) …. 29-27, 29-29, 29-33 s 52(7) …. 29-30 s 52A …. 29-18 s 52A(1) …. 29-32, 29-36 s 52A(2) …. 29-32 s 52A(2)(f) …. 29-32 s 52A(5) …. 29-32 s 52A(6) …. 29-32 s 52B …. 29-18, 29-33, 29-34 s 52B(1) …. 29-33 s 52B(2) …. 29-33 s 52B(2)(h) …. 29-28 s 52B(3) …. 29-33 s 52C …. 29-18

s 52C(1) …. 29-34 s 52C(2) …. 29-34 s 52C(4) …. 29-34 s 53 …. 29-18 s 53(1) …. 29-35 s 53(2) …. 29-35 s 53C(2) …. 29-34 s 54A …. 29-18, 29-37, 29-39 s 54A(1) …. 29-36 s 54A(3) …. 29-36 s 55(1) …. 29-37 s 55(3) …. 29-09, 29-37 s 55(4A) …. 29-37 s 55(5) …. 29-37 s 55(6) …. 29-37 s 56(1) …. 29-10 s 56(2) …. 29-10 s 56(3) …. 29-10 s 57 …. 29-10 s 57(3) …. 29-10 s 58 …. 29-11 s 58(1) …. 29-11 s 58(2) …. 29-11 s 59(1) …. 29-11 s 59(1A) …. 29-11 s 59(2) …. 29-11 s 60(1) …. 29-12 s 60(2) …. 29-12 s 60(3) …. 29-12 s 62(1) …. 29-08

s 65 …. 29-06 s 89 …. 29-58 s 89(1)(a) …. 29-14 s 89(1)(b) …. 29-14 s 101 …. 29-42 s 102(1) …. 29-43 s 103 …. 29-44 s 104 …. 29-44 s 105 …. 29-44 s 106 …. 29-45 s 106(1) …. 29-45 s 106(2) …. 29-45 s 106A(1) …. 29-46 s 107 …. 29-15 s 109(1) …. 29-47 s 109(1A) …. 29-47 s 116 …. 29-29 s 117(3) …. 29-48, 29-57 s 117(5) …. 29-57 s 117(6) …. 29-57 s 118 …. 29-17, 29-44 s 120(1) …. 29-13 s 120(2)(a) …. 29-13 s 120(2)(b)–(e) …. 29-13 s 126A …. 29-13 s 126B …. 29-13 s 133 …. 29-16 s 134 …. 29-16 s 134(1) …. 29-16 s 134(2) …. 29-16

s 134(3) …. 29-16 s 310(1) …. 29-38 s 310(2) …. 29-38 s 341 …. 29-59 s 343 …. 9-28, 10-08, 29-07 s 350 …. 29-20

Superannuation Industry (Supervision) Regulations 1994 …. 2902, 29-03, 29-39, 29-41, 29-50, 29-59 reg 4.1 …. 29-28 regs 5.01–5.08 …. 29-50 reg 13.16 …. 29-12 reg 13.16(1) …. 29-12 reg 13.16(2) …. 29-12

Superannuation (Resolution of Complaints) Act 1993 …. 29-42 Taxation (Unpaid Company Tax) Assessment Act 1982 …. 3-15 Trade Practices Act 1974 …. 21-04 Treasury Bills Act 1914 s 11 …. 18-23

Trusts (Hague Convention) Act 1991 …. 28-02 s 4 …. 28-02 s 5 …. 28-02 s 6 …. 28-02 s 7(1) …. 28-02 Sch …. 28-02

Uniform Companies Act 1961 s 382(1) …. 10-08

Veterans’ Entitlements Act 1986 s 125 …. 9-02

AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 ss 39–40 …. 15-03 s 41D …. 19-01 s 70 …. 17-39

Age of Majority Act 1974 s 5 …. 4-02

Associations Incorporation Act 1991 …. 14-14 ss 22–25 …. 14-14

Birth (Equality and Status) Act 1988 s 6 …. 9-09

Civil Law (Property) Act 2006 s 201 …. 6-20, 7-02 ss 201–203 …. 13-42 s 205 …. 6-20 s 209 …. 14-04 s 223 …. 12-20 s 233 …. 26-09 s 239 …. 9-41 ss 239–240 …. 9-46 ss 248–253 …. 19-26

Civil Law (Wrongs) Act 2002 Pt 3.1 …. 20-48

Conveyancing Act 1919 s 26 …. 12-10 s 142 …. 19-26 s 144 …. 19-26 s 151A …. 14-02

Domestic Relationship Act 1994 s 15 …. 12-17

Limitation Act 1985 s 8 …. 22-24 s 27 …. 22-24, 22-31 s 28 …. 22-24, 22-31

Mercantile Law Act 1962 s 6 …. 2-09

Parentage Act 2004 Div 2.2 …. 12-12

Perpetuities and Accumulations Act 1985 s 8 …. 9-29 s 9 …. 9-29 s 10 …. 9-29 s 10(3) …. 9-29 s 12 …. 20-07 s 14 …. 10-08 s 15 …. 9-29, 10-81 s 15(3)(a) …. 10-81 s 17(2) …. 11-08 s 18 …. 9-29 s 19 …. 9-33 s 19(2) …. 9-34

Public Trustee Act 1985 …. 14-10 Sale of Goods Act 1954 s 29 …. 2-09

Supreme Court Rules O 58 r 1 …. 23-07

Trustee Act 1925 …. 2-42, 3-10, 14-05, 15-03, 15-06, 15-09, 15-30,

15-43, 15-83, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 18-19, 21-30 s 4 …. 15-01 s 5 …. 20-10, 25-04 s 6 …. 15-11, 15-30, 15-35, 25-04 s 6(2) …. 15-30 s 6(2)(d) …. 15-35 s 6(2)(f) …. 14-02 s 6(3) …. 15-12 s 6(4) …. 15-06 s 6(5)–(6) …. 15-35 s 6(6) …. 15-23 s 6(6)(b) …. 14-14 s 6(7) …. 15-20, 15-23 s 6(9) …. 15-42 s 6(10) …. 15-13 s 6(11) …. 15-07 s 6(12)–(13) …. 15-09 s 6(13) …. 15-21 s 6(14) …. 2-41, 15-45 s 6(15) …. 15-22 s 7 …. 15-30, 15-31, 15-35 s 7(7) …. 15-30 s 8 …. 15-79 s 8(7) …. 2-41 s 9 …. 25-02, 25-04 s 9(3) …. 25-04 s 9(3A) …. 25-04 s 9(4) …. 25-04 s 9(5) …. 25-04

s 10 …. 2-40 s 10(2) …. 14-05 s 14 …. 17-18, 18-08 s 14A(1) …. 18-36 s 14A(2) …. 18-09 s 14A(2)(a) …. 17-18 s 14A(3) …. 18-09 s 14A(4) …. 18-36 s 14B(1) …. 18-10 s 14B(2) …. 18-10 s 14B(2)(b) …. 17-18 s 14B(2)(c) …. 17-18 s 14B(3) …. 18-14 s 14B(4) …. 18-14 s 14C …. 18-36 s 14C(1) …. 18-15 s 14C(2) …. 18-18 s 14C(3) …. 18-19 s 14D …. 20-53 s 14E …. 18-22 s 14F …. 18-21 s 17 …. 18-31 s 18 …. 18-26, 22-15 s 19 …. 18-28 s 20 …. 18-32 s 21 …. 20-53 s 22 …. 20-53 s 23 …. 19-55, 20-54 s 24 …. 19-35 s 25 …. 17-20

s 26 …. 20-10 s 27B …. 17-04, 19-10, 20-04, 20-09 s 28 …. 20-18 s 30 …. 20-15 s 32A …. 18-33 s 33 …. 18-33, 20-04 s 35 …. 20-26 s 36 …. 20-21 s 37 …. 20-26 s 39 …. 20-49 s 40 …. 17-20 s 40(3) …. 20-47 s 41 …. 19-56, 20-37 s 42 …. 20-37 s 43 …. 20-58, 20-60 s 44 …. 20-58, 20-62 s 45 …. 9-21 s 46 …. 20-74 s 48 …. 20-49 s 49 …. 16-14, 20-46 s 50 …. 17-21 s 51 …. 17-13, 20-55 s 51(4) …. 14-05 s 52 …. 20-55 s 53 …. 17-25, 17-30 s 53(3) …. 17-31 s 53(4) …. 17-30, 17-31 s 53(5) …. 17-31 s 54 …. 14-05 s 55 …. 17-32

s 57(1) …. 15-75], 20-01 s 58 …. 17-35 s 59 …. 17-20, 17-29, 17-30, 22-09 s 59(4) …. 15-43, 21-02 s 60 …. 17-36 s 61 …. 17-35 s 61A …. 2-42, 17-35, 20-54 s 63 …. 21-34 s 64 …. 17-33 s 65 …. 14-05, 17-34 s 66 …. 17-34 s 67 …. 17-34 s 68 …. 17-34 s 70 …. 15-46 s 70(5) …. 25-04 s 71 …. 25-04, 25-05, 25-06 s 71(1) …. 25-04 s 71(2) …. 25-04 s 72 …. 25-07 s 73 …. 25-11 s 74 …. 25-07 s 75 …. 25-07 s 76 …. 25-07 s 77 …. 25-07 s 78 …. 25-08 s 79 …. 25-10 s 80 …. 25-07 s 81 …. 10-78, 17-06, 17-39 ss 82–83 …. 19-55 s 85 …. 16-04, 18-26, 22-12

s 86(1) …. 21-21 s 89 …. 18-36 s 89A …. 18-37 s 93 …. 21-36 ss 94A–94E …. 10-78 s 95 …. 20-76, 21-30

Trustee (Amendment) Act 1999 …. 18-07 Trustee Companies Act 1947 …. 14-07 s 11(1)(b) …. 14-07 s 11(1)(c) …. 14-07 s 12 …. 14-07

Wills Act 1968 s 9 …. 7-14 s 16 …. 4-05

NEW SOUTH WALES Anti-Discrimination Act 1977 s 55(1) …. 10-72

Associations Incorporation Act 2009 …. 14-14 ss 19–22 …. 14-14 s 40 …. 14-14

Charitable Trusts Act 1993 …. 10-76 Pt 2 …. 10-67, 10-76 Pt 4 …. 10-76 s 6 …. 10-78 ss 9–10 …. 10-74 s 10 …. 10-60, 10-68 s 10(2) …. 10-70 s 12(2) …. 20-27

s 23 …. 10-60, 10-65

Companies (NSW) Code 1981 s 8(8) …. 3-15

Compensation to Relatives Act 1897 …. 20-48 Conveyancing Act 1919 …. 9-46, 14-05, 14-08, 19-26 s 7 …. 14-05, 14-08, 19-09 s 12 …. 6-20 s 17 …. 8-09 s 23B …. 6-20 s 23C …. 7-02, 7-03, 7-05, 7-15, 7-33 s 23C(1) …. 7-04, 7-33 s 23C(1)(a) …. 7-03, 7-04, 7-06, 7-08 s 23C(1)(b) …. 6-23, 7-03, 7-04, 7-06, 7-07, 7-08, 28-04 s 23C(1)(c) …. 6-20, 6-23, 7-03, 7-04, 7-05, 7-06, 7-08 s 23C(2) …. 7-04, 7-33 s 25 …. 14-04 s 26 …. 12-10 s 29C(1) …. 9-22 s 29C(1)(b) …. 9-24 s 31 …. 20-61 s 31A …. 20-61 s 36B …. 20-61, 20-67 s 36B(1) …. 20-61 s 37A …. 9-41 s 37A(3) …. 9-44 s 37D …. 10-46, 10-65 s 44 …. 12-20 s 54A …. 13-42 s 66B …. 14-05, 14-08

s 66B(2) …. 20-49 s 66C …. 20-04, 26-09 s 66D …. 20-08, 20-12, 20-20, 20-33 s 66D(2) …. 19-02, 19-09 s 66E …. 25-09 s 66G …. 14-05, 14-08, 25-09 s 66G(7)(b) …. 26-06 s 106 …. 20-20 s 106(16A) …. 14-05 s 107(11A) …. 14-05 s 111A …. 2-05 s 115(6A) …. 14-05, 19-59 s 115(8) …. 19-59 s 142 …. 19-26, 19-30 s 144 …. 9-26, 19-26, 19-30 s 151A …. 14-02 s 151C …. 20-08, 20-20, 20-33, 25-11 s 151D …. 14-08, 20-75 s 151D(1)(a) …. 14-05 s 151D(1)(b) …. 14-05 s 152 …. 20-04 s 153 …. 2-44, 20-04, 20-28 s 153(4) …. 2-43 s 154(3) …. 2-44 s 157A …. 14-08, 20-04 s 157A(4) …. 14-05 s 526 …. 14-11

Conveyancing (Amendment) Act 1930 …. 9-24, 9-46, 20-61 Conveyancing and Law of Property Act 1898 …. 20-01

Pt IV …. 17-10, 20-62 s 63 …. 18-24, 26-24 s 64 …. 20-62 s 68 …. 20-20

Crown Lands Act 1989 …. 17-42 Crown Lands Consolidation Act 1913 …. 17-42 Dormant Funds Act 1942 …. 10-75 s 1 …. 10-75 s 2 …. 10-75 s 4 …. 10-75 s 5 …. 10-75 s 12 …. 10-75 s 15 …. 10-75 s 17 …. 10-75 s 18 …. 10-75

Factors (Mercantile Agents) Act 1923 s 5 …. 2-09

Imperial Acts Application Act 1969 …. 10-02 s 8 …. 12-20 s 9(2) …. 10-02

Judgment Creditors’ Remedies Act 1901 s 27 …. 9-24

Land Acquisition (Just Terms Compensation) Act 1991 …. 20-04, 26-24 s 20(1) …. 26-07

Limitation Act 1969 …. 22-24, 22-25 s 11 …. 22-25 ss 47–50 …. 22-24 s 50 …. 22-31

s 63 …. 21-11

Local Government Act 1993 s 411 …. 14-11

Mental Health Act 2007 s 4 …. 25-04 s 14 …. 25-04

Minors (Property and Contracts) Act 1970 …. 4-04 s 8 …. 4-02 s 10(1)(b) …. 14-02 s 18 …. 4-02 s 50 …. 25-11

NSW Trustee and Guardian Act 2009 Ch 4 …. 4-06 s 3 …. 14-08 s 5 …. 14-08

Partnership Act 1892 s 22 …. 26-05

Perpetuities Act 1984 …. 20-61 s 7 …. 9-29 s 8 …. 9-29 s 9(1) …. 9-29 s 9(4) …. 9-29 s 11 …. 20-06, 20-07, 20-20 s 13 …. 10-08 s 14 …. 9-29, 10-81 s 14(4) …. 10-81 s 16(2) …. 11-08 s 17 …. 9-29 s 18 …. 9-33

s 18(2) …. 9-34 Sch 1 …. 20-61

Probate Act of 1890 …. 15-03, 25-04 Probate and Administration Act 1898 s 44 …. 15-03 s 46(2) …. 20-28 s 46D …. 19-01 s 47 …. 15-03 s 75A …. 14-05, 14-08 s 75A(1) …. 14-05, 14-08 s 75A(2) …. 14-05, 14-08 s 86 …. 17-39 s 92 …. 22-10 s 93 …. 22-10

Property (Relationships) Act 1984 s 20 …. 12-17

Public Authorities (Financial Arrangements) Act 1987 …. 18-23 s 39 …. 18-09

Public Works Act 1912 s 54(3)(b) …. 26-24

Real Property Act 1900 …. 25-02 s 9(3A) …. 25-02 s 42 …. 13-10

Sale of Goods Act 1923 s 28 …. 2-09

Status of Children Act 1996 s 5 …. 9-09, 12-12 s 6 …. 9-09

Succession Act 2006

s 5 …. 4-05 s 6 …. 7-14 s 16 …. 4-05 s 43 …. 9-32, 11-04 s 66 …. 25-09

Supreme Court Rules Pt 68 r 2 …. 23-07

Trustee Act 1898 s 18 …. 20-60

Trustee Act 1925 …. 2-42, 3-10, 3-18, 14-05, 14-08, 15-03, 15-06, 15-09, 15-22, 15-30, 15-43, 15-58, 15-83, 16-18, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 18-19, 20-01, 20-17, 20-20, 20-33, 20-36, 20-59, 20-62, 21-30 Pt III …. 17-34 s 5 …. 2-41, 14-08, 15-01, 20-10, 22-12, 25-04 s 6 …. 14-08, 15-11, 15-30, 15-35, 25-04 s 6(2) …. 15-30 s 6(2)(d) …. 15-35 s 6(2)(e) …. 14-02 s 6(3) …. 15-12 s 6(4) …. 15-06 s 6(5) …. 15-23, 15-35 s 6(5)(b) …. 14-14 s 6(6) …. 15-23, 15-20 s 6(7) …. 25-02 s 6(8) …. 15-42 s 6(9) …. 15-13 s 6(10) …. 15-07 s 6(11) …. 15-09 s 6(12) …. 2-41, 15-45

s 6(13) …. 15-21, 15-22 s 7 …. 14-08, 15-30, 15-31, 15-35 s 7(5) …. 15-82 s 7(7) …. 15-30, 25-02 s 8 …. 14-08, 15-79 s 8(6) …. 25-02 s 8(7) …. 2-41 s 9 …. 25-02, 25-04 s 9(1) …. 15-21 s 9(3) …. 25-04 s 9(3A) …. 25-04 s 9(4) …. 25-04 s 9(5) …. 25-04 s 10 …. 2-40 s 10(2) …. 14-05, 14-08 s 11(1) …. 2-45 s 14 …. 16-18, 17-18, 18-08 s 14A …. 16-18 s 14A(1) …. 18-36 s 14A(2) …. 18-09 s 14A(2)(a) …. 17-18 s 14A(3) …. 18-09 s 14A(4) …. 18-36 s 14B …. 16-18 s 14B(1) …. 18-10 s 14B(2) …. 18-10 s 14B(2)(b) …. 17-18 s 14B(2)(c) …. 17-18 s 14B(3) …. 18-14 s 14B(4) …. 18-14

s 14C …. 16-18, 18-36 s 14C(1) …. 18-15 s 14C(2) …. 18-18 s 14C(3) …. 18-19 s 14D …. 20-53 s 14D(1) …. 20-53 s 14D(2) …. 20-53 s 14D(3) …. 20-53 s 14D(4) …. 20-53 s 14D(5) …. 20-53 s 14DA …. 18-22 s 14DA(2) …. 16-18 s 14F …. 16-18, 18-21 s 17 …. 18-31 s 18 …. 18-26, 22-15 s 19 …. 18-28 s 20 …. 18-32 s 21 …. 16-18, 20-53 s 21A …. 16-18, 20-53 s 22 …. 16-18, 20-53 s 23 …. 16-18, 19-55, 20-54 s 24 …. 19-35 s 25 …. 17-20 s 26 …. 20-10 s 27 …. 20-06, 20-07 s 27A …. 20-06 s 27B …. 17-04, 19-10, 20-04, 20-08, 20-09, 20-20, 20-43 s 27C …. 20-06 s 28 …. 20-17, 20-18 s 30 …. 20-14, 20-15

s 31 …. 20-17 s 32 …. 20-17 s 32A …. 18-33 s 33 …. 18-33, 19-61, 20-04 s 34 …. 20-28, 20-29 s 35 …. 20-24, 20-26 s 36 …. 20-12, 20-20, 20-21, 20-43 s 36(1) …. 20-20 s 36(1)(a) …. 20-20 s 36(1)(b) …. 20-20 s 36(2) …. 20-20 s 36(3) …. 20-20 s 36(4) …. 20-20 s 36(5) …. 20-20 s 36(6) …. 20-20 s 37 …. 20-25, 20-26 s 38 …. 20-05, 20-28, 20-29 s 39 …. 20-49 s 39A …. 19-59 s 39A(3) …. 19-59 s 40 …. 17-20 s 40(2) …. 20-47 s 41 …. 19-56, 20-36, 20-37 s 42 …. 20-36, 20-37 s 43 …. 20-58, 20-60, 20-61, 20-63, 20-64 s 43(4) …. 20-61 s 43(5) …. 20-61 s 43(6) …. 20-61 s 43(6)(b) …. 20-61 s 43(7) …. 20-61

s 43(8) …. 20-61 s 43(10) …. 20-61 s 44 …. 20-58, 20-59, 20-62, 20-63, 20-64 s 44(1) …. 20-61, 20-62 s 44(1A) …. 20-62, 20-64 s 44(5) …. 20-62 s 44(6) …. 20-64 s 45 …. 9-21, 20-62 s 45(5) …. 20-62 s 45(6) …. 9-25 s 46 …. 20-71, 20-72, 20-73 s 46(3) …. 20-73 s 46(5) …. 20-70 s 46(8A) …. 20-72 s 47 …. 14-08, 20-76 s 48 …. 20-49 s 48(1) …. 20-49 s 49 …. 16-14, 20-46 s 49(2) …. 2-42 s 50 …. 17-21 s 51 …. 17-13, 20-55 s 51(4) …. 14-05, 14-08 s 52 …. 20-55, 20-73 s 53 …. 17-25, 17-30 s 53(3) …. 17-31 s 53(4) …. 17-30, 17-31 s 53(5) …. 17-31 s 54 …. 14-05, 14-08 s 55 …. 17-32, 20-34 s 57(1) …. 15-75, 20-01

s 58 …. 17-35 s 59 …. 17-20, 17-29, 17-30, 22-09 s 59(4) …. 15-43, 21-02 s 60(1) …. 17-36 s 60(4)–(7) …. 17-36 s 61 …. 17-35 s 61A …. 2-42, 17-35, 20-54 s 63 …. 21-34 s 63(11) …. 21-34 s 64 …. 14-08, 17-33 s 65 …. 14-05, 14-08, 17-34 s 66 …. 17-34 s 67 …. 17-34 s 68 …. 17-34 s 69 …. 22-24 s 70 …. 15-46 s 70(5) …. 15-58, 15-82, 25-04 s 71 …. 15-82, 25-04, 25-06, 25-08 s 71(1) …. 25-04 s 71(2) …. 25-04 s 71(9) …. 25-04 s 71(6) …. 25-03 s 72 …. 25-07 s 73 …. 25-11 s 74 …. 25-07 s 75 …. 25-07 s 76 …. 25-07 s 77 …. 25-07 s 78 …. 25-08 s 78(5) …. 25-08

s 78(7) …. 25-08 s 79 …. 25-10 s 80 …. 25-07 s 81 …. 10-78, 15-67, 17-06, 17-39, 20-33, 20-34 s 81(2)(c) …. 20-43 s 81(2)(d) …. 20-43 s 82 …. 17-08, 20-28, 20-33, 20-34 ss 82–82A …. 19-55 s 82(4) …. 17-08 s 82(7) …. 20-33 s 82A …. 17-08, 20-28, 20-30, 20-33, 20-34 s 82A(2) …. 20-33 s 83 …. 17-08, 20-34 s 84 …. 17-10 s 85 …. 16-04, 18-26, 21-34, 22-12 s 86(1) …. 21-21, 21-25 s 86(2) …. 21-21, 21-25 s 90 …. 18-36 s 90A …. 18-37 s 93 …. 15-72, 15-83, 21-36 s 95 …. 20-76, 21-30 s 98 …. 21-30

Trustee Act 1958 s 37 …. 20-64

Trustee Act Amendment Act 1902 …. 20-33 s 8 …. 15-58 s 10 …. 20-33

Trustee (Amendment) Act 1929 s 2 …. 20-06

s 27C …. 20-06

Trustee Amendment (Discretionary Investments) Act 1997 …. 18-07 Trustee Companies Act 1964 …. 2-13, 14-05 s 11(1)(b) …. 14-05 s 11(1)(d) …. 14-05 s 13 …. 14-05 s 15B …. 14-05

Wills Probate and Administration Act 1898 s 46D …. 19-58

Workplace Injury Management and Workers Compensation Act 1998 s 235 …. 24-06

NORTHERN TERRITORY Administration and Probate Act 1969 s 58 …. 19-01, 19-58 s 102 …. 17-39

Age of Majority Act s 4 …. 4-02

Anti-Discrimination Act 1992 s 52(1) …. 10-72

Companies (Trustees and Personal Representatives) Act …. 14-07 s 19 …. 14-07 s 20(1)(b) …. 14-07

Compensation (Fatal Injuries) Act 1974 …. 20-48 De Facto Relationships Act s 18 …. 12-17

Law of Property Act 2000 s 6 …. 12-20 s 10 …. 6-20, 7-02 s 28 …. 8-09 s 35 …. 12-10 s 56 …. 6-06 s 62 …. 13-42 s 182 …. 6-20 s 187 …. 9-29 s 190 …. 9-29 s 191 …. 9-29 s 191(4) …. 9-29 s 193 …. 20-07 s 195 …. 10-08 s 196 …. 9-29, 10-81 s 196(5) …. 10-81 s 198 …. 11-08 s 199 …. 9-29 s 202 …. 9-33 s 202(2) …. 9-34 s 208 …. 9-41 ss 208–209 …. 9-46 ss 211–213 …. 19-26 Sch 4 …. 12-20

Limitation Act ss 32–35 …. 22-24, 22-31

Public Trustee Act …. 14-10 Rules of the Supreme Court r 54.02 …. 23-07

Sale of Goods Act 1972 s 28 …. 2-09

Status of Children Act 1978 s 4 …. 12-12 s 6 …. 9-09

Trustee Act 1980 …. 2-42, 3-10, 15-03, 15-06, 15-12, 15-34, 15-41, 15-43, 15-83, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 20-37, 20-69, 21-30 s 5 …. 17-18, 18-08 s 6(1) …. 18-09 s 6(1)(a) …. 17-18 s 6(1)(b) …. 17-18 s 6(2) …. 18-09 s 6(3) …. 18-36 s 7(1) …. 18-10 s 7(1)(a) …. 17-18 s 7(1)(b) …. 17-18 s 7(2) …. 18-14 s 7(3) …. 18-14 s 8 …. 18-36 s 8(1) …. 18-15 s 8(2) …. 18-18 s 9 …. 20-53 s 10 …. 19-55, 20-54 s 10A …. 18-22 s 10B …. 17-20, 18-36 s 10C(1) …. 18-26 s 10C(2) …. 18-29 s 10D(1) …. 18-28 s 10E …. 18-36

s 10F …. 18-37 s 11 …. 15-06, 15-11 s 11(1) …. 15-21 s 11(2) …. 14-14 s 11(2)(a) …. 15-29 s 11(2)(c) …. 15-29 s 11(3) …. 15-42 s 11(4) …. 15-13 s 11(5) …. 15-22 s 11(7) …. 2-41, 15-45 s 12 …. 2-41, 15-80 s 13 …. 25-02 s 14 …. 20-13 s 15 …. 20-15 s 17 …. 17-28 s 18(2)–(4) …. 17-08, 19-55, 20-34 s 18A …. 19-56, 20-37 s 19 …. 20-26 s 20 …. 20-49 s 21(2) …. 20-46 s 22 …. 17-36 s 22(2) …. 17-35 s 23(1) …. 15-75, 20-01 s 24 …. 20-69 s 24A …. 20-69 s 25 …. 17-35 s 26 …. 15-43, 17-20, 17-29, 17-31, 21-02, 22-09 s 27 …. 15-46, 15-66 s 28 …. 25-06 s 29 …. 25-07

s 30 …. 25-07 s 31 …. 25-07 s 32 …. 25-07 s 34 …. 25-07 s 35 …. 25-08 s 36 …. 25-10 s 37 …. 25-06, 25-08 s 38 …. 25-07 s 41 …. 15-72, 15-83, 20-37 s 42 …. 25-07 s 44 …. 21-30 s 44(1) …. 20-76 s 49A …. 16-04, 18-26, 22-12 s 50 …. 21-21 s 50AA …. 10-74 s 50A …. 10-78, 17-06 s 78 …. 17-39 s 82 …. 15-01 s 106 …. 22-15

Trustee Amendment Act (No 2) 1995 …. 18-07 Wills Act s 8 …. 7-14 s 42 …. 11-04

QUEENSLAND Acquisition of Land Act 1967 s 12(5) …. 26-07

Anti-Discrimination Act 1991 s 110 …. 10-72

Associations Incorporation Act 1981 …. 14-14 ss 21–28 …. 14-14

Charitable Funds Act 1958 …. 10-77 s 2 …. 10-77 s 5 …. 10-75

Civil Proceedings Act 2011 Pt 10 …. 20-48

Factors Act 1892 s 3 …. 2-09

Land Act 1962 …. 9-02 Law Reform Act 1995 s 17 …. 4-02

Limitation of Actions Act 1974 s 27 …. 22-24, 22-31

Partnership Act 1891 s 25 …. 26-05

Powers of Attorney Act 1998 s 105 …. 22-14

Property Law Act 1974 s 3 …. 12-20 s 7 …. 12-20 s 10 …. 6-20 s 11 …. 7-02 s 28 …. 8-09 s 34 …. 14-04 s 35 …. 12-10 s 38(7)(b) …. 26-06 s 55 …. 2-25, 6-06

s 59 …. 13-42 s 86 …. 6-20 s 200 …. 6-19 s 209 …. 9-29 s 209(1) …. 11-08 s 210 …. 9-29, 11-08 s 213 …. 9-29 s 213(4) …. 9-29 s 215 …. 9-29 s 219 …. 9-29, 10-81 s 219(2) …. 10-81 s 220 …. 10-08, 20-07 s 221 …. 11-08 s 222 …. 9-33 s 222(2) …. 9-34 s 228 …. 9-41 s 229 …. 9-46 ss 231–233 …. 19-26 s 286 …. 12-17

Public Trustee Act 1978 …. 14-10 s 41 …. 3-19 s 60 …. 17-13 s 65(1)(b) …. 14-10

Sale of Goods Act 1896 s 27 …. 2-09

Status of Children Act 1978 s 3 …. 9-09 s 6 …. 12-12

Succession Act 1981

s 9 …. 4-05 s 10 …. 7-14 s 33Q …. 9-32, 11-04 s 68 …. 17-39

Trustee Companies Act 1968 …. 14-07 s 21(1)(b) …. 14-07 s 21(1)(d) …. 14-07 s 21(1)(f) …. 14-07 s 22 …. 14-07

Trusts Act 1972 s 78 …. 19-58

Trusts Act 1973 …. 2-42, 3-10, 15-03, 15-06, 15-09, 15-43, 15-83, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 18-14, 20-01, 20-39, 20-65, 20-67, 21-30 Pt 3 …. 18-07 s 4(4) …. 15-04 s 5 …. 2-41, 15-01 s 6 …. 20-01 s 8 …. 17-16, 23-07 s 8(1) …. 16-15 s 10 …. 15-04 s 11 …. 15-22, 15-25, 15-37 s 11(2) …. 14-14 s 11(2)(a) …. 15-25 s 12 …. 15-11 s 12(1) …. 15-06, 15-12, 15-21 s 12(1)(g) …. 14-02 s 12(2)(a) …. 15-25 s 12(2)(b) …. 15-37, 15-38 s 12(2)(c) …. 15-25, 15-26, 15-27, 15-28, 15-29

s 12(5) …. 15-32 s 12(6) …. 15-42 s 12(7) …. 15-09, 15-13 s 12(8) …. 15-07 s 12(9) …. 2-41, 15-45 s 13 …. 15-44 s 14 …. 2-41, 15-80, 25-02 s 15 …. 25-02 s 16(1) …. 15-75, 20-01 s 18 …. 2-40 s 19 …. 3-18 s 20 …. 18-07 s 21 …. 17-18, 18-08 ss 21–28 …. 18-07 s 22(1) …. 18-09 s 22(1)(a) …. 17-18 s 22(1)(b) …. 17-18 s 22(2) …. 18-09 s 22(3) …. 18-36 s 23(1) …. 18-10 s 23(2) …. 18-10 s 23(2)(b) …. 17-18 s 23(2)(c) …. 17-18 s 23(3) …. 18-14 s 23(4) …. 18-14 s 24 …. 18-36 s 24(1) …. 18-15 s 24(2) …. 18-18 s 25 …. 20-53 s 26 …. 18-21

s 27 …. 20-54 s 28 …. 18-22 s 29 …. 17-20, 18-36 ss 29–30C …. 18-07, 18-19, 18-21 s 30 …. 22-15 s 30(1) …. 18-26 s 30(2) …. 18-29 s 30A(1) …. 18-28 s 30B …. 18-36 s 30C …. 18-37 s 32 …. 2-44, 19-10, 20-09, 20-13 s 32(1)(a) …. 20-05 s 32(1)(c) …. 20-43 s 32(1)(d) …. 20-21 s 32(1)(e) …. 20-21 s 32(1)(f) …. 20-21 s 32(3) …. 20-21 s 32(4) …. 17-04 s 33 …. 17-08, 19-55, 20-34 s 33(1) …. 19-56 s 33(1)(i) …. 20-29 s 33(1)(l) …. 20-74 s 33(1)(m) …. 20-74 s 35 …. 20-15 s 37 …. 20-18 s 38 …. 20-26 s 39 …. 20-26 s 40 …. 18-33 s 42 …. 19-59 s 43 …. 20-49

s 44 …. 20-46 s 45 …. 20-05, 20-29 s 46 …. 20-49 s 47 …. 20-39 s 47(3) …. 19-56 s 48 …. 20-39 s 49 …. 17-21 s 50 …. 17-20 s 51 …. 20-55 s 52 …. 17-13, 20-55 s 54 …. 17-27 s 54(2) …. 17-31, 17-32 s 56 …. 17-33 s 56(8) …. 17-34 s 57 …. 20-43 s 58 …. 20-45 s 59 …. 20-56 s 61 …. 20-65, 20-67 s 61(3) …. 20-65, 20-67 s 62 …. 20-65, 20-67 s 63 …. 20-65, 20-67 s 64 …. 9-21 s 65 …. 21-06 s 66 …. 17-35 s 67 …. 17-36 s 68 …. 17-35 s 70 …. 17-35 s 71 …. 17-20, 17-29, 22-09 s 72 …. 15-43, 21-02 s 75 …. 2-42, 17-35, 20-54

s 76 …. 16-04, 18-26, 22-12 s 77 …. 21-21 s 78 …. 19-01 ss 80–81 …. 15-46 s 82 …. 25-06 s 83 …. 25-06 s 84 …. 25-07 s 85 …. 25-07 s 87 …. 25-11 s 88 …. 25-07 s 89 …. 25-07 s 90 …. 25-08 s 92 …. 25-10 s 93 …. 25-07 s 94 …. 10-78, 17-06, 17-39 s 95 …. 17-07 s 96 …. 21-34 s 100 …. 15-72, 15-83, 21-36 s 101 …. 17-39 s 102 …. 20-76, 21-30 s 103 …. 10-02, 10-49 s 104 …. 10-60, 10-65 s 105 …. 10-74 s 106 …. 10-78 s 109 …. 23-21, 27-13, 27-14

Trusts (Investments) Amendment Act 1999 …. 18-07 Uniform Civil Procedure Rules r 11(a) …. 23-07

SOUTH AUSTRALIA Administration and Probate Act 1919 s 70(1) …. 17-39

Age of Majority (Reduction) Act 1971 s 3 …. 4-02

Associations Incorporation Act 1985 …. 14-14 ss 25–28 …. 14-14

Domestic Partners Property Act 1996 ss 9–11 …. 12-17

Equal Opportunity Act 1984 s 45 …. 10-72 s 64 …. 10-72 s 80 …. 10-72 s 85N …. 10-72

Family Relationships Act 1975 s 6 …. 9-09, 12-12

Land Acquisition Act 1969 s 16 …. 26-07

Law of Property Act 1936 Pt 6 Div 3 …. 11-08 s 15 …. 6-20 s 26 …. 13-42 s 28 …. 6-20 s 29 …. 7-02 s 61 …. 9-29, 10-08 s 62 …. 9-29, 10-81 s 62(6)(a) …. 10-81 s 62(6)(i) …. 10-08

s 62A …. 9-34 ss 63–66 …. 19-26 s 86 …. 9-41 s 87 …. 9-46

Limitation of Actions Act 1936 s 31 …. 22-23 s 32 …. 22-23, 22-31

Mercantile Law Act 1936 s 4 …. 2-09

Partnership Act 1891 s 22 …. 26-05

Public Trustee Act 1995 …. 14-10 s 17 …. 3-18

Sale of Goods Act 1895 s 25 …. 2-09

Settled Estates Act 1880 …. 20-01 s 34 …. 18-24

Supreme Court Rules r 63.04 …. 23-07

Trustee Act 1893 s 31 …. 25-07 s 32 …. 25-07 s 34 …. 25-07

Trustee Act 1936 …. 2-42, 3-10, 15-03, 15-06, 15-22, 15-33, 15-43, 15-83, 17-08, 17-20, 17-21, 17-33, 17-35, 18-06, 18-07, 20-43, 21-30 s 4 …. 15-01 s 4(1) …. 2-41 s 6 …. 17-18, 18-08

s 7(1) …. 18-09 s 7(1)(a) …. 17-18 s 7(1)(b) …. 17-18 s 7(2) …. 18-09 s 7(3) …. 18-36 s 8(1) …. 18-10 s 8(1)(b) …. 17-18 s 8(1)(c) …. 17-18 s 8(2) …. 18-14 s 8(3) …. 18-14 s 9 …. 18-36 s 9(1) …. 18-15 s 9(2) …. 18-18 s 9A …. 18-20 s 10 …. 20-53 s 11 …. 19-55, 20-54 s 12 …. 18-22 s 13 …. 17-20, 18-36 s 13A …. 22-15 s 13A(1) …. 18-26 s 13A(2) …. 18-29 s 13B(1) …. 18-28 s 13C …. 18-36 s 13D …. 18-37 ss 14–17 …. 15-11 s 14(1) …. 15-06, 15-21 s 14(1A) …. 15-12 s 14(2) …. 14-14 s 14(2)(a) …. 15-26 s 14(2)(c) …. 15-26

s 14(3) …. 15-42 s 14(4) …. 15-13 s 14(5) …. 15-22 s 14(7) …. 2-41, 15-45 s 14A(1) …. 15-39 s 14B …. 15-33 s 15 …. 2-41, 15-80 s 16 …. 25-02 s 17 …. 17-33 s 17A …. 17-33 s 18 …. 17-34 s 20 …. 20-13 s 21 …. 20-15 s 23A …. 20-18 s 23B …. 18-33, 19-61 s 23B(3) …. 19-61 s 23C …. 18-33 s 24 …. 17-28 s 24(2) …. 17-31 s 25 …. 19-56, 20-37 s 25A …. 17-08, 20-34 ss 25A–25B …. 19-55 s 25B …. 17-08 s 25C …. 20-21 s 26 …. 20-26 s 26A …. 20-26 s 27 …. 20-49 s 28 …. 20-46 s 28(1) …. 2-42 s 28A …. 20-29

s 28B …. 20-05, 20-29, 20-29 s 28C …. 19-59 s 29 …. 17-36 s 29(2) …. 17-35 s 30 …. 17-35 s 31 …. 17-35, 20-54 s 32(1) …. 15-75, 20-01 s 33 …. 20-66 s 33A …. 20-66 s 35 …. 17-20, 17-29, 22-09 s 35(2) …. 15-43, 21-02 s 36 …. 15-46, 15-85, 25-06 s 36(1)(a)(b) …. 20-21 s 37 …. 25-06 s 37(1)(b) …. 25-07 s 37(1)(b)(ii) …. 14-02 s 38 …. 25-07 s 39 …. 25-08 s 40 …. 25-10 s 41 …. 25-06, 25-08 s 43 …. 15-46 s 44 …. 15-72, 15-83 s 45 …. 25-07 s 47 …. 20-76, 21-30 ss 48–55 …. 10-78, 17-06 s 56 …. 16-04, 18-26, 22-12 s 57 …. 21-21 s 59B …. 10-78, 17-06, 17-39 s 59C …. 17-07 ss 60–69 …. 10-78

s 69A …. 10-60, 10-65, 10-66 s 69B …. 10-74 s 69B(3)(b) …. 10-76 s 69C …. 10-49 ss 84A–F …. 17-13 s 84B …. 17-13, 20-55 s 84C …. 17-13 s 91 …. 21-34, 21-36

Trustee Companies Act 1988 …. 14-07 s 5 …. 14-07 s 6(a) …. 14-07

Trustee (Investment Powers) Amendment Act 1995 …. 18-07 Wills Act 1936 s 5(3) …. 4-05 s 8 …. 7-14 s 11 …. 4-05

TASMANIA Administration and Probate Act 1935 s 4 …. 15-03 s 5 …. 15-03 s 39 …. 2-44 s 41 …. 20-76 s 64 …. 17-39

Age of Majority Act 1973 s 3 …. 4-02

Anti-Discrimination Act 1998 s 23(a) …. 10-72

Apportionment Act 1871 s 2 …. 19-26

Associations Incorporation Act 1964 …. 14-14 ss 20–22 …. 14-14

Conveyancing and Law of Property Act 1884 …. 20-36 s 36 …. 13-42 s 40 …. 9-41 s 41 …. 9-46 s 60 …. 6-20 s 60(2) …. 7-02 s 86 …. 6-20 s 90E …. 20-36

Factors Act 1891 s 5 …. 2-09

Fatal Accidents Act 1934 …. 20-48 Lands Acquisition Act 1993 s 19 …. 26-07

Limitation Act 1974 s 24 …. 22-24, 22-31

Mercantile Law Act 1935 s 6 …. 7-05

Partnership Act 1891 s 27 …. 26-05

Perpetuities and Accumulations Act 1992 s 6 …. 9-29, 11-08 s 9 …. 9-29, 11-08 s 11 …. 9-29 s 11(4) …. 9-29

s 12 …. 9-29 s 14 …. 20-07 s 16 …. 9-29, 10-81 s 16(5) …. 10-81 s 17 …. 10-08 s 18 …. 11-08 s 22 …. 9-33 s 22(2) …. 9-34 s 27 …. 9-33

Public Trustee Act 1930 …. 14-10 s 22 …. 3-19 ss 23–24 …. 3-18

Relationships Act 2003 s 40 …. 12-17

Sale of Goods Act 1896 s 30 …. 2-09

Settled Land Act 1884 s 19 …. 18-24

Status of Children Act 1974 s 3 …. 9-09, 12-12

Supreme Court Civil Procedure Act 1932 s 57(2) …. 10-78

Supreme Court Rules r 604 …. 23-07 r 605 …. 23-07

Trustee Act 1898 …. 2-42, 3-10, 15-03, 15-06, 15-12, 15-22, 15-28, 15-34, 15-43, 15-83, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 20-26, 20-34, 20-40, 20-43, 21-30 s 4 …. 2-41, 15-01

s 6 …. 17-18, 18-08 s 7(1) …. 18-09 s 7(1)(a) …. 17-18 s 7(1)(b) …. 17-18 s 7(2) …. 18-09 s 7(3) …. 18-36 s 8 …. 18-36 s 8(1) …. 18-15 s 8(2) …. 18-18 s 9(1) …. 18-10 s 9(1)(b) …. 17-18 s 9(1)(d) …. 17-18 s 9(2) …. 18-14 s 9(3) …. 18-14 s 10 …. 20-53 s 11 …. 19-55, 20-54 s 12 …. 18-22 s 12A …. 17-20, 18-36 s 12B …. 22-15 s 12B(1) …. 18-26 s 12B(2) …. 18-29 s 12C(1) …. 18-28 s 12D …. 18-36 s 12E …. 18-37 s 13 …. 15-11 s 13(1) …. 15-06, 15-21 s 13(2) …. 14-14 s 13(2)(a) …. 15-28 s 13(2)(b) …. 15-40 s 13(2)(c) …. 15-28

s 13(3) …. 15-42 s 13(4) …. 15-13 s 13(5) …. 15-22 s 13(6) …. 2-41, 15-45 s 14 …. 2-41, 15-80 s 15 …. 25-02 s 16 …. 20-13 s 17 …. 20-15 s 20 …. 17-29 s 20(1) …. 17-31 s 21 …. 19-56, 20-40 s 22 …. 20-26 s 23 …. 20-49 s 24 …. 20-46 s 24(1) …. 2-42 s 25(1) …. 15-75, 20-01 s 25A …. 17-33, 17-36 s 26 …. 17-35 s 27 …. 17-20, 17-29 s 27(2) …. 15-43, 21-02 s 29 …. 20-68 s 30 …. 9-21 s 32 …. 15-46 s 33 …. 25-06 s 34 …. 25-06, 25-08 s 35 …. 25-07 s 36 …. 25-07 s 37 …. 25-07 s 38 …. 25-07 s 39 …. 25-07

s 40 …. 25-08 s 41 …. 25-10 s 43 …. 15-46 s 44 …. 21-36 s 45 …. 25-07 s 47 …. 17-06, 17-39, 20-34 ss 47–55 …. 10-78 s 48 …. 20-76, 21-30, 22.09 s 50 …. 16-04, 18-26, 22-12 s 53 …. 21-21 s 55 …. 17-06, 17-39 s 58 …. 17-39 s 63 …. 15-72, 15-83

Trustee Amendment (Investment Powers) Act 1997 …. 18-07 Trustee Companies Act 1953 …. 14-07 s 7(1)(b) …. 14-07 s 7(1)(d) …. 14-07 s 7(1)(e) …. 14-07 s 18B …. 3-18 s 30 …. 14-05

Variation of Trusts 1994 s 4(1) …. 10-49 s 4(2) …. 10-60 s 4(2)–(3) …. 10-65 s 5 …. 10-74 s 11 …. 10-75 s 13 …. 17-07 s 14 …. 17-07

Wills Act 2008 …. 4-05

s 7 …. 4-05 s 8 …. 7-14 s 57 …. 11-04

VICTORIA Accident Compensation Act 1985 …. 1-02 Administration and Probate Act 1958 s 5 …. 20-05 s 13 …. 15-03 s 30 …. 22-10 s 34(1) …. 15-52 s 38 …. 20-22 s 38(1) …. 20-05 s 44 …. 2-44, 20-22, 20-29 s 44(1) …. 20-05 s 45 …. 20-22 s 47 …. 20-76 s 65 …. 17-39

Age of Majority Act 1977 s 3 …. 4-02

Associations Incorporation Reform Act 2012 …. 14-14 ss 29–36 …. 14-14

Charities Act 1978 …. 10-67, 10-80 Pt 1 …. 10-80 Pt II …. 10-80 s 2 …. 10-71, 10-74 s 3 …. 10-75 s 4 …. 10-76 s 7M …. 10-65

Equal Opportunity Act 2010 s 80 …. 10-72

Goods Act 1958 s 30 …. 2-09 s 31 …. 2-09 s 67 …. 2-09

Hospitals and Charities Act 1958 …. 10-79 Imperial Acts Application Act 1980 s 5 …. 12-20

Instruments Act 1958 s 126 …. 13-42

Land Acquisition and Compensation Act 1986 s 24 …. 26-07

Limitation of Actions Act 1958 s 21 …. 22-24, 22-31

Partnership Act 1958 s 26 …. 26-05

Payroll Tax Act 1971 s 10 …. 10-33

Perpetuities and Accumulations Act 1968 s 5 …. 9-29, 11-08 s 6 …. 9-29, 11-08 s 9 …. 9-29 s 9(4) …. 9-29 s 11 …. 9-29 s 14 …. 20-07 s 16 …. 9-29, 10-81 s 16(2) …. 10-81

s 17 …. 10-08 s 18 …. 11-08 s 19 …. 9-33 s 19(2) …. 9-34

Property Law Act 1958 …. 12-17 s 18 …. 20-05 s 19A …. 12-20 s 28 …. 14-04 ss 31–39 …. 20-05 s 32 …. 19-10 s 34 …. 2-44 s 35(1) …. 20-22 s 39 …. 26-09 s 40 …. 20-05, 20-22 s 52 …. 6-20 s 53 …. 7-02 s 58 …. 20-34 s 130 …. 8-09 s 131 …. 10-60, 10-65 s 134 …. 6-20 s 172 …. 9-41 ss 173–174 …. 9-46

Public Charitable Trusts Act 1941 …. 10-79 Public Trustee Act 1958 s 24 …. 3-18

Religious and Successory Trusts Act 1958 …. 10-79 s 61 …. 10-78 s 63 …. 10-79

Religious Successory and Charitable Trusts Act 1958 …. 10-79

Rules of the Supreme Court O 54 …. 21-34 O 54.02 …. 23-07

Settled Land Act 1958 …. 20-01, 20-22 s 3 …. 20-22 s 35 …. 20-34 ss 41–43 …. 20-22 s 43 …. 20-22 ss 44–47 …. 20-22 s 52 …. 20-22 s 59 …. 20-22 s 60(1) …. 20-22 s 71 …. 20-29 s 73 …. 18-24 s 94 …. 20-49 s 95 …. 20-49 s 101 …. 20-22

State Trustees (State Owned Company) Act 1994 …. 14-09 s 8 …. 14-09 s 9 …. 3-19, 14-09

Status of Children Act 1974 s 3 …. 9-09, 12-12

Supreme Court Act 1958 s 73 …. 19-30 s 76 …. 19-30

Supreme Court Act 1986 s 53(1) …. 19-26 s 54 …. 19-26

Transfer of Land Act 1958 …. 10-79

Trustee Act 1958 …. 2-42, 3-10, 14-06, 15-03, 15-06, 15-43, 15-83, 17-07, 17-08, 17-20, 17-21, 17-35, 18-06, 18-07, 20-34, 20-38, 20-64, 21-30 s 3 …. 15-01, 20-05 s 3(1) …. 2-41 s 4(3)(a) …. 18-04 s 5 …. 17-18, 18-08 s 6(1) …. 18-09 s 6(1)(a) …. 17-18 s 6(1)(b) …. 17-18 s 6(2) …. 18-09 s 6(3) …. 18-36 s 7(1) …. 18-10 s 7(2) …. 18-10 s 7(2)(b) …. 17-18 s 7(2)(c) …. 17-18 s 7(3) …. 18-14 s 7(4) …. 18-14 s 8 …. 18-36 s 8(1) …. 18-15 s 8(2) …. 18-18 s 9 …. 20-53 s 9A …. 18-21 s 10 …. 19-55, 20-54 s 11 …. 18-22 s 12 …. 17-20, 18-36 s 12A …. 18-26, 22-15 s 12B(1) …. 18-28 s 12C …. 18-36 s 12D …. 18-37

s 12E …. 18-26 s 13 …. 19-10, 20-09 s 13(1) …. 20-13 s 13(5) …. 17-04, 20-43 s 14 …. 20-07 s 15 …. 20-15 s 17 …. 20-18 s 18 …. 20-49 s 18(2) …. 14-06, 15-24, 20-49 s 19 …. 20-46 s 19(1) …. 20-46 s 19(1)(a) …. 20-46 s 19(1)(b) …. 20-46 s 19(1)(c) …. 2-42, 20-46 s 19(1)(d) …. 20-46 s 19(1)(d)–(f) …. 20-46 s 19(1)(e) …. 20-46 s 19(1)(f) …. 20-46 s 19(1)(g) …. 20-46 s 19(1)(h) …. 20-46 s 20 …. 20-05, 20-29 s 21 …. 20-49 s 22(1) …. 15-75, 20-01 s 23 …. 19-56, 20-38 s 24 …. 20-38 s 25 …. 17-21 s 25(3) …. 19-35 s 26 …. 17-20, 20-55 s 26(2) …. 20-47 s 27 …. 17-13, 20-55

s 27(4) …. 14-06 s 28 …. 17-26 s 28(1) …. 17-26 s 28(2) …. 17-31, 17-32 s 28(3) …. 17-26 s 28(4) …. 17-26 s 30 …. 17-33 s 30(1) …. 17-33 s 30(2) …. 17-33 s 30(3) …. 17-33 s 30(8) …. 17-33 s 30(9) …. 17-33, 17-34 s 30(10) …. 17-33 s 31 …. 20-74 s 32 …. 17-35 s 33 …. 17-36 s 34 …. 2-42, 17-35, 20-54 s 35(2) …. 17-35 s 36 …. 17-20, 17-29, 22-09 s 36(2) …. 15-43, 21-02 s 37 …. 20-64, 20-65, 20-66 s 37(3) …. 20-64 s 38 …. 20-65, 20-66 s 39 …. 9-21 s 39(1)(a) …. 17-07 s 39(1)(b) …. 17-07 s 40 …. 15-22, 15-24 s 40(1)–(2) …. 14-14 s 41 …. 14-02, 15-11, 15-22 s 41(1) …. 15-06, 15-12, 15-21

s 41(6) …. 14-06, 15-31 s 41(7) …. 15-42 s 41(8) …. 15-13 s 41(9) …. 15-45 s 41(10) …. 15-07 s 42 …. 14-06, 15-24 s 42(1)(a) …. 15-24 s 42(1)(b) …. 15-36 s 43 …. 15-44 s 44 …. 2-41, 14-06, 15-80 s 45 …. 25-02 s 46 …. 2-40 s 47 …. 14-06 ss 48–50 …. 15-46 s 48(1) …. 15-52 s 48(2) …. 2-41 s 51 …. 25-06 s 52 …. 25-06 s 53 …. 25-07 s 54 …. 25-07 s 55 …. 25-11 s 56 …. 25-07 s 57 …. 25-07 s 58 …. 25-08 s 60 …. 25-10 s 61 …. 25-07 s 63 …. 10-78, 17-06, 17-39 s 63A …. 17-07 s 63A(1) …. 17-07 s 63A(1)(b) …. 17-07

s 63A(1)(d) …. 17-07 s 66 …. 15-72, 15-83 s 67 …. 16-04, 18-26, 22-12 s 68 …. 21-21 s 69 …. 20-76, 21-30 s 71 …. 3-18 s 74 …. 19-01, 19-58 s 77 …. 17-39

Trustee and Trustee Companies (Amendment) Act 1995 …. 18-07 Trustee Companies Act 1984 …. 14-06 s 14(1)(a) …. 14-06 s 14(1)(b) …. 14-06 s 14(1)(c) …. 14-06 s 15 …. 14-06

Wills Act 1997 s 6 …. 4-05 s 7 …. 7-14 s 38 …. 20-64 s 47 …. 9-32, 11-04

Wrongs Act 1958 Pt 3 …. 20-48

WESTERN AUSTRALIA Administration Act 1903 s 8 …. 15-03 s 10 …. 2-44 s 11 …. 15-03 s 17A …. 20-76

Age of Majority Act 1972

s 5 …. 4-02

Associations Incorporation Act 1987 …. 14-14 Associations Incorporation Act 2015 …. 14-14 Charitable Collections Act 1946 s 5 …. 10-75 s 16 …. 10-75

Charitable Trusts Act 1962 s 5 …. 10-49 ss 7–7B …. 10-74 ss 9–10A …. 10-76 s 21 …. 10-78

Equal Opportunity Act 1984 s 70(1) …. 10-72

Factors’ Acts Amendment Act 1878 …. 2-09 Family Court Act 1997 s 205ZG …. 12-17

Fatal Accidents Act 1959 …. 20-48 Law Reform (Property, Perpetuities and Succession) Act 1962 s 24 …. 27-14

Law Reform (Statute of Frauds) Act 1962 s 2 …. 13-42

Limitation Act 1935 s 47 …. 22-23, 22-31

Limitation Act 2005 …. 22-23 Pt 3 …. 22-31

Local Government Act 1995 s 6.9 …. 14-11

Partnership Act 1895

s 32 …. 26-05 s 55 …. 13-17

Property Law Act 1969 Pt XI …. 11-08 s 11 …. 6-06 s 11(2) …. 2-25 s 11(3) …. 2-25 s 20 …. 6-20 s 27 …. 8-09 s 29 …. 14-04 s 31A …. 9-09 s 33 …. 6-20 s 34 …. 7-02 s 38 …. 12-20 s 39 …. 12-20 s 89 …. 9-41 s 90 …. 9-46 s 91 …. 9-46 s 101 …. 9-29 s 103 …. 9-29 s 105 …. 9-29 s 106 …. 9-29 s 109 …. 9-29 s 111 …. 9-29, 10-81 s 111(2) …. 10-81 s 113 …. 9-33 s 113(2) …. 9-34 s 115 …. 10-08 s 118 …. 20-67 s 124 …. 17-37

s 125 …. 17-37 ss 130–134 …. 19-26

Public Trustee Act 1941 …. 14-10 s 21 …. 3-19 s 22 …. 3-18

Public Works Act 1902 s 18 …. 26-07

Rules of the Supreme Court O 58 r 2 …. 23-07

Sale of Goods Act 1895 s 25 …. 2-09

Trustees Act 1962 …. 2-42, 3-10, 15-03, 15-06, 15-43, 15-83, 1708, 17-20, 17-21, 17-35, 18-06, 18-07, 20-01, 20-41, 21-30 s 6 …. 2-41, 15-01 s 7 …. 15-11 s 7(1) …. 15-06, 15-12, 15-21 s 7(1)(g) …. 14-02 s 7(2) …. 14-14 s 7(2)(a) …. 15-27 s 7(2)(b) …. 15-38 s 7(2)(c) …. 15-27 s 7(5) …. 15-31 s 7(6) …. 15-42 s 7(7) …. 15-13 s 7(8) …. 15-07, 15-22 s 7(9) …. 2-41, 15-45 s 8 …. 15-44 s 9 …. 2-41, 15-80, 25-02 s 10 …. 25-02

s 12 …. 2-40 s 14 …. 3-19 s 15 …. 3-18 s 17 …. 17-18, 18-08 s 18(1) …. 18-09 s 18(1)(a) …. 17-18 s 18(1)(b) …. 17-18 s 18(2) …. 18-09 s 18(3) …. 18-36 s 19(1) …. 18-10 s 19(1)(b) …. 17-18 s 19(1)(c) …. 17-18 s 19(2) …. 18-14 s 19(3) …. 18-14 s 20 …. 18-36 s 20(1) …. 18-15 s 20(2) …. 18-18 s 21 …. 20-53 s 22 …. 18-21 s 23 …. 19-55, 20-54 s 24 …. 18-22 s 25 …. 17-20, 18-36 s 26 …. 18-26, 22-15 s 26A(1) …. 18-28 s 26B …. 18-36 s 26C …. 18-37 s 26D …. 18-26 s 27 …. 2-44, 20-09, 20-13, 20-43 s 27(1)(a) …. 20-05 s 27(1)(d) …. 20-21

s 27(1)(e) …. 20-21 s 27(1)(f) …. 20-21 s 27(3) …. 20-21 s 27(5) …. 17-04 s 28 …. 20-07 s 28A …. 20-13 s 29 …. 20-07 s 30 …. 17-08, 19-55, 20-01, 20-34 s 30(1) …. 19-56 s 30(1)(h) …. 20-29 s 30(1)(k) …. 20-74 s 30(1)(l) …. 20-74 s 32 …. 20-15 s 34 …. 20-18 s 35 …. 20-26 s 36 …. 20-26 s 37 …. 18-33 s 40 …. 19-59 s 41 …. 20-49 s 42 …. 20-46 s 43 …. 20-05, 20-29 s 44 …. 20-49 s 45(1) …. 15-75, 20-01 s 46 …. 19-56, 20-41 s 47 …. 20-41 s 48 …. 17-21 s 49 …. 17-20 s 50 …. 20-55 s 51 …. 17-13, 20-55 s 53 …. 17-27

s 53(2) …. 17-31, 17-32 s 54 …. 17-33 s 54(10) …. 17-34 s 55 …. 20-43 s 56 …. 20-45 s 57 …. 20-56 s 58 …. 20-67 s 59 …. 20-67 s 60 …. 20-67 s 61 …. 9-21 s 62 …. 17-35 s 63 …. 17-36 s 64 …. 17-35 s 65 …. 23-21, 27-13 s 65(8) …. 27-14 s 67 …. 17-35 s 69 …. 17-35 s 70 …. 17-20, 17-29, 22-09 s 71 …. 15-43, 21-02 s 74 …. 2-42, 17-35, 20-54 s 75 …. 16-04, 18-26, 22-12 s 76 …. 21-21 s 77 …. 15-46 s 78 …. 25-06 s 79 …. 25-06 s 80 …. 25-07 s 81 …. 25-07 s 82 …. 25-11 s 83 …. 25-07 s 84 …. 25-07

s 85 …. 25-08 s 87 …. 25-10 s 88 …. 25-07 s 89 …. 10-78, 17-06, 17-39 s 90 …. 17-07 s 91 …. 17-07 s 92 …. 21-34 s 94 …. 16-15, 17-16, 23-07 s 97 …. 15-72, 15-83, 21-36 s 98 …. 17-39 s 99 …. 20-76, 21-30 s 102 …. 10-60, 10-65, 10-66 s 103 …. 19-35 s 104 …. 19-01, 19-58 s 109 …. 20-01

Trustee Companies Act 1987 …. 14-07 s 12(1)(b) …. 14-07 s 12(1)(c) …. 14-07 s 12(1)(d) …. 14-07 s 13 …. 14-07 s 27 …. 14-05

Trustees Amendment Act 1997 …. 18-07 Wills Act 1970 Pt IX …. 9-09 s 8 …. 7-14 s 31 …. 12-12

Wills Amendment Act 2007 …. 4-05 INTERNATIONAL

Hague Convention …. 28-01, 28-02, 28-03, 28-04, 28-05, 28-08, 2818, 28-19, 28-20, 28-21 Ch I …. 28-03 Ch II …. 28-03, 28-05 Ch III …. 28-02, 28-03, 28-13 Art 1 …. 28-03 Art 2 …. 28-03, 28-04 Art 2(b) …. 28-03 Art 3 …. 28-04 Art 4 …. 28-05, 28-08, 28-19 Art 5 …. 28-05 Art 6 …. 28-06, 28-08 Art 7 …. 28-06, 28-07, 28-08 Art 7(a) …. 28-07 Art 7(d) …. 28-07 Art 8 …. 28-08 Art 8(a) …. 28-08 Art 8(f) …. 28-08 Art 8(h) …. 28-08 Art 9 …. 28-08 Art 10 …. 28-07 Art 11 …. 28-03, 28-14 Art 11(3)(d) …. 28-14 Art 12 …. 28-15 Art 13 …. 28-16 Art 14 …. 28-17 Art 15 …. 28-06, 28-09 Art 16 …. 28-06, 28-10 Art 17 …. 28-03 Art 18 …. 28-06, 28-11

Art 19 …. 28-12 Art 20 …. 28-04, 28-21 Art 21 …. 28-02 Art 22 …. 28-02 Art 23 …. 28-02 Art 24 …. 28-02

NEW ZEALAND Judicature Act 1908 s 94B …. 27-14

Public Trust Office Act 1957 s 50 …. 3-18

Trustee Act 1956 …. 18-07 Pt II …. 18-07

Trustee Amendment Act 1988 …. 18-07 UNITED KINGDOM Accumulations Act 1800 …. 9-33 Administration of Estates Act 1925 s 42 …. 20-75

Australian Courts Act 1828 (9 Geo IV c 83) …. 10-40 Apportionment Act 1870 …. 19-26, 19-31 Charitable Trusts (Validation) Act 1954 …. 10-65 Charities Act 1993 s 33 …. 10-67

Civil Liability (Contribution) Act 1978 …. 21-20 Common Law Procedure Act 1854

s 78 …. 27-04

Companies Act 1862 …. 3-11 Contracts (Rights of Third Parties) Act 1999 …. 2-20, 6-06 s 6(5) …. 2-20

Enemy Act 1939 …. 9-23 Fire Prevention (Metropolis) Act 1774 …. 20-36 s 83 …. 20-36

Fraudulent Conveyances Act 1571 (13 Eliz I c 5) …. 9-41 Fraudulent Conveyances Act 1584 (27 Eliz 1 c 4) …. 17-03 Insolvency Act 1986 s 239 …. 2-16

Judicature Act 1875 …. 6-13 s 25(2) …. 22-23

Judicial Trustees Act 1896 s 3 …. 22-12

Land Registration Act 2002 s 29(2) …. 1-02

Land Transfer Act 1875 …. 3-15 Law of Property Act 1925 …. 12-20 s 53(1)(c) …. 9-32, 12-01

Limitation Act 1939 …. 22-30 Limitation Act 1980 s 21 …. 22-25 s 32(1)(b) …. 22-30

Lunacy Regulation Act 1862 …. 20-58 Mortmain Act 1736 …. 10-02 Mortmain and Charitable Uses Act 1888 …. 10-02 s 13(2) …. 10-02

Perpetuities and Accumulations Act 2009 s 2(4) …. 9-28

Property Law Act 1925 …. 26-01 Public Health Act 1891 …. 20-32 Public Trustee Act 1906 s 14 …. 3-18

Real Property Limitation Act 1833 s 31 …. 22-23

Real Property Limitation Act 1874 s 31 …. 22-23

Recreational Charities Act 1958 …. 10-49 Roman Catholic Relief Act 1829 …. 10-40 Romilly’s Act 52 Geo III c 101 …. 10-78 Sale of Goods Act 1979 s 19(1) …. 2-49

Settled Land Act 1882 …. 15-65, 19-23 Social Security Act 1973 …. 9-28 Statute of Chantries (1 Edw VI c 14) …. 10-40 Statute of Charitable Uses 1601 (43 Eliz I c 4) …. 10-02, 10-3, 1020, 10-21, 10-22, 10-41, 10-43, 10-44, 10-47, 10-48, 10-51, 10-53, 10-54, 10-59 Statute of Frauds 1677 …. 7-35, 23-12, 26-07 s 4 …. 3-05, 7-08, 13-42 s 7 …. 13-42

Statute of Uses …. 12-20 Trustee Act 1888 …. 22-28 s 8 …. 22-23

Trustee Act 1893

s 8 …. 18-26 s 45 …. 21-24

Trustee Act 1925 …. 20-06, 20-62, 21-26 s 8 …. 18-26 s 23 …. 17-30 s 31 …. 20-60 s 32 …. 20-59 s 33 …. 9-21 s 36(1) …. 15-12 s 52 …. 21-26 s 53 …. 25-11 s 57 …. 17-06, 17-07, 17-08, 17-39 s 61 …. 22-12 s 62 …. 21-24

Trustee Act 2000 …. 18-26 Trustee Investments Act 1961 …. 17-01 Trusts of Land and Appointment of Trustees Act 1996 …. 26-01 Variation of Trusts Act 1958 …. 3-20 s 1(3) …. 20-58

Vendor and Purchaser Act 1874 …. 3-15 Wills Act 1837 …. 7-33, 7-35, 7-36 s 9 …. 9-32

UNITED STATES OF AMERICA Sherman Antitrust Act 1890 …. 3-21

Works Frequently Cited Holdsworth

Holdsworth, A History of English Law, 1903-1972

Lewin on Trusts

Tucker et al, Lewin on Trusts, 19th ed, 2015

Meagher, Gummow and Lehane’s Equity

Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, 2014

Pettit

Pettit, Equity and the Law of Trusts, 12th ed, 2012

Scott on Trusts

Scott, Fratcher and Ascher, Scott and Ascher on Trusts, 5th ed, 2006

Snell’s Equity

McGhee et al, Snell’s Equity, 33rd ed, 2015

Theobald on Wills

Ross Martyn et al, Theobald on Wills, 17th ed, 2010

Underhill and Hayton

Hayton, Matthews and Mitchell, Underhill and Hayton Law of Trusts and Trustees, 19th ed, 2016

Waters’ Law of Trusts

Waters, Gillen and Smith, Waters’ Law of Trusts in Canada, 4th ed, 2012

Williams on Wills

Barlow et al, Williams on Wills, 9th ed, 2008

Contents Preface The Honourable Sir Kenneth Jacobs KBE Table of Cases Table of Statutes Works Frequently Cited Chapter 1

The Nature of a Trust

Chapter 2

The Distinction Between a Trust and Certain Other Legal Institutions

Chapter 3

The Classification of Trusts

Chapter 4

Capacity to Create a Trust

Chapter 5

Express Trusts — Certainty of Intention, Subject Matter and Object

Chapter 6

Express Trusts — Complete Constitution or Consideration

Chapter 7

Express Trusts — The Requirement of Writing

Chapter 8

The Interpretation of the Trust

Chapter 9

When an Express Trust may Fail or be Set Aside

Chapter 10

Charitable Trusts

Chapter 11

Purpose Trusts

Chapter 12

Resulting Trusts

Chapter 13

Constructive Trusts

Chapter 14

Capacity to be a Trustee

Chapter 15

The Appointment, Retirement and Removal of Trustees

Chapter 16

Duties, Powers and Discretions of a Trustee

Chapter 17

Duties of a Trustee

Chapter 18

The Duty to Invest Trust Funds

Chapter 19

Duty of Impartiality

Chapter 20

Powers of a Trustee

Chapter 21

Rights of Trustees

Chapter 22

Liability of a Trustee

Chapter 23

The Rights of a Beneficiary

Chapter 24

What may be Trust Property

Chapter 25

Vesting of Trust Property

Chapter 26

Conversion

Chapter 27

Tracing Trust Property

Chapter 28

Trusts in the Conflict of Laws

Chapter 29

The Trust Aspects of Superannuation

Index

[page 1]

CHAPTER 1 The Nature of a Trust Introduction

[1-01]

The Essential Elements of a Trust The Trustee The Trust Property The Beneficiary A Personal Obligation Annexed to the Property

[1-04] [1-05] [1-06] [1-07] [1-10]

Introduction [1-01] A trust is an institution developed by equity and cognisable by a court of equity.1 A trust is not a juristic person with a legal personality distinct from that of the trustee and beneficiary.2 Nor is it merely descriptive of an equitable right or obligation. Instead, a trust is a relation between trustee and beneficiary in respect of certain property. More particularly, a trust exists when the owner of a legal or equitable interest in property is bound by an obligation, recognised by and enforced in equity, to hold that interest for the benefit of others, or for some object or purpose permitted by law.3 That is not a definition of a trust, but a description. Precise definition is elusive, if not impossible, and attempts at such definition vary markedly. Professor Austin Scott maintained, not without force, that a definition would not be of great practical assistance, because it could not be used to deduce rules of conduct: ‘The definition results from the rules, and not the rules from the definition.’4 [1-02] Lindley LJ said that trusts were ‘equitable obligations to deal with property in a particular way’,5 and later declared that all that was necessary to

establish the relation of trustee and beneficiary was ‘to prove that the legal title was in the plaintiff and the equitable title in [page 2] the defendant’.6 Neither of these statements includes the important class of trusts known as public or charitable trusts, nor those trusts described as ‘purpose trusts’ (for example, for the benefit of animals) which may possibly be valid provided they do not infringe the rules against perpetuities.7 Nor do they identify the fiduciary nature of the trust. The trustee is the archetype of a fiduciary.8 Thus, the vendor of land will be under an equitable obligation to deal with property for the benefit of the purchaser, but will not be a true trustee until there is superadded a fiduciary duty owed to the purchaser.9 Accordingly, the American Law Institute’s Restatement of the Law of Trusts has identified the trust as: [A] fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.10

However, there are at least three deficiencies in this formulation. The first is, as the Restatement acknowledges, that it does not allow for resulting and constructive trusts which do not derive from the settlor’s intention. Nor does it allow for the creation of particular trusts by statute.11 Finally, the formulation in the Restatement is directed to the position of the trustee owing duties to the beneficiaries whereas, as Professor Scott pointed out:12 The trust is the whole juridical device: the legal relationship between the parties with respect to the property that is its subject matter, including not merely the duties that the trustee owes to the beneficiary and to the rest of the world, but also the rights, privileges, powers and immunities that the beneficiary has against the trustee and against the rest of the world.

[1-03] The difficulty here, as elsewhere in law, is that legal rules are abstracted from the perceived effect of decided cases, many of which will be borderline decisions involving distinctions of degree which cannot be drawn with concise verbal precision. Perhaps the best that can be done is to state the principal or essential distinguishing characteristics of the trust so as to equip the reader to identify, in a general way, what is involved. If definition is demanded, then the trust may be defined as the whole relationship which arises between

the parties in respect of the property the subject of the trust, and the obligation of the trustee to the beneficiary and the interest of the beneficiary in the property may be regarded as results flowing from the existence of that relationship. [page 3]

The Essential Elements of a Trust [1-04] There are four essential elements present in every form of trust: the trustee, the trust property, the beneficiary or charitable purpose or (exceptionally) non-charitable purpose, and the personal obligation annexed to property.

The Trustee [1-05] First, there must be one or more trustees, individual or corporate, who together hold a legal or equitable interest in the trust property. There must be a person on whom there is an obligation to deal with the trust property in terms of the trust. However, the trust obligation attaches not only to a nominated trustee, as in an express trust, but also to any person in whom the trust property is vested, unless that person is a purchaser for value without notice of the trust. In equity, a trust will not be allowed to fail for want of a trustee. If none has been appointed or if there ceases to be a trustee in office, the person in whom the trust property for the time being is vested will be regarded as trustee thereof until appointment of a trustee or of a new trustee, as the case may be. If necessary, the court will restrain a person in whom the trust property is vested, provided that person is not a purchaser for value without notice, from dealing with that property otherwise than in accordance with the trust. It will then appoint a trustee and cause the trust property to be vested in that person.

The Trust Property [1-06] The second essential element is that there should be property capable

of being held on trust.13 There must be certainty in identification of the property bound by the trust.14 In general, all property may be made the subject of a trust unless the policy of the law or statute forbids it. Even property which is incapable of assignment, such as a contract involving personal skill or confidence, may be held on trust.15 The property may be real or personal. It may be corporeal or incorporeal, tangible or intangible, a chose in possession or a chose in action. The Queensland Court of Appeal has held that the interest of a member of a company limited by guarantee was capable of being held on trust.16 It may be property created by statute.17 Although the trustee usually has the legal title to the property, this is not a necessary condition. That is because there may be a valid trust in respect of an equitable interest in property as well as in respect of a legal interest.18 The interest of a beneficiary under a trust may itself be held on a ‘sub-trust’ for a third party, who will be beneficiary under the sub-trust.19

The Beneficiary [1-07] Thirdly, there must be a cestui que trust or beneficiary. The trustee may be one of the beneficiaries but cannot be the sole beneficiary. If the trustee were the sole beneficiary there would be no trust because there would be no separate equitable interest vested in the [page 4] beneficiary — there is a merger of any such possible interest in the legal or equitable interest to the beneficiary as trustee.20 A trust may be created without communication to the beneficiary,21 although the beneficiary may disclaim on learning of the trust.22 There is no requirement that the beneficiary at the time of the creation of the trust be a person then in existence, for there may be a trust in favour of an unborn person. Further, it is not necessary that the beneficiaries enjoy ‘[the] complex of beneficial relations which may be called ownership’; for example, they may have no present rights in possession.23 Likewise, there may be a valid trust in favour of a class of persons, the exact constitution of which is unknown at the time of the creation of the trust.24 In the case of public or charitable trusts, there will be no individuals as

beneficiaries. There, the beneficiary must be regarded as the charitable purpose to which the trust property is devoted. [1-08] In the case of non-charitable trusts, there must generally be a person or persons who will, either presently or in the future, benefit under the trust. A purported trust which has no beneficiary is void. Accordingly, it has been held that a devise of a house in trust to block it up and keep it unoccupied for 20 years, even though it does not infringe the rule against perpetuities, is inoperative and void.25 However, there is a line of cases in which certain purpose trusts which are not charitable and which have no human beneficiary have been upheld. These are discussed in Chapter 11. Further, the requirement for a beneficiary may, in a particular class of case, be modified or abrogated by statute pursuant to which property is held on a trust for statutory purposes.26 [1-09] In the case of a non-charitable, or private, trust, usually the beneficiaries will have an equitable proprietary interest in the trust assets. However, this is not always so. Thus, while each beneficiary of an unadministered estate has an interest in seeing that the whole of the assets are treated in accordance with the duties of the executor, and, in that sense, as a class the beneficiaries may be said to have an interest in the entire estate, it does not follow that each piece of property which goes to make up the estate is held on a particular trust for the beneficiary named as its intended recipient upon completion of administration.27 Nor is an equitable proprietary interest in the trust assets enjoyed by those who may be, but as yet have not been, appointed under a power contained in a discretionary trust. The expression ‘discretionary trust’ is used to identify a species of express trust where the entitlement of beneficiaries to income, or to corpus, or both, is not immediately ascertainable. Rather, the beneficiaries are selected from a nominated class by the trustee or some other person and this power may be exercisable once or from time to time. The expression is descriptive rather than normative, its meaning being primarily a matter of usage.28 [page 5]

A Personal Obligation Annexed to the Property

[1-10] The fourth essential element is that the trustee must be under a personal obligation to deal with the trust property for the benefit of the beneficiaries. It is an obligation which gives rise to correlative rights in the beneficiaries. The obligation must be annexed to the trust property. This is the equitable obligation proper. It arises from the very nature of a trust and from the origin of the trust in the separation of the common law and equitable jurisdiction in English legal history. The obligation attaches to the trustee in personam, but it also is annexed to the property, so that the equitable interest resembles a right in rem. It is not sufficient that the trustee should be under a personal obligation to hold the property for the benefit of another, unless that obligation is annexed to the property. Conversely, it is not sufficient that an obligation should be annexed to the property unless the trustee is under a personal obligation. The application of this principle will be illustrated when dealing in the next chapter with the distinction between a trust and certain other legal institutions.29 _____________________________ 1.

Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 175; 117 ALR 27 at 46. For what is meant by ‘cognisable by a court of equity’, see M Leeming (2008) 31 Aust Bar Review 211 and P Young (2009) 83 ALJ 181.

2.

The misconception that a trust is a legal person is, however, widespread: see Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [79]; ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; 110 ACSR 1 at [13]–[20]. For the difficulties brought about by the Income Tax Assessment Act 1997 (Cth) regarding a trust as an ‘entity’, see A Slater (2006) 35 A T Review 185. This passage in an earlier edition was cited with approval in Raftland Pty Ltd v Commissioner of Taxation (2006) 227 ALR 598 at [65] and Doherty v Doherty [2006] 2 Qd R 259 at [27].

3. 4. 5. 6. 7. 8. 9.

Scott and Fratcher, The Law of Trusts, 4th ed, Vol 1, §2.3. The current edition states that ‘The definition must derive from the rules, and not vice versa’: Scott on Trusts, §2.1.3. Re Williams [1897] 2 Ch 12 at 18, cited by Isaacs J in Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 at 503; 21 ALR 465 at 470. Hardoon v Belilios [1901] AC 118 at 123. See also W Cornish et al (eds), Restitution: Past, Present and Future, Hart Publishing, Oxford, 1998, p 204 (Millett). See Chapters 10 and 11. Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 68; 55 ALR 417 at 432; Maguire v Makaronis (1997) 188 CLR 449 at 463; 144 ALR 729 at 737. See Chang v Registrar of Titles (1976) 137 CLR 177; 8 ALR 285; KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) (1984) 155 CLR 288 at 296–7, 301; 56 ALR 337 at 343, 346; Nolan v Collie (2003) 7 VR 287 at [28]; P Turner, ‘Understanding the Constructive Trust between Vendor and Purchaser’ (2012) 128 LQR 582. The Supreme Court of the United Kingdom has held that a purchaser under an uncompleted sale of land did not possess a proprietary interest sufficient to engage

statutory provisions relating to unregistered interests in s 29(2) of the Land Registration Act 2002 (UK): Southern Pacific Mortgages Ltd v Scott [2015] AC 385; [2015] 1 All ER 277 at [66], [112], [123]. 10. Restatement on Trusts (3rd) §2. 11. See, for example, the provisions of the Accident Compensation Act 1985 (Vic) relating to the administration by the Registrar of the Victorian Accident Compensation Tribunal of accounts in respect of compensation awards: Registrar, Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145 at 161–8; 117 ALR 27 at 35–44. See also the regime established by s 56 of the Native Title Act 1993 (Cth), and Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36 at [85]–[110]. When the term ‘trust’ is used in a statute, it is normally taken to be used in its legal and technical sense: Vallance v R (1961) 108 CLR 56 at 75; [1963] ALR 461 at 474; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414 at [45], but, as the latter decision shows, it may also be used in a non-technical, governmental sense. As Lord Collins put it, ‘A statutory trust does not necessarily bear all the indicia of a trust as would be recognised by a Court of Chancery’: Re Lehman Brothers International (Europe) [2012] 3 All ER 1; [2012] 1 BCLC 487 at [189]. See [5-20]–[5-21]. 12. Scott on Trusts, §2.1.4. 13. Public Curator of Queensland v Union Trustee Co of Australia Ltd (1922) 31 CLR 66 at 74–5 per Higgins J; 28 ALR 438 at 441; Port of Brisbane Corporation v ANZ Securities Ltd [2003] 2 Qd R 661 at [29]. 14. Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 277–80. 15. Don King Inc v Warren [2000] Ch 291 at 320–1; [1998] 2 All ER 608 at 634; McGowan v Commissioner of Stamp Duties [2002] 2 Qd R 499 at [14]; Barbados Trust Co v Bank of Zambia [2007] 1 Lloyd’s Rep 495 and see P Turner, ‘Trusts of Debts of Restricted Assignability’ [2008] CLJ 23; cf Tasmanian Seafoods Pty Ltd v MacQueen (2005) 15 Tas R 1 at [30]–[44]. 16. St Vincent de Paul Society Qld v Ozcare Ltd (2009) 74 ACSR 676. 17. Including, for example, poker machine entitlements allocated in respect of hoteliers’ licences (Wonall Pty Ltd v Clarence Property Corp Ltd (2003) 58 NSWLR 23) and milk quotas attached to euroholdings (Swift v Dairywise Farms Ltd [2000] 1 All ER 320; [2000] 1 WLR 1177). 18. Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 621–2; [1936] ALR 198 at 200–1. 19. As in Hayim v Citibank NA [1987] AC 730 at 742–3. 20. Re Cook [1948] Ch 212; [1948] 1 All ER 231; Re Haberley, decd [1971] NZLR 325 at 333–4, 346. 21. Middleton v Pollock (1876) 2 Ch D 104 at 106; Rose v Rose (1986) 7 NSWLR 679 at 686. 22. Re Gulbenkian’s Settlements (No 2) [1970] Ch 408 at 418; [1969] 2 All ER 1173 at 1179. 23. Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 at 497; 21 ALR 465 at 468; CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; 221 ALR 196 at [25]. 24. This passage was approved in Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36; 324 ALR 240 at [79]. 25. Brown v Burdett (1882) 21 Ch D 667. See also Re Cameron (1884) 26 Ch D 19; Re Headrick’s Will [1953] QWN 23, where a direction to demolish a dwelling and improvements on certain land was held not to create a binding trust; Re Boning [1997] 2 Qd R 12. 26. Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640; 25 ALJR 778 at 782; Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 at 274; 104 ALR 117 at 123. 27. Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313–14; 96 ALR 327 at 331. And see generally Meagher, Gummow and Lehane’s Equity, Ch 4. 28. Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551–2; Chief Commissioner of Stamp

Duties (NSW) v Buckle (1998) 192 CLR 226; 151 ALR 1 at [8]; El Sayed v El Hawach (2015) 88 NSWLR 214; 317 ALR 771 at [14], [55]; and see [3-14] below. See generally L Sheridan, ‘Discretionary Trusts’ (1957) 21 Conv 55. 29. This passage as it appeared in an earlier edition was approved in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 518–19 and in Secure Parking (WA) Pty Ltd v Wilson (2008) 38 WAR 350 at [99].

[page 6]

CHAPTER 2 The Distinction Between a Trust and Certain Other Legal Institutions The Trust and the Fiduciary Relation

[2-02]

Trust and Bailment

[2-09]

Trust and Agency

[2-10]

Trust and Debt

[2-13]

Trusts and Contracts for the Benefit of Third Parties

[2-17]

Trust, Equitable Charge and Equitable Lien

[2-26]

Trust and Condition

[2-30]

Trust and Equitable Personal Obligation

[2-34]

Trustee and Executor

[2-40]

Trusts and Powers

[2-46]

The Romalpa Clause

[2-47]

[2-01] A number of other legal institutions in certain aspects and in certain contexts appear to resemble the trust. However, when they are examined in the light of the four essential elements of a trust set out above, it will be seen that none contains all those elements, although each may contain one or more of them.

The Trust and the Fiduciary Relation [2-02] The trust is a fiduciary relation, but not every fiduciary relation is a trust.1 As Sir Frederick Jordan said, ‘A person is not necessarily a trustee, whether express, implied or constructive, by reason merely of the fact that he owes fiduciary duties to others.’2 The distinguishing element of a fiduciary relationship is that its purpose, or essence, is to serve exclusively the interests of others or, put negatively, it is a relationship in which the parties are [page 7] not free to pursue their separate interests.3 Certain relationships have always been considered to be fiduciary. It has never been doubted that a trustee stands in a fiduciary relation to a cestui que trust, or that an executor (or administrator) stands in a fiduciary relation to a beneficiary, or that certain kinds of agent stand in a fiduciary relation to a principal. The courts have also held that the following are fiduciaries: court-appointed receivers in relation to the parties to the action,4 privately appointed receivers after receiving money from the sale of mortgaged assets or as income,5 bailees in relation to bailors,6 a trustee’s agent in relation to the cestui que trust,7 the promoter of a company in relation to the company promoted,8 and a liquidator vis-à-vis the company.9 [2-03] In Multinational Gas & Petroleum Co v Multinational Gas & Petrochemical Services Ltd,10 Dillon LJ said that directors ‘owe fiduciary duties to the company though not to the creditors, present or future, or to individual shareholders’. To this there are exceptions arising out of the facts of particular cases, especially in the case of small closely held private companies, which are analogous to partnerships.11 Further, while the director’s duty is to act in the best interests of the company, those best interests, at least in some circumstances, may include those of its creditors.12 This appears to be so where the company is insolvent, or of doubtful solvency, or if a contemplated payment or other course of action would jeopardise its solvency.13 But this duty (save as supplemented by statutory duty enforceable in its terms) is owed to and enforceable by the company.14 Moreover, directors are fiduciaries but not

trustees of the assets of the company, and legislation imposing liability on directors for ‘breach of trust’ has long been understood in that light.15 [2-04] Other relationships do not give rise to a fiduciary relation, but to an analogous relation. Thus, the donee of a special power of appointment owes a duty which is analogous to a fiduciary duty;16 so, too, does any person who has power to dispose of property in which others have interests.17 Relations of influence are another instance of this.18 [2-05] Yet other relationships, while definitely not fiduciary may, nevertheless, in particular respects, involve duties similar to fiduciary duties. Thus, while it is quite clear that in general [page 8] a mortgagee does not stand in a fiduciary relationship to a mortgagor,19 the mortgagee’s right to exercise a power of sale is in some ways treated as if it were held in a fiduciary capacity.20 Similarly, although in general not a fiduciary, a life tenant cannot retain (any more than a fiduciary can) any advantage obtained by virtue of that position.21 [2-06] What is involved in the notion of a fiduciary duty? Broadly speaking, it is a duty not to place the fiduciary’s interest in conflict with his or her duty, and so not to use the fiduciary’s position for the purpose of acquiring an advantage for himself or herself, coupled with an inability to retain any advantage so acquired unless the person to whom the duty is owed freely and with full knowledge consents to both the acquisition and the retention of it. The fiduciary may be in breach of duty even though the principal would not, or could not, have sought the benefit obtained by the fiduciary.22 [2-07] For instance, the director of a company is required in respect of the affairs of the company to act for the benefit of the company and not for the director’s own benefit.23 Likewise, a partner in the affairs of the partnership must act in the interests of the partnership and not in the partner’s own interest.24 A trustee owes that same paramount duty to a beneficiary — to act in the interests of that beneficiary and not in the trustee’s own interests. However,

a fiduciary other than a trustee cannot properly be described as a trustee, although often so referred to. To describe a mere fiduciary as a trustee is to create confusion, because it would widen the concept of the trust so much that it would not be possible to express the principles governing the law of trusts in any concise form. It would be necessary in each instance to have regard not to any general law of trusts, but to the particular law governing the relationship between the fiduciary and the person to whom the fiduciary duty is owed. In the case of a director, it would [page 9] be necessary to have regard to the law governing companies;25 in the case of a partner, to the law of partnership and so on. To describe a mere fiduciary as a trustee is, at best, a metaphor:26 Another source of error in this matter is the looseness with which the word ‘trustee’ is frequently used. The surviving partner is often called a ‘trustee’, but the term is used inaccurately. He is not a trustee, either expressly or by implication. … The application to a man who is improperly, and by metaphor only, called a trustee of all the consequences which would follow if he were a trustee by express declaration — in other words a complete trustee — holding the property exclusively for the benefit of the cestui que trust, well illustrates the remark made by Lord Mansfield that nothing in law is so apt to mislead as a metaphor.

[2-08] Trustees and fiduciaries owe different duties, which are breached in different ways, and breaches give rise to different remedies at the suit of different plaintiffs.27 The High Court has said:28 Whilst the trustee is the archetype of the fiduciary, the trust has distinct characteristics. In particular, where a trust is created by will or settlement in traditional form, the trustee holds title to property on behalf of beneficiaries or for charitable purposes. If the trust be still subsisting, the objective of an action to recover loss upon breach of trust is the restoration of the trust fund. The right of the beneficiaries is to have the trust fund reconstituted and duly administered, rather than to recover a specific sum for the sole use and benefit of any beneficiary. Indeed, no one particular beneficiary may have sustained a present and individual loss. This may be so if the trust is a discretionary trust or no interest vests, either in interest or possession, before the termination of a prior interest. Further, the particular breach of which complaint is made may be consequent upon failure in observance of one or other of the duties which attend trust administration, such as those to make only authorised investments, and to use due diligence and care in the administration of the trust. Nineteenth century authorities such as Caffrey v Darby29 and Clough v Bird30 concerned failure to observe these rules for due administration rather than that disloyalty and conflict between interest and duty which was considered in Nocton v Lord Ashburton.31

As noted above, one reason why a fiduciary is not properly described as a

trustee is that there is generally no property vested in the fiduciary which can be described as trust property. The property of the company is not vested in the director; the director is an agent of the company.32 Partnership property is usually not vested in a partner. If it is, then the partner may be a trustee of that property for the partnership, but it is not necessary that the partnership property should be so vested before a fiduciary duty can rise. However, if a fiduciary makes a profit out of the relationship, then the fiduciary will become a trustee of that profit or of the property so acquired. This is a constructive trust33 and fulfils all the requirements of the trust because at that stage property is vested in the fiduciary which can be the subject of the trust. [page 10]

Trust and Bailment [2-09] A bailment does not create a trust.34 A bailee has possession of the article bailed, but not title to it. When an article is entrusted to another for a special purpose, this may amount either to a bailment or to a trust, depending upon whether property in the article is transferred to the person to whom the article is handed. If property is transferred there will be a trust, but if merely the possession of the article for certain purposes is given, there will be a bailment and the remedy of the bailor lies in an action at law for breach of the terms of the bailment, or for detinue of the article concerned, but not in equity for breach of trust. The distinction is of particular importance where the person to whom the article is handed purports to dispose of it to a third party. If the property has been transferred on trust, a third party who purchases for value without notice can obtain good title. However, a bailee cannot give such a title and a third party taking for value without notice may nevertheless be sued by the true owner for the return of the property.35 It should be noted that a bailment can only exist with respect to tangible personal property; a trust may exist with respect to any property, tangible or intangible, real or personal. Finally, of course, a bailee’s rights are regulated solely by the common law, whereas the rights of a cestui que trust are regulated by equity.

Trust and Agency [2-10] ‘Agent’ is a term with many meanings.36 An agent in the presently relevant sense is a person empowered to effect the legal relations of the agent’s principal.37 Although in early English legal history there was no clear distinction between the notions of trust and agency, there has now developed a recognisable distinction between them. An agent is in a fiduciary relation to the principal, as a trustee is in respect of the cestui que trust; an agent must, in the agency business, act for the principal’s benefit, not the agent’s own interest, just as a trustee must act for the cestui que trust’s benefit and not in the trustee’s own interest; but there is lacking in agency the essential element of a trust that the trust property must be vested in the trustee. An agent usually has only the possession of property on behalf of the principal, not title to that property: It is to be noticed that there is no trust or confidence of the land in the agent … It is not a case of ‘trust or confidence’ of land. … The man was simply what is called a conduit pipe and nothing more, a mere agent, who never had any interest in the lands, and consequently could not have any ‘trust or confidence’ of them.38

However, a trustee is often found to be also an agent, and conversely an agent can often be a trustee of property or money entrusted to the agent by the principal. Where the actual title to property (other than money) is vested by a principal in the agent, the agent will be a trustee [page 11] of that property.39 In such cases, agents may not only bind themselves at law in their dealings with that property, but they may also within the scope of their authority bind their principals. Although the trust property is vested in them, they are agents in so far as they are bound to follow their principals’ directions in regard to that property. They do not have the usual powers and discretions of trustees. [2-11] The position is more complex where money is entrusted to an agent by a principal or received by the agent on behalf of the principal, and particularly where there is no direct evidence as to the intentions of the parties. The courts have stressed the importance of various indicia.40 In other cases, the terms of the agency determine whether the agent is bound to keep the money separate or

is entitled to mix it with the agent’s own money. In the former case, the agent is a trustee of the money and in the latter case, the agent is a debtor to the principal,41 unless there is an intention to create a trust pursuant to which trust moneys and the moneys of the agent may be mixed.42 Ordinarily, an agent who collects money on behalf of a principal is not a trustee of that money, but in the case, for example, of a solicitor who receives the purchase price of land on behalf of a vendor client, the solicitor is not only the agent to receive the money but is also, because bound to keep that money separate and to account for it, a trustee of it for the client.43 Where an agency involves also a trust because the principal has vested property in the agent, the beneficiary under the trust will of course be the agent’s principal.44 [2-12] The importance of distinguishing between trust and agency may be illustrated by considering the respective liabilities of trustees and agents to third parties. An agent will only rarely be personally liable to third parties: the agent will be liable if fraudulent, if a del credere agent or if the agent has been acting for an undisclosed principal, but not otherwise. A trustee, on the other hand, will always be personally liable to third parties, having (at most) mere rights of contribution and indemnity against the cestui que trust and the trust assets.

Trust and Debt [2-13] Generally, a debtor is not a trustee for the creditor since there is no identifiable fund which the latter is entitled to compel the former to apply for the creditor’s benefit.45 It may be difficult to tell whether a trust has been created or merely a debt incurred. The distinction is most important when any question arises of tracing the money into other property upon which it may have been spent. If there is only a debt, the creditor is limited to the common law remedy of action on that debt.46 If the money was paid on trust, the payer may trace the money into any other identifiable property which the payee may have purchased with it. The answer to the question whether a debt or trust was created in any particular case depends upon the intention of the parties. If the parties intended that the one receiving the money should hold that money for the benefit of the other or for the benefit of a third party, then it will be a trust because there is actual trust property. If the payee was entitled to use the money

as his or her own, being under an obligation merely to repay the same amount of money at a future time, [page 12] then the payer is merely a debtor.47 For example, if A agrees to pay to B a sum of money with the common intention that B shall invest the same during a period of a year, and that at the end of the year B should return the money to A together with a half share of any profits earned by the investment, it is not easy to say whether B held the money on trust or whether B should be regarded only as a debtor to A in that sum. Should B use the money for other purposes in purchasing property for himself, then, if there is a trust, A will be able to trace into the property so purchased. The question whether B in such a case is a trustee or a debtor cannot be answered except in the light of the actual expressions used by the parties, and more particularly in the light of the nature of the transaction and the exact circumstances of the case.48 [2-14] It was once thought that the categories of debt and trust were mutually exclusive. This is no longer tenable, as has been made plain by the decision of the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd,49 which has given rise to the so-called ‘Quistclose trust’. Although it is open to doubt whether the trust identified in that case in fact represents the ‘single most important application of equitable principles in commercial life’50 (in Australia at least, one thinks also of the ubiquitous unit trust, discretionary trust, superannuation trust and Barnes v Addy liabilities of directors and professional advisers), there is no doubting the avalanche of academic commentary the case has engendered51 nor the utility of such a trust for lenders, who may gain, as Twinsectra Ltd v Yardley52 makes very clear, not merely security for their debt, but also the right to invoke Barnes v Addy claims against third parties in the event of a breach of trust. In order to understand the nature of such a trust, it is necessary to examine closely the facts of the case. Rolls Razor Ltd, which was in acute financial difficulties, had declared a dividend on 2 July and had borrowed money from Quistclose to enable its payment, which the directors of Rolls Razor contemplated taking place on 24 July. The declaration of the dividend had given rise to a debt owed by Rolls Razor to its shareholders. The mutual

intention of Quistclose and Rolls Razor and the essence of their bargain was that the sum advanced should not become part of the assets of Rolls Razor but should be used exclusively for payment of a particular class of creditors, namely those entitled to the dividend. However, on 17 July the directors resolved to put Rolls Razor into voluntary liquidation. An effective resolution for liquidation was passed on 27 August. The dividend could not then have been paid since by reason of the liquidation the shareholders had been postponed to the ordinary creditors. The cheque drawn by Quistclose in favour of Rolls Razor which represented the moneys borrowed by Rolls Razor had been paid into a special account with Barclays Bank. Rolls Razor had informed the bank that the account was to be used only to pay the dividend. After Rolls Razor went into liquidation the bank sought to set off the claim in the dividend account against other indebtedness to it of Rolls Razor. Three issues arose. The first was whether the arrangement between Quistclose and [page 13] Rolls Razor rendered Rolls Razor a trustee in respect of the money advanced to it by Quistclose. The second was whether, if so, it now being impossible to pay the dividend, the money was part of the free assets of Rolls Razor so that Quistclose was left merely as a general creditor in respect of the amount lent. The third issue was whether, if Rolls Razor were a trustee and remained such even after the commencement of the liquidation, its right against the bank in respect of a credit in the special account was held on trust for Quistclose, and whether the bank had notice of that trust so that it could not now effect a setoff. At first instance,53 Quistclose was the plaintiff, Rolls Razor, by its liquidator, was the first defendant, and the bank was the second defendant. The shareholders were represented by the third defendant but he played no active part in the proceeding. Plowman J was prepared to assume the first issue in favour of Quistclose, but held against it on the second, so that the third did not arise. His Lordship held that since Rolls Razor had had a contractual obligation to repay the loan to Quistclose, there was no need to find a trust and the borrower’s contractual obligation did not have engrafted upon it an additional equitable obligation. An appeal to the Court of Appeal was allowed.54 The first and second issues were decided in favour of Quistclose, and on the third it was held that the bank had taken the cheque with knowledge of the circumstances

which made the money represented by it trust funds, so that the bank could not effect a set-off. This decision was affirmed by the House of Lords. What was the nature of this trust? Lord Wilberforce said55 that a necessary consequence of the mutual intention of Quistclose and Rolls Razor to create arrangements which gave rise to a ‘primary’ trust in favour of those entitled to the dividend was that, if the dividend could not be paid for any reason, the money, now held on a ‘secondary’ trust, was to be returned to Quistclose. The intention was to create a secondary trust for the benefit of the lender to arise if the primary trust, to pay the dividend, could not be carried out. As Gummow J has pointed out, that characterisation is indicative of an express trust with two limitations, rather than an express trust in favour of the shareholders and a resulting trust in favour of Quistclose arising by reason of an incomplete disposition by Quistclose of the whole of its interest in the moneys lent to Rolls Razor.56 [2-15] What emerges is as follows. First, the outcome is that the lender has not merely the benefit of a promise to repay, but also a beneficial interest in the money it has lent, thus emphasising that the categories of debt and trust are not mutually exclusive. Secondly, the nature of that beneficial interest, and the time when it arises, depend on the facts of the case. In the Quistclose case itself, the beneficial interest was, at first, held by the lender and the members, and subsequently exclusively by the lender. In the Twinsectra case, the beneficial interest was at all times held by the lender, but subject to a power or mandate. An express trust can accommodate a wide range of facts. Thirdly, these outcomes are the result of the application of conventional principles of the law of trusts, rather than a novel category of trust exempted from the ordinary requirements of an express private trust. The use by Lord Wilberforce of the term ‘purpose’, although descriptive of the end sought to be achieved, does not herald a departure from conventional analysis. That is confirmed by the decision of the Privy Council in Re Goldcorp Exchange Ltd:57 [page 14] That a sum of money paid by the purchaser under a contract for the sale of goods is capable in principle of being the subject of a trust in the hands of the vendor is clear. For this purpose it is

necessary to show either a mutual intention that the moneys should not fall within the general fund of the company’s assets but should be applied for a special designated purpose, or that having originally been paid over without restriction the recipient has later constituted himself a trustee of the money: see Barclays Bank Ltd v Quistclose Investments Ltd.58 This requirement was satisfied in Re Kayford Ltd,59 where a company in financial difficulties paid into a separate deposit account money received from customers for goods not yet delivered, with the intention of making withdrawals from the account only as and when delivery was effected, and of refunding the payment to customers if an insolvency made delivery impossible.

Their Lordships went on to find that the facts of the present case were inconsistent with any such trust. In Legal Services Board v Gillespie-Jones, Bell, Gageler and Keane JJ said that ‘[t]he terminology of a “Quistclose trust” is helpful as a reminder that legal and equitable remedies may co-exist. The terminology is not helpful if taken to suggest the possibility apart from statute of a non-express trust for non-charitable purposes.’60 Confusion of thought, comparable to that attending the classification of the Quistclose trust as a new species, is found in treatments of the secret trust as a specific legal institution rather than a series of cases which provide examples of the particular operation of the principle upon the facts as found.61 Fourthly, those who would contend that the principles governing express private trusts have no role to play face a further difficulty. For now that the Quistclose case and its progeny are familiar, well-informed lenders may seek expressly to invoke the principle. If there were a species of Quistclose trust separate and distinct from express private trusts, it would seem not to include those trusts in which the parties have, expressly, sought to achieve the Quistclose outcome. That in turn leads to a regrettable distinction between ‘true’ Quistclose trusts and trusts which are merely analogous to them.62 Fifthly, while there is a terminological difference between the Australian and English authorities, there are indications that it is little more than that. In the Twinsectra case, Lord Millett cited Gummow J’s reasons in Re Australian Elizabethan Theatre Trust with approval, and agreed that ‘orthodox trust law’ was to be applied,63 while in Re Crown Forestry Rental Trust,64 his Lordship referred to a distinction between ‘express’ and ‘implied’ resulting trusts.65 To the extent that there is any substantive difference of approach, it may lie in the greater readiness on the part of Australian courts to discern an intention to create a trust.66 Lastly, as Turner has observed, the decisions can be reconciled with principle by adopting an approach whereby: … a resulting trust can arise where a disponor expresses no intention where beneficial ownership

of surplus assets will be located in the event that the primary purpose of the disposition cannot be carried out, and that express trust takes over where there is intention that the remaining beneficial interest should lie with the disponor. This is an approach which treats the boundaries between express and resulting trusts in the ordinary way, and, with respect, gives appropriate recognition to the role of the inferred express trust.67

[page 15] [2-16] The Quistclose case was concerned with the interaction of the law as to trust and debt, but despite what was said in Re Miles,68 there is no reason why the facts may not establish the existence of a trust where money is lent not to discharge debts but for other purposes such as to buy equipment (as in Re EVTR)69 or to subscribe for shares (as in Re Associated Securities Ltd and the Companies Act).70 The truth is that the facts are capable of very considerable variation and the express trust is a flexible instrument. Thus, the facts might show that the borrower held the moneys borrowed as trustee of an express trust for the lender, but with a mandate to use the fund to pay the creditors, with the result that the creditors had no beneficial interest in the fund. Alternatively, the terms of the trust might oblige the borrower at the suit of the lender to pay the creditors of the borrower, or these rights of the lender might be assigned by the lender to the creditors.71 In the Quistclose case, it appears to have been a condition of the primary trust in favour of the shareholders that they would acquire and retain vested equitable rights in the fund only to the extent to which they had a present right to payment of the dividend in the ordinary course and this condition of their entitlement could not be fulfilled after the company went into liquidation. In Re Kayford Ltd,72 a doubtfully solvent company which conducted a mail order business opened a separate ‘customers’ trust deposit account’ into which it paid moneys received from customers for goods ordered but not yet delivered, with the object that such customers would be fully refunded should a liquidator be appointed. When that occurred, Megarry J found that money never belonged beneficially to the company, by reason of an intention before receipt to subject it to a trust at the time of its receipt. In contrast, in Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd,73 payment was made by a debtor of the doubtfully solvent company on terms that it be used solely to pay nominated creditors. Although Peter Gibson J held that the company never acquired any beneficial interest in the payment, the arrangement, which was plainly of preferential effect, would have been contrary

to the Australian preference provisions,74 and would also be contrary to those later introduced in England.75 On the other hand, in cases such as Re Barrington and Associates Pty Ltd (in liq),76 it was held that beneficial interests did arise in the particular creditors for the payment of whose debts the money was lent.

Trusts and Contracts for the Benefit of Third Parties [2-17] Where one party contracts with another to pay money to or otherwise do something for the benefit of a third party, while the contract is (both at law and in equity) a perfectly valid contract between the promisor and the promisee at law, the third party has no rights under the contract. The reason is the common law doctrine of privity of contract. The third party cannot sue on the contract because no consideration has moved from the third party; or, to state what is either an identical or a related rule, because the third party is not a party to the contract. This has been decided at least four times by authoritative decisions of the House of Lords.77 The High Court of Australia has laid down the law in precisely similar terms in Wilson v Darling Island Stevedoring & Lighterage Co Ltd.78 The whole subject was reconsidered by the [page 16] High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.79 The significance of the case lies more in the diversity of views in the six judgments delivered by seven members of the court than in what actually was decided. No member of the court was prepared to discard completely the privity doctrine. Mason CJ and Wilson J, with Toohey J, held that a person who is not a party to a public liability insurance policy, but who falls within the class expressed to be insured by it, may enforce the indemnity for which the policy provides. However, Brennan, Deane, Dawson and Gaudron JJ held that the respondent could not enforce the insurance contract because it was not a party to it. Deane J held that the respondent should be afforded an opportunity to establish that the policy created a trust in its favour of the benefit of the promise of the

insurer. Gaudron J held the insurer liable but by reason of restitutionary principles which operated dehors the contract. [2-18] In practice, this means that if A promises B (for valuable consideration) that A will pay money or transfer property to C, C, because not a party to the contract, will not be able to sue A at law for damages for breach of contract and will not be able to sue A in equity for specific performance of the contract. More than that, it will usually mean that if A defaults, B will not be entitled to more than nominal damages in an action at law for damages for breach; B cannot get substantial damages because B personally has suffered no damage.80 These principles apply in all jurisdictions of Australia except Western Australia and Queensland; in those two states, as well as in the United Kingdom, the law has been radically altered by legislation.81 [2-19] It is important to distinguish this class of case from the cases dealing with contracts for valuable consideration between A and B whereby A promises B that A will pay money or transfer property to B on terms that it will be paid by B to, or applied by B for the benefit of, C. True, in this class of case also C is unable to sue either at law or in equity on the contract, but on A’s breach B can always recover substantial, and not merely nominal, damages from A. B will personally have suffered substantial damage, that is, the non-receipt of the money or property, and the fact that B would have been obliged (as between B and A) to pay over such money or property had B received it is at law an entirely irrelevant factor.82 The former class of case is the one principally discussed in this section. [2-20] By way of mitigation of the apparent severity of the common law rule, the following matters should be noted: First, both at law83 and in equity,84 the third party contract is perfectly valid and binding as between promisor and promisee, unlike Roman Law where such a contract was (with some exceptions) simply invalid.85 Indeed, to breach such a contract is an ‘unlawful act’ and a ‘legal wrong’, and concerted action by two or more persons to cause a breach of such a contract probably amounts to the tort of conspiracy. Secondly, a contractual promise by A to B to pay C is often, as a matter of construction, interpreted by the courts as a promise by A to pay B ‘or as B

directs’ in which case B’s damages on A’s breach will be substantial and not nominal.86 [page 17] Thirdly, since a third party contract is valid as between promisor and promisee, any moneys paid or property conveyed to the third party pursuant to it belong to that third party absolutely, are forever beyond recall, and may be dealt with as the third party wishes.87 Fourthly, it may not be that in every case where A promises B for valuable consideration to pay money to C that, on A’s breach, B’s damages will necessarily be nominal rather than substantial, although usually this will be the case. Starke has convincingly argued that in at least two cases the damages obtainable by B under existing law would be more than nominal: (a) where the promisee has actually performed in favour of the third party that (or part of that) which the promisor failed to perform under the contract; and (b) where the promisor contracted to pay to the third party a debt due by the promisee.88 More importantly, this approach, in a somewhat wider form, was adopted by Windeyer J in Coulls v Bagot’s Executor and Trustee Co Ltd:89 The question which presents itself at this point is, what is the measure of damages for breach of a promise to confer a benefit upon a third party? Take the case supposed above — a contract by A with B under which B is to pay $500 to C. A sues B for breach of contract. There are authorities which say that he could recover only nominal damages, because it is C who has suffered not he…. As Else-Mitchell J remarked in Cathels v Commissioner of Stamp Duties,90 the cases on this point are ‘conflicting and unsatisfactory’. No difficulty would arise if a statement of Lush LJ, in Lloyd’s v Harper,91 could be accepted without qualification and regardless of its context. He said: I consider it to be an established rule of law that where a contract is made with A for the benefit of B, A can sue on the contract for the benefit of B and recover all that B could have recovered if the contract had been made with B himself. But I think we must take it that when the learned Lord Justice spoke of a contract for the benefit of B he was thinking of a contract of which A was a trustee for B — that is to say of one in which A held his legal rights under a contract as a trustee for B. In such a case of course the question disappears: but the case I have supposed, a contract by A with B that B will pay C $500, is a transaction at law devoid of any equity in C. Yet I do not see why, if A sued B for a breach of it, he must get no more than nominal damages. If C were A’s creditor, and the $500 was to be paid to discharge A’s debt, then B’s failure to pay it would cause A more than nominal damage. Or, suppose C was a person whom A felt he had a duty to reward or recompense, or was someone who, with the aid of $500, was to engage in some activity which A wished to promote or from which he might benefit — I can see no reason why in such cases the damages which A would

suffer upon B’s breach of his contract to pay C $500 would be merely nominal: I think that, in accordance with the ordinary rules for the assessment of damages for breach of contract, they could be substantial. They would not necessarily be $500; they could I think be less, or more. That is as I see it. I realize that (as Messrs Goff and Jones mentioned in their work the Law of Restitution and as Mr Treitel has recently emphasised) there are statements in Cleaver v Mutual Reserve Fund Life Association92 which suggest that the promisee could recover not unliquidated damages but the sum which the promisor had agreed he would pay to the third party: but I find difficulty in seeing how this could be so. Suppose that A does recover substantial damages for B’s failure to perform his promise to A to pay C $500 — the next question is does he recover these damages for himself or for C. Notwithstanding the statements in Beswick v Beswick suggesting that he would recover them for C, I do not see why this should be. On the hypothesis of a purely contractual right with no trust attached, why should A hold for C the proceeds of his action? He sued at law for damages he himself suffered, not as the representative of C. C had no right of action. A, not being a trustee of his contractual rights, might, had he wished, have released B from his contract, or declined to sue him for breach of it; or by agreement between A and B the contract could have been varied.

[page 18] C could not have complained. Why then is it said that proceedings brought by A to enforce his legal right give C a right against A when previously he had none? (I leave out of consideration the possibility of a bargain between A and C supported by consideration moving from C.) Of course A, whose purpose had miscarried because of B’s breach of contract, might make over any damages he recovered to C: but that would not be because C had a right to them, but because A still wished to give effect to his plan to confer a benefit on him. In a case in which specific performance was an available remedy, A might choose to seek that form of redress against B, and thus obtain a judgment that B pay C $500. But that would not be because A was enforcing a right of C, but because he was enforcing his own right against B by obtaining an order that B perform his contract with him, A. For this reason — and always on the assumption that there was no trust and that the transaction was as between A and C wholly gratuitous — I am not persuaded that C could force A to seek redress from B, or dictate to him what form of redress, specific performance or damages, he should seek.

The position would now, subject to the Contracts (Rights of Third Parties) Act 1999 (UK), seem to be the same in England, since the House of Lords in Woodar Investment Development Ltd v Wimpey Construction UK Ltd93 has repudiated the reasoning of Jackson v Horizon Holidays Ltd.94 Fifthly, it has always been recognised that, in an appropriate case, the promisee (not the third party) can obtain a decree of specific performance of the agreement.95 In view of the insistence by the House of Lords in Beswick v Beswick96 that the remedy of specific performance in equity is grounded on the inadequacy of the common law remedy of damages, it would seem that specific

performance would be peculiarly appropriate in cases where damages, being nominal, were grossly inadequate. Sixthly, by way of mitigation of the severity of the common law rule, the High Court of Australia has held in Coulls v Bagot’s Executor and Trustee Co Ltd,97 that in the case where A promises B and C for valuable consideration supplied by B (and not by C) to make payments jointly to B and C, C, being a party to the contract, is entitled to enforce it personally notwithstanding that no consideration moved from C. In such a case, C is not a third party to the contract. Seventhly, some commercial contracts, and notably bankers’ commercial letters of credit, are recognised and enforced by the law despite the absence of privity of contract which often occurs between the parties thereto.98 Eighthly, there is a special rule first laid down in the eighteenth century and affirmed by the House of Lords in The Albazero,99 that a consignor can recover from a carrier the value of goods lost by reason of breach of the contract between the consignor and the carrier, notwithstanding that the consignor had at the time of the loss neither the property in nor the right of possession of the goods, and that the consignor does not recover the damages on behalf of any person who did have these rights to the goods. Ninthly, as is instanced by the House of Lords’ decision in Hepburn v A Tomlinson (Hauliers) Ltd,100 it has always been received law that a carrier who takes out insurance on goods may do so for their full value, and recover their full value by way of damages if the risk insured against occurs, although the carrier personally has but a limited interest in the goods. To the extent [page 19] that the damages recovered exceed the value of the carrier’s limited interest, the carrier is a trustee for persons with other interests. Tenthly, a bailee may sue in detinue or trespass for loss or damage to the bailor’s goods and recover the value thereof despite the bailee’s limited interest in the goods; the bailee is accountable to the bailor for the proceeds of judgment in an action for money had and received.101 Eleventhly, in The Albazero, the House of Lords has pronounced a general

common law principle (of which the eighth and ninth propositions are applications) that:102 [I]n a commercial contract concerning goods where it is in the contemplation of the parties that the proprietary interests in the goods may be transferred from one owner to another after the contract has been entered into and before the breach which causes loss or damage to the goods, an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the goods before they are lost or damaged, and is entitled to recover by way of damages for breach of contract the actual loss sustained by those for whose benefit the contract is entered into.

This passage was applied and adapted to contracts for building works on property to be occupied or purchased by third parties, by the House of Lords in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd103 and the English Court of Appeal in Darlington Borough Council v Wiltshier Northern Ltd.104 Twelfthly, the courts may, in particular circumstances, hold that the party with the benefit of the promise has contracted as agent of the third party,105 or that the promisee has entered into a collateral contract with the third party.106 Lastly, at least in the case of ‘Himalaya clauses’ in bills of lading, the courts have held that a contractual immunity may be availed of by stevedores who are third parties to the contract constituted by the bill of lading, although it is unclear quite on what conceptual basis this result proceeds.107 [2-21] While the third party’s rights at law are circumscribed in the manner described above, the situation is different in equity. The benefit of the promisor’s (that is, B’s, in the example given) promise is a chose in action which can, in appropriate circumstances, be held on trust in the same way that any other property is capable of being held on trust. This possibility was suggested as early as 1753 by Lord Hardwicke.108 It was adopted by Sir William Grant MR in Gregory v Williams109 in 1817, and since then it has never been doubted.110 Its validity has been recognised by the House of Lords in Les Affreteurs Reunis SA v Leopold Walford (London) Ltd111 and by the High Court in Wilson v Darling Island Stevedoring & Lighterage Co Ltd.112 In England, [page 20] the notion that the benefit of a contract is capable of constituting trust property has been recognised at least six times since 1880 by the Court of Appeal.113 If in

the contract whereby A promises B to pay money to C, B expressly contracts as trustee for C, or it is made a term of the contract that the benefit of A’s promise to B is to vest in C, it is quite clear that the benefit of the promise is a chose in action which is held in trust for C. In most cases, however, there is no direct expression of intention as to whether the benefit of A’s promise to B is or is not to be held on trust; in these cases, it becomes a question of determining whether the meaning of the words actually used in the contract, construed in the light of all admissible surrounding circumstances, is that the promisee is a trustee with the benefit of the covenant.114 This is sometimes called an ‘objectively manifested’ intention. The trust property is the benefit of the promisor’s promise. That was certainly the view adopted by Fullagar J in Creamoata Ltd v Rice Equalization Association Ltd.115 By ‘the benefit of the promisor’s promise’ is meant the promisee’s right to sue at law for damages or in equity for an injunction or specific performance, should such an occasion arise. When courts of equity recognise such a trust in favour of a third party, that third party still has no rights to sue at law, but may take proceedings in equity to enforce the trust by compelling (in effect) the promisee to sue the promisor either at law or in equity, as may be appropriate; the beneficiary of a trust has always been the person to whom equity has given the remedy for breach of trust even though not a party to the creation of the trust.116 [2-22] Such trusts have often been upheld by the courts. Equally often their existence in particular factual situations has been denied. The numerous decisions on the subject are not made any easier to understand when different conclusions are reached in regard to what are apparently the same facts. To take just one example: a promise to pay a single specific creditor of the promisee was held to be held on trust in Gregory v Williams,117 but not in Foster v Genowlan Shale Co.118 It is often suggested that the test for distinguishing third party contracts in which a trust may properly be found from third party contracts in which a trust may not is whether the contract admits of rescission or variation without the consent of the third party: if it does, so the argument runs, there is no trust; if it does not, there is a trust.119 But this theory must be rejected. It can readily be conceded that a contractual term to the effect that the contract cannot be varied or rescinded without the consent of the third party facilitates making an inference that the promisee intended to create a trust of the benefit of the promise; but, nonetheless,

[page 21] the theory cannot stand. It has been specifically rejected by at least one authority.120 It is contrary to at least five cases in which trusts were recognised where the contracts concerned were revocable without the consent of the third party.121 And, what is more important, it is contrary to principle; as Fullagar J said in Wilson v Darling Island Stevedoring & Lighterage Co Ltd:122 ‘I cannot see why it should be necessary that such a trust should be irrevocable; a revocable trust is always enforceable in equity while it subsists.’ [2-23] What, then, is the distinction? It is a question of (objectively manifested) intention. In various cases there is an insistence on the need for a clear expression of intention to create a trust and a warning that such an intention is not necessarily to be inferred from general words.123 However, in Wilson v Darling Island Stevedoring & Lighterage Co Ltd,124 Fullagar J said that it was difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases, and that remark was endorsed by Mason CJ and Wilson J and by Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.125 Their Honours stressed that the requisite intention to create an express trust should be inferred if it clearly appears that it was the intention of the promisee that the third party should be entitled to insist upon performance of the promise and receipt of the benefit, and that in divining intention from the language employed by the parties the courts may look to the nature of the transaction and the circumstances ‘including commercial necessity’. But, ultimately, it is always important to remember that what is difficult to understand about the cases is not what are the relevant principles to apply, but how the principles which quite clearly should apply and about which there is little (if any) controversy can lead to such bewilderingly multifarious results. [2-24] What is the reason for distinguishing contracts for the benefit of third parties which import a trust from those which do not? Usually it is to ascertain in which cases the third party can, albeit indirectly, enforce the contract. But there may be another reason. If, and only if, a trust be found, the promisee may recover substantial rather than nominal damages for breach of contract: this is the situation to which the dictum by Lush LJ in Lloyd’s v Harper,126 already quoted at [2-20], is directed. Anomalous though such a rule be (since it entails

common law enforcement of purely equitable interests), it is well established.127 Moreover, it in no way depends on the operation of the Judicature legislation. However, as already suggested, if no trust be found, the promisee is relegated to merely nominal damages. [2-25] As stated above, the position is radically different in Western Australia and Queensland where all third parties are given rights at law directly against the promisor and thus are put in an even more favourable position than if they were cestui que trust of the benefit [page 22] of the promisor’s promise. In Western Australia, the position is governed by s 11(2) and (3) of the Property Law Act 1969:128 (2) Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but — (a) all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available; (b) each person named as a party to the contract shall be joined as a party to the action or proceeding; and (c) such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant. (3) Unless the contract referred to in subsection (2) otherwise provides, the contract may be cancelled or modified by the mutual consent of the persons named as parties thereto at any time before the person referred to in that subsection has adopted it either expressly or by conduct.

In Queensland, the position is governed by s 55 of the Property Law Act 1974: (1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise. (2) Prior to acceptance the promisor and promisee may, without the consent of the beneficiary, vary or discharge the terms of the promise and any duty arising from it. (3) Upon acceptance — (a) the beneficiary shall be entitled in the beneficiary’s own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor,

and relief by way of specific performance, injunction or otherwise shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer; and (b) the beneficiary shall be bound by the promise and subject to a duty enforceable against the beneficiary in the beneficiary’s own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of him; (c) the promisor shall be entitled to such remedies and relief as may be just and convenient for the enforcement of the duty of the beneficiary; (d) the terms of the promise and the duty of the promisor or the beneficiary may be varied or discharged with the consent of the promisor, and the beneficiary. (4) Subject to subsection (1), any matter which would in proceedings not brought in reliance on this section render a promise void, voidable or unenforceable, whether wholly or in part, or which in proceedings (not brought in reliance on this section) to enforce a promissory duty arising from a promise is available by way of defence shall, in like manner and to the like extent, render void, voidable or unenforceable or be available by way of defence in proceedings for the enforcement of a duty to which this section gives effect. (5) In so far as a duty to which this section gives effect may be capable of creating and creates an interest in land, such interest shall, subject to section 12, be capable of being created and of subsisting in land under any Act but subject to that Act. (6) In this section — (a) ‘acceptance’ means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorised on the promisor’s behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary. (b) ‘beneficiary’ means a person other than the promisor or promisee, and includes a person who, at the time of acceptance is identified and in existence, although that person may not have been identified or in existence at the time when the promise was given.

[page 23] (c) ‘promise’ means a promise — (i) which is or appears to be intended to be legally binding; and (ii) which creates or appears to be intended to create a duty enforceable by a beneficiary; and includes a promise whether made by deed, or in writing, or, subject to this Act, orally, or partly in writing and partly orally. (d) ‘promisee’ means a person to whom a promise is made or given. (e) ‘promisor’ means a person by whom a promise is made or given. (7) Nothing in this section affects any right or remedy which exists or is available apart from this section. (8) This section applies only to promises made after the commencement of this Act.

Trust, Equitable Charge and Equitable Lien [2-26] An equitable charge is created when, for example, a testator devises Blackacre to A, and then proceeds to charge Blackacre with the payment of a sum of money, for instance, the testator’s debts or an annuity or a legacy or legacies. In such a case, A is not a trustee of Blackacre. The essential element of a trust which is missing is that A is under no personal obligation to hold Blackacre for the benefit of any other person. The charge creates an equitable interest in the property in the person in whose favour it is charged so that it does to that extent resemble a trust. Such a person, however, has only a security interest in the property and has not the equitable ownership that a beneficiary has under a trust. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd,129 the High Court said: In In re Bank of Credit and Commerce International SA (No 8), Lord Hoffmann, with whose speech the other Law Lords agreed, gave a description of an equitable charge in which he emphasised that the proprietary interest created thereby is held by way of security, so that the chargee may resort to the charged asset only for the purpose of satisfying some liability due to the chargee. The charge is subject to the equity of redemption retained by the owner. However, the beneficial interest held under an express trust is not so limited in nature. The remedy of the beneficiary is to proceed in equity for the performance of the trust, not for the sale of trust property to satisfy a secured liability.

The distinction is important in regard to the remedies available to the person to be benefited. In the case of an equitable charge, the remedy of the person in whose favour the property is charged is against the property itself and not against the holder of the property. Where the holder does not meet the charge, the other party may proceed in equity for the sale of the property and for payment out of the proceeds of sale. The remedy of a beneficiary under a trust is to proceed in equity for performance of the trust and not for any sale of the trust property.130 [2-27] Further, when the holder of property subject to an equitable charge pays off that charge, the property is held beneficially for him or her. On the other hand, where property is given to a trustee upon trusts which do not exhaust the fund or the property, the balance thereof is held not for the trustee’s own benefit, but for the benefit of the settlor or the testator’s estate: If I give to A and his heirs all my real estate, charged with my debts, that is devise to him for a particular purpose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose and nothing more; and the effect of those two modes admits just this difference. The former is a devise of an estate of inheritance for the purpose of giving the

devisee the beneficial interest, subject to a particular purpose; the latter is a devise for a particular purpose; with no intention to give him any beneficial interest. Where therefore the whole legal interest is given for the purpose of satisfying trusts expressed, and those trusts do not in their execution exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir; but, where the whole legal interest is given for a particular purpose, with an intention to

[page 24] give to the devisee of the legal estate the beneficial interest, if the whole is not exhausted by that particular purpose, the surplus goes to the devisee; as it is intended to be given to him.131

[2-28] It is often a matter of difficulty to determine whether a trust or a charge has been created. Although some have seen the distinctions as sterile and overly conceptualist, as the High Court observed in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd,132 those distinctions serve to identify the various building blocks of the law of property, and have been adopted by statute: thus, an unregistered charge is made, by the Corporations Act 2001 (Cth), void as against a liquidator, but the efficacy of an unregistered trust is unimpaired. It is a question of the intention of the transferor. If a transferor gives property and expressly charges that property with payments to another, or gives it ‘subject to’ payments to another, a charge will be created. If, however, it is clear from the language used that whatever is left after satisfaction of the charge should belong not to the holder of the property but should revert to the transferor, then the language used will more probably be interpreted as creating a trust. [2-29] An equitable lien may be enforced in the same way as an equitable charge, that is to say by sale in pursuance of court order or where the lien is over a fund by an order for payment out of the fund.133 However, unlike an equitable charge, an equitable lien is imposed by operation of law. Well-known examples are the lien of the vendor for unpaid purchase money and the lien of a purchaser for money paid to the vendor on a sale that has gone off. A solicitor has no common law lien for costs over property which has not come into the solicitor’s possession. But if as the result of legal proceedings in which the solicitor has acted for the client a judgment or award or compromise for the payment of money is obtained, the solicitor acquires an equitable right to be paid his or her costs out of it.134 In Hewett v Court,135 Deane J referred with approval to the treatment of the subject in Pomeroy’s Equity Jurisprudence.136 It is there said

that, in addition to equitable liens arising from contractual dealings in property, equity may impose liens based either upon general considerations of justice or upon the principle that a person who seeks the aid of equity in enforcing some claim, for example in an administration of assets, must admit the equitable rights of others directly connected with or arising out of the same subject matter. Accordingly, where a person’s efforts have brought into court a fund in the administration of which various parties are interested, that person’s costs and expenses are a first claim upon the fund.137 Thus, in Shirlaw v Taylor,138 the Full Federal Court decided that a provisional liquidator had an equitable lien for expenses and remuneration over the assets under his administration, [page 25] and that the lien survived the termination of the appointment. A claim to contribution by one co-owner upon the other to recoup expenditure which benefits their joint property is supported by an equitable lien upon the undivided share of the co-owner.139 An equitable lien has also been imposed to support rights arising under the doctrine of equitable estoppel.140 The constructive trust also is imposed by operation of law rather than pursuant to consensual arrangement. In a sense, the equitable lien is an alternative to the imposition of a constructive trust, but it offers a more precise and limited remedy.141

Trust and Condition [2-30] Property may be given to another upon condition that the other pay to a third party a sum of money or undertake some other obligation in relation to that third party. In such a case, no trust is created. There may be a charge of the payment upon the property in the sense referred to in the last paragraph. On the other hand, there may be only a personal obligation imposed upon the holder of the property as a result of his or her accepting that property on the condition. The essential element of a trust which is then lacking is that the personal obligation of the holder of the property is not annexed to that property. The third party cannot exercise any rights against the property itself.

[2-31] A true condition is one which, if a condition precedent, will prevent the transferee from taking the property until fulfilled or one which, if a condition subsequent, would result in the forfeiture of the property if it is not performed. Where the condition is that the transferee of the property should pay a sum of money to a third party, the court is more likely to construe this as either a trust or an equitable charge. The reason is that if it were construed as a condition in the strict sense, then, if the donee refused to perform the condition and refused to take the property on that condition, not only would the donee’s interest be lost, but also the third party would take no benefit. The donee would thus decline the personal obligation and there would be no obligation which was annexed to the property itself:142 If it was held that the devise must be construed as importing a condition and nothing else, the person entitled to receive the payments would lose the payments, because, if the payments were not made within a given time, the heir of the testator would enter and take the estate, and take it free. It was to get over that objection that it has been said that, generally, the right construction is to hold that the devise creates a trust and not a condition. It has been termed a trust without any particular regard to the language, a legal effect being given so as to enable the person entitled to get the payments. It is upon that class of cases, to which I have referred only in general terms, that the argument has been based that here the devise is not a condition, and is therefore a trust. But it is equally plain, for ordinary purposes, that the effect of the devise is to create a charge, and not a trust. Now, I proceed to consider whether it is a trust or a charge. On the face of the will, when the testator intends to create a trust, he knows how to do it … I think that the legacies constitute a charge and only a charge.

[2-32] Hence it is not easy to find modern cases in which dispositions of the kind in question are held by the courts to constitute conditions rather than trusts or charges. Thus, in [page 26] Re Potter,143 a disposition ‘I give devise and bequeath my house property situated at number 12 Valentine Avenue, Horsham, to my daughter Coralie Grace Potter for her own use and benefit absolutely provided that my said son James Athol Potter may reside in the said house as long as he so desires’ was construed by Menhennitt J as constituting a trust of a lifelong right of personal residence in favour of the son. On the other hand, Helsham J’s decision in Re Gardiner144 affords an example of a true condition: there the testamentary provision was ‘I give devise and bequeath all my estate both real and personal

unto my son Ivor … subject to my said son paying the sum of $1000 within two years of my death to my son Albert’; and his Honour held (correctly, it is submitted) that, on non-payment within the two years, Ivor forfeited his interest and the estate vested in the testator’s next-of-kin. [2-33] Pearce v Wright145 illustrates one important respect in which it may be necessary to distinguish between a charge and a condition. In that case, a testator devised property to his son and two daughters in unequal shares, and he declared that the said devise should be ‘subject to the payment’ by his son and daughters to his wife during her life of an annuity. If this was construed as a condition the effect would be that although the devise was to the son and daughters in unequal shares, nevertheless, as joint obligors, they would be required to contribute to the annuity equally. However, if it were construed as a charge, the devisees would contribute in proportion to their interests in the property charged. It was held in that case that the words constituted a charge and not a condition and that, as the shares of the beneficiaries were unequal, it followed that the incidence of the annuity was also unequal in the same proportions.

Trust and Equitable Personal Obligation [2-34] As has been seen, where there is a gift of money to a donee coupled with a direction or condition that a sum of money be provided out of the gift for another person, that direction or condition will be usually construed as an equitable charge, or alternatively as a trust. However, there is also the class of case where the condition relates to the enjoyment of the property by the donee after accepting it. In such cases, the gift may be construed as imposing a personal equitable obligation on the donee to make the necessary payment to such other person, or alternatively as a personal obligation coupled with a charge. In so far as the gift is construed as imposing a personal equitable obligation on the donee, it is directly enforceable in equity by that other person, who, unlike a cestui que trust or chargee, has no rights against the property, but, unlike a mere chargee, has a personal right against the donee; and who, unlike the person who has the ‘benefit’ of a mere condition, is thus not left entirely without remedy in the event of a failure of the condition.146

[2-35] Thus, in Gill v Gill,147 a farm with a homestead was devised to a son ‘on condition that he keep the homestead as a home and provide board and residence for his sisters … and that he shall pay all my funeral, medical and testamentary expenses, as well as all my debts not otherwise provided for’. Harvey J made declarations that these were not mere conditions, the failure of which effected a forfeiture, and that there was no trust in favour of the sisters. It was further declared that the gift amounted to personal obligations enforceable against the son in equity, so that one obligation could be enforced by one unmarried sister by way of compensation in case the son refused or was unable to carry it out provided that in any [page 27] such proceedings the sister joined the estate of the father as a defendant with her brother. Harvey J said:148 In some cases the Court may see that what the testator intended was to attach a charge or trust upon the property, in other cases it may conclude that a personal liability alone is intended. The view taken would depend partly on the language used to describe the obligation, partly on the nature of the property given to the obligee, and partly on the nature of the obligation. In cases where the obligation is merely personal in its nature, calling for the personal activity of the obligee it may the Court could not effectively secure its specific performance; I see no reason why, in such cases, the Court should not mould the remedy so as to give a remedy by way of damages for the breach of the quasi contract.

It will be noted that the course here suggested will, in many cases, come close to giving a third party rights under a contract even though it be held that no trust was created in that party’s favour. Harvey J suggested no firm basis for the award of such ‘damages’ or ‘compensation’, speaking in one passage of quasi-contract (a legal not equitable institution, though his Honour clearly regarded the relief as purely equitable) and elsewhere invoking the principle of equity that the son was not free to take the benefit of his father’s bounty without accepting the burden of his sister (which, while undoubtedly true, does not explain why enforcement of this duty lay in the hands of the sister rather than the father’s estate or why it sounded in monetary compensation). Harvey J, in refusing to hold that a condition of this nature involved a forfeiture of the property in the event of its not being fulfilled by the donee, said:149 In my opinion there is a broad distinction drawn by the Court between conditions which are true

conditions merely operating to divest an estate or to prevent the vesting of an estate and conditions for the benefit of third parties attached to the possession of property. In the first class of conditions the Court requires certainty, so that it is possible at any given moment to say where the estate is vested. The conditions in the present will are not, in my opinion, conditions of forfeiture; if they were the Court might be forced to treat some of them as so undefined that they would be unenforceable. In the other class of conditions where property is given to a beneficiary on condition that he should maintain certain persons or pay certain liabilities, it has been held that a quasi contractual relationship is created; in other words that the person taking the property is treated as being liable in the Court of Equity to carry out the obligation in the same way as if he had contracted to do so; the quasi contract would presumably be made with the testator and be enforceable at the suit of the personal representatives. But I see no reason why it should not also be enforceable at the suit of the individual (if any) for whose benefit the obligation is created, provided the personal representative is joined as a party. The obligation seems to me to flow from the equitable doctrine that a person cannot ‘approbate and reprobate’ under the same instrument. That such an obligation gives rise to a personal liability seems to be established by such cases as Gregg v Coates;150 Re Williames;151 Re McMahon.152

Since Harvey J in Gill v Gill153 held that the condition could be enforced not only by a personal action for compensation against the son but also ‘specifically against the property’, it is submitted that he treated the disposition in the will as creating an equitable personal obligation coupled with a charge. [page 28] [2-36] In Re Lester,154 the testator bequeathed certain shares in a limited liability company to one of his sons on condition, inter alia, that he should pay out of them certain weekly sums to another son. The son who was the legatee of the shares sought the opinion of the court on the question whether the provisions of the will amounted, as it is submitted was the case in Gill v Gill,155 to a personal equitable obligation coupled with a charge or only to a personal equitable obligation. Simonds J (as he then was), said:156 Various authorities have been cited to me and the result of them is, in my judgment, that it must be a question of construction in each case whether an obligation or a charge is created or whether both are created. I find it difficult to construe such words as those in this case as creating both a personal obligation and a charge. There may be words which create both, as in Welby v Rockcliffe157 and Wright v Wilkin,158 where the language does not admit fairly of any other conclusion than that there was both a personal obligation and a charge. In Rees v Engelbach159 the language was such as to create a personal obligation and there are two Irish cases, Re McMahon160 and Duffy v Duffy,161 where language was used which was apt to impose a personal

obligation but not to create a charge. In Rees v Engelbach the testator had devised his business to his trustees on trust to allow his son to carry it on ‘upon the terms and conditions following’, ie, that he should pay certain annuities, and the only question was whether his son, having accepted the legacy, had incurred a personal liability; and the Vice-Chancellor said:162 ‘Now, upon the authority of the case of Messenger v Andrews,163 and even without the authority of that case, upon very plain principles of justice and law, the defendant, who admits that he has enjoyed the benefit given to him by a will upon the conditions expressed in it, is under a personal liability, which can be enforced in this court, of fulfilling those conditions.’ It is true that in the bill the plaintiff had claimed a declaration that the annuities were by the will charged on the business, but that question was not ventilated. In Re Hodge164 a testatrix devised to her husband, who was her executor and sole residuary legatee, certain freehold property in consideration of his paying her sister £2 a week for life. There it will be observed that a condition was introduced by the words ‘in consideration of’, and the judge came to the conclusion that there was a personal obligation on the husband, if he accepted the devise. I think there is very little difference between a bequest ‘in consideration of’ and a bequest ‘subject to’ the payment by the legatee of certain sums. In either case the words are apt to create a personal obligation. On the other hand, where there is no reference to the legatee as the person by whom the payment is to be made, but the property is merely given subject to the payment of a certain sum, it may well be that the effect is to create a charge on the property but not to impose a personal obligation on the legatee. The distinction is a fine, but, I think, a real one. Here where it is rightly, in my view, conceded that a personal obligation is imposed on the legatee to make the payment, I see no ground for saying that in addition a charge is created.

[2-37] The doctrine that a gift of the kind under consideration can amount to a personal equitable obligation directly enforceable against the donee of the property, although there be no trust, and whether or not there be in addition a charge over the property to secure the performance of the obligation, while, as noted above, lacking a firm basis in principle, provides a convenient and efficacious way of avoiding the often disastrous consequences of construing it as a mere condition of forfeiture, without straining the language of such expressions as ‘upon condition that’ in order to find therein an implied intention to create a trust or charge. [2-38] It is submitted that in the case of such a personal equitable obligation the rights of the obligee could, paradoxically, in some circumstances be greater than those of a cestui que trust [page 29] or mere chargee, in that the donee of the property could be required to perform the obligation even if it cost the donee more than the value of the property.165

[2-39] It is to be noted that a person may hold property which is not only charged with a payment to a third party, but also held on a condition creating an equitable personal obligation that A pay that sum to a third party. If a testator gives Blackacre to A on condition that he pay an annuity to B, and if the testator proceeds to make it clear that A is to be under a personal obligation to pay the amount to B irrespective of the value of Blackacre and that the payment is to be charged on Blackacre, then A will hold Blackacre subject both to an equitable personal obligation and to a charge. However, there will still be no trust because the equitable personal obligation and the charge are quite separate and it cannot be said that the personal obligation of A to pay the money is annexed to the property Blackacre.

Trustee and Executor [2-40] The origin of the offices of trustee and executor are quite different, but in modern times, largely as the result of statute, the two offices have a greater similarity than before. An executor, like a trustee, is in a fiduciary relation with the beneficiary and the essential elements of a trust are all present in executorship. However, although there are great similarities between the two offices, it is not possible to identify the position of an executor with that of a trustee. Their respective powers and duties differ in important respects.166 The principal duties of an executor are to get in the assets of the deceased, to pay debts, to pay the legacies given by the will, and to distribute the assets. If a testator appoints the same person as executor and trustee, which is usual nowadays, then that person acts as executor when performing executorial duties, and thereafter while continuing to hold the property is a trustee. However, if called upon at any future time to deal with assets in the estate which may be subsequently discovered, the person, although a trustee in respect of the balance of the property, will take the new assets as executor. Thus, the same person may be both executor and trustee in respect of different assets in the same estate. Further, if the executor carries out an instruction in the will to set aside a fund and hold it on trust for certain beneficiaries, he or she will become a trustee in respect of that property.167 An important result of this is that the subject matter of that fund will thereupon cease to be part of the general estate of the testator, and therefore if there is any loss to the subject matter of the fund, that loss will

fall on the beneficiaries of the fund, and not upon any other beneficiaries in the testator’s estate.168 This is part of the principle that an executor on assenting to a legacy holds the subject matter of the legacy as trustee for the legatee.169 An executor who has performed all executorial functions may become a trustee by merely continuing to hold property. When the executor becomes a trustee of ascertained property, the beneficiaries then become owners of equitable interests in that property. Thus a beneficiary under a will does not, by reason of the will alone, obtain any title, legal or equitable, to any [page 30] asset forming part of the testator’s estate. When a beneficiary does obtain such a title, it is obtained as a result of the administration of the estate of the testator according to law and in accordance with the dispositions of the will.170 It is now provided in some jurisdictions that if a person, who is appointed by will both executor and trustee thereof, renounces probate, or after being duly cited fails to apply for probate, the renunciation or failure shall be deemed to be a disclaimer of the trusts contained in the will.171 [2-41] In regard to the general duties and powers of executors, in all jurisdictions the provisions of the local trustee legislation apply, unless otherwise stated, to executors as well as to trustees. This arises from the definition of ‘trustee’ and ‘trusts’.172 The power contained in the legislation to appoint new trustees does not give power to appoint a person as an executor or administrator.173 So also the provisions permitting the retirement of a trustee from office do not, by express limitation or necessary implication, authorise any retirement from the office of an executor or administrator.174 [2-42] Certain sections of the Trustee Acts deal expressly with the rights of executors and administrators. For instance, an executor or administrator is expressly given power to pay or allow any debt or claim on any evidence thought sufficient.175 [2-43] An important difference which remains between the office of executor and that of trustee is that at common law one executor can bind the estate of the testator in a manner in which one of a number of trustees, who in the case

of a private trust must act unanimously, could not do.176 One executor may therefore in a proper case compromise with a co-executor a claim against the estate made by the latter.177 However, under s 153(4) of the Conveyancing Act 1919 (NSW), the right of one or some of several executors to sell or mortgage without the consent of all is made to depend on the leave of the court being first obtained.178 [2-44] Executors and administrators in most jurisdictions are given special powers in relation to the sale of land for the purposes of administration.179 An executor primarily holds the [page 31] estate of a testator for the purpose of administering it, for example, paying debts, funeral and testamentary expenses, and then holds the balance upon the trusts declared in the will. It is desirable that he or she should have a power of sale both of realty and personalty for that purpose. A trustee does not require such a power to sell the trust property, and therefore cannot sell it unless an express power to that effect is contained in the trust instrument. Since an executor can sell realty for the purposes of administration, but (in all states except Queensland and Western Australia)180 a trustee cannot sell in the absence of express power, it often becomes most important, where the instrument contains no express power of sale, to inquire whether the property the subject of the sale is held in the capacity of executor or of trustee. In practice it is not easy to determine exactly when a person ceases to act as executor and commences to hold the property as trustee. The test is clear — have the person’s executorial duties in respect of that property ended; but the difficulty in practice is to ascertain precisely whether that is the case.181 Fortunately, in respect of realty in New South Wales and Victoria, a purchaser is not bound to inquire whether the statutory power of sale for the purpose of administration is or has been exercised for that purpose.182 [2-45] In New South Wales, it is open to an executor in whom property is vested as executor and who is also appointed trustee of that property, at any time after all of the executorial duties with respect to the property have been duly performed, to declare by registered instrument in writing that he or she has

ceased to hold the property as executor, and that he or she holds the same as trustee.183

Trusts and Powers [2-46] A power is an authority to take a step which affects rights and obligations. The topic of administrative powers, such as powers of sale and powers of investment, is addressed in Chapter 20. Dispositive powers, known also as powers of appointment, are powers held by persons who are not the absolute owners of property whose exercise affects the beneficial ownership of property. The person in whom such a power is vested is the donee of the power, or the appointor. Powers of appointment may be general, special or intermediate.184 A general power of appointment permits the donee to exercise it in favour of any person, including the donee. It is thus virtually indistinguishable from ownership, and there are no parties on whose behalf equity might intervene. A special power of appointment is a power whose potential objects comprise a limited class. In the case of special powers it is often necessary to decide whether the language used in the will or settlement creates on the one hand a mere or bare power (or as it is sometimes called, a power collateral) or, on the other hand, a power in the nature of a trust or coupled with a trust. The former involves merely a power to appoint among a class with (generally) a gift-over in default of any appointment being made. The latter imposes an obligation on the donee to appoint among the class of third parties defined by the testator or settlor, the donee being required to select appointees from within that class. It follows that the doctrine of trust powers applies primarily to special powers of appointment. An intermediate [page 32] power of appointment (a power to appoint to all of the world except for some excluded class)185 would normally be a mere power but could, in special circumstances, be a trust power. The fundamental difference between a trust and a power of appointment is

that a trust is imperative, while a power is permissive. Further, there can be no trust without trust property vested in the trustee; but there is no need for the donee of a power of appointment to have any title to the property — authority to deal with property, such as that conferred by a power of attorney, is sufficient. This emphasises that powers, unlike trusts, may be legal or equitable.186 One aspect of the law on powers of appointment has been directly translated to the law of trusts, for in McPhail v Doulton,187 the House of Lords held that the test for certainty of object of powers was the same as that for trusts. This is addressed in Chapter 5.188

The Romalpa Clause [2-47] Romalpa clauses in contracts for the sale of goods represent attempts to place the sellers in a preferred position to secured creditors of the buyers, in particular to banks holding floating charges, when the buyer goes into receivership or liquidation without having paid the supplier. The clauses take their name from the English Court of Appeal decision in Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd.189 They have come before the High Court in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd;190 the House of Lords in the Scots appeal Armour v Thyssen Edelstahlwerke AG;191 and the English Court of Appeal in Borden (UK) Ltd v Scottish Timber Products Ltd192 and in Clough Mill Ltd v Martin.193 There are numerous decisions at first instance,194 by no means readily reconcilable each with the others. The first point to be noted is that, although it has become customary to speak of ‘Romalpa clauses’, the clauses considered in the decided cases were not uniform in text or in legal effect. Secondly, it is now necessary to analyse the position in light of the Personal Property Securities Act 2009 (Cth).195 Nevertheless, the following features may be identified as being generally present in such provisions: (a) the legal (or in some cases196 merely the beneficial) title in the goods supplied is to remain in the seller until all goods supplied (or in some cases,197 merely the particular goods in question) have been paid for, or all present indebtedness on any account has been paid;198

[page 33] (b) if the goods are resold by the buyer before the seller has been paid, the ‘entitlement’ of the seller will attach to the proceeds of resale or to the debt owed the buyer by the third party on the resale; (c) if payment becomes overdue (and it will be due if there is any act or proceeding involving the buyer’s solvency) the seller may recover and resell the goods; and (d) if the goods, before payment, are incorporated in or used as material for other goods, the property in those other goods will vest in the seller, and the seller’s ‘entitlement’ will attach to the proceeds of sale thereof and to the debt due to the buyer on such sale, but only for so long as the seller’s debt is unpaid. [2-48] This complex of provisions plainly may give rise to a range of legal and equitable relationships. The particular factual context will determine which of them receives attention by the court. Three issues run through the cases: (1) Does the seller have legal title as owner of the subject matter? (2) Does the seller have title as chargee of the subject matter? and (3) Does the seller have a beneficial interest in the subject matter arising from an obligation of the buyer to account as fiduciary? In the original Romalpa case, attention was directed to issue (3) and to para (b) of the clause discussed in the preceding paragraph. Could the sellers trace their title into the proceeds of sale by the buyers? The case was fought on the agreed basis that the buyers had taken custody of the goods as bailees, and the English Court of Appeal held that tracing was available, because in respect of the resold goods the buyer was, as Roskill LJ put it, under ‘an obligation to account in accordance with the normal fiduciary relationship of principal and agent, bailor and bailee’.199 Does this mean that any bailee of goods who sells them does so as fiduciary of the bailor? In Re Andrabell Ltd (in liq)200 and Compaq Computer Ltd v Abercorn Group Ltd,201 Peter Gibson J and Mummery J respectively were at pains to answer this question in the negative. They emphasised that Roskill LJ (and Goff LJ) had construed the clause before them as in terms expressly contemplating that the buyer resold as a fiduciary for and on account of the seller, such that the buyer would not be able to retain the

profit on the resales. In the case before him, Peter Gibson J, in holding that the seller had no equity to trace into the proceeds of sale and that there was no fiduciary relationship, stressed, inter alia, the lack of express acknowledgment of such a relationship, and the lack of an obligation on the buyer to keep proceeds of sale in a separate account.202 The clause considered by the High Court in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd203 did give rise to the buyer holding a specified proportion of the proceeds of sale for the unpaid seller, in accordance with the express language in the clause (and notwithstanding an absence of an obligation to keep those proceeds separate).204 [2-49] In the Romalpa case itself, no issue arose as to whether or not title to the goods remained in the seller, it being conceded that the legal title had been retained. There was therefore no occasion to examine para (a) of the clause described above in [2-47]. In Re Bond Worth Ltd,205 Slade J had to consider a clause which provided not simply for retention of ‘ownership’ by the [page 34] seller but for ‘equitable and beneficial ownership’ to remain with the seller until payment; it was not suggested that the seller retained the legal title. Slade J held that the legal title had passed to the buyer and that the contract in conferring on the seller an equitable interest until payment did so by way of security; this security was ineffective for want of registration under the companies legislation. The opposite result was reached by the English Court of Appeal in Clough Mill Ltd v Martin.206 It pointed to the Sale of Goods Act provisions which permit the parties to provide for the seller to retain property in the goods (that is, the legal title) until conditions imposed by the seller are fulfilled. In the case before the court, the receiver of the buyer was sued for conversion by the seller, he having denied the seller repossession of goods to which the seller asserted a right under a Romalpa clause, on the basis that the clause created a defective charge, as in Re Bond Worth Ltd.207 The Court of Appeal held that the seller had done no more than the sale of goods legislation permitted, and that no question of a charge arose because the legal title had remained throughout in the seller, in contrast to what had happened in Re Bond Worth Ltd. As Oliver LJ put it,208 ‘If in fact [the seller] has retained the legal title to the goods, then by definition the

buyer cannot have charged them back in his favour.’ This reasoning was applied by the House of Lords in Armour v Thyssen Edelstahlwerke AG209 (where the clause applied in respect of payment of all debts owed the seller by the buyer of the goods). Lord Keith said: Counsel … argued that the word ‘conditions’ in section 19(1) [of the Sale of Goods Act 1979 (UK)] must be read as excluding any condition which has the effect of creating a right of security over the goods. I am, however, unable to regard a provision reserving title to the seller until payment of all debts due to him by the buyer as amounting to the creation by the buyer of a right of security in favour of the seller. Such a provision does in a sense give the seller security for the unpaid debts of the buyer. But it does so by way of a legitimate retention of title, not by virtue of any right over his own property conferred by the buyer.

[2-50] The difficulty with this reasoning is that in characterising a transaction as one of security, equity looks beyond the form of words used and to the substance: Salt v Marquess of Northampton;210 Boydell v James;211 Gurfinkel v Bentley.212 Guest has observed213 that Romalpa clauses are not designed for use other than when the buyer becomes financially troubled, and they operate to give the buyer liberty to deal with the goods in the ordinary course of business, subject to security for the unpaid price. In Clough Mill Ltd v Martin,214 both Robert Goff LJ and Oliver LJ were prepared to concede that a purpose, if not the whole purpose, of the condition was to give the seller security for payment of the price.215 And in the same case, Robert Goff LJ and Oliver LJ,216 speaking obiter, were prepared to ‘do violence’ to para (d) of the Romalpa clause set out above in [2-47] (that dealing with the rights of the seller in respect of new goods made with the goods the seller sold the buyer) in order to hold that it conferred a charge thereon in favour of the seller. In so doing, Robert Goff LJ approved the decision of Vinelott J in Re Peachdart Ltd.217 But the English Court of Appeal in Clough Mill Ltd v Martin was not prepared to disregard the reservation of the legal title to the original goods so as to give any scope for treating the seller as only a chargee, still less as the object of fiduciary duties by the buyer. The seller remained the owner. The attraction to the seller (in cases where the seller [page 35] has parted with legal title) in treating the relationship with the buyer as fiduciary rather than one of debtor and secured creditor has been that it both

gives a proprietary remedy and avoids the consequences of non-compliance with the registration requirements of the companies legislation. But although in some aspects, for example the exercise of a power of sale, there is a fiduciary aspect to the relationship between debtor and secured creditor, that is not generally so;218 and the categorisation of a transaction as falling within one category rather than another is a matter of substance not form. No more than an express denial of partnership deters the court from finding a partnership,219 will an assertion that there is a fiduciary relationship foreclose a holding that there is a security. [2-51] Against this background, the following conclusions may be ventured as to the likely true status of the various limbs of the Romalpa clause described in [2-47]. First, the reservation to the seller of the beneficial title to the goods sold (as in Re Bond Worth Ltd),220 pending payment of the price, will in substance confer a charge over those goods. Secondly, the reservation of the legal title or of the ‘property’ in the goods in the sense of ownership will, semble, not confer a security, but will give the seller, on repudiation by the buyer (as on it going into liquidation), the right to retake possession, resell and prove for any shortfall or, as the case may be, keep any excess over the original price. This was something which, as Oliver LJ emphasised in Clough Mill Ltd v Martin,221 the seller could not do if the seller’s only interest in the goods was as chargee. Thirdly, where the issue is not one as to title to or possession of the original goods themselves, but to the proceeds of sale thereof there will be three possibilities, the decision depending on the particular facts: (1) the seller has no proprietary claim in respect of the proceeds;222 (2) the buyer sold the goods for and on behalf of the seller and must account for the proceeds as a fiduciary agent, thus giving the seller a tracing equity;223 or (3) the seller has a charge upon the proceeds of sale, this requiring registration under the companies legislation.224 Fourthly, where the goods have been used in manufacture of another product and the dispute is as to the entitlement to that product or to the proceeds of sale thereof, the Romalpa clause may not be so drawn as to reach what is a new and different product225 but, if it does extend so far, the interest it gives therein to

the seller of the original goods will be, despite any form of words suggesting a reservation of the original title, in substance, a charge for the unpaid price of the original goods.226 _____________________________ 1.

This passage, reformulated in accordance with Campbell JA’s suggestion, was approved in Visnic v Sywak (2009) 257 ALR 517 at [34], [48].

2. 3.

Erwin v Shannon’s Brick, Tile and Pottery Co Ltd (1938) 38 SR (NSW) 555 at 563, approved in Clay v Clay (2001) 202 CLR 410; 178 ALR 193 at [35]. See Meagher, Gummow and Lehane’s Equity, [5-005].

4. 5.

Nugent v Nugent [1908] 1 Ch 546; Lancet Pty Ltd v Olholm Developments Pty Ltd [2001] 1 Qd R 22. Expo International Pty Ltd (in liq) v Chant [1979] 2 NSWLR 820 at 830.

6.

Kingsmill v Lyne (1910) 13 CLR 292; Everingham v Everingham (1911) 12 SR (NSW) 5. See also Re Hallett’s Estate; Knatchbull v Hallett (1880) 13 Ch D 696 at 708–9; [1874–80] All ER Rep 793 at 796; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 101; 55 ALR 417 at 457–8; Brambles Security Services Ltd v Bi-Lo Pty Ltd [1992] Aust Torts Rep 81-161 at 61,275. But not all contracts of bailment created fiduciary duties, for example, Re Dibbens & Sons Ltd [1990] BCLC 577 at 582; Re Goldcorp Exchange Ltd [1995] 1 AC 74 at 98; [1994] 2 All ER 806 at 821–2. Lever Bros Ltd v Bell [1931] 1 KB 557 at 600; [1931] All ER Rep 1.

7. 8. 9.

Omnium Electric Palaces Ltd v Baines [1914] 1 Ch 332; Jubilee Cotton Mills Ltd v Lewis [1924] AC 958 at 964. Knowles v Scott [1891] 1 Ch 717; Thos Franklin & Sons Ltd v Cameron (1935) 36 SR (NSW) 286.

10. [1983] Ch 258 at 288; [1983] 2 All ER 563 at 585. See also Percival v Wright [1902] Ch 421; Clarkson v Davies [1923] AC 100 at 111; Mills v Mills (1938) 60 CLR 150 at 186–8. 11. Coleman v Myers [1977] NZLR 225; Brunninghausen v Glavanics (1999) 46 NSWLR 538; Crawley v Short (2009) 262 ALR 254 at [100]–[102]. 12. Walker v Wimborne (1976) 137 CLR 1 at 6–7; Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 at 634; [1981] 2 All ER 456; Jetivia SA v Bilta (UK) Ltd [2015] 2 WLR 1168; [2015] 2 All ER 1083 at [23]. 13. Nicholson v Permakraft (NZ) Ltd (1985) 3 ACLC 453 at 459–60; Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 at 730; West Mercia Safetywear Ltd (in liq) v Dodd [1988] BCLC 250; Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 11 ACSR 642 at 725; Linton v Telnet Pty Ltd (1999) 30 ACSR 465 at 471–6; Angas Law Services Pty Ltd v Carabelas (2005) 226 CLR 507; 215 ALR 110 at [67]. 14. See J D Heydon, ‘Director’s Duties and the Company’s Interests’ published as Ch 5 in P Finn (ed), Equity and Commercial Relationships, Law Book Co, Sydney, 1987, p 120. 15. See Angas Law Services Pty Ltd v Carabelas (2005) 226 CLR 507; 215 ALR 110 at [47]. 16. Re Somes [1896] 1 Ch 250 at 255; Vatcher v Paull [1915] AC 372 at 378; [1914–15] All ER Rep 609; Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 at 545; [1990] 1 WLR 1587 at 1613. 17. Re Bloye’s Trust (1849) 1 Mac & G 488; [1843–60] All ER Rep 1092; 47 ER 1630. 18. Dowsett v Reid (1912) 15 CLR 695; 19 ALR 15. 19. Melbourne Banking Corp Ltd v Brougham (1884) 7 App Cas 307.

20. Samuel v Farrah Timber & Wood Paving Corp Ltd [1904] AC 323; Barnes v Queensland National Bank Ltd (1906) 3 CLR 925; Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; 18 ALR 124; Australian Provincial Association v Coroneo (1935) 35 SR (NSW) 391; Forsyth v Blundell (1973) 129 CLR 477; 1 ALR 68; cf Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949; [1971] 2 All ER 633; Duke v Robson [1973] 1 All ER 481 and Medforth v Blake [2000] Ch 86; [1999] 3 All ER 97, in which the English Court of Appeal obscured the nature of the mortgagor–mortgagee relationship by treating the latter as bound to the former by a common law duty of care sounding in damages in negligence for breach. Australian decisions (Citicorp Australia Ltd v McLaughney (1984) 35 SASR 375; State Bank of New South Wales v Chia (2000) 50 NSWLR 587 at [878]; GE Capital Australia v Davis (2002) 11 BPR 20,529 at [66]–[72]) and some English decisions (Parker-Tweedale v Dunbar Bank plc [1991] Ch 12; [1990] 2 All ER 588; Downsview Nominees Ltd v First City Corp Ltd [1993] AC 295; [1993] 3 All ER 626) have emphasised that the source of the mortgagee’s obligation is in equity. See Meagher, Gummow and Lehane’s Equity, [2-215]. Australian statutes, including s 420A of the Corporations Act 2001 (Cth) and s 111A of the Conveyancing Act 1919 (NSW), now impose a duty to exercise reasonable care. 21. Lloyd-Jones v Clark-Lloyd [1919] 1 Ch 424. 22. Bray v Ford [1896] AC 44 at 51–2; [1895–9] All ER Rep 1009; Gluckstein v Barnes [1900] AC 240 at 255; Phipps v Boardman [1967] 2 AC 46; [1966] 3 All ER 721; BLB Corp v Jacobsen (1974) 48 ALJR 372; Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; 1 ALR 231; Green and Clara Pty Ltd v Bestobell Industries Pty Ltd [1982] WAR 1. See also L Sealy, ‘Fiduciary Relationships’ [1962] CLJ 69 and ‘Some Principles of Fiduciary Obligation’ [1963] CLJ 119 and P Finn, Fiduciary Obligations, 1976. The text merely states the general duty common to all fiduciaries. The incidents of this duty vary somewhat from one type of fiduciary to another as Mason J emphasised in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 96–104; 55 ALR 417 at 454–60. 23. Great Eastern Railway Co v Turner (1872) LR 8 Ch App 149 at 152; Bulfin v Bebarfald’s Ltd (1938) 38 SR (NSW) 423; Mills v Mills (1938) 60 CLR 150; Industrial Development Consultants Ltd v Cooley [1972] 2 All ER 162; [1972] 1 WLR 443. 24. Kingsmill v Lyne (1910) 13 CLR 292; Wicks v Bennett (1921) 30 CLR 80; 28 ALR 30; Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384; 35 ALR 273; Powell v Powell (1932) 32 SR (NSW) 407; Chan v Zacharia (1984) 154 CLR 178 at 196–7; 53 ALR 417 at 431–2. 25. Re International Vending Machines Pty Ltd and the Companies Act 1961 [1962] NSWR 1408 at 1419–20; (1961) 80 WN (NSW) 465 at 472; Mulkana Corp NL (in liq) (1983) 1 ACLC 1143; Daniels v Anderson (1995) 37 NSWLR 438 at 493–4; L Sealy [1967] CLJ 83. 26. Knox v Gye (1872) LR 5 HL 656 at 675–6 per Lord Westbury. See also Thos Franklin & Sons Ltd v Cameron (1935) 36 SR (NSW) 286; Erwin v Shannon’s Brick, Tile and Pottery Co Ltd (1938) 38 SR (NSW) 555 at 563; Clay v Clay (2001) 202 CLR 410; 178 ALR 193 at [41]; Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592; 215 ALR 1 at [26]. 27. This sentence was approved in Visnic v Sywak (2009) 257 ALR 517 at [34]. 28. Maguire v Makaronis (1997) 188 CLR 449 at 473; 144 ALR 729 at 744–5 per Brennan CJ, Gaudron, McHugh and Gummow JJ. 29. (1801) 6 Ves Jun 488; 31 ER 1159. 30. (1838) 3 My & Cr 490; 40 ER 1016. 31. [1914] AC 932; [1914–15] All ER Rep 45. 32. See Mills v Mills (1938) 60 CLR 150; Bulfin v Bebarfald’s Ltd (1938) 38 SR (NSW) 423; Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189. 33. See Chapter 13 ‘Constructive Trusts’. A partner who sells partnership assets, and with the proceeds

buys assets in the partner’s own name, is then a trustee of those assets for the partnership: Gordon v Gonda [1955] 2 All ER 762. 34. South Australian Insurance Co v Randell (1869) LR 3 PC 101; Davis v Heuber (1923) 31 CLR 583; Chapman v Verco (1933) 49 CLR 306; [1936] ALR 308; but a bailee may owe a fiduciary duty to the bailor in the terms discussed by Mason J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 101, 105–6; 55 ALR 417 at 457–8, 460–1. 35. To some extent the defences of a third party for value without notice have been established at law by legislation — cf Sale of Goods Act 1954 (ACT) s 29; Mercantile Law Act 1962 (ACT) s 6; Sale of Goods Act 1923 (NSW) s 28; Factors (Mercantile Agents) Act 1923 (NSW) s 5; Sale of Goods Act 1972 (NT) s 28; Sale of Goods Act 1896 (Qld) s 27; Factors Act 1892 (Qld) s 3; Sale of Goods Act 1895 (SA) s 25; Mercantile Law Act 1936 (SA) s 4; Sale of Goods Act 1896 (Tas) s 30; Factors Act 1891 (Tas) s 5; Goods Act 1958 (Vic) ss 30, 31, 67; Sale of Goods Act 1895 (WA) s 25. In Western Australia, the law as to mercantile agents appears to be contained in adopted imperial legislation, as amended by the Factors’ Acts Amendment Act 1878 (WA). 36. Kennedy v De Trafford [1897] AC 180 at 188; [1895–9] All ER Rep 408 at 412. 37. International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; Scott v Davis (2000) 204 CLR 333; 175 ALR 717 at [227]. 38. Cave v Mackenzie (1877) 46 LJ Ch 564 at 567 per Sir George Jessel MR. 39. Scott on Trusts, §2.3.4. 40. Burdick v Garrick (1870) LR 5 Ch App 233. 41. Burdick v Garrick (1870) LR 5 Ch App 233 at 243; Walker v Corboy (1990) 19 NSWLR 382 at 386, 389, 397; Jessup v Queensland Housing Commission [2002] 2 Qd R 270 at [12]; Parker v Higgins [2012] NSWSC 1516 at [556] (approving this paragraph). 42. Re Air Canada v M & L Travel Ltd (1993) 108 DLR (4th) 592 at 605. 43. Re Jones; Ex parte Mayne (1953) 16 ABC 169. 44. See also Chapter 13 ‘Constructive Trusts’. 45. Fitzgerald v Fitzgerald (1910) 10 SR (NSW) 488; Cohen v Cohen (1929) 42 CLR 91; 35 ALR 204. 46. Scott on Trusts, §2.3.8. As an example of the difficulty of distinguishing trust from debt, one may instance the ‘common trust fund’ created by the Trustee Companies Act 1964 (NSW). 47. Ex parte Broad (1884) 13 QBD 740. The first eight sentences of this paragraph were approved in Glover v Blumer [2008] ACTCA 1 at [40]. 48. For cases where this question has been considered, see Morgan v Lariviere (1875) LR 7 HL 423; Re Tidd [1893] 3 Ch 154. For a detailed discussion of the nature of the distinctions which have been drawn between trust and debt, see Scott on Trusts, §2.3.8. 49. [1970] AC 567; [1968] 3 All ER 651. 50. Forward to W Swadling (ed), The Quistclose Trust: Critical Essays, Hart Publishing, Oxford, 2004. 51. Including a book of critical essays: W Swadling (ed), The Quistclose Trust: Critical Essays (2004); see also R Chambers, Resulting Trusts, Clarendon Press, Oxford, 1997. Learned writings on the subject include those of L J Priestley, ‘The Romalpa Clause and the Quistclose Trust’ in P Finn (ed), Equity and Commercial Relationships, Law Book Co, Sydney, 1987, Ch 8; P Millett, ‘The Quistclose Trust: Who Can Enforce It?’ (1985) 101 LQR 269; C Rickett, ‘Different Views of the Scope of the Quistclose Analysis: English and Antipodean Insights’ (1991) 107 LQR 608; M Bridge, ‘The Quistclose Trust in a World of Secured Transactions’ (1992) 12 Ox JLS 333; C Rickett, ‘Trusts and Insolvency: The Nature and Place of the Quistclose Trust’ in D Waters (ed), Equity, Fiduciaries and Trusts, Carswell, Toronto, 1993, p 325; L Ho and P Smart, ‘Reinterpreting the Quistclose Trust: A

Critique of Chambers’ Analysis’ (2001) 21 Ox JLS 267; P Parkinson, ‘Reconceptualising the Express Trust’ (2002) 61 CLJ 657; P Turner, ‘Quistclose and Resulting Trusts’ (2005) 33 ABLR 392. 52. [2002] 2 AC 164; [2002] 2 All ER 377. 53. [1967] Ch 910; [1967] 1 All ER 864. 54. [1968] Ch 540; [1968] 1 All ER 613. 55. [1970] AC 567 at 580–2; [1968] 3 All ER 651 at 654–6. 56. Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 at 502–3; 102 ALR 681 at 691–3; see also Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 at [32]–[39]; cf Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 at [44]. 57. [1995] 1 AC 74 at 100; [1994] 2 All ER 806 at 823–4; see also Rose v Rose (1986) 7 NSWLR 679 at 685–6; Ausintel Investments Australia Pty Ltd v Lam (1990) 19 NSWLR 637 at 641; Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 425; Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 at [32]–[39]; Gliderol v Hall (2001) 80 SASR 541 at [21]–[31]; Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377 at [81]; Salvo v New Tel Ltd [2005] NSWCA 281 at [37]. In Compass Resources Ltd v Sherman (2010) 42 WAR 1 at [72], Beech J said, by reference to this paragraph, that it was clear that a Quistclose trust is not a distinct species of trust. 58. [1970] AC 567 at 581–2; [1968] 3 All ER 651 at 656. 59. [1975] 1 All ER 604; [1975] 1 WLR 279. 60. (2013) 249 CLR 493; 300 ALR 430 at [112]. 61. See [7-32]–[7-36]. 62. See Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377 at [99]; and see J Penner, ‘Lord Millett’s Analysis’ in W Swadling (ed), The Quistclose Trust: Critical Essays, Hart Publishing, Oxford, 2004, 41 at 52–3. 63. [2002] 2 AC 164; [2002] 2 All ER 377 at [80]–[81]. 64. [2004] 3 NZLR 157 at [41]. 65. Such labels are apt to confuse: see [3-07]; and see Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 at [112]–[116]. 66. See [2-23]. 67. P Turner (2005) 33 ABLR 392 at 395. 68. (1988) 20 FCR 194 at 199; 85 ALR 216 at 220. 69. [1987] BCLC 646, discussed by M Bridge (1992) 12 Ox JLS 333 at 353–4. 70. [1981] 1 NSWLR 742. 71. These and other possibilities are canvassed by the New Zealand Court of Appeal in General Communications Ltd v Development Finance Corp of New Zealand Ltd [1990] 3 NZLR 406 at 432–3. 72. [1975] 1 All ER 604; [1975] 1 WLR 279. 73. [1985] Ch 207; [1985] 1 All ER 155. 74. Bankruptcy Act 1966 (Cth) s 122; Corporations Act 2001 (Cth) s 588FA. 75. Insolvency Act 1986 (UK) s 239. 76. [1989] VR 940 at 943–9. 77. Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762; Dunlop v Selfridge [1915] AC 847; [1914–15] All ER Rep 333; Midland Silicones Ltd v Scruttons Ltd [1962] AC 446; [1962] 1 All ER 1; Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 All ER 571; [1980] 1 WLR 277.

78. (1956) 95 CLR 43; [1956] ALR 311. 79. (1988) 165 CLR 107; 80 ALR 574. 80. West v Houghton (1879) 4 CPD 197; The Albazero [1977] AC 774 at 841–6; [1976] 3 All ER 129 at 132–6; and see [2-20]. This should be contrasted with the position in tort, where a plaintiff may recover in damages the value of services provided and to be provided by a third party, although the plaintiff is under no legal obligation to pay for those services: Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387; Kars v Kars (1996) 187 CLR 354; 141 ALR 37. 81. See [2-25]. 82. Re Flavell (1883) 25 Ch D 89 at 90; [1881–5] All ER Rep 267 at 268. 83. West v Houghton (1879) 4 CPD 197. 84. Colyear v Mulgrave (1836) 2 Keen 81; 48 ER 559. 85. See Justinian’s Institutes 3.19; R Lee, Elements of Roman Law, 4th ed, Sweet & Maxwell, London, 1956, pp 353–5. 86. See per Simonds J in Re Stapleton-Bretherton [1941] Ch 482; [1941] 3 All ER 5. 87. Re Schebsman [1944] 1 Ch 83 at 102–4; [1943] 2 All ER 768 at 778–9. 88. (1948) 21 ALJ 424. 89. (1966) 119 CLR 460 at 501–2; [1967] ALR 385 at 410–11. 90. [1962] SR (NSW) 455 at 472. 91. (1880) 16 Ch D 290 at 321. 92. [1892] 1 QB 147 at 153, 157–8. 93. [1980] 1 All ER 571; [1980] 1 WLR 277. 94. [1975] 3 All ER 92; [1975] 1 WLR 1468. 95. Hohler v Aston [1920] 2 Ch 420. 96. [1968] AC 58, particularly at 90, 91, 102; [1967] 2 All ER 1197 at 1213, 1214, 1221; and see Aristoc Industries Pty Ltd v R A Wenham (Builders) Pty Ltd [1965] NSWR 581; Meagher, Gummow and Lehane’s Equity, Ch 20. 97. (1966) 119 CLR 460; [1967] ALR 385. 98. See R King, Gutteridge and Megrah’s Law of Bankers’ Commercial Credits, 8th ed, Routledge, London, 2003; A Davis, The Law Relating to Commercial Letters of Credit, 3rd ed, Butterworths, London, 1963. 99. [1977] AC 774; [1976] 3 All ER 129. 100. [1966] AC 451; [1966] 1 All ER 418. 101. The Winkfield [1902] P 42; [1900–3] All ER Rep 346. 102. [1977] AC 774 at 847; [1976] 3 All ER 129 at 137. 103. [1994] AC 85 at 114–15; [1993] All ER 417 at 436. 104. [1995] 1 WLR 68 at 74, 79–80; [1995] 3 All ER 895 at 901, 907. See N Palmer and G Tolhurst (1997) 12 JCL 1, 97; B Coote (2001) 117 LQR 92; Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518; [2000] 4 All ER 97. 105. See Garnac Grain Co v HMF Fame and Fairclough Ltd and Bunge Corp [1966] 1 QB 650 at 683–4; [1965] 3 All ER 273 at 286 per Diplock LJ, who demonstrated that this alternative rarely works. 106. Shanklin Pier Ltd v Petel Products Ltd [1951] 2 KB 854 at 856; [1951] 2 All ER 471 at 472. 107. New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154; [1974] 1 All ER 1015; Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (The New York

Star) [1980] 3 All ER 257; (1980) 144 CLR 300; The Mahkutai [1996] AC 650; [1996] 3 All ER 502. The result is now supported by s 6(5) of the Contracts (Rights of Third Parties) Act 1999 (UK), to the extent that that legislation is applicable. 108. In Tomlinson v Gill (1756) Amb 330; 27 ER 221. 109. (1817) 3 Mer 582; 36 ER 224. 110. Except perhaps by Lord Denning MR in Jackson v Horizon Holidays Pty Ltd [1975] 3 All ER 92 at 95; [1975] 1 WLR 1468 at 1472–3. 111. [1919] AC 801. 112. (1956) 95 CLR 43; [1956] ALR 311. 113. Re D’Angibau (1880) 15 Ch D 228; Re Empress Engineering Co (1880) 16 Ch D 125; Lloyds v Harper (1880) 16 Ch D 290; Re Flavell (1883) 25 Ch D 89; [1881–5] All ER Rep 267; Gandy v Gandy (1885) 30 Ch D 57; Re Schebsman [1944] 1 Ch 83; [1943] 2 All ER 768. 114. See the tests for intention to create a trust stated in [5-02]. 115. (1953) 89 CLR 286 at 319. In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574, the same view was taken by Mason CJ and Wilson J (at 120; 582), Deane J (at 146; 602) and Dawson J (at 156; 608–9). 116. For a more detailed summary of the procedural aspects of the beneficiary’s rights to enforce such a trust, see J Starke (1948) 21 ALJ 455 at 458–9. 117. (1817) 3 Mer 582; 36 ER 224. 118. (1895) 16 LR (NSW) Eq 59. Examples of cases where the courts have held that a trust under these circumstances has been created are: Lloyd’s v Harper (1880) 16 Ch D 290; Re Flavell (1883) 25 Ch D 89; [1881–5] All ER Rep 267; Royal Exchange Assurance v Hope [1928] Ch 179; [1927] All ER Rep 67; Birmingham v Renfrew (1937) 57 CLR 666; [1937] ALR 520. Cases where the courts have not found a trust are: Colyear v Mulgrave (1836) 2 Keen 81; 48 ER 559; Foster v Genowlan Shale Co (1895) 16 LR (NSW) Eq 59; Goodwin v Goodwin (1916) 16 SR (NSW) 503; Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70; [1932] All ER Rep 527; Re Stapleton-Bretherton [1941] Ch 482; [1941] 3 All ER 5; Re Schebsman [1944] 1 Ch 83; [1943] 2 All ER 768; Purves v Smith [1944] VLR 186; Green v Russell [1959] 2 QB 226; [1959] 2 All ER 525. See J Starke, ‘Contracts for the Benefit of Third Parties’ (1948) 21 ALJ 382 at 422, 455; (1949) 22 ALJ 67. 119. This theory is supported by Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 157; [1891–4] All ER Rep 335; Re Englebach’s Estate [1924] 2 Ch 348 at 353; Ryder v Taylor (1935) 36 SR (NSW) 31. It has also gained the adherence of Myers J in ‘Third Party Contracts’ (1953) 27 ALJ 175 at 176–7, and of Jacobs J (as he became) in the 1st edition of this book. 120. Page v Cox (1851) 10 Hare 163; 68 ER 882. 121. Page v Cox (1851) 10 Hare 163; 68 ER 882; Re Flavell (1883) 25 Ch D 89; [1881–5] All ER Rep 267; Byrne v Reid [1902] 2 Ch 735; Re Gordon [1940] 1 Ch 851; Re Webb [1941] Ch 225; [1941] 1 All ER 321. 122. (1956) 95 CLR 43 at 67–8; [1956] ALR 311 at 322. 123. See, for example, Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70 at 79–80; [1932] All ER Rep 527 at 533; Re Webb [1941] Ch 225; [1941] 1 All ER 321; Re Schebsman [1944] Ch 83 at 104; [1943] 2 All ER 768 at 779; Green v Russell [1959] 2 QB 226 at 231; [1959] 2 All ER 525 at 531–2. 124. (1956) 95 CLR 43 at 67; [1956] ALR 311 at 322. 125. (1988) 165 CLR 107 at 120–1, 146–7; 80 ALR 574 at 582–3, 602; Salvo v New Tel Ltd [2005] NSWCA 281 at [33]–[36].

126. (1880) 16 Ch D 290. 127. See Tomlinson v Gill (1756) Amb 330; 27 ER 221; Lamb v Vice (1840) 6 M & W 466; 151 ER 495; Robinson v Waite (1853) 8 Ex 299; 155 ER 1360; Pugh v Stringfield (1858) 4 CB (NS) 364; 140 ER 1125; Lloyd’s v Harper (1880) 16 Ch D 290; Re Parkin [1892] 3 Ch 510; Re Cavendish-Browne’s Settlement Trusts [1916] WN 341; Prudential Staff Union v Hall [1947] KB 685; Darlington Borough Council v Wiltshier Northern Ltd [1995] 3 All ER 895; [1995] 1 WLR 68. It is submitted that this is anomalous because, in accordance with ordinary principles, the measure of damages for breach of contract would be the actual damage suffered by B. See also generally Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762; Dunlop v Selfridge [1915] AC 847; [1914–15] All ER Rep 333. 128. The problems which can arise from a provision such as subs 11(2) when the promisee is not joined in the action are illustrated by Westralian Farmers Co-operative Ltd v Southern Meat Packers Ltd [1981] WAR 241. There, as McHugh J pointed out in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 288, the buyer of certain cattle was required to pay twice. See also JWH Group Pty Ltd v Kimpura Pty Ltd (2004) 61 IPR 295 at [110]. 129. (2000) 202 CLR 588; 171 ALR 568 at [6]. 130. This paragraph was approved in Truthful Endeavour Pty Ltd v Condon (Trustee); Re Rayhill (Bankrupt) (2015) 321 ALR 483 at [84]. 131. King v Denison (1813) 1 V & B 260 at 272–3; 35 ER 102 at 106–7 per Lord Eldon. It should be noted, however, that in the special case of a provision (by will or deed) directing a payment to one person and expressing an intention that the payment be applied towards the maintenance, education or the like, of another person, there is considerable authority for the view that, even if the provision be interpreted as a trust, any surplus moneys should belong to the first person. See the discussion of the cases by Dixon J in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] ALR 362 and Hourigan v Trustees, Executors & Agency Co Ltd (1934) 51 CLR 619; [1934] ALR 283. And see also Re Foord [1922] 2 Ch 519; [1922] All ER Rep 166, where a gift in a home-made will to a person ‘absolutely on trust for’ a purpose which did not exhaust the subject matter was construed as vesting the surplus in that person beneficially. (Cf Re Rees [1950] Ch 204; [1949] 1 All ER 609.) The correctness of the cases which are authority for such a proposition, and the precise nature and extent of the principle which they establish if they are correctly decided, is obscure. Perhaps the matter is best viewed as a question of construction in each particular case, namely, what (if any) are the terms of the trust? 132. (2000) 202 CLR 588; 171 ALR 568 at [5], [51]. 133. Hewett v Court (1983) 149 CLR 639 at 663; 46 ALR 87 at 104–5. See F Burns, ‘The Equitable Lien Rediscovered: A Remedy for the 21st Century’ (2002) 25(1) UNSWLJ 1. 134. Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96; Worrell v Power and Power (1993) 46 FLR 214; 118 ALR 237; Re H & W Wallace Ltd (in liq) [1994] 1 NZLR 235; Firth v Centrelink (2002) 55 NSWLR 451; Twigg v Kung (2002) 55 NSWLR 485. 135. Hewett v Court (1983) 149 CLR 639 at 667–9; 46 ALR 87 at 108–9. 136. 5th ed, Bancroft-Whitney, San Francisco, 1941, p 1239. 137. Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 at 174–5; [1933] ALR 107 at 108–9. 138. (1991) 31 FCR 222; 102 ALR 551; Lockwood v White (2005) 23 ACLC 379. The same reasoning applies to administrators: Weston v Carling Constructions Pty Ltd (in prov liq) (2000) 35 ACSR 100. 139. Calverley v Green (1984) 155 CLR 242 at 263; 56 ALR 483 at 497; Muschinski v Dodds (1985) 160 CLR 583 at 598; 62 ALR 429 at 438. 140. Morris v Morris [1982] 1 NSWLR 61; Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26.

141. Giumelli v Giumelli (1999) 196 CLR 101; 161 ALR 473 at [10]. 142. Re Oliver (1890) 62 LT 533 at 535. See also Wright v Wilkin (1862) 2 B & S 232; 121 ER 1070; Merchant Taylors’ Co v A-G (1871) LR 6 Ch App 512; Cunningham v Foot (1878) 3 App Cas 974; Goodman v Mayor of Saltash (1882) 7 App Cas 633; Hogden v Hogden (1956) 74 WN (NSW) 67. And see Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619; [1934] ALR 283, where the High Court held that a bequest of residue ‘to my wife to be used … at [discretion] in educating and providing for my two sons’ gave to the wife a beneficial interest in the residue subject to a trust or charge to educate and provide for her two sons as in her discretion seemed proper. See also Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] ALR 362; Re Boning [1997] 2 Qd R 12. But cf Re Brace [1954] 2 All ER 354; [1954] 1 WLR 955. 143. [1970] VR 352. 144. [1971] 2 NSWLR 494. 145. (1926) 39 CLR 16. See also Re Smith [1967] VR 341, where the distinction between a charitable trust and a condition subsequent is discussed. 146. This paragraph was approved by Young CJ in Eq in Hammond v Hammond [2007] NSWSC 106 at [13]. 147. (1921) 21 SR (NSW) 400. 148. (1921) 21 SR (NSW) 400 at 407. But in Re Brace [1954] 2 All ER 354; [1954] 1 WLR 955, the words ‘on condition that she will always provide a home for my daughter’ were held to be void for uncertainty, and in any case to be precatory only. 149. (1921) 21 SR (NSW) 400 at 406. 150. (1856) 23 Beav 33; 53 ER 13. 151. (1885) 54 LT 105. Re Williames was followed and applied by Rath J in Perpetual Trustee Co Ltd v Godsall [1979] 2 NSWLR 785 at 793. 152. [1901] 1 IR 489. 153. (1921) 21 SR (NSW) 400 at 407. 154. [1942] Ch 324; [1942] 1 All ER 646. 155. (1921) 21 SR (NSW) 400. 156. [1942] Ch 324 at 325–6; [1942] 1 All ER 646 at 646–7. 157. (1830) 1 Russ & My 571; 39 ER 219. 158. (1860) 7 Jur NS 441. 159. (1871) LR 12 Eq 225. 160. [1901] 1 IR 489. 161. [1920] 1 IR 122. 162. Rees v Engelbach (1871) LR 12 Eq 225 at 237. 163. (1828) 4 Russ 478; 38 ER 885. 164. [1940] Ch 260. 165. This proposition was considered and tentatively approved by Young CJ in Eq in Hammond v Hammond [2007] NSWSC 106 at [13]. 166. Thus, for example, it used to be said that, where a person held property either as executor or trustee, in neither event did the person have the beneficial interest in the property, holding it in autre droit for the legatees and devisees under the will (subject to payment of debts, etc) in the former case and in trust for the cestui que trust in the latter. It is now doubtful how far it can accurately be said that

an executor is not the beneficial owner of the assets of the deceased. See Commissioner of Stamp Duties v Livingston (1960) 107 CLR 411; [1961] ALR 534 (HC); (1964) 112 CLR 12; [1964] 3 All ER 692; [1965] AC 644 (PC); Re Hayes’ Will Trusts [1971] 2 All ER 341 at 347; [1971] 1 WLR 758 at 764–5; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313–14; 96 ALR 327 at 331–2. 167. See, for an example where it was important to distinguish the offices, In the will of Eva Orloff (2010) 24 VR 603, especially at [27]–[31]. 168. Brougham v Poulett (1855) 19 Beav 119; 52 ER 294. 169. See Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135. These propositions were approved in ParkesLinnegar v Watson [2011] NSWSC 37 at [16]. 170. Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224 at 227. See also Martin v Martin (1903) 3 SR (NSW) 156; Solomon v Attenborough [1913] AC 76; [1911–13] All ER Rep 155. This has some important practical consequences, one of which is that great care must be taken not to apply for the appointment of a new administrator if the estate has been fully administered, the correct course being to apply for the appointment of a new trustee: Re Ponder [1921] 2 Ch 59; [1921] All ER Rep 164; Harvell v Foster [1954] 2 QB 367; [1954] 1 All ER 851; Re Cockburn’s Will Trusts [1957] Ch 438; [1957] 2 All ER 522; Re Dunn [1963] VR 165. 171. ACT s 10; NSW s 10; Qld s 18; Vic s 46; WA s 12. 172. NSW s 5; Qld s 5; SA s 4(1); Tas s 4; Vic s 3(1); WA s 6. 173. ACT s 6(14); NSW s 6(12); NT s 11(7); Qld s 12(9); SA s 14(7); Tas s 13(6); Vic s 48(2); WA s 7(9). 174. ACT s 8(7); NSW s 8(7); NT s 12; Qld s 14; SA s 15; Tas s 14; Vic s 44; WA s 9. 175. NSW s 49(2); SA s 28(1); Tas s 24(1); Vic s 19(1)(c). In some jurisdictions the legal representative of a deceased person who holds shares not fully paid up in any incorporated company may distribute the assets of the estate when he or she has procured the registration of some other person as the holder of the shares, without reserving any portion of the estate for the payment of any calls made after the date of registration of such other person: ACT s 61A; NSW s 61A; Qld s 75; Vic s 34; WA s 74. 176. Astbury v Astbury [1898] 2 Ch 111; Attenborough v Solomon [1913] AC 76; [1911–13] All ER Rep 155. But where one only of a number of executors has purported to deal with estate property a court of equity will not as of course lend its aid for the effectuation of the transaction; it will insist on being satisfied as to the propriety of the terms, and especially the price, before granting relief as against the estate and depriving the beneficiaries of the property; see Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487. 177. Re Houghton [1904] 1 Ch 622; [1904–7] All ER Rep 486. And, e converso, in legal proceedings against executors an admission by one executor binds the co-executors; and in an ejectment action a denial of the claimant’s title by one executor defendant binds the co-executors so as to enable the claimant in an appropriate case to forfeit a lease: Warner v Sampson [1958] 1 QB 404; [1958] 1 All ER 44. 178. See Union Bank v Harrison Jones and Devlin (1910) 11 CLR 492. 179. Conveyancing Act 1919 (NSW) s 153; Administration and Probate Act 1935 (Tas) s 39; Administration and Probate Act 1958 (Vic) s 44; Administration Act 1903 (WA) s 10. 180. Sections 32 and 27 respectively of the Queensland and Western Australian Acts give a statutory power of sale of all trust property. 181. Re Claremont [1923] 2 KB 718. 182. Conveyancing Act 1919 (NSW) s 154(3); Administration and Probate Act 1958 (Vic) s 44; Property Law Act 1958 (Vic) s 34.

183. Trustee Act 1925 (NSW) s 11(1). 184. Lutheran Church of Australia South Australia District Inc v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545. 185. Re Manisty [1974] Ch 17; [1973] 2 All ER 1203; Re Hay’s Settlement Trusts [1981] 3 All ER 786; [1982] 1 WLR 202; Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] 3 All ER 76 at [35]. 186. This paragraph was approved in Forrest v Commissioner of Taxation [2010] FCAFC 6 at [24]. 187. [1971] AC 424; [1970] 2 All ER 228. 188. For other aspects of the law of powers, see Thomas on Powers, 2nd ed, Oxford University Press, 2012. 189. [1976] 2 All ER 552; [1976] 1 WLR 676, discussed by R Goode (1976) 92 LQR 360, 528 at 550–2 and (1983) 8 Canadian Business Law Journal 53 at 73–5 and by G McCormack, ‘Reservation of Title — Past, Present, and Future’ (1994) 58 Conv 129. 190. (2000) 202 CLR 588; 171 ALR 568, noted D Ong (2000) 12 Bond LR 148; J Riley (2001) 15 CLQ 23. 191. [1991] 2 AC 339; [1990] 3 All ER 481. 192. [1981] Ch 25; [1979] 3 All ER 96. 193. [1984] 3 All ER 982; [1985] 1 WLR 111. 194. See, for example, Re Bond Worth Ltd [1980] Ch 223; [1979] 3 All ER 919; Re Peachdart Ltd [1984] Ch 131; [1983] 2 All ER 204; Hendy Lennox (Industrial Engines) Ltd v Grahame Puttick Ltd [1984] 2 All ER 152; [1984] 1 WLR 485; Re Andrabell Ltd (in liq) [1984] 3 All ER 407; ICI New Zealand Ltd v Agnew [1998] 2 NZLR 129; Guthrie v Radio Frequency Systems Pty Ltd (2000) 34 ACSR 572. 195. See A Duggan, ‘Romalpa Agreements Post-PPSA’ (2011) 33 SydLR 645; B Collier, P von Nessen and A Collier, ‘The PPSA: Continuing the Reconceptualisation of Retention of Title (Romalpa) Security’ (2011) 34 UNSWLJ 567. 196. See, for example, Re Bond Worth Ltd [1980] Ch 223; [1979] 3 All ER 919. 197. See, for example, Re Andrabell Ltd (in liq) [1984] 3 All ER 407 at 415. 198. As in Armour v Thyssen Edelstahlwerke AG [1991] 2 AC 339; [1990] 3 All ER 481. 199. [1976] 2 All ER 552 at 563–4; [1976] 1 WLR 676 at 690. 200. [1984] 3 All ER 407. 201. [1991] BCC 484. Re Weldtech Equipment Ltd [1991] BCLC 393, a decision of Hoffmann J, was an even clearer case. There, the clause stated that the assignment to the seller by the buyer of the goods of debts which third parties incurred to the buyer took place ‘only for securing our claims against [the buyer]’. 202. [1984] 3 All ER 407 at 414–15. 203. (2000) 202 CLR 588; 171 ALR 568. 204. Notwithstanding the clause not being struck down by the Corporations Act 2001 (Cth), the seller failed on the facts to establish that any payments made by the third party related to the goods supplied by the seller to the buyer: at [53]–[56]. 205. [1980] Ch 223; [1979] 3 All ER 919. 206. [1984] 3 All ER 982; [1985] 1 WLR 111. 207. [1980] Ch 223; [1979] 3 All ER 919. 208. [1984] 3 All ER 982 at 992; [1985] 1 WLR 111 at 123. 209. [1991] 2 AC 339 at 353; [1990] 3 All ER 481 at 485. 210. [1892] AC 1.

211. (1936) 36 SR (NSW) 620. 212. (1966) 116 CLR 98. 213. (1979) 95 LQR 477 at 481; see also W Goodhart and G Jones, ‘The Infiltration of Equitable Doctrine Into English Commercial Law’ (1980) 43 Mod L Rev 489. 214. [1984] 3 All ER 982; [1985] 1 WLR 111. 215. [1984] 3 All ER 982 at 990, 991–2; [1985] 1 WLR 111 at 121, 122. 216. [1984] 3 All ER 982 at 990, 993; [1985] 1 WLR 111 at 120, 124. 217. [1984] Ch 131; [1983] 3 All ER 204. 218. Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 102; 55 ALR 417 at 458. 219. Adam v Newbigging (1888) 13 App Cas 308. 220. [1980] Ch 223; [1979] 3 All ER 919. 221. [1984] 3 All ER 982 at 991–2; [1985] 1 WLR 111 at 122–3. 222. As in Re Andrabell Ltd (in liq) [1984] 3 All ER 407. 223. As in the Romalpa case itself. 224. As in Re Bond Worth Ltd [1980] Ch 223; [1979] 3 All ER 919. That case was concerned both with the original goods sold (fibre), yarn made from the fibre, carpets made from the yarn, and proceeds of sale of the carpets. It was held that in respect of all these assets the Romalpa clause in substance conferred a charge to secure payment of the price of the fibre. See also ICI New Zealand Ltd v Agnew [1998] 2 NZLR 129. 225. As in Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3 All ER 961. 226. Re Peachdart Ltd [1984] Ch 131; [1983] 3 All ER 204; Clough Mill Ltd v Martin [1984] 3 All ER 982 at 990, 993, 994; [1985] 1 WLR 111 at 120, 124, 125; cf New Zealand Forest Products v Pongakawa Sawmill Ltd (1991) 5 NZCLC 67,085 at 67,089–67,090.

[page 36]

CHAPTER 3 The Classification of Trusts Express, Resulting and Constructive Trusts Express Trusts Resulting Trusts Constructive Trusts

[3-01] [3-06] [3-07] [3-08]

Some Modern Types of Trust Unit Trusts Discretionary Trusts Bare Trusts Trading Trusts Blind Trusts Custodian Trustees Advisory Trustees Trustees and Protectors The Trustee as Monopolist

[3-09] [3-10] [3-14] [3-15] [3-16] [3-17] [3-18] [3-19] [3-20] [3-21]

Express, Resulting and Constructive Trusts [3-01] Trusts may be classified in various ways according to the aspect on which emphasis is placed, but four methods of classification are generally recognised. First, trusts may be classified according to whether they have arisen by the settlor’s express declaration of intention or by operation of law. The latter category may itself be subdivided into two classes, depending on whether the trust arises because of the settlor’s presumed intention or because the circumstances are such that it would be inequitable to allow the legal owner of

property to hold it beneficially, even though there is no intention to create a trust. Thus this classification depends upon intention and trusts are classified according to whether they have arisen by reason of the settlor’s express intention, or the settlor’s presumed intention, or by imposition of equity despite the fact that there has been no intention, either express or presumed, to create a trust. The nomenclature used to designate these classes has varied in the past, and remains the subject of debate.1 Nevertheless, the first class is usually termed express or declared, [page 37] the second resulting or implied, and the third constructive.2 Something more is said of these three classes below.3 [3-02] Secondly, express or declared trusts may in turn be divided into two classes according to whether their object is to benefit individuals irrespective of any benefit which may be conferred upon the public at large, or to promote the public welfare, although incidentally private individuals may be benefited. Trusts of the first class are termed private and, of the second, public or charitable. Trusts in either class may be created inter vivos or by will. [3-03] Thirdly, express trusts may also be divided into two classes according to the form in which the settlor manifests an intention to create the trust. The settlor may have stated the limitations of the trust in full, so that nothing more is required in order to perfect it, in which case the trust is said to be executed. On the other hand, the settlor may have expressed merely an outline of intention, leaving something still to be done to perfect the trust, in which case the trust is said to be executory. [3-04] Finally, trusts may be classified according to the nature of the duties imposed upon the trustee. A trust may thus be simple or special. A simple trust is one in which the trustee has no active duties to perform beyond the conveyance of the property to the beneficiaries when required to do so. In such a case, the trustee is called a passive or bare trustee. If the trustee has duties prescribed by the settlor in connection with the trust property so that something more is

required than merely to convey the trust property to the beneficiaries, the trust is called a special trust and the trustee an active trustee. [3-05] It is therefore possible to classify trusts in the following ways:4 (1) From the point of view of intent to create a trust. Here, trusts are either: (a) express or declared; or (b) resulting or implied; or (c) constructive. (2) From the point of view of the objects of the trust. Here, trusts are either: (a) private; or (b) public or charitable. (3) From the point of view of the nature of the duties imposed upon the trustee. Here, trusts are either: (a) simple; or (b) special. (4) From the point of view of the form of the declaration of trust. Here, trusts are either: (a) executed; or (b) executory. Those classifications are not of mere academic interest. Some statutes are expressed in terms which depend on the classification.5 Certain formalities are required to evidence express trusts [page 38] which are necessarily inapplicable to trusts which are not express.6 Charitable trusts are more favourably treated than private trusts.7 The terms of executory trusts are interpreted more liberally than executed trusts.8 The division of trusts into express, resulting and constructive trusts requires further consideration.

Express Trusts

[3-06] In the case of an express or declared trust, the creator will ordinarily have used language which expresses an intention to create a trust. The author of the trust has meant to create a trust, and has used language which explicitly or impliedly expresses that intention, either orally or in writing.9 The fact that a trust was intended may even be deduced from the conduct of the parties concerned but if there is any uncertainty as to intention, there will be no trust. References to ‘intention’ in this context are to be understood, no differently than in the law of contract, as references to the intention imputed to the parties by what has been objectively manifested by the words used considered in their context.10 It is not always easy to state with assurance whether a trust is express or constructive.11 For example, the sort of trust involved in cases like Rochefoucauld v Boustead12 and that sort of testamentary trust known as a ‘secret trust’13 both arise out of express words and on one view should be categorised as express trusts, but are often treated as constructive trusts.14 Likewise, the socalled Quistclose trust is described in England as a resulting trust,15 but in Australia as an express trust.16 However, the requirement of an imputed intention marks a conceptual distinction between express and constructive trusts.17

Resulting Trusts [3-07] This class of trusts is best described as resulting trusts, to avoid confusion both with those express trusts where the requisite intention is established not by the settlor’s express words but is implied from the imperfectly expressed words and conduct of the settlor, and also with the usage by those who would classify constructive trusts as a species of implied trust. It reflects the overwhelming contemporary usage in Australia and England.18 They are so called because the trust property reverts or ‘results’ to the settlor, by reason of an intention [page 39] presumed by law in the absence of an intention by the settlor.19 This occurs in two sets of circumstances.20 First, where A pays for the purchase of property

which is vested in another, it is presumed that the property is held on trust for A, although that presumption may be rebutted by the counter-presumption of advancement or by direct evidence that A intended beneficial ownership to pass. Secondly, where A transfers property to another on express trusts, but the trusts declared do not exhaust the whole beneficial interest, in which case the unexhausted residue is held on trust for A. These have been styled ‘presumed’ and ‘automatic’ resulting trusts21 although, in both cases, the resulting trust responds to the whole or partial absence of A’s intention to transfer beneficial interest to another.22

Constructive Trusts [3-08] Most constructive trusts are imposed regardless of actual or presumed intention.23 In a passage approved by the High Court in Giumelli v Giumelli,24 Professor Scott wrote: It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court ‘constructs a trust’. The expression is, of course, absurd. The word ‘constructive’ is derived from the verb ‘construe’, not from the verb ‘construct’. The court construes the circumstances in the sense that it explains or interprets them; it does not construct them.

The term is used in various senses,25 usually involving both the holding of property by the trustee and a personal liability to account. However, some constructive trusts create or recognise no proprietary interest, but instead merely impose a personal liability to account in the same manner as an express trustee as, for example, a person who dishonestly procures or assists in a breach of trust or fiduciary obligation.26 This was pointed out very clearly by Millett LJ in Paragon Finance plc v DB Thakerar & Co27 and (as Lord Millett) in Dubai Aluminium Co Ltd v Salaam.28 This sense, which is plain from what Lord Selborne said in Barnes v Addy,29 is a large reason for the difficulty in the terminology of ‘constructive trust’.30

Some Modern Types of Trust [3-09] The express trust, naturally, appears in many forms. As Maitland said, ‘It is an “institute” of great elasticity and generality; as elastic, as general, as contract.’31 Some modern uses of trusts are examined below.

[page 40]

Unit Trusts32 [3-10] Unit trusts are an extension into the field of commerce of the typical family trust (where settlors transfer property to a trustee on trust for their children in equal shares). In recent years there has been an enormous growth in Australian investment through unit trusts, accompanied on occasion by spectacular losses, which led in turn to the regulation of managed investment schemes under Ch 5C of the Corporations Act 2001 (Cth).33 Instead of a trustee (ordinarily a professional trustee company) owning the trust property and a separate manager (ordinarily a private company) responsible for making investment decisions, those functions are now combined in a ‘responsible entity’, which is required to be licensed and which operates a ‘managed investment scheme’. Transitional provisions brought this result about in the case of trusts which pre-dated the provisions.34 By statute, the responsible entity holds scheme property on trust for scheme members.35 Judicial advice is available to it under the Trustee Acts.36 In the case of a unit trust, the scheme property is divided into a large number of units, which may, subject to their terms, be issued, redeemed and traded publicly and privately. [3-11] The unit trust is not a modern invention. In the nineteenth century, it was well known under the name of a management trust. Indeed, it was but one type of the old deed of settlement company, differing from other types only in that it did not carry on any business of its own but merely invested in those of other persons.37 After the passing of the Companies Acts it virtually disappeared because of the decision in Sykes v Beadon38 that it was an illegal association of more than 20 persons carrying on business for a profit, contrary to those Acts. However, the English Court of Appeal took a different view in Smith v Anderson.39 It relied on the ground that a unit trust was not a partnership, since the unit holders (unlike partners) had no mutual rights and obligations inter se. It also relied on the ground that the unit trust did not ‘carry on business’ itself but merely invested in the business of others. Shortly before the Second World War the unit trust, by that time well established both on the continent and in the United States, again became popular.40

[3-12] From an investor’s commercial point of view, owning units in a unit trust serves the same function as owning shares in a company. Legally, however, this is not so. As the High Court of Australia pointed out in Charles v Federal Commissioner of Taxation:41 [A] unit held under this trust deed is fundamentally different from a share in a company. A share confers upon the holder no legal or equitable interest in the assets of the company; it is a separate piece of property … But a unit in the trust deed before us confers a proprietary interest in all the property which for the time being is subject to the trusts of the deed.

Under the deed in Charles’ case, the trustee was bound to make half-yearly distributions to unit holders. More commonly these days, the deeds will contain provisions to the effect that [page 41] unit holders have only the rights given under the deed, no interest in any particular scheme property, no power to lodge a caveat, and no right to require a transfer of any trust property; the responsible entity will have discretionary powers to invest, to make provision for future and contingent liabilities, and to distribute net income.42 Those provisions mean that unit holders do not, at least in some statutory contexts, enjoy beneficial ownership of trust property.43 [3-13] What are the advantages of a unit trust? One advantage which formerly existed was that one could offer units to the public without contravening the legislative restrictions which forbade the offering of shares to the public without a registered prospectus; but this advantage has long since been nullified by the legislation referred to above. Another is that there may be taxation advantages from a unit trust.44 A third advantage is that there is no legal obstacle to the manager of a trust repurchasing a unit at a price equal to its market value, whereas in the case of shares this would require a reduction of capital (except in the special case of redeemable preference shares). But there can be disadvantages. In the first place, while legislation is continually moving towards the greater protection of unit holders, many doctrines (such as the doctrine of fraud on a minority) obviously applicable to companies have no counterpart in the law of unit trusts; and many specific provisions imposed by company legislation for the protection of shareholders in a company do not apply to unit trusts.45 In the second place, there can be

problems if the trust assets include assets like mining tenements and Crown lands, where there exist legislative provisions against acquiring such assets or interests in such assets without ministerial consent. Since each unit holder has an interest in each asset, is a sale by a unit holder of a unit to another member of the public invalid unless ministerial consent is obtained? Much will depend, of course, on the precise nature of the transaction involved and the precise terms of the legislation in question; clearly there is a danger, but that is probably avoided by providing that unit holders have no proprietary interest in the underlying assets. Thirdly, while the right to redeem the units is a most attractive feature from the investor’s point of view, it would create obvious practical havoc if a large number of unit holders exercised that right simultaneously. Finally, unless the right be expressly negatived in the trust deed, there is the possibility that a unit holder’s liability extends not only to permitting the trustee to have recourse to the trust assets but also to indemnifying the trustee personally.46 However, if the deed is appropriately worded, unlimited liability in the unit holder may be avoided.

Discretionary Trusts [3-14] The meaning of the expression ‘discretionary trust’ primarily is a matter of usage not doctrine.47 It is used to identify a species of express trust, one where the entitlement of beneficiaries to income, or to corpus, or both, is not immediately ascertainable; rather, the beneficiaries are selected from a nominated class by the trustee or some other person and this power (which may be a special or hybrid power) may be exercisable once or from time to time.48 The person with the right to select the cestui que trust thus holds a special power of appointment.49 Persons entitled in default of appointment might or might not be [page 42] nominated. The chief interest of discretionary trusts is that a member of the class of possible objects of appointment has no proprietary interest in the trust assets (unless there is no other discretionary object),50 although the member does have standing to compel the proper administration of the trust.51

Bare Trusts [3-15] The term ‘bare trust’ is often used to describe a trust in which the trustee has no ‘active duties’ to perform. However, in Corumo Holdings Pty Ltd v C Itoh Ltd,52 it was pointed out that as a matter of strict logic almost no situation could be postulated where a trustee in some circumstances does not have active duties to perform by, for example, being immediately bound to transfer the trust property to the beneficiary who was absolutely entitled. Furthermore, a trustee may be entitled by statutory provision or the terms of a trust instrument or court order to charge fees and may have a lien or charge upon the trust assets for those fees. The trustee may also have a lien upon the assets for costs properly incurred in the performance of an obligation to safeguard the trust property.53 Yet it may still be appropriate to describe this as a ‘bare trust’. Thus a more precise use of the term ‘bare trustee’ is to identify a trustee who has no interest in the trust assets other than that existing by reason of the office of trustee and the holding of the legal title, and who never has had active duties to perform or who has ceased to have those duties with the result that in either case the property awaits transfer to the beneficiaries or at their direction.54 Under the general law, there are two circumstances in which it is relevant to consider whether or not a trust is a ‘bare trust’. The first concerns the question of possession: a beneficiary is entitled to the possession of the trust assets if the trust be a ‘bare trust’, but not otherwise. The second concerns the effect of the creation of a sub-trust. If A holds property on trust for B, and B declares a trust of B’s interest in favour of C then, if the intermediate trust is a ‘bare trust’ but not otherwise, it is arguable (but not certain) that the effect of B’s declaration of trust is to bring A and C into a direct relationship, so that A becomes a trustee for C.55 Both these matters are discussed in Chapter 22. The term ‘bare trust’ is also used in various statutes and in each case, the meaning of the expression will take its colour from the statutory context.56

Trading Trusts [3-16] One power which a trustee may have is to carry on a business. This commonly occurs in testamentary trusts where the deceased was carrying on the

business. The power must be express; it will not be implied. This is discussed in Chapter 20. Nowadays, largely [page 43] because of Australian tax laws, it can be more advantageous for someone wishing to embark on a business enterprise not to do so by operating through a limited liability company, but to establish a trust with extensive powers of carrying on business. This is the ‘trading trust’.57 Conceptually it presents no problem, but it can give rise to practical problems of some magnitude, particularly on insolvency. This is especially so when persons dealing with the trustee of such a trust do not realise that a trust is involved at all, or that the trustee has no beneficial interest in the assets which are ostensibly owned. The problems are exacerbated when the trustee is a company of negligible paid-up capital, and compounded when the company which is a trustee carries on business on its own behalf as well as the trust business. These problems are discussed in Chapter 21.

Blind Trusts [3-17] In normal trusts, the trustee is under a positive duty to provide information to a cestui que trust.58 However, in the United States and Canada, there has arisen an institution called a ‘blind trust’ where, for political reasons, not only is the duty to inform expressly negatived, but an obligation is imposed on the trustee to keep secret from the cestui que trust all (or some) details of the state of the trust’s investments and of their value. It has not yet been imported into Australia, at least on any scale.

Custodian Trustees [3-18] Following English legislation,59 both Queensland60 and Western Australia61 have introduced the concept of custodian trustees, while the legislation of Victoria,62 South Australia63 and Tasmania64 permits the Public Trustee (in Victoria, State Trustees) to be appointed a custodian trustee. New South Wales legislation is innocent of the concept. In custodian trusteeship the

title to trust property is vested in the custodian trustees, but the powers of management remain in the ordinary trustees. The reasons advanced in favour of custodian trustees are twofold: (1) that where trustees are natural persons but by statute a custodian trustee must be a corporation, all problems of devolution and vesting on a change of trustees are avoided; and (2) that the possibility of misappropriation by a trustee is made more difficult if the trustee is deprived of all title to the trust property. Strictly speaking, in such a case, the ordinary trustees are not trustees at all; they lack one of the four elements of a trust, since no trust property is vested in them; but, since they have all the powers of a trustee stricto sensu, they also have all the trustee’s responsibilities and liabilities. Even in jurisdictions where no special legislation exists (for example, New South Wales), the trust instrument itself often establishes custodian trustees, in circumstances where neither of the two suggested reasons for their existence could explain their creation. The fact that a custodian trustee is not concerned with the management of a trust does not make inapplicable the rule that a trustee may not make a profit out of the trust. In Re Brooke Bond & Co Ltd’s Trust Deed,65 Cross J held that an insurance company which was custodian [page 44] trustee of a pension fund could not, without the authority of the court, enter into a contract of insurance with the management trustees to secure the payment of benefits under the fund.

Advisory Trustees [3-19] There is statutory provision in all states except New South Wales and South Australia for the appointment of ‘advisory trustees’ to act with the Public Trustee, and in Western Australia to act with any trustee.66 Just as a ‘custodian trustee’ fulfils no purpose except to be a repository of the legal title, an ‘advisory trustee’ fulfils the opposite purpose: no title can vest in an advisory trustee,

whose only function is to advise the trustees. In truth, an advisory trustee is not a trustee at all. Bearing in mind the ease with which trustees can take advice in any event, it is not easy to see the point of these creatures.

Trustees and Protectors [3-20] The statutory creations of ‘custodian trustee’ and ‘advisory trustee’ are particular examples of division permitted by the general law between the holding of the legal title to the trust property and control of the administration and management of that property. An example is a trust created by John D Rockefeller in which the settlor selected a committee of family and business associates with broad powers of control over the administration of the trust. It was held67 that these included power to treat as capital a dividend which otherwise would have been apportioned between income and capital. The powers so vested in a third party may include that of removal and appointment of trustees, and enlargement of the investment powers of the trustees.68 The investment, by the terms of the trust, of such third parties with significant powers has been a feature of trusts set up in international ‘tax havens’ and in the argot of practitioners in this field such third parties have been styled ‘protectors’.69 One question that may arise is whether, in a given case, the selection of the ‘protector’ by or pursuant to the trust instrument is but a sham, in the true sense of that term,70 so that the ‘protector’ is to be treated as bearing the full measure of the duties and liabilities, if not also the rights, the protector would have if expressly designated as trustee. Another is whether the ‘protector’ holds its powers as a fiduciary (and is liable to control by the court as such) or whether they are bare powers. A third question is whether, in a given case, the trustee bears personal liability to the beneficiaries for complying or failing to comply with directions given by the ‘protector’, particularly where the ‘protector’ has acted in breach of fiduciary duty and the trustee knows or suspects this. The resolution of such issues will be provided by the general principles of trust law as they apply to the particular case.71 [page 45]

The Trustee as Monopolist [3-21] The expression ‘anti-trust’ which is received usage among restrictive trade practices lawyers has its origin in the creation by Mr Rockefeller and his associates of a trust, the trustees of which held the shares in some 40 companies which controlled over 90% of a particular industry. The shares were held on trust for beneficiaries who received ‘trust certificates’ representing an interest in the corporate aggregation. This and like trusts were held unlawful at general law, on the grounds that it was ultra vires the individual corporations to merge their powers of self-control in this way, and that the purpose of the trusts was one in restraint of trade.72 The term ‘trust’ then came to be applied loosely to all forms of monopoly, by whatever device created or enforced, and was used as such in the Sherman Act 1890. _____________________________ 1.

Thus Underhill, Law of Trusts and Trustees, 12th ed, pp 9–10 (cf 19th ed, pp 89–92) denoted all trusts arising by operation of law as ‘constructive’, while P Millett (1998) 114 LQR 399 at 406 would denote all those trusts as ‘implied’. One aspect of the problem is the reference to ‘implied’ trusts in the modern legislation embodying the Statute of Frauds, which was mysterious to Sir Arthur Underhill when he wrote of the subject in 1889 in his Practice and Concise Manual of the Law Relating to Private Trusts and Trustees, 3rd ed, Butterworths, London, p 12. See A Hudson, Equity and Trusts, 8th ed, Routledge, London, 2014, pp 48–9; P Matthews, ‘The Words Which Are Not There: A Partial History of the Constructive Trust’ in C Mitchell (ed), Constructive and Resulting Trusts, Hart Publishing, Oxford, 2010, p 3 at pp 11–17.

2.

See, for example, Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; 151 ALR 1 at [8]. See [3-06]–[3-08].

3. 4. 5.

A classification applied in Ku v Song (2007) 63 ACSR 661 at [60]. Notably, the modern counterparts of s 4 of the Statute of Frauds 1677 (Eng); see also ‘express trustee’ in limitation statutes, considered in Clay v Clay (2001) 202 CLR 410; 178 ALR 193 and ‘constructive trustee’ considered in Williams v Central Bank of Nigeria [2014] AC 1189; [2014] 2 All ER 489.

6. 7.

See Chapter 7. See Chapter 10.

8. 9.

See Chapter 8. This passage in the previous edition was described as usefully succinct in Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 at [5].

10. Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [13]–[18], [46]–[66], [98]–[118]. 11. See P Millett (1998) 114 LQR 399; C Rickett (1999) 18 NZULR 305. 12. [1897] 1 Ch 196, discussed in Chapter 7. 13. Also discussed in Chapter 7; see also Ch 14 in C Mitchell and P Mitchell (eds), Landmark Cases in

Equity, Hart Publishing, Oxford, 2012; W Swadling, ‘The Nature of the Trust in Rochefoucauld v Boustead’ in C Mitchell (ed), Constructive and Resulting Trusts, Hart Publishing, Oxford, 2009, p 95. 14. See Voges v Monaghan (1954) 94 CLR 231 at 233, 235, 237; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414 at [39]. 15. Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377. 16. Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491; 102 ALR 681. See Chapter 2. 17. Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 at [9]. 18. See Nelson v Nelson (1995) 184 CLR 538; 132 ALR 133; Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; [1996] 2 All ER 961; Air Jamaica Ltd v Charlton [1999] 1 WLR 1399; Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377. 19. For that reason, the term ‘presumed trust’ has its advocates: see, for example, C Rickett and R Grantham (2000) 116 LQR 15, but this sits ill with the influential classification of Megarry J in Re Vandervell’s Trusts (No 2) [1974] Ch 269; [1974] 1 All ER 47. 20. Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 708; [1996] 2 All ER 961 at 990. 21. Re Vandervell’s Trusts (No 2) [1974] Ch 269; [1974] 1 All ER 47; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431; 40 ALR 1. 22. Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 at [45]. 23. Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414 at [40]. 24. (1999) 196 CLR 101; 161 ALR 473 at [2]. 25. Indeed, Lord Sumption JSC has said that ‘there are few areas in which the law has been so completely obscured by confused categorisation and terminology as the law relating to constructive trustees’: Williams v Central Bank of Nigeria [2014] AC 1189; [2014] 2 All ER 489 at [7]. 26. (1999) 196 CLR 101; 161 ALR 473 at [4]. 27. [1999] 1 All ER 400 at 408–9. 28. [2003] 2 AC 366; [2003] 1 All ER 97 at [140]–[143]; see also Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073 at 1095; [1968] 1 WLR 1555 at 1579; Williams v Central Bank of Nigeria [2014] AC 1189; [2014] 2 All ER 489 at [9]; Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; 311 ALR 494 at [69]–[70]. 29. (1874) LR 9 Ch App 244. 30. Williams v Central Bank of Nigeria [2014] AC 1189; [2014] 2 All ER 489 at [9]. 31. F Maitland, Equity: A Course of Lectures, Cambridge University Press, Cambridge, 1936, p 23. 32. On unit trusts, see generally L C B Gower, Modern Company Law, 4th ed, pp 266–72; H Ford, ‘Unit Trusts’ (1960) 23 MLR 129; H Ford, ‘Public Unit Trusts’ in R Austin and R Vann (eds), The Law of Public Company Finance, Law Book Co, Sydney, 1986, p 397; K Sin, The Legal Nature of the Unit Trust, Clarendon Press, Oxford, 1998. 33. See ALRC 65, Collective Investments — Other people’s money (1993), Ch 1. 34. See Re Investa Properties Ltd (2001) 187 ALR 462 at [10]–[19]. 35. Corporations Act 2001 (Cth) s 601FC(2). 36. Re Mirvac Ltd (1999) 32 ACSR 107 at [40]–[41]; MTM Funds Management Ltd v Cavalone Holdings Pty Ltd (2000) 35 ACSR 440 at [14]–[22]; Re Westfield Holdings Ltd (2004) 49 ACSR 734 at [3]. 37. Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 230–1; Bailey v Medical Defence Union (1995) 184 CLR 399 at 436–7; 132 ALR 1 at 27.

(1879) 11 Ch D 170, dealing with a deed settled by Fry QC (of Specific Performance fame) where one 38. of the trustees had been Lord Westbury. 39. (1880) 15 Ch D 247; [1874–80] All ER Rep 1121. 40. See Commissioner of Taxation v ElecNet (Aust) Pty Ltd (2016) 329 ALR 310 at [73]–[77]; J Markham, A Financial History of the United States, M E Sharpe, New York, 2002, pp 323–5; Pettit, pp 17–18; H Ford (1960) 23 Mod L Rev 129. 41. (1954) 90 CLR 598 at 609; [1954] ALR 405 at 409. 42. See, for example, MSP Nominees Pty Ltd v Commissioner of Stamps (SA) (1999) 198 CLR 494; 166 ALR 149; CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; 221 ALR 196. 43. CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; 221 ALR 196 at [29]– [40]. 44. See, for example, Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639; ISPT Nominees Pty Ltd v Commissioner of State Revenue (NSW) (2003) 59 NSWLR 196; 53 ATR 527. 45. But cf Vigliaroni v CPS Investment Holdings Pty Ltd (2009) 74 ACSR 282 (where the ‘affairs of a company’ were held to extend to the unit trust of which it was a trustee). 46. J W Broomhead (Vic) Pty Ltd v J W Broomhead Pty Ltd [1985] VR 891; Balkin v Peck (1998) 43 NSWLR 706; Kendell v Carnegie (2006) 68 NSWLR 193. 47. Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; 151 ALR 1 at [8]; see M Leeming (2015) 89 ALJ 371 at 374. 48. Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551–2. 49. See [2-46]. 50. See [23-15]. 51. C v B [2007] 1 Qd R 212 at [26]. The Family Law Act 1975 (Cth) establishes a regime under which it has been held that rights in relation to a discretionary trust amount to property: see especially Kennon v Spry (2008) 238 CLR 366; 251 ALR 257; J Gleeson (2010) 84 ALJ 177; P Parkinson (2012) 26 AJFL 5. 52. (1991) 24 NSWLR 370 at 398. 53. See Chapter 21. 54. Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281–2. See also Corin v Patton (1990) 169 CLR 540 at 579; 92 ALR 1 at 28; Body Corporate St James Apartments v Renaissance Assets Pty Ltd [2005] V ConvR 54-695 at [6]; Wade v Wade [2009] WASC 118 at [78]. 55. This paragraph as it appeared in the 5th edition was approved in Thorpe v Bristile Ltd (1996) 16 WAR 500 at 505. 56. Examples are the Vendor and Purchaser Act 1874 (UK) considered in Re Docwra (1885) 29 Ch D 693; the Land Transfer Act 1875 (UK) considered in Morgan v Swansea Urban Sanitary Authority (1878) 9 Ch D 582; the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) considered in Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271; and subs 8(8) of the Companies (NSW) Code 1981 (NSW) construed in Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370; see now Corporations Act 2001 (Cth) s 609(2). See also Re Cunningham and Frayling [1891] 2 Ch 567 at 571–2. 57. See K Lindgren, ‘The Birth of the Trading Trust’ (2011) 5 J Eq 1. See also Levin v Ikiua [2010] 1 NZLR 400 at [97]–[127]. 58. See [17-13]–[17-17]. 59. Public Trustee Act 1906 (UK) s 14. See also Public Trust Office Act 1957 (NZ) s 50.

60. Trusts Act 1973 (Qld) s 19. 61. Trustees Act 1962 (WA) s 15; Public Trustee Act 1941 (WA) s 22. 62. Public Trustee Act 1958 (Vic) s 24; see also Trustee Act 1958 (Vic) s 71. 63. Public Trustee Act 1995 (SA) s 17. 64. Public Trustee Act 1930 (Tas) ss 23–24; see also Trustee Companies Act 1953 (Tas) s 18B. 65. [1963] Ch 357; [1963] 1 All ER 454. See generally Public Trustee (Qld) v Optus Capital Ltd (2013) 96 ACSR 493 at [20]; Hancock v Rinehart (2015) 106 ACSR 207 at [171]–[177]. 66. Public Trustee Act 1978 (Qld) s 41; Public Trustee Act 1930 (Tas) s 22; State Trustees (State Owned Company) Act 1994 (Vic) s 9; Trustees Act 1962 (WA) s 14; Public Trustee Act 1941 (WA) s 21. 67. Chase National Bank v Chicago Title & Trust Co 279 NYS 327 at 345–50 (1935), affirmed 284 NYS 472 (1936), affirmed 3 NE 2d 205 (1936). 68. Re Rank’s Settlement Trusts [1979] 1 WLR 1242. The powers in that case had been conferred pursuant to an order made under the Variation of Trusts Act 1958 (UK). 69. See Underhill and Hayton, pp 51–60; P Matthews, ‘Protectors: Two Cases, Twenty Questions’ (1995) 9 Trust Law 108; A Oakley (ed), Parker & Mellows Modern Law of Trusts, 9th ed, Sweet & Maxwell, London, pp 203–7; D Waters, ‘The Protector: New Wine in Old Bottles?’ in A Oakley (ed), Trends in Contemporary Trust Law, Clarendon Press, Oxford, 1996, p 63; Harris v Rothery [2013] NSWSC 1275 at [73]. 70. Steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 472; 211 ALR 101 at [46]; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; 215 ALR 253 at [26]; Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [54]–[82]. 71. Scott on Trusts, §16.7. 72. People v North River Sugar Refining Co 24 NE 834 (1890); State v Standard Oil Co 30 NE 279 (1892).

[page 46]

CHAPTER 4 Capacity to Create a Trust Minors

[4-02]

Persons of Unsound Mind

[4-06]

Bankrupts

[4-07]

Corporations

[4-08]

[4-01] An express trust may be created by a declaration inter vivos or by will. The person enabled by law to declare a trust of property is its beneficial owner.1 Generally speaking, capacity to create a trust is coextensive with capacity to hold and dispose of any legal or equitable interest in property. The following paragraphs deal with cases where capacity may not be straightforward.

Minors [4-02] In all Australian jurisdictions,2 legislation now provides that persons will have, on attaining the age of 18, full capacity for all purposes of the law of that jurisdiction. At common law, minors who are under the age of discretion are incapable of creating a trust inter vivos, for they are taken as having insufficient understanding of what is involved, or insufficient discretion to exercise sound judgment. There is authority that the age of discretion is 14 for males and 16 for females,3 although the preferable view is that it depends on the understanding of the particular child and the nature of the particular transaction. In New South Wales, where the most elaborate legislative provision has been made, the

statute refers to the ‘age of understanding’,4 which although undefined presumably refers to the common law age of discretion. In contrast with other legal systems, a parent or guardian does not have, at common law, the right to dispose of the minor’s property.5 [4-03] In jurisdictions other than New South Wales, a trust inter vivos created by a minor after having reached the age of discretion is voidable and not void, and, unless repudiated when or within a reasonable time after the minor comes of age, would then be binding.6 [page 47] Where there is consideration for the settlement — and this is usually found to exist because the settlement of a minor is generally a marriage settlement — the contract is of that class of minor’s contract which is valid and binding on the minor until disaffirmed either before or within a reasonable time after attaining majority. It would appear, however, that even in the absence of consideration, a settlement by a minor will be governed by the same rule. A minor may make a valid gift of chattels or personal property and if he or she makes such a gift upon declared trusts and then dies before attaining majority, the trust will stand.7 [4-04] In New South Wales, there are elaborate provisions8 as to dispositions of property (which are defined to include the creation of a trust) by minors above the ‘age of understanding’. If the trust is created ‘for his benefit’ then it is ‘presumptively binding’ upon the minor; if the settlement is voluntary, however, it is presumptively binding only if it was ‘reasonable at the time it was made’. The term ‘presumptively binding’ in effect means as binding as if the actor had been of full age; dispositions not inherently of this character may be made so, during minority — by the court, after majority — by affirmation, and after death — by legal personal representatives. [4-05] The law as to creation of testamentary trusts is less complex. At common law, infant males aged 14 and upward and infant females aged at least 12 could make valid wills of personalty;9 but in all states a higher age is stipulated by statute. In all jurisdictions, the age of testamentary capacity for wills disposing of either realty or personalty is now 18; in all states except

Western Australia, a married minor can make a will, and in New South Wales, South Australia, Tasmania and Victoria, a will made by a minor in contemplation of marriage will be valid upon the solemnisation of the marriage.10 In New South Wales, a court may grant an unmarried minor leave to make a will.11 Additionally, in South Australia and the Australian Capital Territory, a minor who is on military service may make a will;12 in other jurisdictions, these provisions have been superseded by broader provisions governing informal wills.13

Persons of Unsound Mind [4-06] Provision has long been made by statute for the control, custody and power of disposition of persons incapable of managing their own affairs to pass to the Crown, in which case a purported declaration of trust is void.14 The High Court considered in some detail the effect of conveyances and contracts by persons of unsound mind, but whose capacity had not been removed by statute, in Gibbons v Wright.15 The following propositions emerge: (1) A contract or conveyance is void, both at common law and in equity, if the person was unaware and did not intend to sign the document, such that ‘his mind did not go with his pen’ and a plea of non est factum could be made.16 [page 48] (2) Powers of attorney are subject to a special rule. If a person executes a power of attorney while lacking the capacity to understand its general purport, it is void.17 (3) All other contracts and conveyances executed by persons who knew they were signing a document, but lacked the capacity to understand the nature of the transaction (that is, the general purport of the instrument or the effect of a wider transaction which the instrument is a means of carrying out), are not void, but may be voidable by the person or his or her representative, upon proof that the other party did not act in good faith or had knowledge of the person’s lack of capacity.18

The same principles apply to trusts created by settlements made inter vivos for valuable consideration, and no different principles apply in respect of voluntary settlements.19 Similar principles apply to persons temporarily incapacitated by alcohol.20

Bankrupts [4-07] Control of a bankrupt’s property vests in the trustee in bankruptcy; a purported declaration of trust by a bankrupt is therefore void. However, a bankrupt does have a right to the surplus after distribution and can validly constitute a trust in respect of that property.21

Corporations [4-08] A corporation has the legal capacity and powers of an individual.22 Even if the corporation’s constitution or objects restrict or prohibit the exercise of its powers, an exercise of power is not invalid merely because it is contrary to the restriction or prohibition.23 _____________________________ 1.

Tierney v Wood (1854) 19 Beav 330 at 335–6; 52 ER 377 at 379.

2.

Age of Majority Act 1974 (ACT) s 5; Minors (Property and Contracts) Act 1970 (NSW) s 8; Age of Majority Act (NT) s 4; Law Reform Act 1995 (Qld) s 17; Age of Majority (Reduction) Act 1971 (SA) s 3; Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of Majority Act 1972 (WA) s 5. Mills v IRC [1973] Ch 225 at 240; [1972] 3 All ER 977 at 986.

3. 4. 5.

Minors (Property and Contracts) Act 1970 (NSW) s 18. Field v Moore (1855) 7 De G M & G 691 at 706–7; 44 ER 269 at 274–5; Homestake Gold of Australia v Peninsular Gold Pty Ltd (1996) 20 ACSR 67 at 75–6.

6.

Duncan v Dixon (1890) 44 Ch D 211; Edwards v Carter [1893] AC 360; [1891–4] All ER Rep 1259; Carnell v Harrison [1916] 1 Ch 328; [1916–17] All ER Rep 827; and see Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 at [45]–[62]. Taylor v Johnston (1882) 19 Ch D 603. In so far as it was held in this case that the gift was not even voidable within a reasonable time after majority, it would seem that this decision cannot stand: Williams on Vendor & Purchaser, 4th ed, pp 848–9; Halsbury’s Laws of England, 5th ed, Vol 52, 2014, [211].

7.

8.

Minors (Property and Contracts) Act 1970; see D Harland, The Law of Minors, Butterworths, Sydney, 1974.

9. Bishop v Sharp (1704) 2 Vern 469; 23 ER 902. 10. Succession Act 2006 (NSW) s 5; Succession Act 1981 (Qld) s 9; Wills Act 1936 (SA) s 5(3); Wills Act 2008 (Tas) s 7; Wills Act 1997 (Vic) s 6. 11. Succession Act 2006 (NSW) s 16; and see Application of M (2000) 50 NSWLR 401 and P Powell (1993) 67 ALJ 25 at 27. 12. Wills Act 1936 (SA) s 11; Wills Act 1968 (ACT) s 16. 13. See, for example, Wills Act 2008 (Tas); Wills Amendment Act 2007 (WA); and R Croucher and P Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013, p 318. 14. Re Walker [1905] 1 Ch 160 at 171–3, 179; Re Marshall [1920] 1 Ch 284 at 288–9; [1920] All ER Rep 190 at 191–2; Gibbons v Wright (1954) 91 CLR 423 at 439–40; [1954] ALR 383 at 387. In New South Wales, see NSW Trustee and Guardian Act 2009 (NSW) Ch 4. 15. (1954) 91 CLR 423; [1954] ALR 383. 16. (1954) 91 CLR 423 at 443–4; [1954] ALR 383 at 389–90. Blomley v Ryan (1956) 99 CLR 362 at 401; Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66 at [65]. 17. (1954) 91 CLR 423 at 444–5, 448; [1954] ALR 383 at 390–1, 393. 18. (1954) 91 CLR 423 at 438, 441; [1954] ALR 383 at 386, 388. 19. Crago v McIntyre [1976] 1 NSWLR 729 at 742–74. 20. Matthews v Baxter (1873) 8 Exch 132. 21. Bird v Philpott [1900] 1 Ch 822 at 828; [1900–3] All ER Rep 439 at 442–3. 22. Corporations Act 2001 (Cth) s 124(1). For some limitations to, and the approach taken to, this section, see J Campbell, ‘Corporate Law, the Courts and Corporate Personality’ (2015) 33 C&SLJ 227. 23. Corporations Act 2001 (Cth) s 125.

[page 49]

CHAPTER 5 Express Trusts — Certainty of Intention, Subject Matter and Object Certainty of Intention to Create a Trust

[5-02]

Sham Trusts

[5-04]

Precatory Trusts

[5-05]

Illusory Trusts Revocable Mandates Directions as to Management Governmental ‘Trusts’ Commercial Transactions Communication of Intention

[5-12] [5-13] [5-17] [5-20] [5-22] [5-23]

Certainty of Subject Matter

[5-24]

Certainty as to the Object of the Trust

[5-25]

[5-01] In Kauter v Hilton,1 Dixon CJ, Williams and Fullagar JJ referred to ‘the established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries’. Each of those requirements is considered below.

Certainty of Intention to Create a Trust

[5-02] A court cannot hold that an express trust exists unless it is satisfied that there was the intention to create such a trust. The question will be whether there is language or conduct which shows a sufficiently clear intention to create such a trust. No formal or technical words are required; any apt expression of intention will do.2 The conclusion that the intention existed may be drawn as an inference from the available evidence. In order to infer intention, the court may look to the nature of the transaction and the whole of the circumstances attending the [page 50] relationship between the parties and known to them,3 including commercial necessity.4 If the inference to be drawn is that the parties intended to create or protect an interest in a third party, and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to the intention, then an intention to create a trust may be inferred. Such a trust is an express, not a constructive, trust and the earlier reluctance to infer such a trust no longer obtains, at least in Australia.5 The overall question is whether in the circumstances of the case, and on the true construction of what was said and written, a sufficient intention to create a trust has been manifested.6 It is not necessary that the creator of the trust should know that the particular relationship intended to be created is in law a trust. A trust will be created, whether or not the creator is aware of it, provided that in substance the creator’s actions have the legal effect of creating the relationship which is known in law as a trust. If the language manifests an intention to create that legal effect, then a trust will be created whether the words ‘trust’ or ‘trustee’ are used, or not. For example, in Paul v Constance,7 where a man deposited the sum of £950 in a bank account in his own name on terms that both he and his mistress had equal access to it, often saying to her ‘The money is as much yours as mine’, the English Court of Appeal held that he owned all moneys in the account on trust for himself and her equally so that on his death she was entitled to a one-half share of the moneys then in the account. However, in Re Schebsman, du Parcq LJ stated that ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the Court ought not to be astute to

discover indications of such an intention’.8 That passage has been repeatedly approved.9 In commercial documents, there will often be no suggestion that the parties in their written instrument did not mean what they said, or said what they meant. In such cases, where there is no sham or illegality, the use of language expressing a trust in terms will be effective to supply the requisite intention.10 The matter was put thus by Gageler J:11 Where there is no reason to consider that parties entering into a contract have not said what they meant or meant what they said, an express term in the contract that one party is to hold property

[page 51] on ‘trust’ for another party, or for a third party, will be recognised and enforced in equity as a trust. Conversely, where parties to a contract have refrained from contractual use of the terminology of trust, an intention to create a trust will be imputed to them only if, and to the extent that, a trust is the legal mechanism which is appropriate to give legal effect to the relationship, between the parties or between a party and a third party, as established or acknowledged by the express or implied terms of the contract.

Less precise language may be used in wills. If the donor be appointed trustee or the property is given in trust, then there is a strong presumption of an intention to create a trust. In Hammat v Chapman,12 a bequest was made in the following terms: ‘I appoint my brother to collect my personal estate, and dispose in a way he thinks fit.’ It was held that the legatee was absolutely entitled to the personal estate, and Harvey J said:13 The cases of precatory trust generally take the form of a gift to a beneficiary, followed by the expression of a wish, or desire, or request, or demand. In most of these cases the decision depends upon the question whether effect should be given to what is in terms an absolute gift, or whether the words which follow the gift show an intention to create a trust which is binding upon the conscience of the donee.14 The present case is not a case of that kind, but it is sought to bring it within a class of cases in which the beneficiary who takes the gift is expressed to be a trustee, or is described as holding a fiduciary office. In those cases the question generally is whether the nature of the trust has been sufficiently defined. Where an individual takes property as a trustee, or as an executor, prima facie he is not beneficially entitled to the property, but holds it for the persons whom the testator has marked out as the objects of his trust, or, if they are insufficiently defined, for the testator’s next-of-kin. If in this case the will had said ‘I give my personal estate to my brother … as a trustee’ or ‘I appoint him trustee of my personal estate’ and had then gone on to say ‘to dispose of in the way he thinks fit’, it would be clear on the authorities that Mr Hammat could not claim the property himself, but the trust would fail in consequence of the beneficiaries not being sufficiently indicated.

In Re Snowden (dec’d),15 the deceased had told her solicitor that she was leaving her estate to her brother absolutely in order that the brother might split up the estate between her numerous relatives ‘as he thought best’. Sir Robert Megarry VC held that she had merely imposed a moral or family, but not a trust, obligation upon her brother. On the other hand, in Hunter v Public Trustee,16 a bequest ‘upon trust’ to pay all debts, etc, without any further disposition of the property was held to constitute the legatees beneficial owners. [5-03] The view had been taken, based on the majority in Commissioner of Stamp Duties (Qld) v Jolliffe,17 that an intention to create a trust would not be imputed where the settlor did not mean to create one. That view, which is inconsistent with the principles referred to above, was rejected in Byrnes v Kendle.18 Mr Kendle had executed an instrument declaring that he held an undivided half interest in land on trust for his wife. He was permitted to adduce evidence at trial to show that the document was never intended to operate as a binding declaration of trust of the land. He said that his intention was that half of the proceeds of the eventual sale would belong to his wife. It was held on appeal that in the absence of a submission that the instrument was a sham, or that there was some basis for setting it aside, evidence of his intention was inadmissible. The question, as framed by Gummow and Hayne JJ, with whom French CJ agreed, was not ‘What did the parties mean to say?’ but ‘What is the meaning of what the parties have said?’ [page 52] Or, as it was put by Heydon and Crennan JJ, ‘the question is what the settlor or settlors did, not what they intended to do’.19 The Australian position may be compared with what in the United States is known as the ‘Totten trust’, based upon the decision of the New York Court of Appeals in Re Totten,20 which has been followed in a series of cases.21 Under the Totten trust, in the words of the principal judgment:22 A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust only, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In

case the depositor died before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance at hand at the death of the depositor. What this involves is a presumption (which may be contrasted with that underlying the resulting trust) of an intention to create a trust revocable by the settlor at will during his lifetime or until some earlier unequivocal expression of immediate intention.

Sham Trusts [5-04] The legal notion of sham ‘refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences’.23 Lord Wilberforce said that ‘to say that a document or a transaction is a “sham” means that while professing to be one thing, it is in fact something different’.24 The doctrine of sham is general, and extends to sham trusts.25 In the case of a sham trust, steps will have been taken resulting in the form of a legally effective trust, but an intention that the true transaction be something different.26 This may occur in a number of ways. A transaction with the ostensible appearance of a trust may be wholly or partly a sham. For example, there may be an intention genuinely held and documented to create a trust, but on different terms from that documented; that will be a sham trust.27 Further, a settlor may validly constitute a trust, but a later settlement of property upon the terms of that trust may nonetheless be a sham.28 However, a sham trust arises not merely because it was entered into with an improper motive. A familiar example is a trust to defraud creditors. Such a trust is apt to be set aside pursuant [page 53] to statute, but is different from the case where a settlor never subjectively intends a trust to be created at all.29 Because a necessary element of a sham trust is ‘an objective of deliberate deception of third parties’,30 and because the doctrine is one in which the law has regard to the parties’ subjective intention, it is a ‘strong finding, and one which cannot be made if another inference is at least equally open’.31

Precatory Trusts [5-05] The commonest difficulties are found not in cases where a settlor or testator has used the word ‘trust’ or ‘trustee’ but in cases where other words have been used expressive of a confidence or belief that the person to whom the property is given will use that property or portion thereof for the benefit of a third person. Where words of prayer, entreaty, recommendation, desire or hope are used instead of words of direction, it is always a question of construction whether a trust is intended, or whether there is a beneficial gift to the donee coupled with expressions of desire or hope which are not binding upon that donee. In cases where it is held that the words used do create a trust, such trusts are commonly called ‘precatory trusts’ although, the question of construction having been resolved,32 they are no different from express declared trusts: When a trust is once established, it is equally a trust, and has all the effects and incidents of a trust, where declared in clearly imperative terms by a testator, or deduced upon a consideration of the whole will from language not amounting necessarily and in its prima facie meaning to an imperative trust.33

In Re Williams,34 a testator by his will gave his residuary estate to his wife absolutely, and followed with the words: ‘In the fullest trust and confidence that she will carry out my wishes in the following particulars’. The testator then set out the particulars, namely, that she would pay the premiums due during her life on a policy of insurance on her own life and that she, by her will, would leave the moneys payable under that policy and other moneys to the testator’s daughter. It was held that the wife took the residuary estate of the testator absolutely and was unfettered by any condition or trust. [5-06] In deciding whether or not a trust is created from precatory words, reported decisions are of limited assistance. You must take the will which you have to construe and see what it means, and if you come to the conclusion that no trust was intended, you say so, although previous judges have said the contrary on some wills more or less similar to the one which you have to construe.35

Thus in Gunter v Commissioner of Stamp Duties,36 the words ‘I desire’ were held in their context to create a trust in respect of the testator’s expression of his desire. On the other hand, the [page 54]

words ‘I specially desire’ were held in Re Conolly37 not to create a trust. It is a question of construction of the instrument in each case. Where there is a real difficulty of construction, much will depend upon the initial presumption which is made in the approach to the question of construction. In earlier cases, precatory words tended to be construed ‘as being prima facie euphemistic equivalents for more imperative forms, much as a master might give an order to a servant in the form of a request rather than a command’.38 Thus in Curnick v Tucker,39 where a testator left all his property to his wife for her sole use and benefit ‘in full confidence’ that she would dispose of it among their children during her lifetime and at her decease, it was held that the wife took a life interest only with a power of appointment among the children. So also in the case of Gully v Cregoe,40 where the gift was to the wife forever, but with the addition of the words ‘feeling assured and having every confidence that she would dispose of the same among the two daughters and their children’, it was held that despite the words ‘for ever’, the wife took a life estate only. The older cases appear to proceed on the basis that where there was certainty as to the property and the objects, then any words of wish or desire would be held to raise a trust, but if the objects were not certain, then a trust could not be raised upon the words of desire any more than upon words of express trust.41 [5-07] In the last quarter of the nineteenth century, however, a change occurred in the approach of the courts to the question. The attitude that the use of precatory words was prima facie equivalent to the use of more imperative forms was discarded. The prima facie construction of words of request became that they were meant merely to be a request and not a binding obligation upon the donee. Thus in 1882 the Privy Council, in Mussoorie Bank v Raynor,42 held that where property was left by a testator to his widow ‘feeling confident that she will act justly to our children in dividing the same when no longer required by her’ no trust for the children was created, and the opinion was expressed that for many years prior thereto the decisions had shown that the doctrine of precatory trusts was not to be extended.43 In Dean v Cole,44 the High Court held that where a testator appointed his wife and another person joint executors, and devised and bequeathed to his wife all his real and personal estate subject to the conditions following in the will, and later proceeded: I give all and every portion of my real and personal estate to my wife … trusting to her that she will at some time during her lifetime or at her death divide in fair, just and equal shares between my children … all such part and portion of my estate as she may be in the use and enjoyment of …

no trust was imposed upon the testator’s wife. This decision may be contrasted with the earlier English decisions where on similar words it was held that a life estate only was given to the wife.45 [5-08] It may now be said that precatory words are in themselves neutral.46 If the words are precatory and no more, then even though the objects which a testator hopes will be benefited and the property by which he or she hopes they will be so benefited may be expressed with certainty, no trust will be created. On the other hand, if it appears from the whole document [page 55] that a trust was intended, the fact that precatory words only have been used will not prevent a trust from being so created:47 … in each case the whole will must be looked at; and unless it appears, from the whole will that an obligation was intended to be imposed, no obligation will be held to exist … It would, however, be an entire mistake to suppose that the old doctrine of precatory trusts is abolished. Trusts — ie, equitable obligations to deal with property in a particular way — can be imposed by any language which is clear enough to shew an intention to impose them.

If a testator uses words prior to the precatory words which, standing alone, would create a trust, and then in some respects uses words of request, very strong circumstances would be required to enable the court to say that those words of request cut down the prior express words of trust.48 [5-09] The question whether a trust has been created by the employment of precatory words usually arises in relation to wills. It is prudent when using words other than the usual words of trust or express direction with the intention that no trust should be created to add after the precatory words, further words such as ‘without however imposing any binding trust’ or ‘but so that no binding trust is hereby created’. [5-10] The fact that the gift is contained in a will, and the precatory words in a codicil, will be stronger evidence in favour of a trust than where the precatory words appear in the same instrument.49 As has already been pointed out, no trust, whether couched in precatory language or otherwise, will be valid unless the subject matter and the object of the trust are expressed. The terms used are often very important in deciding not only whether the trust in any case would

be void for uncertainty of subject matter or object, but also whether by the use of the precatory words a trust was intended at all. Thus, if the objects of the trust are expressed in general terms, that expression of the objects may be just sufficiently certain to enable a trust to be created if one was clearly intended. But if a doubt arises whether a trust was in fact intended, those same words may be a strong indication that there was no such intention. For example, if a testator gives property ‘upon trust to be divided among my relations’, the objects are expressed sufficiently to enable a valid trust to be created.50 However, if a testator uses such words as ‘I earnestly desire that provision be made thereout for my relations’ in a gift of property, the general expression of the persons to be benefited, the object of the trust, will be an important factor in construing such an expression of desire as not creating a binding trust.51 However, the absence of a certainly ascertainable object will not of itself prevent a court from construing precatory words as creating a trust. In Re Pugh’s Will Trusts,52 a bequest of residue to the executor of a will ‘absolutely’, followed by the words ‘to dispose of the same in accordance with any letters or memoranda I may leave with this my will and otherwise in such manner as he may in his absolute discretion think fit’ were construed as words of trust but, as the testator left neither letters nor memoranda, the executor held the residue on a resulting trust for the testator’s next-of-kin. [5-11] Furthermore, the form of words chosen may create neither a trust nor a moral obligation but rather a bare power. In Re Altson,53 a statement in the deceased’s will of her ‘express wish’ that certain commercial properties be leased to a named person at a specified rent, was construed as conferring a bare power upon the trustee of her estate; the trustee had a discretion to grant the lease and in the exercise of the discretion it would be proper to take into account the wish of the deceased to benefit the particular named person. [page 56]

Illusory Trusts [5-12] Even more misleading than the term ‘precatory trust’ is the term ‘illusory trust’.54 Whereas a precatory trust is a relationship which upon

examination has been found to be in fact a trust, ‘illusory trusts’ are relationships which upon examination have been found not to be express trusts at all. There will not be a trust if the settlor has not manifested an intention of transferring the beneficial interest in the property to the apparent beneficiaries. The most important classes of such arrangements are revocable mandates, directions for management, governmental ‘trusts’, and certain commercial transactions.

Revocable Mandates [5-13] Even though a person may dispose of property and use language which at first sight appears to intend to create a trust, nevertheless it may be shown that no trust was in fact intended and that the disposition was made exclusively for the disponor’s personal convenience. In that case, no express trust is created, but only a resulting trust in favour of the disponor.55 The commonest example is where a debtor conveys property to trustees on trust for the payment of his or her debts. In such a case, the question of construction arises whether a trust has in fact been created in favour of the creditors. The question always is: was it intended by the debtor that the creditors should be actual beneficiaries and that the trust should not be revocable, or was the arrangement merely for the debtor’s personal convenience and own benefit — a mandate to the named trustee as agent of the debtor principal which was revocable by the debtor and which would be revoked in any event by the debtor’s death or earlier bankruptcy?56 Where a debtor without consideration and without any notice to the creditors conveys property to trustees in this manner, it is presumed that the debtor has done so with the intention that the trustees thereafter should act not exclusively for the benefit of the creditors as beneficiaries, but that they should be trustees of the property for, and at the same time the agent of, the debtor in the sense which has been described in [2-10]–[2-12] in considering the difference between a trustee and an agent. In such a case, the naming of the creditors in the deed does not show an intention to benefit them, but is merely part of the directions given to the trustee as agent concerning the manner in which, at that time, the debtor sees fit that they should act in the disposition of the property which has been transferred to them. The distinction was expressed by Sir George Turner VC in Smith v Hurst:57 [The authorities] appear to me to result in this, that in cases of deeds vesting property in trustees upon trust for the benefit of particular persons, the deed cannot be revoked, altered or modified

by the party who has created the trust; but that in the cases of deeds purporting to be executed for the benefit of creditors the question whether the trusts can be revoked, altered or modified depends upon the circumstances of each particular case. It is difficult, at first sight, to see the distinction between the two classes of cases; for in each of the classes a trust is purported to be created, and the property is vested in the trustees; but I think the distinction lies in this: In cases of trust for the benefit of particular persons the party creating the trust can have no other object than to benefit the persons in whose favour the trust is created, and the trust being well created the property in equity belongs to the cestui que trust as much as it would belong to them at law if the legal interest had been transferred to them; but in cases of deeds purporting to be executed for the benefit of creditors, and to which no creditor is a party, the motive of the party executing the deed may have been either to benefit his creditors or to promote his own convenience; and the Court there has to examine the circumstances, for the purpose of ascertaining what was the true purpose of the deed; and this examination does not stop with the deed itself, but must be carried to what

[page 57] has subsequently occurred, because the party who has created the trust may, by his own conduct, or by the obligations which he has permitted his trustee to contract, have created an equity against himself.

[5-14] The presumption is that no trust was intended in favour of the creditors.58 However, circumstances either in the deed itself or outside the deed may displace the presumption. Thus a conveyance on trust to make good breaches of trust committed by the disponor in respect of certain trust property was held to be irrevocable in Sharpe v Jackson.59 Another indication of an intention to create a true trust is where there is an ultimate gift-over of residue after satisfaction of debts.60 So also if the trust is not to take effect until after the death of the creator of the trust.61 In these three classes of case, the intention to create a trust may be gathered from the terms of the document in light of the circumstances existing at the time. Thus, applying these principles, it has been held that a life assurance policy was held on trust for certain of the creditors of the assured by reason of an informal arrangement of which the creditors were aware, and subject to a gift-over of the balance.62 [5-15] A fourth case is where the creditors are parties to the deed. It was held in MacKinnon v Stewart63 that the deed is irrevocable in favour of such creditors. That decision may be placed on two grounds. First, it may be that the deed is irrevocable because a true trust is created thereby. A second view is that the deed in such circumstances is irrevocable because the arrangement, although

not strictly a trust in favour of the creditors, is contractually binding upon the debtor. [5-16] The distinction in such a case brings no difference in effect. However, there are further cases where the deed may be revocable until the creditors have had notice of its existence and have actually acquiesced in it or acted under its provisions and complied with its terms. In those situations, even though they have not executed the deed, the disposition in their favour will nevertheless become irrevocable.64 In such a case, it is not possible to apply to the creation of the arrangement the tests of intention which are applicable to the creation of a trust. The intention to create a trust must exist at the time of its alleged creation. In the class of case now being considered, it is assumed that such an intention to create a trust did not exist at the time of the making of the deed. Can it then be said that the deed becomes irrevocable in favour of creditors, who with knowledge of it have acted under its provisions, because a trust has been created? The answer is, it seems, that the deed becomes irrevocable because the debtor is estopped from alleging the absence of an intention to create a trust.

Directions as to Management [5-17] It is not uncommon for a testator or settlor, after disposing of property in favour of certain persons, to direct that a certain other person be employed in some capacity connected with that property, for instance, to manage the property at a salary. In such a case, it is presumed that no trust was intended in favour of the manager. The appointment of agents in respect of trust property, where it is permitted to a trustee to employ such agents, is one of a trustee’s discretionary powers. It is not presumed that the creator of the trust has intended to dictate to the trustee how the power is to be exercised. A difficulty in construing such provisions as binding trusts is that of ascertaining what property in favour of such a person appointed as manager or the like, is bound in his or her favour under the trust.65 [page 58]

[5-18] If, however, the presumption against construing such provisions as constituting trusts is overcome by a direct expression by the settlor of an intention to create a trust in that regard, a binding trust to employ may be created. Thus in Taylor v Lewis,66 a testator by a codicil to his will provided: ‘I hereby direct that my son shall manage my trust estates until the final distribution of the same, and shall receive and collect and bank all moneys, and shall be paid a salary of £2 10s weekly.’ It was held that the plaintiff had no right to a continuation of the salary after the whole estate had been converted into money and invested, and the trustees had no further need of his services. In that case, the limitation on the trustee’s duty to employ was implied from the language used by the testator, but it was not held that there was not a duty to employ until the conversion of the trust estates. However, in Re Larkin,67 the words: ‘I direct [my trustee] to employ my son in the care and management of my estate and to pay him £6 a week for his trouble therein’ were held not to create a trust in favour of the son, although it was further held that if the trustee company did employ him it was bound to pay him the sum mentioned while he was so employed. It is to be noted that the obligation to pay the sum mentioned in certain events was recognised so that, to that extent, an equitable interest was created in the son. [5-19] There is some authority for the proposition that under no circumstances can a trust be created by a direction to employ a named person.68 This has been placed on the ground that such a trust would be inconsistent with a gift of the property, or alternatively on the ground that it would fetter the trustee’s discretion. To express this as a rule of law and not as a presumption of the intention of a settlor is, it is suggested, not in accord with Australian authority and would preclude a form of arrangement which can have all the essential elements of a trust.

Governmental ‘Trusts’ [5-20] Although it is beyond question that the Crown can be a trustee of property, in public law the mere use of the word ‘trust’ in relation to Crown or governmental property usually does not denote a trust enforceable in a court of equity. In Kinloch v Secretary of State for India in Council,69 the House of Lords held that when a Royal Warrant recited that the Crown held certain booty captured in the Indian Mutiny ‘in trust for the use of’ certain claimants whose

claims had previously been upheld by Dr Lushington, to whom the matter had been referred by an Order in Council, it did not declare a trust in the legal sense. Lord Selborne LC said:70 Now the words ‘in trust for’ are quite consistent with, and indeed are the proper manner of expressing, every species of trust — a trust not only as regards those matters which are the proper subjects for an equitable jurisdiction to administer, but as respects higher matters, such as might take place between the Crown and public officers discharging, under the directions of the Crown, duties or functions belonging to the prerogative and to the authority of the Crown. In the lower sense they are matters within the jurisdiction of, and to be administered by, the ordinary Courts of Equity; in the higher sense they are not. What their sense is here, is the question to be determined, looking at the whole instrument and at its nature and effect.

The words in the Royal Warrant were held to refer to a trust in ‘the higher sense’. This decision was applied by Sir Robert Megarry VC in Tito v Waddell (No 2), where the following was said of the word ‘trust’:71 The word is in common use in English language, and whatever may be the position in this court, it must be recognised that the word is often used in a sense different from that of an equitable

[page 59] obligation enforceable as such by the courts. Many a man may be in a position of trust without being a trustee in the equitable sense; and terms such as ‘Brains Trust’, ‘Anti-trust’, and ‘Trust Territories’, though commonly used, are not understood as relating to a trust as enforced in a court of equity.

The correctness of Kinloch’s case was reaffirmed by the House of Lords in Town Investments Ltd v Department of the Environment.72 [5-21] In Australia, the High Court has applied those authorities in Registrar, Accident Compensation Tribunal v Federal Commissioner of Taxation,73 emphasising that Kinloch’s case states a rule of construction that clear words are required before a ‘true trust’, as opposed to a trust ‘in the higher sense’, is found — even if the language of trust be used — and that the subject matter and context were important, in some cases ‘more revealing of intention than the actual language used’. There, it was held that the legislation providing for the administration of workers’ compensation payments did constitute the Registrar a trustee in the ordinary sense, there being no governmental interest or function involved in the obligations to invest and hold the money until distribution, and notwithstanding a provision which freed him from ‘any law relating to the administration of trust funds by trustees’. In contrast, there was no trust

enforceable by the court in Aboriginal Development Commission v Treka Aboriginal Arts and Crafts Ltd,74 which concerned the remission of funds from one federal body to another, both held to be mere instruments of government policy, pursuant to a resolution that the funds were ‘for the funding towards operational costs of Treka Aboriginal Arts and Crafts Ltd’. The High Court has reviewed, in Bathurst City Council v PWC Properties Pty Ltd,75 the long history of ‘public trusts’ created by Crown grant.76 Those obligations may be enforceable at the suit of the Attorney-General as a matter of public law,77 but do not give rise to a trust enforceable in equity.

Commercial Transactions [5-22] In many commercial transactions, there can be agreements that property be dealt with in a certain way which falls short of creating a trust with respect to that property. Thus, in Re Wall,78 Lockhart J held that where two creditors agreed with their debtor that the latter should sell certain land owned by him and pay them an agreed sum from the proceeds, there was no intention to create a trust of the proceeds of sale. Likewise, where moneys are advanced for a specific purpose, questions can arise whether a trust arises: see the analysis of Barclays Bank Ltd v Quistclose Investments Ltd79 and Re Australian Elizabethan Theatre Trust80 in Chapter 2.

Communication of Intention [5-23] A trust may be created without communication to the beneficiary.81 Where a trust is created by the appointment of trustees and the conveyance or transfer of property to them, it is almost certain that there will be found some communication of the intention to create a trust. [page 60] However, where a person is alleged to have created a trust by declaration of trust over property, but has not communicated the declaration to any other person, a strong presumption arises that despite the private use of the language of trust, no

firm and irrevocable intention had been formed to create a binding trust by the declaration.82

Certainty of Subject Matter [5-24] The subject matter of the trust must be certain — that is, it must be clear what the property is upon which the trust is to operate.83 There can be no trust without property; that is fundamental. Consequently, if there is no property upon which the trust can take effect, or if it is so described by the settlor that it cannot be identified, there can be no trust. For example, if a testator leaves $1000 to A and requests that if anything of it remains at A’s death, it be left to the Sydney Hospital, ‘what remains of it’ is too vague a description to enable the court to enforce any trust in respect of it.84 Likewise, where the subject matter is an undifferentiated portion of a parcel of shares,85 or of a deposit in a bank account.86 However, in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq),87 the appellant, which sold steel, had the benefit of a Romalpa clause that obliged, inter alia, the respondent purchaser of steel to hold so much of the proceeds of its own manufacturing processes as related to the steel, on trust for the seller. There was no uncertainty in the subject matter of a trust being part of the payments made to the respondent by third parties, the trust arising as those payments were received by the respondent.88 Further, the fact that extensive analysis was required to determine the true construction of the clause did not result in uncertainty.89 In a strongly criticised decision,90 the English Court of Appeal held it was effective for the owner of a parcel of 950 shares in a private company to declare a trust of 5% of those shares without otherwise specifying those of the parcel of shares to which the trust attached.91 Following a careful and comprehensive review of Australian, English and North American authorities, Campbell J decided to follow that decision in a closely comparable case.92 Directions by a testator to a legatee ‘to consider my near relations’93 ‘as I should consider them myself or to reward my old tenants and servants’94 according to their deserts have been held to be void for uncertainty as to the property to be bound by the trust. A direction or request that a donee ‘make ample provisions’ for a third party created no trust in favour of the latter,95 but a direction to receive a ‘reasonable income’ was sufficiently certain.96

[page 61] Even property which is incapable of assignment, such as a contract involving personal skill or confidence, may be held on trust.97

Certainty as to the Object of the Trust [5-25] The objects of a private trust must be identified with sufficient certainty, failing which the trust will be invalid.98 The requisite level of certainty depends on whether the trustees are obliged to distribute to a class of beneficiaries (a fixed trust), or have a discretion to select beneficiaries within a class to whom distributions are to be made (a discretionary trust). [5-26] In the case of a fixed trust, the objects must be defined with sufficient precision to satisfy ‘list certainty’. That will occur if it is possible for the trustees, or the court in their stead, to identify all of the beneficiaries. In Kinsela v Caldwell,99 the High Court said ‘it is sufficient that the provisions of the trust ensure that upon that date the beneficiaries can be ascertained with certainty’.100 Stronger statements, to the effect that complete identification is not merely sufficient but necessary, may be found in the authorities, reasoning that it is a breach of trust in such a case merely to divide the fund up among those present.101 Provided no perpetuity is involved, it is not necessary that the class be known prior to the date of distribution; it is sufficient that on that date they can be ascertained with certainty.102 Indeed, what is required is that the court be satisfied that ‘a complete list of the beneficiaries could probably be compiled’.103 However, in West v Weston, confronted with evidence that it was more probable than not that there were unidentified members of a large class of beneficiaries of a fixed trust in favour of ‘the issue living at my death of my four grandparents’, Young J proposed and applied a modification of the rule, namely, that ‘the rule will be satisfied if, within a reasonable time after the gift comes into effect, the court can be satisfied on the balance of probabilities that the substantial majority of the beneficiaries have been ascertained and that no reasonable inquiries could be made which would improve the situation’.104 That modification is inconsistent with the tenor of what the High Court said in

Kinsela v Caldwell, extracted above, which is to be taken as affirming the conventional test, rather than admitting the possibility that some lesser test might also suffice.105 [5-27] Mere difficulty in ascertaining the identity of the members of the class does not render the trust invalid; courts are accustomed to resolving such evidentiary difficulties.106 However, the position is different if there is conceptual uncertainty. Thus a trust for distribution in equal [page 62] shares to ‘my old friends’ would be uncertain, in the absence of it being admissibly demonstrated that those words had a precisely defined meaning.107 [5-28] In the case of a discretionary trust, the objects must be defined with sufficient certainty to satisfy ‘criterion certainty’, and, perhaps, there may in addition be a ‘loose class’ or ‘administrative workability’ requirement.108 In McPhail v Doulton,109 a majority of the House of Lords discarded the former rule (list certainty) and held that ‘the test for the validity of trust powers ought to be similar to that accepted by this House in Re Gulbenkian’s Settlements for [nontrust] powers, namely, that the trust is valid if it can be said with certainty that any given individual is or is not a member of the class’. Thus it is not necessary to identify every member of the class, and mere evidentiary difficulties in respect of some members do not prevent validity, although conceptual certainty (which can be elusive) is required.110 McPhail v Doulton provoked intense controversy at the time,111 and left open the question of its applicability in Australia. It has now come to be regularly applied in Australia and New Zealand,112 and should be taken to represent the law. [5-29] In McPhail v Doulton, Lord Wilberforce also suggested that trust powers might have to satisfy an additional requirement: that they form a ‘loose class’.113 His Lordship envisaged a case where ‘the meaning of the words used is clear’ (that is, criterion certainty exists) ‘but the definition of beneficiaries is so hopelessly wide as not to form “anything like a class” so that the trust is administratively unworkable or … one that cannot be executed’, suggesting that

a trust power in favour of ‘all the residents of Greater London’ might well fail on this ground. Although his Lordship did not advance any reasons to justify this view, there is much to justify it both on authority and in principle. As far as authority goes, trust powers in favour of anyone, or anyone but the trustees, have always been held bad.114 As far as principle is concerned, unless there is some requirement of class certainty it is not easy to see how any person at all would have sufficient locus standi to enforce the trust; if the chosen class were impossibly wide, it would seem absurd that merely anyone could institute equity proceedings seeking to compel the trustee to exercise the trust power. In Blausten v IRC,115 the English Court of Appeal, dealing with a mere power, not a trust power, held that, in any event, class certainty did exist; and, of the judges who heard that case, Buckley LJ was of the view that Lord Wilberforce’s requirement of ‘class certainty’ applied equally to trust powers and to mere powers. This line of reasoning has been cogently attacked116 as importing into the requirements for the validity of mere powers a test which properly belongs only to trust powers. Then, in Re Manisty’s Settlement,117 Templeman J (correctly, it is submitted) declined to follow the application by Buckley LJ of the requirement of class certainty to mere powers. That case concerned a settlement enabling a trustee to appoint to a class of beneficiaries. It also provided for the exclusion of certain persons from that class and that the trustees were empowered at their absolute discretion to declare that any person, corporation or charity (other than a trustee or a member of the excluded class) be [page 63] included in the class of beneficiaries. His Lordship pointed out that there was, in the case of mere powers (and, manifestly, it was a case of a mere power not a trust power) no authority compelling the importation of the requirement of class certainty; and that on principle such a requirement ought not be imported. In the case of mere powers, no question can ever arise of a member of the class of beneficiaries enforcing any trust, and the duty of the donee of the power to consider and investigate does not require or make necessary that the objects of the power should constitute any sort of class, loose or otherwise. Templeman J’s decision was followed by Sir Robert Megarry VC in Re Hay’s Settlement Trusts.118

But all this leaves undecided the major problem, namely, what did Lord Wilberforce mean by ‘a loose class’? He surely did not mean that all ‘beneficiaries’ of a trust power have to have a common characteristic; partly because that would mean one could never have a hybrid trust power, as opposed to a special trust power, and partly because such a trust would reimport into trust powers the very sort of test which the majority of the House of Lords in McPhail v Doulton119 found unacceptable. It is respectfully suggested that all his Lordship should be taken to have meant is that ‘the range’ (of beneficiaries) ‘constitutes a readily identifiable, numerically and geographically discrete grouping’.120 However, one commentator121 after a review of the authorities and academic writing concludes that the juridical basis for the ‘workability criterion’ remains nebulous but, surprisingly, says that this ‘need not trouble us unduly’ because the concept ‘should not be hedged around with theoretical strictures’ and that because many settlements ‘fulfil important socio-welfare functions’ the court should be left ‘to devote its scarce resources thereto without being sidetracked by the whimsical and unworkable’. [5-30] If a trust fails for want of certainty of object, the property is held on resulting trust for the settlor (or, if dead, the residuary beneficiaries under the settlor’s will). If, however, a trust fails both for uncertainty of intention and for uncertainty of object, then the person to whom the property has been given will retain it unfettered by any trust.122 Thus, where a testator gave property to a donee and expressed a desire, in language leaving it uncertain whether a trust was intended, that the donee would distribute it as he thought would be most agreeable to the testator’s wishes, it was held that the donee was entitled to the property absolutely.123 _____________________________ 1.

(1953) 90 CLR 86 at 97; see also Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; 171 ALR 568 at [29]; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; 300 ALR 430 at [116]; Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 at [7], [109], [204].

2.

Re Armstrong [1960] VR 202; J W Broomhead (Vic) Pty Ltd (in liq) v J W Broomhead Pty Ltd [1985] VR 891; Registrar, Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 165–6; 117 ALR 27 at 39. Inland Revenue Commissioners v Raphael [1935] AC 96 at 142–3; Swain v The Law Society [1983] 1 AC 598 at 621–2; [1982] 2 All ER 827 at 840; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 121, 148–9, 156; 80 ALR 574 at 583, 603–4, 609; Walker v Corboy (1990) 19 NSWLR 382 at 395–6; Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363

3.

at 370–1; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 at 503; 102 ALR 681 at 693; Di Pietro v Official Trustee (1995) 59 FCR 470 at 484; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; 171 ALR 568 at [34]; Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [98], [102]–[114]. Generally, the only admissible subsequent words or conduct of the settlor will be those which are admissions against interest: Shephard v Cartwright [1955] AC 431 at 445; [1954] 3 All ER 649 at 652; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; Calverley v Green (1984) 155 CLR 242 at 262; 56 ALR 483 at 496. 4. 5.

6.

7. 8. 9.

Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 at 189; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 121; 80 ALR 574 at 583. Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618–19; 78 ALR 1 at 9; and see Starke (1948) 22 ALJ 67 at 69; Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 at 67; [1956] ALR 311 at 322; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 120–1, 140, 146–9, 156–7, 166; 80 ALR 574 at 582–3, 597, 602–5, 609–10, 616; and [2-23] above. For England, see the Law Commission, Privity of Contract: Contracts for the Benefit of Third Parties (1996), [2.8]–[2.9]. Re Kayford Ltd (in liq) [1975] 1 All ER 604 at 607; [1975] 1 WLR 279 at 281; Tito v Waddell (No 2) [1977] Ch 106 at 111; [1977] 3 All ER 129 at 132; Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422. [1977] 1 WLR 195; [1977] 1 WLR 527. [1944] Ch 83 at 104. See Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618; 78 ALR 1 at 9; Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [49]; Ashton v Pratt (2015) 318 ALR 260 at [186].

10. Lloyds & Scottish Finance Ltd v Cyril Lord Carpets Sales Ltd [1992] BCLC 609 at 613; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; 171 ALR 568 at [34]–[35]. 11. Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; 317 ALR 225 at [109]. 12. (1914) 14 SR (NSW) 416. 13. (1914) 14 SR (NSW) 416 at 418. 14. See [5-05]. 15. [1979] Ch 528; [1979] 2 All ER 172. For another case where the requisite intention was lacking, see Re Alitalia Linee Aeree Italiane SpA [2011] 1 WLR 2049 at [32]–[36]. 16. [1924] NZLR 882. See also Longley v Longley (1871) LR 13 Eq 133; Re Stanford [1924] 1 Ch 73; [1923] All ER Rep 589; Re Rees [1950] Ch 204; [1949] 2 All ER 1003. Even the naming of a person as a trustee may, if the context so requires, be disregarded: Morrin v Morrin (1886) 19 LR Ir 37. 17. (1920) 28 CLR 178; 26 ALR 210. 18. (2011) 243 CLR 253; 279 ALR 212. 19. Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [53], [113]; see at [13]–[18], [44]–[66], [91]– [118]. See also Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 All ER 377 at [71]. 20. 71 NE 748 (1904). 21. As to which, see Scott on Trusts, §8.3.2. 22. 71 NE 748 at 752 (1904). 23. Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; 211 ALR 101 at [46]. 24. WT Ramsay v Inland Revenue Commissioners [1982] AC 300 at 323; [1981] 1 All ER 865 at 871. See also Coshott v Prentice (2014) 221 FCR 450; 311 ALR 428 at [63]–[64]. 25. See M Conaglen, ‘Sham Trusts’ (2008) 67 CLJ 176.

26. Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [59]. 27. Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [66]. 28. Official Assignee v Wilson [2008] 3 NZLR 45 at [57]; see also AG Securities v Vaughan [1990] 1 AC 417. There is, however, less scope in the law of trusts for what has been called the notion of an ‘emerging sham’, which arises when a validly created legal relationship is by subsequent agreement permitted to allow ‘its shadow to mask their new arrangement’: Marac Finance Ltd v Virtue [1981] 1 NZLR 586 at 588. That is because it will be necessary to establish such an intention on the part of all beneficiaries or discretionary objects of the trust; otherwise conduct by the trustee and some of the beneficiaries will merely be in breach of trust: see A v A [2007] 2 FLR 467 at [42]–[44]; Official Assignee v Wilson [2008] 3 NZLR 45 at [57]; Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [80]–[82]; De Santis v Aravanis (2014) 227 FCR 404; 322 ALR 475 at [57]–[65]; J Palmer, ‘Dealing with the Emerging Popularity of Sham Trusts’ [2007] NZ Law Rev 81 at 106. 29. Miles v Bull [1969] 1 QB 258 at 264; Chase Manhattan Equities Ltd v Goodman [1991] BCLC 897 at 921; Barendse v Comptroller-General of Customs (1996) 136 FLR 243 at 257–8; Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [68]. 30. Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation (2008) 238 CLR 516; 246 ALR 406 at [35]. 31. Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 461; 82 ALR 530 at 544 per Lockhart J. See also Official Assignee v Wilson [2008] 3 NZLR 45 at [52]; Lewis v Condon (2013) 85 NSWLR 99; 304 ALR 410 at [62]–[63]; Heazlewood v Joie de Vivre Canterbury Ltd [2015] NZCA 213 at [44]. 32. Cf Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 436–7; 41 ALJR 348 at 350–1. 33. Re Williams [1897] 2 Ch 12 at 27 per Rigby LJ. 34. [1897] 2 Ch 12. 35. Re Hamilton [1895] 2 Ch 370 at 373 per Lindley LJ. 36. (1932) 33 SR (NSW) 95. See also West v Federal Commissioner of Taxation (1949) 79 CLR 319 (‘it is my will and desire’). 37. [1910] 1 Ch 219. 38. Underhill, Law of Trusts and Trustees, 12th ed, p 38. 39. (1874) LR 17 Eq 320. 40. (1857) 24 Beav 185; 53 ER 327. 41. Cary v Cary (1804) 2 Sch & Lef 173. See also Eaton v Watts (1867) LR 4 Eq 151. 42. (1882) 7 App Cas 321. 43. Cf Lambe v Eames (1871) LR 6 Ch App 597. 44. (1921) 30 CLR 1. 45. See also Strickland v Strickland (1907) 7 SR (NSW) 657; Re Atkinson (1911) 103 LT 860; Re Hill [1923] 2 Ch 259; Re Dulson (1929) 140 LT 470; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] ALR 362; Re Johnson [1939] 2 All ER 458; McPhee v Saunders (1940) 57 WN (NSW) 101; Re Favell (decd) (1971) 2 SASR 246. 46. Comiskey v Bowring-Hanbury [1905] AC 84 at 89. 47. Re Williams [1897] 2 Ch 12 at 18–19. 48. Hill v Hill [1897] 1 QB 483. See also Re Steele’s Will Trusts [1948] Ch 603; [1948] 2 All ER 193. Cf Smith v Smith (1903) 3 SR (NSW) 571.

49. Re Burley [1910] 1 Ch 215. 50. Re Drigden [1938] Ch 205. But see Re Bond (1876) 4 Ch D 238. 51. Re Hill [1923] 2 Ch 259. 52. [1967] 3 All ER 337; [1967] 1 WLR 1262. 53. [1955] VLR 281. 54. See, for example, Kars v Kars (1996) 187 CLR 354 at 371; 141 ALR 37 at 48–9. 55. Beattie v Weine (1908) 9 SR (NSW) 36, where it was held that a voluntary transfer of property to a trustee, to be applied for the benefit of the transferor in the absolute discretion of the trustee, could be revoked by the transferor. 56. See Comptroller of Stamps v Howard-Smith (1936) 54 CLR 614; [1936] ALR 198. 57. (1852) 10 Hare 30 at 47; 68 ER 826 at 833. 58. Smith v Hurst (1852) 10 Hare 30; 68 ER 826; Johns v James (1878) 8 Ch D 744; Ellis & Co v Cross [1915] 2 KB 654. 59. [1899] AC 419; [1895–99] All ER Rep 755. 60. Godfrey v Poole (1888) 13 App Cas 497. 61. Synnot v Simpson (1854) 5 HL Cas 121 at 139; 10 ER 844 at 851; Re Fitzgerald’s Settlement (1887) 37 Ch D 18. 62. Rostirolla v Fiakos (No 2) [2002] FCA 1562. 63. (1850) 1 Sim NS 76; 61 ER 30. See also Wilding v Richards (1845) 1 Coll 655; 63 ER 584. 64. Biron v Mount (1857) 24 Beav 642; 53 ER 506. 65. Beckford v Beckford (1783) 4 Bro Parl Cas 38; 2 ER 26; Shaw v Lawless (1838) 5 Cl & F 129; 7 ER 353; Finden v Stephens (1846) 2 Ph 142; 41 ER 896. 66. (1891) 12 LR (NSW) Eq 258. 67. (1913) 13 SR (NSW) 691. 68. Beckford v Beckford (1783) 4 Bro Parl Cas 38; 2 ER 26; Shaw v Lawless (1838) 5 Cl & F 129; 7 ER 353; Finden v Stephens (1846) 2 Ph 142; 41 ER 896; and see Public Curator of Queensland v Union Trustee Company of Australia Ltd (1922) 31 CLR 66 at 74–5; 28 ALR 438 at 441. 69. (1882) 7 App Cas 619. 70. (1882) 7 App Cas 619 at 625–6. 71. [1977] Ch 106 at 211; [1977] 3 All ER 129 at 216. 72. [1978] AC 359; [1977] 1 All ER 813. See also New South Wales v Commonwealth (No 3) (1932) 46 CLR 246 at 260–1; Equitable Life Assurance Society v Hyman [2002] 1 AC 408 at 416; P Finn, ‘Public Trusts, Public Fiduciaries’ (2010) 38 Fed LR 335. 73. (1993) 178 CLR 145 at 162–3; 117 ALR 27 at 31–7. 74. [1984] 3 NSWLR 502 at 513. 75. (1998) 195 CLR 566; 157 ALR 414 at [44]–[65]. 76. See also J Barratt, ‘Public Trusts’ (2006) 69 MLR 514. 77. Attorney-General (NSW) v Parramatta City Council (1949) 49 SR (NSW) 283 at 290–2; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414 at [65]–[67]; Attorney-General v Blake [1998] Ch 439 at 459–60; [1998] 1 All ER 833 at 847. 78. (1979) 25 ALR 615. 79. [1970] AC 567; [1968] 3 All ER 651.

80. (1991) 30 FCR 491; 102 ALR 681. 81. Middleton v Pollock (1876) 2 Ch D 104 at 106; Rose v Rose (1986) 7 NSWLR 679 at 686. 82. Re Cozens [1913] 2 Ch 478. 83. Federal Commissioner of Taxation v Clarke (1927) 40 CLR 246. 84. Sprange v Barnard (1789) 2 Bro CC 585; 29 ER 320; Henderson v Cross (1861) 29 Beav 216; 54 ER 610; Parnall v Parnall (1878) 9 Ch D 96; Rodger v Rodger (1893) 12 NZLR 392; Re Jacob (1897) 16 NZLR 52; Re Dunstan [1918] 2 Ch 304; [1918–19] All ER Rep 694; Winter v Grady (1921) 21 SR (NSW) 686; Re Ferguson [1957] VR 635. 85. Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271. 86. Re Appleby’s Estate (1930) 25 Tas LR 126. 87. (2000) 202 CLR 588; 171 ALR 568. 88. See Chapter 6 ‘Express Trusts — Complete Constitution or Consideration’. 89. See (2000) 202 CLR 588; 171 ALR 568 at [13]–[25], especially at [15], citing Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 436–7; 41 ALJR 348 at 350–1. 90. D Hayton, ‘Uncertainty and Subject-Matter of Trusts’ (1994) 110 LQR 335; and see Re Harvard Securities Ltd [1997] 2 BCLC 369 at 381–5, ultimately holding that English and Australian law diverged in this respect. 91. Hunter v Moss [1994] 3 All ER 215; [1994] 1 WLR 452. 92. White v Shortall (2006) 68 NSWLR 650, appeal dismissed [2007] NSWCA 372, a result which is approved by the Full Federal Court in Commissioner of Taxation v ElecNet (Aust) Pty Ltd [2015] FCAFC 178 at [81]–[84] and Lewin on Trusts, [3-007]. 93. Sale v Moore (1827) 1 Sim 534; 57 ER 678. 94. Knight v Knight (1840) 3 Beav 148 at 177–8; 49 ER 58 at 69–70. 95. Winch v Brutton (1844) 14 Sim 379; 60 ER 404; Re Bond (1876) 4 Ch D 238. See, however, Broad v Bevan (1823) 1 Russ 517n; 38 ER 198; Re Moore (1886) 54 LT 231. 96. Re Golay’s Will Trusts [1965] 2 All ER 660; [1965] 1 WLR 969. 97. Don King Inc v Warren [2000] Ch 291 at 320–1; [1998] 2 All ER 608 at 633–4; McGowan v Commissioner of Stamp Duties [2002] 2 Qd R 499 at [14]; Barbados Trust Co Ltd v Bank of Zambia [2007] 1 Lloyd’s Rep 495; and see A Trukhtanov (2007) 70 MLR 848; P Turner [2008] CLJ 23. 98. See C Emery (1982) 98 LQR 551; P Creighton (2000) 22 SydLR 93. 99. (1975) 132 CLR 458 at 461; 5 ALR 337 at 339. 100. Cf P Matthews (1984) 48 Conv 22 but see J Martin (1984) 48 Conv 304; D Hayton (1984) 48 Conv 307. 101. Re Gulbenkian’s Settlement Trusts [1970] AC 508 at 524; [1968] 3 All ER 785 at 792–3; McPhail v Doulton [1971] AC 424 at 453–4; [1970] 2 All ER 228 at 244; Re Beckbessinger [1993] 2 NZLR 362 at 369–70; Commissioner of State Revenue v Viewbank Properties Pty Ltd (2004) 55 ATR 501 at [20]–[21]. 102. Kinsela v Caldwell (1975) 132 CLR 458 at 461; 5 ALR 337 at 339; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; 300 ALR 430 at [117]. 103. Re Saxone Shoe Co Ltd’s Trust Deed [1962] 2 All ER 904 at 913; [1962] 1 WLR 943 at 955, not following Re Eden [1957] 2 All ER 430; [1957] 1 WLR 788. 104. (1998) 44 NSWLR 657 at 664. 105. See P Creighton (2000) 22 SydLR 93 at 97–8; validity might still have been achieved on orthodox

principles had the evidence permitted a finding as to the maximum number of beneficiaries, thereby permitting a partial distribution and paying the balance into court: see Re Gulbenkian’s Settlement Trusts [1970] AC 508 at 524; [1968] 3 All ER 785 at 793. 106. See, for example, Re Coxen [1948] Ch 747 at 759–60; [1948] 2 All ER 492 at 501–2; Re Baden (No 2) [1973] Ch 9 at 29; [1972] 2 All ER 1304 at 1309. 107. Re Gulbenkian’s Settlement Trusts [1970] AC 508 at 524; [1968] 3 All ER 785 at 792; McPhail v Doulton [1971] AC 424 at 457; [1970] 2 All ER 228 at 247. 108. See [5-29]. 109. [1971] AC 424; [1970] 2 All ER 228. 110. See Re Baden (No 2) [1973] Ch 9; [1972] 2 All ER 1304. 111. Thus, for example, Crane (1970) 34 Conv 287 described it as ‘revolutionary’; see also the 6th edition of this work at [252]–[257]. 112. Horan v James [1982] 2 NSWLR 376; Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 277; Re Beckbessinger [1993] 2 NZLR 362 at 369; McCracken v Attorney-General [1995] 1 VR 67 at 71; Re Blyth [1997] 2 Qd R 567. 113. [1971] AC 424 at 457; [1970] 2 All ER 228 at 247. 114. See Neo v Neo (1875) LR 6 CP 381; In the Will of Bourk [1907] VLR 171; Re Dwyer [1916] VLR 114; Re Chapman [1922] 1 Ch 287; Re Carville [1937] 4 All ER 464; Re Hollole [1945] VLR 295; Re White [1963] NZLR 788; Re Pugh’s Will Trusts [1967] 3 All ER 337; [1967] 1 WLR 1262. 115. [1972] Ch 256; [1972] 1 All ER 41. 116. By (among others) I Hardingham in (1972) 46 ALJ 293. 117. [1974] Ch 72; [1973] 2 All ER 1203. 118. [1981] 3 All ER 786; [1982] 1 WLR 202. 119. [1970] AC 508; [1968] 3 All ER 785. 120. I Hardingham (1975) 49 ALJ 7. The requirement was applied in England in R v District Auditor, Ex parte West Yorkshire Metropolitan County Council [1986] RVR 24, noted C Harpum [1986] CLJ 391: a trust for the benefit of ‘any or all or some of the inhabitants of the County of West Yorkshire’ was held invalid for administrative unworkability. See also Re Harding [2008] Ch 235; [2007] 1 All ER 747 at [15]. 121. I Hardcastle, ‘Administrative Unworkability — A Reassessment of an Abiding Problem’ (1990) 54 Conv 24 at 33. 122. Sale v Moore (1827) 1 Sim 534; 57 ER 678. 123. Stead v Mellor (1877) 5 Ch D 225. But see also Thomson v Shakespear (1860) 1 De GF & J 399; 45 ER 413; In the Will of Bourk [1907] VLR 171; Re Dwyer [1916] VLR 114.

[page 64]

CHAPTER 6 Express Trusts — Complete Constitution or Consideration Introduction Specifically Enforceable Agreements to Constitute a Trust Re Pryce

[6-01] [6-03] [6-11]

Constitution of Voluntary Trusts Transfer to a Trustee Declaration of Trust Direction to a Third Party

[6-15] [6-16] [6-22] [6-24]

Consideration

[6-25]

Introduction [6-01] Express trusts are created in two principal ways: by transfer or by declaration. The owner of property may transfer (either by assignment inter vivos, or by will) the property to a third party to be held on the terms of the trust. Alternatively, the owner of property may declare himself or herself a trustee of property for the benefit of a third party. Other methods derive from these. A beneficiary who is sui juris and entitled to the property may cause a new trust to be created directly by a direction to a trustee that the property from then on be held on trust for another, or by authorising the trustee to take steps to hold the property on trust for another.1 Both methods bring about the result that the whole of the beneficiary’s

equitable interest becomes vested in another. The donee of a suitably worded power may also exercise that power to create a new trust.2 As Nettle JA observed, this reflects the fact that the donee, although not the owner of the property, has sufficient dispositive power over the property to subject it to new trusts.3 The Victorian Court of Appeal held that the exercise of a power of appointment was not a distinct mode of creating a trust.4 In T Choithram SA v Pagarini,5 the Privy Council considered an intermediate case. The donor established a charitable foundation of which he was one of seven trustees. He then stated that [page 65] he gave all his wealth to the foundation, but failed to take steps before his death to transfer shares and deposits held by him to the trustees. Lord BrowneWilkinson said that the donor’s words must be construed as a gift to the trustees on trust, and it was no answer to point to the failure to transfer the property to all of the trustees. The donor’s declaration was effective to bind his own conscience, and therefore to preclude him or his estate from resiling from the gift. The distinction between transfer and declaration is important because those modes reflect quite different intentions on the part of the owner of the property in each case, and because of the rule in Milroy v Lord that an ineffective voluntary transfer will not be treated as a declaration of trust.6 Trusts created in any of these ways may be voluntary or for consideration. This chapter deals first with completely constituted trusts and then with incompletely constituted trusts, which, if there is consideration, operate as an agreement to create a trust. [6-02] If a settlor intends to create a voluntary trust, the trust must be completely constituted. It is now well settled that a completely constituted trust will be enforced in equity at the suit of the beneficiaries, even though they may be volunteers.7 The trust is irrevocable, unless the creator of the trust has reserved a power of revocation. The maxim that equity will not aid a volunteer has no application to volunteers who are beneficiaries under a completely constituted trust. Thus in Paul v Paul, there was a marriage settlement with an

ultimate contingent remainder in favour of the next-of-kin of the wife. There being no children of the marriage, and the wife being past the age of childbearing, application was made to the court for the payment of the trust fund to her and her husband on the ground that the next-of-kin were mere volunteers and outside the marriage consideration. The application was refused; ‘… the next-of-kin have an interest as cestui que trust. It is immaterial that they are volunteers. The trust cannot be broken on that account’.8 The maxim that equity will not assist a volunteer only applies to cases where the trust is not completely constituted. The distinction between the effect in equity of a completely constituted trust and an incompletely constituted trust was expressed by Lord Eldon in Ellison v Ellison as follows:9 I take the distinction to be, that if you want the assistance of the Court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust; as upon a covenant to transfer stock, etc, if it rests in covenant, and is purely voluntary, this Court will not execute that voluntary covenant: but if the party has completely transferred stock, etc, though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this Court.

Cotton LJ in Paul v Paul adverted to the distinction in similar words:10 ‘I assume that the trust would not have been enforced if it were still executory.’

Specifically Enforceable Agreements to Constitute a Trust [6-03] An incompletely constituted trust can only amount to an agreement to constitute a trust. In order to convert an incompletely constituted trust into a completely constituted trust against an unwilling promisor one would need the aid of the equitable remedy of specific performance of such an agreement. But specific performance will not be ordered in the absence of valuable consideration. It follows that where A covenants with B to convey Blackacre [page 66] to B, and B is a volunteer, B can never invoke the aid of a court of equity to compel specific performance of that promise, either in the primary sense of that term, that is, by an order directing A to execute a conveyance of Blackacre, or

in any secondary sense of that term, for example, by an injunction restraining A from conveying Blackacre to some other person.11 In the eye of equity, B is a volunteer and the presence of a seal cannot compensate for the lack of consideration. For this purpose, it matters not whether A’s covenant is to convey Blackacre to B beneficially or to B as a trustee for some other person. [6-04] Of course, where A promises B, a volunteer, to pay money to B for the benefit of C, if equity will not grant specific performance in any way to B as a volunteer, C will not have any higher rights than B.12 But it is to be remembered that the maxim is ‘equity will not aid a volunteer’ not ‘equity will frustrate a volunteer’. Equity has never attempted to prevent the enforcement of such rights as a volunteer may possess independently of equity. Thus in Davenport v Bishopp,13 when he was dealing with a case of an unperformed covenant in a wife’s marriage settlement to settle after-acquired property on her niece, Sir James Knight-Bruce VC said: ‘As far as I am aware, [there is no] equity to restrain the surviving trustee of the settlement … from proceeding at law against the … heiress [of the covenanting wife] for the benefit of [the niece], upon the covenant as long as the covenant remains not fully performed.’ Similarly, in Cannon v Hartley,14 it was held that the defendant father (corresponding to A in the example above) who had covenanted by a deed to which his daughter (corresponding to B in the example above) was a party to settle after-acquired moneys on certain trusts for her was not entitled to restrain her from bringing an action against him at law for damages for breach of the covenant, in which action, of course, the absence of consideration would be irrelevant. Romer J said:15 In the present case the plaintiff, although a volunteer, is not only a party to the deed of separation but is also a direct covenantee under the very covenant upon which she is suing. She does not require the assistance of the court to enforce the covenant for she has a legal right herself to enforce it. She is not asking for equitable relief but for damages at common law for breach of covenant … It was suggested to me in argument that in such a case as the present, where the covenant is to bring in after-acquired property, an action for damages for breach of that covenant is in effect the same as a suit for specific performance of a covenant to settle. I myself think that the short answer to that is that the two things are not the same at all. The plaintiff here is invoking no equitable relief; she is merely asking for monetary compensation for a breach of covenant.

[6-05] The application of these principles has caused considerable confusion in decided cases and is a topic on which there is some diversity of academic opinion. It is submitted that the maxim has a narrower application than is often

thought, and those who have applied the maxim broadly have neglected to appreciate that, in the situation where A promises B that A will pay money or transfer property to B on trust for C, then, so long as the money is unpaid and the property untransferred, while it is true that as between A and B there is no completely constituted trust of the actual money or property concerned, as between B and C there may well be a completely constituted trust of B’s rights in respect of A’s promise. Such a trust as between B and C must exist whenever A’s promise is one for breach of which A would be liable to B. Thus, in the above example, A will clearly be liable in a court of common law in an action by B if the promise is either made for valuable consideration or given under seal. In such cases, it is submitted, B is trustee and C cestui que trust of A’s obligations to B, which chose in action is the trust property. If this be so, and it hardly admits of doubt, a court of equity will assist C to obtain the due administration of the trust of that chose in action, which is necessarily completely constituted, and in that regard will if necessary compel the trustee of the chose, B, [page 67] to sue A at law on A’s promise, even though such a procedure from a practical point of view may amount to giving to a volunteer limited and indirect aid to enforce what is, as between A and B, an incompletely constituted trust. [6-06] Thus, if the facts are that A promises B for valuable consideration (whether under seal or not) to pay money to C, or to furnish some benefit for C16 (see Chapter 2), in many cases B is treated as ‘a trustee’ for C. Thus in Robertson v Wait,17 the plaintiffs were charterers of a vessel and the defendants its owners, and by a clause in the charterparty the defendants promised to consign the vessel to a third party at Calcutta on terms which were financially advantageous to the third party. The Court of Exchequer Chamber considered that the plaintiffs were trustees for the third party. Likewise, in cases like Lloyd’s v Harper,18 where the facts were similar except that A’s promise was to pay money to B as trustee for C rather than to pay to C directly, B was treated as a trustee. If one asks, of what property is B trustee, one can only answer that B must be the trustee of the chose in action which is the right to sue A at law for damages for breach of contract. Such cases are consistent only with the

interpretation that there is a completely constituted trust of this chose in action, B being the trustee and C the cestui que trust. One then has the following situation: B can sue A at law for damages for breach of contract, and in an action at law the damages will not be merely nominal, but will include all damages suffered by C through A’s non-performance of A’s promise;19 and any damages recovered will be held on trust for C.20 At least in some circumstances, B can compel A specifically to perform A’s promise.21 Although C, as a third party to the contract, cannot sue either A or B at law, and although in equity there is no basis for his directly suing A, C can obtain the assistance of a court of equity to compel B to sue A at law.22 That C is a volunteer is completely irrelevant, the trust of the right to sue being completely constituted. [6-07] If A promises B for valuable consideration (whether under seal or not) to transfer Blackacre either to B on terms that it be held on trust by B for C or directly to C in such circumstances that equity will imply a trust, the same analysis holds good with this exception, that B will have against A not only a common law right to sue for breach of contract but also (subject to the normal rules governing the grant of that remedy) an additional right to sue in equity for specific performance of the promise; and C will have the equitable right to compel B to prosecute whichever of B’s legal or equitable rights against A is the more appropriate in the particular circumstances. [6-08] If A’s promise, irrespective of its nature, is neither under seal nor given for valuable consideration, B as a volunteer cannot sue A in equity on the promise; and B has no rights against A at law, where the validity of a gratuitous promise is not recognised unless it be under seal. C cannot have any rights against either A or B at law, both because their agreement does not amount to a contract and because, in any event, C is not a party to that agreement. C has no rights in equity against A directly. Nor has C any rights in equity against B, since there does not in this case exist any chose in action, legal or equitable, which B could hold in trust for C. [page 68] [6-09] Although there can be little doubt in the situations considered so far, confusion commences in the type of case where A covenants with B under seal,

although not for valuable consideration, to pay money or transfer property to B as trustee for C (or to pay money or transfer property directly to C in circumstances where equity will consider B a trustee for C). Clearly, equity’s attitude to volunteers will prevent B from obtaining in a court of equity specific performance (in any sense of that term) of A’s covenant. But it is submitted that it is equally clear on principle that, as the benefit of A’s obligation to B to observe A’s covenant with B is not held by B beneficially, B must therefore be a trustee of it for C. The trust of the covenant in the circumstances envisaged must be completely constituted as soon as the covenant is valid at law, so that there is no reason to prevent C from calling upon the aid of a court of equity to compel B to exercise that right. This is the basis of the celebrated decision in Fletcher v Fletcher,23 and of a number of other cases.24 In Fletcher v Fletcher, a settlor by a voluntary deed covenanted with trustees that, in case A and B (his natural sons) or either of them should survive him, his personal representatives would within 12 months pay £60,000 to the trustees upon trust for A and B or such one of them as should attain the age of 21 years. The settlor died and after his death it was held that, although the covenant was voluntary, it nevertheless created a trust of that covenant for the surviving natural son A. It was held that the refusal of the trustees to sue upon the covenant could not affect his rights because his rights once existing could not, as Sir James Wigram VC expressed it, depend on mere accident and caprice. [6-10] The principle of Fletcher v Fletcher,25 it is submitted, is of particular application in the usual form of a marriage settlement, whereby the wife covenants with the trustees of the settlement to settle after-acquired property on them to be held by them on trust for herself for life, with a remainder to her husband and an ultimate remainder for her children and with a provision for her next-of-kin in default of children. It is submitted that in such cases the correct view is that, by an application of the principle of Fletcher v Fletcher, either the husband, the children, the next-of-kin or any combination of them, can compel the trustees of the settlement to sue the wife (or her representatives) at law.

Re Pryce [6-11] However, in Re Pryce,26 Eve J, misapplying certain dicta of the Court of Appeal in Re D’Angibau,27 and misconceiving the legal effect of the Judicature Act, seems to have decided to the contrary. In that case, there was a

marriage settlement of the usual type described above executed in 1887. In 1904 the wife became entitled to certain interests in reversion under another settlement. The husband died in 1907 and there was no issue of the marriage. In 1916 the wife’s reversionary interests fell into possession and were outstanding in the trustees of the prior settlement. The trustees of the 1887 settlement took out a summons asking whether, having regard to the fact that there had been no issue of the marriage and that the only other persons beneficially interested in the property settled by the wife were her next-of-kin at her death, they were bound to take steps to enforce the payment and transfer to the trustees the property thus acquired by the wife. [page 69] [6-12] It is submitted that Eve J should have held that: (1) Prima facie, the trustee had a good common law right to sue the wife for damages for breach of contract. The existence of such a right can hardly be disputed.28 The fact that the property promised to be settled was, at the date of the settlement, after-acquired property did not render the covenant to convey such property, if and when it came into existence, nugatory. True, future property may neither be assigned nor made the subject of a presently-operative trust29 but the benefit of a covenant to assign such property when it does exist is present property, not future property. As Scott says,30 a covenant to settle after-acquired property is ‘a common illustration’ of the proposition that a chose in action can be property of which a trust can be created. (2) Even if the trustee, as a volunteer, could not obtain equitable relief by way of specific performance of the covenant, that fact would not derogate from the trustee’s right to sue at law for damages. (3) The right to sue at law for damages was a real and substantial right, not a nominal one. It could never be urged that the damages to which the trustee was entitled were merely nominal on the ground that the trustee personally suffered no damage by reason of the breach of covenant. North J said in Re Flavell,31 ‘There is no doubt that the executrix could sue [the covenantor] upon his covenant if he refused to pay; her claim arises under [the agreement], and he would have no answer to an action by her for the

annuity: quite apart from the question what would become of it after she had recovered it, whether it would form part of the testator’s estate or whether it would belong to her beneficially.’32 The fact that a trustee is not personally damnified is never a barrier to that trustee’s right to recover substantial damages. If, for example, the trustee of an estate contracts to sell Blackacre, an estate asset, the purchaser defaults and (for some reason) specific performance is impossible, it is inconceivable that in an action at law for damages for breach of contract the plaintiff is limited to nominal damages only since the trustee, having contracted to sell ‘as trustee’, has not been personally damnified. (4) The right to sue at law for damages was held on trust for, in the circumstances of Re Pryce,33 the next-of-kin of the settlor. It is clear enough that if the trustee had sued for, and successfully recovered, damages for breach, he would have been a trustee of those damages for the next-ofkin. If the fruits of the action were held on trust, it is not easy to see how the right to bring the action would be held by the trustee absolutely and not be held on trust. (5) The trustees, pursuant to their normal obligation to get in the trust property, were bound to sue the settlor for damages at law. [6-13] Unhappily, Eve J thought otherwise. He held that not merely were the trustees not bound to sue, but also that they were bound not to sue. The decision deserves further consideration, and is open to the following criticisms. First, the actual order was clearly made per incuriam: the question which Eve J meant to answer in the negative was ‘ought the trustees to sue’; a true negative answer would have been ‘The trustees are not obliged to sue’, leaving them free to do so if they wished. But the order in fact made was that the trustees ought not to sue, in other words, that they had a positive obligation to refrain from suing; so that, even if Eve J were correct in all other respects, his order does not reflect his reasoning. [page 70] Secondly, it is an unfortunate decision in that the class of person whose rights

were negatived — that is, the next-of-kin — were not represented at the hearing. Thirdly, it is clearly inconsistent with Fletcher v Fletcher,34 and fails to recognise that there can be a completely constituted trust of a voluntary covenant. Fourthly, it endeavours to establish the startling proposition that equity will actively intervene in order to prevent volunteers pursuing their rights at law, a proposition rejected in terms in Davenport v Bishopp35 and Cannon v Hartley.36 In T Choithram SA v Pagarini,37 the Privy Council said, ‘Although equity will not aid a volunteer, it will not strive officiously to defeat a gift.’ Fifthly, it is impossible to reconcile the decision with the reasoning in well established cases such as Lloyd’s v Harper38 and Robertson v Wait.39 On what principle can one say that, where A promises B to pay money to B on trust for C, there is a completely constituted trust of B’s clear legal right against A at law in the case where the promise is made in a simple contract supported by valuable consideration, but not in the case where B’s prima facie equally clear legal right is founded on a voluntary covenant? If there is an enforceable legal right vested in B in both cases, there is no more reason in one case than in the other why such a legal right cannot be the subject of a trust.40 Sixthly, the decision mistakes the nature and effect of the fact that both the trustees and next-of-kin were volunteers. This fact precluded them from obtaining equitable relief by way of specific performance. But it is irrelevant to the existence of the trustees’ rights to sue at law for damages. And it is irrelevant to the right of the next-of-kin in effect to compel the trustees to exercise their right to sue at law for damages, if there was a completely constituted trust of the latter right. Seventhly, it fails to perceive that the circumstance that there was no completely constituted trust of the after-acquired property itself does not entail the consequence that there was no completely constituted trust of the right to sue. Eighthly, it is a most glaring example of the ‘fusion fallacy’.41 The expression of Eve J’s reasoning was as follows:42 ‘[V]olunteers have no right whatever to obtain specific performance of a mere covenant which has remained as a covenant and has never been performed’: see per James LJ In re D’Angibau. Nor could damages be awarded either in this Court, or, I apprehend, at law, where, since the Judicature Act, the same defences would be available to the defendant as would be raised in an

action brought in this Court for specific performance or damages. In these circumstances, seeing that the next of kin could neither maintain an action to enforce the covenant nor for damages for breach of it and that the settlement … is a mere voluntary contract to create a trust, ought the Court now for the sole benefit of these volunteers to direct the trustees to take proceedings to enforce the defendant’s covenant? I think it ought not; to do so would be to give the next of kin by indirect means relief they cannot obtain by any direct procedure …. The circumstances are not unlike those which existed in the case of In re D’Angibau, and I think the position here is covered by the judgments of the Lords Justices in that case. Accordingly, I declare that the trustees ought not to take any steps to compel the transfer or payment to them of the (afteracquired property).

[page 71] But to say that the Judicature Act had the effect of aborting an action for damages at law just because a suit in equity could not be maintained on the same set of facts is clearly a non sequitur. After all, can hardship, for example, be pleaded as a defence to an action for damages at law just because it would succeed as a defence had the plaintiff elected to sue for specific performance in equity?43 [6-14] The defects in Re Pryce44 are obvious enough. But in a subsequent case, Re Kay,45 involving almost identical facts, Simonds J (as he then was) followed it, albeit with reluctance. Moreover, in New South Wales, when a similar question arose before McLelland J in Perpetual Trustee Co (Ltd) v Willers,46 his Honour seemed disposed to follow Re Pryce and Re Kay, although their correctness was not in terms challenged. To make matters worse, Buckley J, in Re Cook’s Settlement Trust,47 has reiterated the heresy. That case involved a fortune of which Sir Herbert Cook was life tenant and his son, Sir Francis Cook, remainderman in fee. In a 1934 resettlement of the fortune, Sir Francis covenanted with Sir Herbert and the trustees that if certain assets (including Rembrandt’s famous painting ‘Titus’) were sold, the proceeds of sale would be settled on the terms of the resettlement trusts. The remaindermen under the resettlement trusts were Sir Francis’s children. When Sir Francis and his current (and sixth) wife proposed to sell ‘Titus’ but not to settle the proceeds in accordance with the covenant, Buckley J held that their children could not compel the trustees of the resettlement to sue Sir Francis for damages for breach of covenant. What his Lordship should have done was to have inquired whether the trustees’ undoubted legal right to sue for damages was held by them

beneficially or on trust for the children, and then decided, if the latter were the case (as it assuredly must have been), that the trustees were obliged, whether requested to do so by the children or not, to sue Sir Francis for damages for breach of covenant. Buckley J, approving Re Pryce and Re Kay, held that as the covenant lay in the area of contract it had nothing to do with the law of trusts. But this, surely, is a non sequitur. Of course, the promise itself was a matter of contract. But the benefit of a contractual promise is a proprietary right. The question before his Lordship was whether or not the legal owner of the benefit of the contractual promise held it on trust, and that question is not answered by the assertion that the promise is ‘merely’ contractual.48

Constitution of Voluntary Trusts [6-15] Since complete constitution of a voluntary trust is essential to its effectiveness, it is necessary now to consider further the two main ways indicated at the beginning of this chapter in which a trust may be constituted. The principles applicable were summarised by Turner LJ in Milroy v Lord as follows:49 In order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those

[page 72] purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but in order to render the settlement binding, one or the other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift.

Transfer to a Trustee [6-16] A transfer may be made by assignment inter vivos or by will. The

requirements of a valid trust created by will are discussed below.50 In order to create, by assignment inter vivos, a voluntary trust of property capable of being assigned at common law, the transfer must vest the legal title to the property in the trustee. If the assignment is ineffective to do so at law, it will likewise be ineffective in equity, because of the principle in Milroy v Lord.51 In that case, Medley, the owner of a parcel of shares in the Louisiana Bank, wished to assign 50 of those shares to one Lord on trust for the plaintiffs. The shares were transferable only by entry in the books of the bank; but no such transfer was ever made, although Medley did deliver the relevant share certificates to Lord. Lord, pursuant to a power of attorney, received the dividends payable on the shares, which he remitted to the plaintiffs either directly or through Medley. It was held in effect that Medley at all times retained the beneficial ownership of those shares. [6-17] The case is authority for two main propositions. The first is that if an intending settlor chooses to establish a voluntary trust by assignment, but the assignment is ineffective, then a court of equity will not, in order to save the attempted disposition, treat it as a trust constituted by declaration of trust. ‘If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.’52 By attempting to assign the property the settlor has shown an intention to dispose of it, whereas a declaration of trust shows an intention by the settlor to hold it as trustee. ‘For a man to make himself a trustee, there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over the property to another, and not to retain it in the donor’s own hands for any purpose, fiduciary or otherwise.’53 [6-18] The second proposition for which Milroy v Lord54 is authority is that there is no equity to perfect an imperfect gift at the suit of a volunteer. For a voluntary assurance to be effective in equity the assignor must have done everything which according to the nature of the property was necessary to be done in order to transfer the property. Just as a volunteer may not specifically enforce an agreement to create a trust which has not been completely constituted,55 so too a volunteer may not claim that an incomplete assurance (in the sense described below) should be treated

in equity as if it were complete. This is so whether the assurance was to have been to the volunteer beneficially, or as a trustee for some other person. [page 73] [6-19] It is for practical purposes established in Australia that the second proposition from Milroy v Lord is satisfied when the settlor has done all those things which the settlor, and only the settlor, could do. That was the view of Griffith CJ in Anning v Anning,56 whose views were approved by Mason CJ, Deane and McHugh JJ in Corin v Patton.57 Although, strictly, their views were obiter dicta, they have been regularly applied.58 The law is probably the same in England, following Re Rose.59 In Corin v Patton, Mason CJ and McHugh J emphasised that although Griffith CJ had not said so in terms, the donee acquires an equitable estate or interest in the subject matter of the gift once the transaction is complete so far as the donor is concerned, and that Re Rose was to the same effect.60 That property will be held by the intended assignee on the trust created by the settlor. [6-20] The application of these principles to particular kinds of legal property, assuming the intending settlor wishes voluntarily to assure the property to the intended assignee as trustee, leads to the following results: (1) In the case of old system land, delivery of a duly executed deed to the intended trustee is necessary in order to complete in equity a voluntary trust by way of assurance of the land.61 (2) Contrary to the views expressed by Dixon J in Brunker v Perpetual Trustee Co Ltd,62 in the case of Torrens system land, there is no personal right derived from statute which mirrors the rule in Milroy v Lord but differs in effect. In Corin v Patton, after reviewing the judgment of Dixon J and various later authorities, Mason CJ and McHugh J concluded:63 All that can be said is that the legislation enables a donee to secure registration of a transfer of the donor’s interest when he is armed with an instrument of transfer in registrable form and he can produce, or arrange for the production of, the appropriate documents (which include the certificate of title). If the donor lacks the power to recall his transfer, that lack of power stems not from statute, but from the principles of equity.

(3) In the case of chattels capable of passing by delivery, the intending settlor must either deliver them to the intended trustee or execute and deliver a

deed of gift in respect of them.64 [page 74] (4) In the case of company shares, all that is necessary for a perfect equitable title is delivery of a duly executed form of transfer to the intended trustee, although no legal title is transferred until registration of the transfer in the books of the company has been effected.65 (5) Legal choses in action were not, when Milroy v Lord was decided, capable of legal assignment and so the principles stated by Turner LJ could not at that time apply. Despite Lord Macnaghten’s contrary view,66 the better view is that the effect of the rule in Milroy v Lord67 and s 12 of the Conveyancing Act 1919 (NSW) and its equivalents68 is that an effective assignment of a legal chose in action requires writing under the hand of the intending settlor.69 The second proposition from Milroy v Lord has no application to legal property incapable of assignment at law, or to equitable property, as Windeyer J demonstrated in Norman v Federal Commissioner of Taxation.70 If the subject matter of a voluntary trust is legal property incapable of assignment at law, then all that is required is a sufficiently clear expression of intention that the trustee from then on hold the property on trust.71 If the subject matter of the proposed settlement is purely equitable, all that is required to constitute the assignee a trustee is whatever assignment is within the power of the settlor to make, provided that the settlor employs the means which equity recognises as sufficient for a transfer of the subject matter.72 The transferor must express an intention to assign the equitable subject matter sufficiently clearly, but consideration, seal or formal language is not necessary.73 Where, however, the property assigned is an existing equitable interest in realty or personalty, writing is necessary by virtue of s 23C(l)(c) of the Conveyancing Act 1919 (NSW) and its equivalents in other jurisdictions. [6-21] The principles set out above may be modified by equitable estoppel. In Dillwyn v Llewelyn,74 a case heard and determined contemporaneously with Milroy v Lord, a donee was told he had been given land into which he had been put into possession, and proceeded to expend money on improving it. The

donee could call on the donor to complete the gift. It would seem that the same principle would apply if the imperfect gift were an imperfect voluntary assurance to the donee as trustee. It is also to be noted that the so-called rule in Strong v Bird permits the perfection of an imperfect gift when the donee is appointed executor or administrator and the donor had a [page 75] continuing non-testamentary donative intention. However, the better view is that that rule does not apply where the donee was not intended to take beneficially, but only as a trustee.75

Declaration of Trust [6-22] The second principal mode by which a trust may be constituted is by declaration.76 What is required is a statement, intended to be final and binding, that property owned by the settlor is thereafter held on trust for another. The requisite intention has earlier been described.77 No consideration is required.78 Because the trust property is already owned by the trustee, the principles in Milroy v Lord do not apply; indeed, that is the force of Milroy v Lord. [6-23] The declaration must be manifested in writing signed by the person making the declaration if the trust property is land or any interest in land.79 In the case of legal interests in personalty, the declaration may be oral or even inferred from conduct.80 The position of declarations of trust of equitable interests in personalty is not entirely free from doubt by reason of conflicting decisions on the construction of s 23C(1)(c) of the Conveyancing Act 1919 (NSW) and its equivalents. However, it is submitted that although the provision is apt to apply to equitable interests in personalty, a declaration of trust which carves out a new and subsidiary equitable interest is not caught by the section, there not being a disposition of an interest subsisting at the time of the disposition.81

Direction to a Third Party

[6-24] A beneficiary may direct a trustee to hold the whole of the equitable interest on trust for another. It is clear that such a direction amounts to a disposition of an existing equitable interest, and so must be in writing.82 As formulated by Wilberforce QC in Grey v Inland Revenue Commissioners,83 a disposition ordinarily includes an act by which someone ceases to be the owner of property in law or in equity. The precise nature of such a direction is problematic. Dixon J and Romer LJ considered it distinct from both a declaration of trust and a transfer.84 In Grey’s case itself, Upjohn J and Lord Radcliffe said that it was a declaration of trust. Ong characterised the direction in Grey’s case as a release subject to the terms of the new trust.85 Moreover, it is difficult to differentiate a direction from an assignment: the effect is identical, and a direction clearly satisfies the formal requirements. Sir Frederick Jordan said that this was ‘simply an illustration of equitable assignment’.86 Little would appear to turn on the point, but given the similarities with both of [page 76] the two principal methods of creating an express trust, there seems no reason to characterise it as a separate mode.87

Consideration [6-25] When a trust has been declared but the settlor has not been divested of the trust property, the trust is said to be incompletely constituted and operates merely as an agreement to create a trust. Such an agreement will not be enforceable unless it is based upon valuable consideration and a party to the consideration requires performance of it. It will not be enforceable by volunteers. If the property that is the subject of the declaration is future property, then a completely constituted trust will arise as and when the property comes into the hands of the settlor.88 [6-26] An agreement to create a trust is not a trust but a contract. It is

accordingly subject to the principles applicable generally to all contracts and will be enforceable only if it can be shown to be a valid and enforceable contract.89 The consideration may move from the trustee or from the intended beneficiary. Where the consideration has moved from a person constituted a trustee of the benefit of the agreement for a beneficiary, the beneficiary may enforce the trust because of the consideration given by the trustee. Likewise where the consideration has moved from a beneficiary, the trustee may enforce the trust on the beneficiary’s behalf.90 Parties to the consideration comprise parties who give valuable consideration, and also parties who are within marriage consideration, namely, the spouses and the issue of the marriage,91 and trustees for them. Beneficiaries who are not parties to the consideration are volunteers and cannot enforce the agreement.92 If, however, the court at the suit of a party to the consideration compels the settlor to constitute the trust, it will compel the settlor to constitute the whole trust — that is, even those provisions for the benefit of volunteers.93 _____________________________ 1.

Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 622–3; [1936] ALR 198 at 200–1.

2.

Swires v Renton [1991] STC 490; Lewin on Trusts, [3-054]–[3-064]; and see Davidson v Chirnside (1908) 7 CLR 324 at 339; Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; 151 ALR 1 at [35]. Commissioner of State Revenue v Lam & Kym Pty Ltd (2004) 10 VR 420 at [31]–[33].

3. 4. 5.

Commissioner of State Revenue v Lam & Kym Pty Ltd (2004) 10 VR 420 at [36]–[46]. [2001] 2 All ER 492; [2001] 1 WLR 1, noted J Hopkins [2001] CLJ 483 and C Rickett [2001] Conv 515. The decision is controversial.

6. 7.

See [6-17]. Paul v Paul (1882) 20 Ch D 742; Standing v Bowring (1885) 31 Ch D 282; [1881–5] All ER Rep 702; Corin v Patton (1990) 169 CLR 540 at 557; 92 ALR 1 at 13; T Choithram SA v Pagarini [2001] 2 All ER 492 at 501; [2001] 1 WLR 1 at 12.

8. 9.

(1882) 20 Ch D 742 at 744. (1802) 6 Ves 656 at 662; 31 ER 1243 at 1246.

10. (1882) 20 Ch D 742 at 744. 11. For the two senses of specific performance, see Meagher, Gummow and Lehane’s Equity, [20-005]. 12. Colyear v Countess of Mulgrave (1836) 2 Keen 81 at 98; 48 ER 559 at 565. 13. (1843) 2 Y & C Ch Cas 451 at 460; 63 ER 201 at 206. 14. [1949] Ch 213; [1949] 1 All ER 50. 15. [1949] Ch 213 at 223–4; [1949] 1 All ER 50 at 59. 16. See [2-17]–[2-25]. 17. (1853) 8 Ex 299; 155 ER 1360.

18. (1880) 16 Ch D 290. 19. See [2-21]. 20. Re Cavendish-Browne’s Settlement Trusts (1916) 61 Sol Jo 27; Coulls v Bagot’s Executor and Trustee Co Ltd (1966) 119 CLR 460 at 501; [1967] ALR 385 at 410–11. 21. Coulls v Bagot’s Executor and Trustee Co Ltd (1966) 119 CLR 460; [1967] ALR 385; Beswick v Beswick [1968] AC 58; [1967] 2 All ER 1197; Snelling v John G Snelling [1973] QB 87; [1972] 1 All ER 79; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 119–20, 138–9; 80 ALR 574 at 582, 596. The position is different in Queensland and the Northern Territory, where statute expressly permits third parties to seek specific performance: Property Law Act 1974 (Qld) s 55; Law of Property Act (NT) s 56. Section 11 of the Property Law Act 1969 (WA) more closely follows the Contracts (Rights of Third Parties) Act 1999 (UK), as to which see Lewin on Trusts, [4013]–[4-016] and Pettit, pp 111–13 (the latter suggests a third party volunteer would not be able to obtain specific performance). 22. Harmer v Armstrong [1934] Ch 65; [1933] All ER Rep 778. 23. (1844) 4 Hare 67; 67 ER 564. 24. See, for example, Williamson v Codrington (1750) 1 Ves Sen 512; 27 ER 1174; Cox v Barnard (1850) 8 Hare 310; 68 ER 379. 25. (1844) 4 Hare 67; 67 ER 564. 26. [1917] 1 Ch 234; [1916–17] All ER Rep 573. 27. (1880) 15 Ch D 228; [1874–80] All ER Rep 1184; for a lucid analysis of this case, see D Elliott (1960) 76 LQR 100 at 103–5. 28. Davenport v Bishopp (1843) 2 Y & C Ch Cas 451; 63 ER 201; Cannon v Hartley [1949] Ch 213; [1949] 1 All ER 50. 29. Re Ellenborough [1903] 1 Ch 697. 30. Scott on Trusts, §10.6. 31. (1883) 25 Ch D 89 at 99. 32. See also The Winkfield [1902] P 42; Diamond Cutting Works v Trifus [1956] 1 Lloyd’s LR 216. 33. [1917] 1 Ch 234; [1916–17] All ER Rep 573. 34. (1844) 4 Hare 67; 67 ER 564, which commended itself to Barwick CJ in Olsson v Dyson (1969) 120 CLR 365 at 373; [1969] ALR 443 at 447, albeit in a dissenting judgment (although not on this point). 35. (1843) 2 Y & C Ch Cas 451 at 460; 63 ER 201 at 206. 36. [1949] Ch 213 at 223–4; [1949] 1 All ER 50 at 58–9. See [6-04]. 37. [2001] 2 All ER 492 at 501; [2001] 1 WLR 1 at 11. 38. (1880) 16 Ch D 290. 39. (1853) 8 Ex 299; 155 ER 1360. 40. See the discussion at [2-17]–[2-25]. 41. See Meagher, Gummow and Lehane’s Equity, [2-130]. 42. [1917] 1 Ch 234 at 241; [1916–17] All ER Rep 573 at 577. 43. See generally D Elliott (1960) 76 LQR 100; J Hornby (1962) 78 LQR 228. 44. [1917] 1 Ch 234; [1916–17] All ER Rep 573. 45. [1939] Ch 329; [1939] 1 All ER 245. 46. (1955) 72 WN (NSW) 244.

47. [1965] Ch 902; [1964] 3 All ER 898. 48. An attempt to support Re Cook’s Settlement was made by W Lee (1969) 85 LQR 213; but see J Barton (1975) 91 LQR 236; R Meagher and J Lehane (1976) 92 LQR 427; M Friend (1982) 46 Conv 280 at 287; D Goddard (1988) 52 Conv 19. See also M Scott (1966) 8 Malaya L Rev 153; J Davies [1967] Annual Survey of Commonwealth Law 376 at 387; C Rickett (1979) 32 Current Legal Problems 1; (1981) 34 Current Legal Problems 189; M Macnair (1988) 8 LS 172; D Goddard (1988) 52 Conv 19; J Crueco, L McCarthy and S Jacks (1998) 14 QUTLJ 214. 49. (1862) 4 De GF & J 264 at 274; 45 ER 1185 at 1189; [1861–73] All ER Rep 783 at 789. 50. See [7-14]. 51. (1862) 4 De GF & J 264; 45 ER 1185. 52. Milroy v Lord (1862) 4 De GF & J 264 at 274; 45 ER 1185 at 1190. 53. Richards v Delbridge (1874) LR 18 Eq 11 at 15. See also Re Williams (1916) 115 LT 689; [1916–17] All ER Rep 354; Williams v Lloyd (1933) 50 CLR 341; Re McArdle [1951] Ch 669 at 676–7; [1951] 1 All ER 905 at 909; Olsson v Dyson (1969) 120 CLR 365 at 386; [1969] ALR 443 at 456–7; Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105 at 114, 121; Corin v Patton (1990) 169 CLR 540 at 561; 92 ALR 1 at 18; Pehrsson’s Trustee in Bankruptcy v von Greyerz (1999–2000) 2 ITELR 230 (PC). The generality of the statements in the text may be subject to two qualifications: first, there may be some exceptional circumstances in which an attempted assignment may be construed as a declaration of trust (see Williams v Commissioner of Inland Revenue [1965] NZLR 395 at 401); secondly, at least in some cases, where the property is equitable and not legal, there is no distinction between an assignment and a declaration of trust: see ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 59 NSWLR 549 at [243]–[270]; and see Chapter 23 ‘The Rights of a Beneficiary’. 54. (1862) 4 De GF & J 264 at 274; 45 ER 1185 at 1189; [1861–73] All ER Rep 783 at 789. 55. See [6-02]. 56. (1907) 4 CLR 1049; 13 ALR 709. Section 200 of the Property Law Act 1974 (Qld) is a legislative restatement of this test: cf Denham Bros Ltd v W Freestone Leasing Pty Ltd [2004] 1 Qd R 500 at [33]. 57. (1990) 169 CLR 540; 92 ALR 1. The course of authority prior to Corin v Patton is analysed in Meagher, Gummow and Lehane’s Equity, [6-110]–[6-145]. 58. Costin v Costin (1997) 7 BPR 15,167; Motor Auction Pty Ltd v John Bryce Wholesale Cars Pty Ltd (1997) 23 ACSR 647 at 655–8; Benjamin v Leicher (1998) 45 NSWLR 389 at 400; Gardiner v Chief Commissioner of State Revenue (2004) 59 NSWLR 549 at [32]. 59. [1952] Ch 499; [1952] 1 All ER 1217. Mascall v Mascall (1984) 50 P & CR 119; Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [1996] Ch 51; Kaye v Zeital [2010] 2 BCLC 1; Curtis v Pulbrook [2011] 1 BCLC 6387 at [47]. Cf Pennington v Waine [2002] 1 WLR 2075; [2002] 4 All ER 215, a decision described by W Gummow as ‘bizarre’: ‘Equity and the Torrens System Register’, in D Grinlinton (ed), Torrens in the Twenty-first Century, LexisNexis, Wellington, 2003, but defended by others: Meagher, Gummow and Lehane’s Equity, [6-110]. 60. Corin v Patton (1990) 169 CLR 540 at 559; 92 ALR 1 at 14; and see Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [2001] Ch 733 at 742. 61. Civil Law (Property) Act 2006 (ACT) s 201; Conveyancing Act 1919 (NSW) s 23B; Law of Property Act (NT) s 10; Property Law Act 1974 (Qld) s 10; Law of Property Act 1936 (SA) s 28; Law of Property Act 1884 (Tas) s 60; Conveyancing and Law of Property Act 1884 (Tas) s 60; Property Law Act 1958 (Vic) s 52; Property Law Act 1969 (WA) s 33. 62. (1937) 57 CLR 555 at 599–602; [1937] ALR 349 at 359–60. 63. (1990) 169 CLR 540 at 556; 92 ALR 1 at 11.

64. Cochrane v Moore (1890) 25 QBD 57; [1886–90] All ER Rep 731; Legge v Legge (1904) 23 NZLR 350; Anning v Anning (1907) 4 CLR 1049; 13 ALR 709. 65. In addition to cases already cited, see Elliott v Elliott (1898) 19 LR (NSW) Eq 162. 66. William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454; [1904–7] All ER Rep 345. 67. (1862) 4 De GF & J 264; 45 ER 1185. 68. See Civil Law (Property) Act 2006 (ACT) s 205; Law of Property Act (NT) s 182; Property Law Act 1974 (Qld) s 86; Law of Property Act 1936 (SA) s 15; Conveyancing and Property Law Act 1884 (Tas) s 86; Property Law Act 1958 (Vic) s 134; Property Law Act 1969 (WA) s 20. 69. Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 28; [1964] ALR 131 at 148; Olsson v Dyson (1969) 120 CLR 365; [1969] ALR 443; Meagher, Gummow and Lehane’s Equity, [6-155]. The notice required by the section need not be given by the assignor: Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4; [1942] 1 All ER 404 at 407; Olsson v Dyson (1969) 120 CLR 365 at 386–7; [1969] ALR 443 at 457. 70. (1963) 109 CLR 9 at 28–32; [1964] ALR 131 at 148–50. 71. See also Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385; [1966] ALR 969; Meagher, Gummow and Lehane’s Equity, [6-160]–[6-180]. 72. Kekewick v Manning (1851) 1 De GM & G 176; 42 ER 519; Meagher, Gummow and Lehane’s Equity, [6-015]–[6-045]. 73. Anning v Anning (1907) 4 CLR 1049 at 1069; 13 ALR 709 at 716–17; Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 622; [1936] ALR 198 at 200; Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 30; [1964] ALR 131 at 149. Writing will be required, by reason of the Statute of Frauds legislation, if the subject matter is an equitable interest in land, or, it is submitted, in personalty: see Chapter 7; and see Baloglow v Konstantindis (2001) 11 BPR 20,721 at [115]–[116]. 74. (1862) 4 De GF & J 517; 45 ER 1285; Commonwealth v AE Goodwin Ltd [1961] NSWR 1080; Raffaele v Raffaele [1962] WAR 29; D E Allan (1963) 79 LQR 238; Olsson v Dyson (1969) 120 CLR 365 at 378–9; [1969] ALR 443 at 451. See Meagher, Gummow and Lehane’s Equity, Ch 17. 75. Re Halley (1959) 43 MPR 79; Blackett v Darcy (2005) 62 NSWLR 392 at [35]–[37]; Meagher, Gummow and Lehane’s Equity, [30-035]. That chapter also urges the larger question of the reconsideration of this area of the law; see also J Jaconelli [2006] Conv 432 at 444–5. 76. This paragraph and the subsequent paragraph were approved in George v Fletcher (Trustee) [2010] FCAFC 53 at [59]. 77. See [5-02]. 78. Collinson v Patrick (1838) 2 Keen 123 at 134; 48 ER 575 at 579. 79. Conveyancing Act 1919 (NSW) s 23C(1)(b) and its equivalents; see Chapter 7. 80. Ibid. 81. See Baloglow v Konstantindis (2001) 11 BPR 20,721 at [113]–[118] and Chapter 7; for a full treatment, see Meagher, Gummow and Lehane’s Equity, Ch 7. 82. Grey v Inland Revenue Commissioners [1960] AC 1; [1959] 3 All ER 603. 83. A formulation adopted by Lord Hoffmann in Newlon Housing Trust v Alsulaimen [1999] 1 AC 313; [1998] 4 All ER 1. 84. Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 622; [1936] ALR 198 at 200; Timpson’s Executors v Yerbury [1936] 1 KB 645 at 664; [1936] All ER 186 at 194. 85. D Ong, Trusts Law in Australia, 4th ed, Federation Press, Sydney, 2012, pp 143–9. 86. F Jordan, Chapters on Equity in New South Wales, 6th ed, p 24 footnote m.

87. Cf Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 at 503; 102 ALR 681 at 694. 88. Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 at 27; [1937] ALR 432 at 440–1; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; 171 ALR 568 at [28]. 89. This passage was applied in Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296 at [55]. 90. See F Jordan, Chapters on Equity in New South Wales, 6th ed, p 24. 91. De Mestre v West [1891] AC 264; Attorney-General v Jacobs Smith [1895] 2 QB 341; Pullan v Koe [1913] 1 Ch 9; [1911–13] All ER Rep 334. ‘Lawful considerations are either (1) meritorious considerations (sometimes called “good” considerations) being considerations of blood and natural affection, or of generosity and moral duty; or (2) valuable considerations such as money, marriage, and the like, which the law esteems an equivalent for money. A settlement supported by the former kind of consideration only is regarded as voluntary, and of the latter kind it is only marriage that is in practice given as the consideration for the creation of a settlement’. 92. Ellison v Ellison (1802) 6 Ves 656; 31 ER 1243; [1775–1802] All ER Rep 119; Re D’Angibau (1880) 15 Ch D 228; [1874–80] All ER Rep 1184; Re Plumptre’s Marriage Settlement [1910] 1 Ch 609. 93. Davenport v Bishopp (1846) 1 Ph 698; 41 ER 798; Lloyd’s v Harper (1880) 16 Ch D 290.

[page 77]

CHAPTER 7 Express Trusts — The Requirement of Writing Introduction

[7-01]

Trusts Created Inter Vivos Relationship Between Paragraphs (a), (b) and (c) of s 23C(1) Relationship Between (1) and (2) of s 23C Personalty Realty Fraud

[7-03] [7-03] [7-04] [7-05] [7-06] [7-09]

Trusts Created by Will Statutory Requirements Secret Trusts Where there is no trust shown Refraining from making a will Where the will shows that a trust was intended Increase or reduction of legacy Secret trusts of imperfect obligation and unlawful trusts Gift to several donees or legatees The rationale of the secret trust

[7-14] [7-14] [7-15] [7-17] [7-22] [7-23] [7-25] [7-26] [7-29] [7-32]

Introduction [7-01] Even if all the elements necessary to constitute an express private trust

are present and the trust is completely constituted in accordance with the previous three chapters, statute may require that the trust be evidenced by writing and in other cases, additional formalities must be complied with,1 without which the trust may be unenforceable. [7-02] These requirements differ according to whether the trust is intended to come into effect during the lifetime of its creator or is to take effect on his or her death. [page 78] In the case of a trust created inter vivos, if it affects realty or leaseholds, in New South Wales, for example, it will be unenforceable if it does not comply with the provisions of s 23C of the Conveyancing Act 1919. That section is in the following terms: 23C. Instruments required to be in writing — (1) Subject to the provisions of this Act with respect to the creation of interests in land by parol — (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law; (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will; (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing. (2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.2

In the case of a testamentary trust, it must comply with the provisions of law in the jurisdiction concerned governing the requirements for execution of a valid will. In neither case, however, will the strict requirements of these statutes be insisted upon if, by doing so, the court would in effect be lending its aid to the perpetration of a fraud. This, however, will not necessarily be to the advantage of the intended beneficiary, as the principles upon which the court will proceed are designed merely to ensure that the trustee does not, by pleading the statutes,

abuse the trusteeship by taking beneficially something which the creator of the trust never intended the trustee to enjoy.

Trusts Created Inter Vivos Relationship Between Paragraphs (a), (b) and (c) of s 23C(1) [7-03] The different forms of expression found in the various paragraphs are attributable to the different authorship of the various sections of the Statute of Frauds3 but give rise to a number of threshold questions of construction. It should first be observed that the requirement of writing in s 23C(1)(b) is purely evidential, while those in s 23C(1)(a) and s 23C(1)(c) go to the validity of a trust created by the means in those paragraphs. Thus, the writing by which s 23C(1)(b) requires that the trust be ‘manifested and proved’ need not be contemporaneous with the transaction but may be brought into existence subsequently: ‘the date of the writing is immaterial’,4 although it must not, of course, precede the declaration.5 Secondly, declarations of trust fall outside para (c), because there is no disposition of a subsisting equitable interest. But must every declaration of trust falling within s 23C(1)(b), which must be ‘manifested and proved’ in writing, also be subject to s 23C(1)(a) and thus [page 79] created in writing? The better view is that s 23C(1)(b) is not wholly otiose but instead falls outside the scope of s 23C(1)(a).6 This is consistent with Adamson v Hayes,7 which concerned an oral agreement between mineral claimants that they should pool their claims, and thereafter grant certain options subject to conditions. The appellants declined to grant the options as agreed, and a majority of the High Court agreed that they were entitled so to act by reason of the Western Australian equivalent to s 23C. Menzies J expressed the view that para (a) applied only to legal interests in land, a view with which Walsh, Gibbs and Stephen JJ disagreed. Walsh J based

his decision solely on para (a). Gibbs J proceeded on the view that the pooling agreement fell within para (b), and the agreement to grant an option fell within para (a). Stephen J held that the pooling agreement fell within both paras (a) and (b). Thus, no clear ratio emerges from Adamson v Hayes other than that para (a) is not confined to legal interests in land, but the view that para (b) stands outside the scope of para (a) is inconsistent only with the reasoning of Stephen J, and consistent with the reasoning of all the other members of the court who addressed the statute.

Relationship Between (1) and (2) of s 23C [7-04] In Bathurst City Council v PWC Properties Pty Ltd,8 the court referred to the species of constructive trust which is concerned with cases where the settlor’s or testator’s intent would otherwise fail for want of compliance with the formalities for creation of express trusts, with reference to the formulations of secret trusts in Blackwell v Blackwell and Voges v Monaghan.9 That serves to emphasise that in both testamentary and inter vivos trusts, non-compliance with the statute may not be fatal and may be redressed both by means of the principles relating to constructive trusts (see Chapter 13) to which none of the prohibitions in paras (a)–(c) apply, as well as through the more limited ‘engine of fraud’ doctrine.10

Personalty [7-05] Trusts of legal interests in personalty (excluding leaseholds) may be created orally, whether by means of assignment or by means of declaration of trust.11 Thus, a gift of $10,000 stock has been upheld on the evidence of an oral declaration and an unsigned entry in a memorandum book.12 Similarly, where the reputed parent of an illegitimate child placed a sum of money in a bank in the name of an uncle of the child and stated at the time to a clerk at the bank that he intended the money for the child, it was held that an enforceable trust had been created in favour of the child.13 Despite the location of s 23C in a Division headed ‘Assurances of Land’, the better view is that s 23C(1)(c) applies to personalty as well as realty.14 Accordingly, where the subject matter

of the proposed trust is an existing equitable interest in personalty, and the settlor proposes to transfer that interest to trustees, or to make [page 80] such a declaration of trust as will divest the settlor of all further interest in the property, such transfer or declaration must, under s 23C(1)(c) of the Conveyancing Act 1919 (NSW) and its equivalents in the other jurisdictions, be in writing signed by the settlor or by his or her agent thereunto lawfully authorised in writing. This requirement goes not only to evidence of the trust but, on the wording of the subsection, to the actual creation of the trust. Also, in Tasmania, where an agreement to create the trust is not to be performed within one year or is based upon a marriage consideration, the agreement must be evidenced in writing.15

Realty [7-06] If a trust of any legal interest in lands, freehold or leasehold,16 is to be created by assignment of that interest to trustees, to be valid it must be in writing: s 23C(1)(a). If the trust property is an equitable interest in land, and a trust is to be created by assignment, writing is essential to its validity both under s 23C(1)(a) and under s 23C(1)(c). Where the trust property is either a legal or an equitable interest in land, if it is proposed to make it the subject of a declaration of trust, it must also comply with the evidential requirements of s 23C(1)(b).17 [7-07] The person ‘who is able to declare such trust’ referred to in s 23C(1) (b) is the beneficial owner of the property and not the trustee. It is not possible for a person to create a trust of property which that person does not own beneficially. The trustee has only a legal title and not the beneficial interest. The person to create the trust, and the person who is able to declare the trust, are one and the same, and consequently the beneficial owner is the person by law enabled to declare the trust.18 Of course, any acknowledgment in writing by the trustee will be evidence against the trustee of the existence of the trust19 as, for example, a recital in a deed signed by the trustee stating that the land has

been bought with another’s money, letters acknowledging the trust, a written promise to carry out the trust and the like. [7-08] Other aspects of s 23C(1)(b) are as follows: (1) No particular form is required. Practically any informal writing may be evidence of the existence of a trust. The terms of the trust are not required to be embodied in one writing but may be contained in several documents if such documents are annexed to one another or refer to one another or if, on their face, they can be connected together. Under such circumstances it is sufficient if only one of the documents is signed.20 The writing may consist of correspondence,21 a recital in an instrument,22 an affidavit,23 an answer to interrogatories,24 or a telegram.25 (2) The writing must contain the terms of the trust. ‘I take it therefore, that when this Court is called upon to establish or act upon a trust of lands by declaration or creation, it must not only be manifested and proved by writing, signed by the party by law enabled to declare the trust, that there is a trust, but it must also be manifested and proved by writing, signed as [page 81] required what that trust is.’26 The writing must clearly set out the beneficiaries, the trust property, and the nature of the trust.27 This is to be contrasted with a trust created by way of assignment, in which case neither s 23C(1)(a) nor s 23C(1)(c) requires the ‘writing’ concerned to set out the terms of the trust, or the fact that a trust exists.28 (3) The writing need not be made at the time the trust is declared, but may be made subsequently. The trust nevertheless takes effect from the time when it was declared orally, not from the date when the written record was made. The statute requires not that the trust should be created by writing, but that the trust should be manifested and proved by writing. The date of the writing is immaterial.29 Thus, an oral trust of a lease has been upheld where the only written evidence was that made after the trustee had become bankrupt.30 (4) The signature must be that of the person enabled by law to declare the trust.31 There is no provision for signature by an agent as is the case with

regard to the memorandum required under s 4 of the Statute of Frauds 1677 and its Australian adaptations, which apply where the transaction is not a declaration of trust but a contract for the sale of land, or an interest in land.

Fraud [7-09] Undercutting the statutory requirements is the longstanding principle that equity will not permit the Statute of Frauds to become an instrument of fraud. As Hope J demonstrated in Last v Rosenfeld,32 there remains some uncertainty as to the precise limits of this longstanding jurisdiction. The following propositions may be drawn from the cases. First, the principle does not apply to oral, voluntary declarations of trust of land already held by the declarant; so to do would entirely defeat the statute.33 Secondly, equity considers it a fraud for a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust; in such cases, parol evidence of the trust may be adduced to establish the trust, and a declaration obtained.34 The leading case is Rochefoucauld v Boustead.35 The plaintiff’s land had been sold by the mortgagees to the defendant, who, without the plaintiff’s knowledge, raised money on the security of a mortgage of it. The plaintiff claimed that the defendant purchased the land as trustee for her. The defendant later became bankrupt. His trustee in bankruptcy refused to acknowledge any claim of the plaintiff to the land. The plaintiff’s evidence consisted of letters, which were not sufficient to satisfy the Statute of Frauds, and parol testimony. The court admitted the parol evidence and the defendant was adjudged to hold the land as trustee for the plaintiff, subject to a lien for his expenditure. [page 82] [7-10] Thirdly, the fraud on which equity acts is not confined to cases in which the conveyance was fraudulently obtained; relief is available if at some later stage the absolute character of the conveyance is set up for the purpose of defeating the beneficial interest. [7-11] Fourthly, it is not necessary that the oral contract expressly provide

that the grantee is to hold as a trustee; any sufficiently defined beneficial interest stipulated for will suffice. The last two propositions are illustrated by Bannister v Bannister,36 in which the defendant agreed, by written contract of sale, to sell to the plaintiff a cottage, on a purely oral undertaking by the plaintiff that she would be allowed to live in the cottage rent free for as long as she desired. Subsequently, the plaintiff brought an action for possession against the defendant. The court upheld the defendant’s counter-claim that she was entitled to a declaration that the plaintiff held the trust for her during her life. [7-12] Fifthly, the trust declared in such cases is an express trust, thereby operating in the face of the statute, not a constructive trust, which would fall within its second subsection. The suggestion in Bannister v Bannister to the contrary37 is inconsistent with what was stated in Rouchefoucauld v Boustead and later cases.38 [7-13] Sixthly, the view expressed in the first edition of Equity: Doctrines and Remedies that these cases turn on the fact that but for the conveyee’s acceptance of the trust, the conveyor would never have transferred the land,39 should be taken as representing the limit of the doctrine.40

Trusts Created by Will Statutory Requirements [7-14] If the creator of a trust intends that it shall come into effect upon his or her death then, subject to the exception which will be considered later, the trust will be unenforceable unless it is made by will or codicil in conformity with s 6 of the Succession Act 2006 (NSW). This section relevantly provides:41 (1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.

[page 83]

Secret Trusts [7-15] This section, like s 23C of the Conveyancing Act 1919 (NSW), is designed to prevent fraud, but if it were applied strictly to every case it might itself become ‘an engine of fraud’. A testator’s property may be left to A absolutely without any indication in the will to qualify this bequest. In such a case, the testator may have meant exactly what was written — namely, that A is to take the property for A’s own benefit. On the other hand, the testator may have left the property to A on the secret understanding with A that the latter should carry out some purpose in regard to it which the testator did not wish to disclose publicly. Again, the testator may have left property to A ‘upon trust’, having either orally informed A what this trust is, or having set it out in an unattested memorandum, but without having disclosed the nature of the trust in the will. The purpose which the testator desires to have carried out may be contrary to law, or it may be quite lawful but of a nature that the testator does not wish to be disclosed. A testator may, for example, wish to provide for his mistress and illegitimate children whose existence he has succeeded in concealing from his relatives during his lifetime.42 Possibly the non-disclosure of the precise terms of the trust occurs merely from the testator’s ignorance of the provisions of the wills legislation. The testator may have been reticent as to disclosure of his or her philanthropy and established a secret charitable trust.43 Indeed, as in the case of the half-secret trust established by the will of Lucian Freud, the nature of the trust may not even be disclosed to the court.44 [7-16] The cases which come before the court in these circumstances occur for one of two reasons. The testator’s next-of-kin may claim the property from the nominal beneficiary upon the grounds that he or she is really a trustee and that the trust has not been disclosed or, if disclosed, is either unlawful or cannot be carried out. Or the intended beneficiary may claim the property from the nominal beneficiary who is trying to keep it for his or her own benefit instead of carrying out the testator’s intentions. A trust of this nature is termed a ‘secret trust’ and has been defined as:45 [A] trust which the testator intends to create, but which for some reason or another chooses to suppress on the face of the will; he may have communicated his intention to the legatee before making the will, or he may have communicated it at some time between the making of the will

and his death, or the intention may be revealed by a letter left for the legatee’s perusal after his death.

The legatee may either appear on the face of the will to take beneficially or to take upon trust, but in the latter case the trust has not been set forth. In the opinion of Sir Robert Megarry VC,46 the standard of proof required to establish a secret trust is the ordinary civil standard of proof necessary to establish any express trust, at least where it is not suggested the secret trust springs from fraud in the common law sense of deliberate and conscious wrongdoing. Earlier, in Voges v Monaghan,47 Dixon CJ had said that the elements of a secret trust must be established ‘to the reasonable satisfaction of the court’. Although he was dissenting in the result, there was no disagreement with the statement of principle.48 [page 84] The terms of the trust must be sufficiently certain: ‘the evidence must prove satisfactorily that the trust was ascertained and what it was’.49 The alleged secret trust must not be so vague as to be void for uncertainty.50

Where there is no trust shown [7-17] In the case where a testator has left property to A absolutely, and there is nothing on the face of the will to show anything to the contrary, the testator has disposed of the legal ownership, and apparently of the beneficial ownership. A takes absolutely. [7-18] If, however, the testator informed A, whether before or after the making of the will, but before his or her death, that the gift was upon trust for certain purposes and not for A’s own benefit, and if A agreed to accept the trust, then A will hold the property upon trust — A will be merely a trustee. Whether the purposes can be carried out or not, whether the trust is lawful or unlawful, A cannot keep the property for A’s own benefit. However, the trust must have been communicated to A either orally or in writing in the lifetime of the testator and must have been accepted by A.51 In Voges v Monaghan,52 Dixon CJ said that the chief factual elements of a secret trust were the existence of the relevant definite intention of the testator, the communication of it to the

executor, acceptance either by agreement or acquiescence on the part of the executor, and, on the faith that the executor would carry out the intention, the making of the will or the leaving unrevoked of a presently existing will. Fullagar and Kitto JJ adopted a passage in the judgment of Lord Davey in French v French:53 My Lords, it is said that this jurisdiction is based upon fraud, and so it is, because if you once get to this, that it is a trust which is imposed upon the conscience of the legatee, then if the legatee betrays the confidence in reliance upon which the bequest was made to him, then it is what I should think everybody would consider a fraud, though I take the liberty to say that the moral turpitude of any particular case must vary infinitely according to the circumstances of the particular case. My Lords, the basis of it is of course that the testator has died, leaving the property by his will in a particular manner on the faith and in reliance upon an express or implied promise by the legatee to fulfil his wishes, and your Lordships will at once see that it makes no difference whatever whether the will be made before the communication to the legatee or afterwards, because, as was said, I think, by Vice-Chancellor Turner in one of the cases which were cited, the presumption is that the testator would have revoked his will and made another disposition if he had not relied upon the promise, express or implied, made by the legatee to fulfil his wishes.

In reliance upon such passages,54 it has been said that the fraud lies not in any element of personal gain to the secret trustee but in the betrayal of the confidence of the deceased testator, upon which the testator acted, whether by making or leaving unrevoked his or her will.55 [7-19] In Re Maddock,56 property was left to X absolutely, and subsequent to the making of the will, the testator executed a written memorandum that a specified portion of the gift was for [page 85] certain named persons. Before the death of the testator, the memorandum was communicated to X, who assented to it. It was held that there was a trust for the specified portion in accordance with the memorandum. It has been held, in similar circumstances, that the trust is created from the date of the communication and not merely from the testator’s death, with the result that the share of a beneficiary dying between those dates does not lapse.57 [7-20] Where a testator leaves property to A absolutely, and also leaves written instructions, not disclosed until after his or her death, that the gift is only upon trust, there is no trust at all and the absolute gift takes effect.58

[7-21] Where the fact that A is to hold the property upon trust is communicated to A in the testator’s lifetime but the terms of the trust are not sufficiently communicated to A or are not communicated until after the testator’s death, the trust cannot take effect and there is a resulting trust to the testator’s estate. In order that undisclosed written instructions should take effect after death, it is necessary that they should be in writing executed with all the formalities required for the due execution of a will. To allow anything else would be to permit a testator to make an unattested will or codicil. In Re Boyes,59 the testator left all his property to C, his solicitor, absolutely. After the testator’s death, C admitted that he held the property upon trust and that the testator had promised to inform him of the particulars of the trust after the testator had gone abroad. No particulars were ever furnished by the testator, but after his death two letters were found addressed to C stating that the property was in trust for X. It was held that C was trustee for the next-of-kin. There are several points to note. C was a trustee by his own admission in court. Had the testator not informed C that the latter was to hold the property upon trust, then C would have taken absolutely and consequently could have conveyed the property to X, if he had chosen to do so. On the other hand, if the testator, whether before or after making the will in C’s favour, had informed C that the trust was for X, and C had consented to carry it out, there would have been a valid trust in favour of X. No instructions were given in the testator’s lifetime as to the nature of the trust, and the written instructions which became known only after his death could not be regarded, as the writing was not executed in accordance with the formalities required for a will. A trust had been declared, but the particulars of the trust were not declared; consequently, C could not take for his own benefit, but held the property in trust for those whom the law should designate, in this case, the next-of-kin.60

Refraining from making a will [7-22] The same principle applies where a person refrains from making a will on the undertaking of any of his or her next-of-kin to apply his or her property for a particular purpose. In such a case, the person who gave the undertaking will be compelled to carry it out.61 The same principle also applies where a beneficiary has induced the testator to refrain from altering a provision in his or her will by giving such an undertaking.62 It must be clear, however, that the

deceased’s directions were imperative and that he or she did not intend the person giving the undertaking to have a discretion as to the application of the property.63 The same principle applies where a testator is induced to revoke a will or codicil.64 [page 86]

Where the will shows that a trust was intended [7-23] The wording of the will may be such as to show that a trust was intended, although the precise trust is not stated. Some of the so-called precatory trusts discussed above furnish illustrations. Whether or not this is so is itself a question of construction.65 Where the will shows on its face that a trust was intended, the person taking the gift can take no beneficial interest in it, but must hold it upon the trusts indicated or upon trust for those whom the law designates:66 If he [the testator] says, he gives in trust, and stops there, meaning to make a codicil, or an addition to his Will, or, where he gives upon trusts, which fail, or are ineffectually expressed, in all those cases the Court has said, if upon the face of the Will there is declaration plain, that the person, to whom the property is given, is to take it in trust; and, though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party taking shall be trustee; if not for those who were to take by the Will, for those, who take under the disposition of the Law.

In Briggs v Penny, Lord Truro LC stated:67 It is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust; it is only necessary that it should clearly appear that a trust was intended … . Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of that trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next-of-kin take.

[7-24] Formerly, the question whether the ‘half-secret’ trust was effective depended on establishing that its terms were communicated to the legatee prior to or contemporaneously with the execution of the will. That remains the position on the state of authorities in England,68 Canada69 and New Zealand,70 but not in Ireland or Australia, although there would seem to be no logical reason for a distinction between cases where no trust appears on the face of the

will, and cases where a trust is indicated. Sir William Holdsworth criticised this distinction as being unreasonable and as working substantial injustice.71 Further, the distinction is difficult to apply,72 and leads to arbitrary results: a trust would fail if it referred to a declaration to be made subsequently73 or if the testator expressly directed that the declaration was not to form part of the will.74 In Australia, Young J surveyed the authorities and academic writings and concluded (in accordance with what had been urged in previous editions of this work) that where a legatee has undertaken to the testator to accept a half-secret trust, albeit after the will had been [page 87] executed, the conscience of the legatee was bound, and the trust was valid: it was contrary to conscience for that trust not to be valid.75

Increase or reduction of legacy [7-25] In Re Cooper,76 a testator bequeathed the sum of £5000 to F and W by will and communicated to them the trusts on which he intended that they should hold this sum. By a later will the testator increased the amount of the legacy to F and W to £10,000, but he did not make any communication to them with regard to this increase. It was held that even though the latter gift was in terms an extension of the earlier gift, no valid trust of the second £5000 had been created. It would seem, however, that if the excess is trifling, the rule of de minimis might apply. Similarly, if the testator, after having communicated trusts relating to a specified sum, inserts a lesser sum in his will, the greater might be held to comprehend the less.77 Where, however, there is a substantial increase in the legacy originally bequeathed, there is no ‘ground … which would justify the court in treating the reference to that specific sum which passed between the testator and the trustees as having significance of so loose and indeterminate a character that it could be expanded at will’.78

Secret trusts of imperfect obligation and unlawful trusts [7-26] If the secret purpose for which the testator bequeathed the legacy becomes known to the residuary legatees or next-of-kin, and it appears that this

purpose is unlawful, the question may arise as to whether the trustees will be allowed to carry it out. In this connection, a distinction must be drawn between trusts that are of imperfect obligation, trusts which are against the policy of the law, and trusts for purposes which the law absolutely forbids to be carried out. [7-27] Trusts of imperfect obligation are trusts for purposes (as distinct from persons), private or public, which are not charitable. Provided the purposes are not unlawful and the gift does not infringe ‘the rule against perpetuities’,79 the trustee will possibly be permitted to carry it out if the trustee chooses to do so and if the subject matter of the trust is not excessive, but the trustee will not be compelled to do so. If the trustee does not carry out the trust, the property will pass to the residuary beneficiaries or next-of-kin, but they cannot succeed in an action to prevent the trustee from carrying out the purpose. Examples of such trusts are trusts for the purpose of erecting a monument to the testator,80 for the support of domestic animals,81 for the promotion of sport,82 or the maintenance of a tomb.83 A traditional example of a trust for a purpose contrary to the policy of the law is a trust for future illegitimate children.84 A trustee is not forbidden to carry out a secret trust for such a purpose, and a trustee who does so will not have committed a criminal act. But a trustee’s performance of the trust can be restrained by the residuary beneficiaries or next-of-kin if they become aware of its purpose. [7-28] Finally, the purpose may be one which the law absolutely prohibits and which the trustee must not carry out even in the absence of action to restrain him or her by the residuary [page 88] beneficiaries or next-of-kin. An example would be a trust for the purpose of supporting a revolt against a friendly government85 or for any criminal purpose.

Gift to several donees or legatees [7-29] Where there is a gift to several donees as tenants in common, but really made upon a secret trust, and where no trust appears on the face of the will, only those donees who were informed of the intended trust, and who

assented to it, are bound by it. It makes no difference whether the information was given before or after the making of the will.86 [7-30] If there are several joint devisees or legatees, and where no trust appears on the face of the will, and the secret trust is communicated to all of them and all agree to carry it out, they are all bound by the trust.87 If the trust has been communicated to some of them and not to others, a further principle applies, namely, as Sir William Page-Wood VC put it: ‘If, on the faith of a promise by A, a gift is made in favour of A and B, the promise is fastened to the gift of both, for B cannot profit by A’s fraud.’88 Thus, if the information is given to any of them before the making of the will, all are bound.89 However, if none of the joint devisees or legatees learn of the trust prior to the making of the will, then only those to whom it was communicated and who assented to it after the will was made are bound by it.90 [7-31] If there is a gift to a number of joint devisees or legatees, and the secret trust appears on the face of the will, all will be bound by it if there has been communication and acceptance by one or more of them prior to the making of the will. If none have accepted prior to the making of the will, then those assenting trustees to whom the trust was communicated before the death of the testator will hold their share on the secret trust, and the others will hold theirs on trust for the residuary beneficiaries or the next-of-kin.

The rationale of the secret trust [7-32] It will be seen from the foregoing that three elements must be present before a secret trust may be enforced. First, it must be clear that the intention of the testator was that the property should be applied in the manner secretly specified, and that the intention of the testator was not merely to impose a moral obligation, as was the case in Re Snowden.91 Secondly, the testator must have communicated this intention to the donee before the testator’s death, in the case of an apparent absolute gift, or before or contemporaneously with his or her will, in the case where a trust appears on the face of the will. Finally, either by an express promise or by the tacit promise which is signified by acquiescence,92 the donee or trustee must have encouraged the testator to bequeath the property in the faith that his or her intentions would

[page 89] be carried out.93 To the extent that the assets subjected to the secret trust are not exhausted by the performance of the trust, they will be held on the terms appearing on the face of the will.94 [7-33] One of the most vexed questions in the law of trusts is the rationale of the doctrine of secret trusts.95 Most of the older authorities, and some distinguished modern writers (for example, Scott)96 regarded them as, in effect, testamentary dispositions exempted on policy grounds from the necessity of complying with the Wills Act. Thus, in a series of cases it was held that a halfsecret trust cannot be upheld if inconsistent with the terms of the will; for example, where a testator bequeathed £4000 to A for the charitable purposes agreed upon between them, evidence was not admissible to show an oral agreement that the legatee would devote only the income from the £4000 to charitable purposes.97 The view which has found favour with most modern authorities is different, namely, that secret trusts are not testamentary in nature and the provisions of the Wills Act are therefore irrelevant: ‘the whole theory of the formation of a secret trust is that the Wills Act has nothing to do with the matter’.98 As Young J said, ‘Because the trust flows from the effect on the conscience of the fiduciary, it matters not that there are problems with the formalities under the Wills Act or delegation of testamentary power or that there is a technical problem such as the beneficiary of the half secret trust witnessing the will.’99 On the latter theory, therefore, it has been held that the fact that the beneficiary of a secret trust predeceased the testator did not cause the disposition to lapse100 and the fact that the beneficiary of a secret trust witnessed the will under which the trust arose, did not invalidate the disposition creating the trust.101 Similarly, where legislation exempts from death duties a legacy for charitable purposes, it has been held that the exemption will not apply to a legacy held on a secret trust for charitable purposes.102 Presumably, different results would have ensued on the older theory. Many important questions depend on which theory is correct, for example, whether a secret trust is affected by revocation of the will under which it arose, or whether the death of the intended trustee before the testator’s death affects the title of the beneficiary. Another question which arises is the extent to which the provisions

of s 23C of the Conveyancing Act 1919 (NSW) and its counterparts in other jurisdictions apply to secret trusts, if the latter theory be correct. If they are really non-testamentary, and are express trusts (not constructive trusts), the provisions of s 23C(1) would apply to them in full, and then they would not fall within the exemption contained in s 23C(2).103 [page 90] [7-34] The difficulties involved with these interpretations are exemplified in Re Gardner.104 The testator gave all her property to her husband ‘knowing that he will carry out my wishes’. Subsequently, she signed a memorandum stating that she wished her husband to hold the property for his life, then to be divided equally between three of her relatives, two nieces and a nephew. The memorandum did not satisfy the requirements for execution of a codicil. The case was argued as raising a fully secret trust. But one would have thought it was partly secret at best, with the results that the memorandum, post-dating the will, should have failed and taken the secret trust with it. But the point was not taken. The contention arose from the death of one of the nieces before that of the testator. Romer J held that one-third of the estate of the testator was held on trust for those claiming under the niece. The report does not disclose whether the estate of the testator included interests in land. Romer J offered no clear basis in principle for his judgment. [7-35] Much academic writing continues to assume that there is a discrete category of ‘secret trust’, comprising the subdivisions of fully secret and partly secret trusts, and that sufficient analysis of the cases will provide the one rationale which will explain all the decisions.105 That is not so. Once it is perceived that so-called secret trusts are enforced to honour the intention of the testator, it will be understood that each alleged secret trust will rest upon the particular circumstances of the case and no one situation will encompass all instances. Bearing that in mind, the following possibilities may be considered: (1) A contract between the wife and her husband that she would not alter the disposition to him if he agreed to follow her wishes as to the division of the property, on subsequent breach by the husband, would have given no rights

at law to the beneficiaries who were not parties to the contract, but would have done so in equity if the husband had been a trustee of his legal rights.106 (2) An express declaration of trust by the wife, effective at the time she executed the will or the memorandum, would have immediately diminished her absolute ownership of her property, fettered her power to recall her property and deal with it otherwise, unless a power of revocation had been reserved, and would have required writing in so far as it settled land. But undoubtedly, the niece would have vested rights at the time of her death. (3) If the wishes of the wife had been put in contractual terms or expressed as an immediately effective declaration of trust, then the husband would have been free in equity to take his interest under the wife’s will only if he assumed the concomitant burden of obeying those wishes. If there had been an express trust this would have governed the situation. If the arrangement had been contractual, the husband would have been rendered a constructive trustee.107 But in whose favour — the surviving relatives only, or also the estate of the deceased niece? The decision in Re Gardner was for the latter solution. How then did the niece have a vested interest at the time of her death, when the trust giving life to that interest arose subsequently, after the wife herself died? The answer may be in the flexible character of the constructive trust. The obligation of the husband was to honour as far as possible the wife’s wishes and she was to be treated as having intended no lapse of a share if [page 91] any relative died prematurely. Thus, the constructive trust would have arisen after the wife’s death, but in favour of the relatives or their then personal representatives. (4) In so far as the arrangements were an immediately effective express trust, but the Statute of Frauds required writing as it was a trust of land, it would have been a fraud upon the statute for the husband to have taken full ownership and denied the trust. This would have been a case not of constructive trust (not requiring writing) but of an express trust against

proof of which equity would not permit the statutory requirements to be raised.108 (5) If there had been no express trust and the arrangement had not been contractual there would not, without some other special circumstances raising a fraud, have been any constructive trust. It may be that such circumstances were provided by the indication to the wife of the husband’s acceptance of the arrangement and his subsequent effort to resile by taking the bequest absolutely, but it is hard not to treat such circumstances other than as raising a contract or an express trust. (6) If there had been no contract and no express trust to take effect immediately, but only an attempt to create, without value and not by will, an express trust to commence at the death of the wife, this would, even if in writing, have failed to operate as such a trust and could not have vested any equitable title in the intended beneficiaries. It would have been an attempt to dispose of property in a manner only permitted by will109 and an attempt to create gratuitously a trust to commence in the future, which could not succeed.110 (7) The attempt to create a trust discussed in (6) would fail, inter alia, because it was an attempt to dispose of property in a testamentary manner and did not comply with the requirements of the Wills Act. But it may be, and the early cases on the subject111 appear to proceed on this basis, that in such a case, by an extension of the doctrine as to ‘engines of fraud’, the husband would not be permitted in equity to take his interest under the will and rely on the Wills Act to deny that the testamentary wishes of his wife had been other than as appeared on the face of the will. One would thus reach the result that the wife had created a testamentary trust although she had not complied with the Wills Act. In Re Gardner, even if this doctrine had been applied, the gift to the niece would have failed because she predeceased the testator and under this doctrine her only hopes of bounty lay in the testamentary arrangements of her aunt. The decision in Re Gardner would have been the same whether the trust was express or constructive. But if a trust of land is involved and the trust is oral, the distinction will be of vital importance as a constructive trust will be exempted from the statutory requirements for writing. The distinction will also be decisive where the testator-settlor endeavours before death to countermand directions given, or this happens by operation of law, for example, by revocation of the will

on the marriage of the testator. There may at that stage be no constructive trust, but an express trust will have arisen and may not be revocable unless a power to that effect was reserved at the outset. [7-36] In the treatment of so-called secret trusts in this chapter and elsewhere, much attention has been paid to the distinction between partly and fully secret trusts. These distinctions arose at a time when secret trusts were understood as exceptions to the Wills Act requirements for testamentary succession, but are not congruent with the proper understanding of secret trusts as trusts which operate outside the will, binding the conscience of the legatee by reason of knowledge and acceptance. It is to be hoped that courts in other jurisdictions will review this aspect of the law and follow the decision of Young J in Ledgerwood v Perpetual Trustee Co Ltd.112 _____________________________ 1.

For a survey of the legislative history which was prompted by inadequacies in Chancery procedure, advances in conveyancing practice and the establishment of assumpsit as an alternative to debt, see T Youdan, ‘Formalities for Trusts of Land, and the Doctrine in Rochefoucauld v Boustead’ (1984) 43 CLJ 306 at 307–15.

2.

The corresponding legislation in other jurisdictions is Civil Law (Property) Act 2006 (ACT) s 201; Law of Property Act (NT) s 10; Property Law Act 1974 (Qld) s 11; Law of Property Act 1936 (SA) s 29; Conveyancing and Law of Property Act 1884 (Tas) s 60(2); Property Law Act 1958 (Vic) s 53; Property Law Act 1969 (WA) s 34. The Queensland provision provides that (b) applies only to land, not interests in land, and that (c) is satisfied merely by writing, manifesting and proving the disposition. A full treatment of the difficult questions of construction under this legislation may be found in Meagher, Gummow and Lehane’s Equity, Ch 7. W Holdsworth, History of English Law, Vol 6, p 379ff; Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 at 198–9.

3. 4. 5.

Forster v Hale (1798) 3 Ves 696; 30 ER 1226; Rochefoucauld v Boustead [1897] 1 Ch 196. Permanent Trustee Co v Scales (1930) 30 SR (NSW) 391 at 393.

6.

See Secretary, Department of Social Security v James (1990) 95 ALR 615; Hagan v Waterhouse (1992) 34 NSWLR 308 at 385–6; Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470 at 478, 481; Khoury v Khouri (2006) 66 NSWLR 241 at [61]–[63]. (1973) 130 CLR 276; [1972–73] ALR 1224; see R Austin (1974) 48 ALJ 322; D Everett (1987) 17 UWALR 301; N Seddon (1987) 61 ALJ 406.

7. 8. 9.

(1998) 195 CLR 566 at [39]; 157 ALR 414. As to which, see [7-15].

10. See [7-09]. 11. Pary v Juxon (1669) 3 Rep Ch 38; 22 ER 1108; Kilpin v Kilpin (1834) 1 My & K 520; 39 ER 777; McFadden v Jenkyns (1842) 1 Hare 458; 41 ER 589; Jones v Lock (1865) 1 Ch App 25; Bayley v Public Trustee (1907) 27 NZLR 659.

12. Kilpin v Kilpin (1834) 1 My & K 520; 39 ER 777. 13. Petty v Petty (1853) 22 LJ Ch 1065. 14. See PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 at 249–51 Meagher, Gummow and Lehane’s Equity, [7-045]–[7-050]. As Gibbs J noted in Adamson v Hayes (1973) 130 CLR 276 at 302– 3; [1972–3] ALR 1224 at 1240, the proposition in the text is implicit in Grey v Inland Revenue Commissioners, Oughtred v Inland Revenue Commissioners and Vandervell v Inland Revenue Commissioners. 15. Mercantile Law Act 1935 (Tas) s 6. 16. Skett v Whitmore (1705) Freem Ch 280; 22 ER 1211; Forster v Hale (1798) 3 Ves 696; 30 ER 1226. 17. This passage was applied in Klewer v Official Trustee in Bankruptcy (No 2) [2008] FCA 1788 at [51]. 18. Tierney v Wood (1854) 19 Beav 330 at 336; 52 ER 377 at 379–80; see also Kronheim v Johnson (1877) 7 Ch D 60 at 66; Re Cozens [1913] 2 Ch 478. 19. Mountain v Stayak [1922] NZLR 131 at 137–40. 20. Forster v Hale (1798) 3 Ves 696; 30 ER 1226. 21. Forster v Hale (1798) 3 Ves 696; 30 ER 1226; cf Re Danish Bacon Staff Pension Fund [1971] 1 All ER 486 at 492; [1971] 1 WLR 248 at 255; S v P (2006) 198 FLR 1 at [71]–[77]. 22. Re Hoyle [1893] 1 Ch 84; Perry v Commissioner of Stamps (1913) 32 NZLR 1194. 23. Barkworth v Young (1856) 26 LJ Ch 153. 24. Wilson v Dent (1830) 3 Sim 385; 57 ER 1042. 25. McBlain v Cross (1871) 25 LT (NS) 804. 26. Smith v Matthews (1861) 3 De GF & J 139 at 151; 45 ER 831 at 836 per Sir George Turner LJ. 27. Forster v Hale (1798) 3 Ves 696; 30 ER 1226; Morton v Tewart (1842) 2 Y & C Ch Cas 67 at 80; 63 ER 29 at 35. See also Ryder v Taylor (1935) 36 SR (NSW) 31. 28. Re Tyler’s Fund Trusts [1967] 3 All ER 389; [1967] 1 WLR 1269. 29. Forster v Hale (1798) 3 Ves 696; 30 ER 1226; Rochefoucauld v Boustead [1897] 1 Ch 196 at 206. 30. Gardner v Rowe (1828) 5 Russ 258; 38 ER 923. See also Re Holland [1902] 2 Ch 360; Perpetual Executors & Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185; 25 ALR 177. This paragraph was cited and applied by Simos J in Fraser v Power [2001] Aust Contract R 90–127 at [174]–[180]. 31. Tierney v Wood (1854) 19 Beav 330; 52 ER 377; Ryder v Taylor (1935) 36 SR (NSW) 31 at 51; Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470 at 478, 481. 32. [1972] 2 NSWLR 923; and see Theodore v Mistford Pty Ltd (2005) 221 CLR 612; 219 ALR 296 at [31]. 33. Organ v Sandwell [1921] VLR 622 at 630; Wratten v Hunter [1978] 2 NSWLR 367; ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 59 NSWLR 196 at [329]–[333]. 34. McCormick v Grogan (1869) LR 4 HL 82 at 97; Booth v Turle (1873) LR 16 Eq 182; Re Duke of Marlborough; Davis v Whitehead [1894] 2 Ch 133 at 141; Rochefoucauld v Boustead [1897] 1 Ch 196; Cadd v Cadd (1909) 9 CLR 171; 15 ALR 502; Organ v Sandwell [1921] VLR 622; Last v Rosenfeld [1972] 2 NSWLR 923; Bloch v Bloch (1981) 180 CLR 390 at 403; 37 ALR 55 at 64–5; Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470 at 479, 481–2; ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 59 NSWLR 196 at [329]–[333]; Ciaglia v Ciaglia (2010) 269 ALR 175; 14 BPR 27,479 at [64]–[85]; Young v Young (2014) 10 ASTLR 292. This sentence was quoted with approval in Wade v Wade [2009] WASC 118 at [80]. 35. [1897] 1 Ch 196.

36. [1948] 2 All ER 133; Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 654; 78 ALR 1 at 36; see also Sharp v Anderson (1994) 6 BPR 13,801. 37. [1948] 2 All ER 133 at 136. 38. See Allen v Snyder [1977] 2 NSWLR 685 at 692; Dalton v Christofis [1978] WAR 42; Avondale Printers v Haggie [1979] 2 NZLR 124 at 161–5; Redden v Lillis [1979] WAR 161; Brown v Wylie (1980) 6 Fam LR 519; Bloch v Bloch (1981) 180 CLR 390 at 403; 37 ALR 55 at 64; Sharp v Anderson (1994) 6 BPR 13,801 at 13,813. This paragraph was approved in Schweitzer v Schweitzer [2012] VSCA 260 at [43]. 39. 1st ed, p 308, see now 5th ed, [12-125]. 40. Avondale Printers v Haggie [1979] 2 NZLR 124 at 162–3; ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 59 NSWLR 196 at [336]; Overmyer Industrial Brokers Pty Ltd v Campbells Cash and Carry Pty Ltd [2003] Aust Contract Rep 90-181 at [69]. 41. Provisions in other jurisdictions to like effect are Wills Act 1968 (ACT) s 9; Wills Act (NT) s 8; Succession Act 1981 (Qld) s 10; Wills Act 1936 (SA) s 8; Wills Act 2008 (Tas) s 8; Wills Act 1997 (Vic) s 7; Wills Act 1970 (WA) s 8. 42. Blackwell v Blackwell [1929] AC 318; R Meager [2003] Conv 203 at 207–8. 43. Cullen v A-G for Ireland (1866) LR 1 HL 190; Re Huxtable [1902] 2 Ch 793; Re Young [1951] Ch 344; [1950] 2 All ER 1245. 44. Rawstron (Executrices of the Estate of Lucian Freud) v Freud [2014] WTLR 1453. 45. H Hanbury, Modern Equity, 2nd ed, p 141. See also the historical account in D Yazdani, ‘Secret Trusts: An Ancient Doctrine in Need of Reform?’ (2015) 23 APLJ 196. 46. Re Snowden [1979] Ch 528 at 537; [1979] 2 All ER 172 at 178–9. 47. (1954) 94 CLR 231 at 233. 48. See further Brown v Pourau [1995] 1 NZLR 352 at 369ff; Howell v Hyde (2003) 47 ACSR 230 at [46]– [47]. 49. Voges v Monaghan (1954) 94 CLR 231 at 233; Re D’Amico (1974) 42 DLR (3d) 759; Howell v Hyde (2003) 47 ACSR 230 at [60]; see also Brown v Willoughby (2012) 7 ASTLR 453. 50. Re D’Amico (1974) 42 DLR (3d) 759. 51. Wallgrave v Tebbs (1855) 2 K & J 313; 69 ER 800; Tee v Ferris (1856) 2 K & J 357; 69 ER 819; Moss v Cooper (1861) 1 John & H 352; 70 ER 782; McCormick v Grogan (1869) LR 4 HL 82; French v French [1902] 1 IR 172; Will of Doig [1916] VLR 698. 52. (1954) 94 CLR 231 at 233 and 240–1 respectively. 53. [1902] 1 IR 172 at 230. 54. See also Riordan v Banon (1876) 10 Ir R Eq 469 at 478; Re Fleetwood (1880) 15 Ch D 594 at 606–7; Blackwell v Blackwell [1929] AC 318 at 328–9, 342; [1929] All ER Rep 71 at 74–5, 81; Howell v Hyde (2003) 47 ACSR 230 at [40]–[44]. 55. D Hodge, ‘Secret Trusts: The Fraud Theory Revisited’ (1980) 44 Conv 341 at 345–8; see also Re Dale (dec’d) [1994] Ch 31 at 48; [1993] 4 All ER 129 at 142 (mutual wills). 56. [1902] 2 Ch 220. For discussions of the necessary elements of a secret trust of this type, see Voges v Monaghan (1954) 94 CLR 231 and Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325. See also Re Wedgwood [1915] 1 Ch 113; [1914–15] All ER Rep 322; Re Gardner [1920] 2 Ch 523; [1920] All ER Rep 723; Williams v Commissioner of Stamp Duties [1943] NZLR 88. 57. Re Gardner [1923] 2 Ch 230; [1920] All ER Rep 723. 58. Wallgrave v Tebbs (1855) 2 K & J 313; 69 ER 800; Re Shields [1912] 1 Ch 591. 59. (1884) 26 Ch D 531.

60. See also Le Page v Gardom (1915) 113 LT 475; Re Jones [1942] Ch 238; [1942] 1 All ER 642; Re Jeffery [1951] SASR 237. 61. Sellack v Harris (1708) 5 Vin Abr 521; 22 ER 40; Strickland v Aldridge (1804) 9 Ves 519; 32 ER 703; Chester v Urwick (1856) 23 Bev 404; 53 ER 159. 62. Barrow v Greenough (1796) 3 Ves 52; 30 ER 943. Cf Re Williams [1933] Ch 244; [1932] All ER Rep 724. 63. McCormick v Grogan (1869) LR 4 HL 82; Re Snowden [1979] Ch 528; [1979] 2 All ER 172. 64. Tharp v Tharp [1916] 1 Ch 142. 65. See, for example, Rawstron (Executrices of the Estate of Lucian Freud) v Freud [2014] WTLR 1453. 66. Morice v Bishop of Durham (1805) 10 Ves Jun 522 at 537; 32 ER 947 at 953. 67. (1851) 3 Mac & G 546 at 577, 578; 42 ER 371 at 375. 68. Blackwell v Blackwell [1929] AC 318 at 339; [1929] All ER Rep 71; Re Keen [1937] Ch 236; [1937] 1 All ER 452; Re Bateman’s Will Trusts [1970] 3 All ER 817; [1970] 1 WLR 1463, although in Gold v Hill [1999] 1 FLR 54 at 62–3, Carnwath J held that the communication of the terms of a trust to a solicitor nominated as a beneficiary under a life assurance policy might be communicated after the nomination, analogies to secret trusts notwithstanding. 69. Re Mihalopulos (1956) 5 DLR (2d) 628. 70. Re Karsten (dec’d) [1953] NZLR 456. 71. (1937) 53 LQR 501 at 507; see also L Sheridan (1951) 67 LQR 314 at 329; B Perrins (1985) 49 Conv 248; D Yazdani, ‘Secret Trusts: An Ancient Doctrine in Need of Reform?’ (2015) 23 APLJ 196; Waters Law of Trusts in Canada, 4th ed, Carswell, Toronto, 2012, pp 294–302; Scott on Trusts, §7.2.6; Snell’s Equity, p 661. 72. Cf Re Gardner [1920] 2 Ch 523; [1920] All ER Rep 723; [1923] 2 Ch 230 with Re Fleetwood (1880) 15 Ch D 594; Re Hetley [1902] 2 Ch 866; [1900–3] All ER Rep 292. 73. Re Jones [1942] Ch 238; [1942] 1 All ER 642. The bequest referred to an identified declaration of trust and ‘any substitution therefore or modification thereof or addition thereto’. See also Re Keen [1937] Ch 236; [1937] 1 All ER 452; Re Bateman’s Will Trusts [1970] 3 All ER 817; [1970] 1 WLR 1463. 74. Re Louis (1916) 32 TLR 313. 75. Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 537–40. 76. [1939] Ch 811; [1939] 3 All ER 586. 77. See D Kincaid [2003] Conv 420 at 428–31. 78. [1939] Ch 811 at 818; [1939] 3 All ER 586 at 589 per Lord Greene MR. 79. See Chapter 9. 80. Mitford v Reynolds (1848) 16 Sim 105; [1843–60] All ER Rep 118. 81. Re Dean (1889) 41 Ch D 552. 82. Re Nottage [1895] 2 Ch 649; [1895–9] All ER Rep 1203. 83. Pirbright v Salwey [1896] WN 86. But see also Muir v Archdall (1918) 19 SR (NSW) 10; Pooley v Royal Alexandra Hospital (1932) 32 SR (NSW) 459; Public Trustee v Nolan (1943) 43 SR (NSW) 169. Cf South Eastern Sydney Area Health Service v Wallace (2003) 59 NSWLR 259. See Chapter 11. 84. Medworth v Pope (1859) 27 Beav 71; 54 ER 28. 85. Habershon v Vardon (1851) 4 De G & Sm 467; 64 ER 916. 86. Tee v Ferris (1856) 2 K & J 357; 69 ER 819; Rowbotham v Dunnett (1878) 8 Ch D 430; Re Stead [1900] 1 Ch 237 at 241.

87. Moss v Cooper (1861) 1 John & H 352; 70 ER 782. 88. Moss v Cooper (1861) 1 John & H 352 at 367; 70 ER 782 at 789; Re Young [1951] Ch 344 at 349; [1950] 2 All ER 1245 at 1249; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 537. 89. Moss v Cooper (1861) 1 John & H 352 at 367; 70 ER 782 at 789; Russell v Jackson (1868) LR 3 Ch App 362 at 364. This classification is criticised and the support of the authorities cited for it is cogently disputed by Perrins (1972) 88 LQR 225. In his view, the only question with both joint tenants and tenants in common, is whether the gift to all of them was induced by the promise by any of them to the testator. If it was, then all are bound. 90. Burney v MacDonald (1845) 15 Sim 6; 60 ER 518; Moss v Cooper (1861) 1 John & H 352; 70 ER 782; Re Stead [1900] 1 Ch 237. 91. [1979] Ch 528; [1979] 2 All ER 172. 92. A person accepts a secret trust if he or she silently acquiesces in it when it is communicated to him or her: Paine v Hall (1812) 18 Ves 475; 34 ER 397; Lomax v Ripley (1855) 3 Sm & G 48 at 79; 65 ER 558 at 571; Tee v Ferris (1856) 2 K & J 357 at 363, 364; 69 ER 819 at 822; Rowbotham v Dunnett (1878) 8 Ch D 430; Re Williams [1933] Ch 244; [1932] All ER Rep 724; Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325. 93. Blackwell v Blackwell [1929] AC 318 at 334; [1929] All ER Rep 71 at 77. 94. In Re Tulley [1918] VLR 556, a testator left one-third of his estate to two of his daughters but on secret trust for his remaining daughter for her life. Upon the death of that daughter, her two sisters took the fund absolutely in accordance with the terms appearing on the face of the will. See also Irvine v Sullivan (1869) LR 8 Eq 673. 95. The authorities and academic commentary are analysed in G Allan (2011) 40 Common Law World Review 311. 96. Scott on Trusts, §7.2. 97. Re Huxtable [1902] 2 Ch 793. It also has been held that there may not accrue to the trustee under the secret trust a beneficial interest not given on the face of the will: Re Karsten (dec’d) [1953] NZLR 456 at 477–9, 481. 98. Re Young [1951] Ch 344 at 346; [1950] 2 All ER 1245 at 1250 per Danckwerts J. See C Rickett [1979] CLJ 260 at 263, where the learned author says: ‘Courts do not enforce secret trusts because they are outside the will; they do so because they wish to enforce the testator’s determined intentions. The existence of the trust enables them to by-pass, but not contradict, the statute when dealing with the beneficial interest in the property.’ (Emphasis in original.) 99. Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 536. 100. Re Gardner [1923] 2 Ch 230. 101. Re Young [1951] Ch 344; [1950] 2 All ER 1245. 102. Cullen v A-G for Ireland (1866) LR 1 HL 190. 103. Professor Sheridan, looking to the face of the document, took the view that fully secret trusts (which will not appear) are constructive and therefore within the exemption of s 23C(2); partly secret trusts, on his view, are express and so not within the exemption. See (1951) 67 LQR 314. Snell’s Equity, p 664 suggests that they are constructive, as did Sir Terence Etherton C in FHR European Ventures LLP v Mankarious [2014] Ch 1; [2013] 3 All ER 29 at [75]. In Brown v Pourau [1995] 1 NZLR 352 at 368, Hammond J suggested, but did not need to decide, that the only question was whether there ought to be a remedial constructive trust, a view cogently criticised by C Rickett in [1996] Conv 302. Another view is that the doctrine of secret trusts is concerned with the admissibility of extrinsic evidence to contradict or explain the terms of the will; see B Perrins, ‘Secret Trusts: The Key to The Dehors?’ (1985) 49 Conv 248.

104. [1923] 2 Ch 230. 105. See, for example, D Hodge, ‘Secret Trusts: the Fraud Theory Revisited’ (1980) 44 Conv 341; D Wilde, ‘Secret and Semi-Secret Trusts: Justifying Distinctions Between the Two’ (1995) 59 Conv 366; G Allan, ‘The Secret is Out There: Searching for the Legal Justification of the Direction of Secret Trusts through Analysis of the Case Law’ (2011) 40 Common Law World Review 311 at 327 (‘It is equally clear that all secret trusts are justified on the same principles’). 106. See [2-21]. 107. Birmingham v Renfrew (1937) 57 CLR 666 at 687–9; [1937] ALR 520 at 527–8. 108. See [7-09]. 109. Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 at 30. 110. Re Ellenborough [1903] 1 Ch 697. 111. For example, Johnson v Ball (1851) 5 De G & Sm 85; 64 ER 1029; Wallgrave v Tebbs (1855) 2 K & J 313; 69 ER 800. 112. (1997) 41 NSWLR 532.

[page 92]

CHAPTER 8 The Interpretation of the Trust General Canons

[8-01]

Superannuation Trusts

[8-03]

Executed and Executory Trusts

[8-04]

General Canons [8-01] Isaacs J said in Fell v Fell that it was an incontestable principle that it was a necessary consequence of the law that every will be in writing that the meaning of testamentary trusts be discovered from the writing itself, aided only by such extrinsic evidence as is necessary in order to enable comprehension of the words used by the testator.1 These considerations are strengthened by the rule that, apart from statute, ‘it has always been assumed that the courts had no … power to rectify a will’,2 in contrast with voluntary settlements.3 In construing testamentary instruments, the courts have built up, if not rules of law or of construction, what are at least what Holmes J, in a somewhat different context, described as ‘axioms of experience’.4 The consideration of this vast body of authority is beyond the scope of this work.5 In Fell v Fell, Isaacs J said:6 In the judicial construction of instruments, whether wills or deeds or statutes, Courts are not to approach the matter from the standpoint of the hypothetical personage sometimes alluded to as ‘the man in the street’. In earlier times Courts certainly sometimes laid greater stress on rigid rules of construction, and in the dominancy of interpretive tests, than they do today. Actual intention has freer scope in recent years than in many of the early cases. Influences that formerly were thought imperative have in many instances passed away, and the modern tendency of Courts is to give fuller play to the words themselves than was once thought proper. But, on the

other hand, we have to guard ourselves from the opposite extreme. A Court, in my opinion, is not to place itself in the position of a person unaccustomed to the functions of a legal tribunal, and then make the double error of first assuming how he would construe the document, and next adopting as a curial interpretation the construction so assumed.

[page 93] [8-02] In the course of construing a voluntary settlement, in Re Gulbenkian’s Settlement Trusts, Lord Upjohn, speaking of the task of the court as one to ascertain the intention of the settlor, said:7 The court, whose task it is to discover that intention, starts by applying the usual canons of construction; words must be given their usual meaning, the clause should be read literally and in accordance with the ordinary rules of grammar. But very frequently, whether it be in wills, settlements or commercial agreements, the application of such fundamental canons leads nowhere, the draftsman has used words wrongly, his sentences border on the illiterate and his grammar may be appalling. It is then the duty of the court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor’s and parties’ expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it.

It has become fashionable to say that in construing settlements, the court should adopt an approach which is ‘practical and purposive, rather than detached and literal’.8 But it may be doubted, as Warner J himself observed in Mettoy Pension Trustees Ltd v Evans, whether this does any more than encapsulate that which was explained by Lord Upjohn, itself well understood and not novel.9 In Finch v Telstra Super Pty Ltd, the High Court said that it was a ‘questionable assumption that in this context that can be different approaches’.10 Very often, the fiscal background — the drafting of provisions in order to comply with, or take advantage of, favourable taxation treatment — is another important consideration in construing the document.11 Another aspect of the fiscal background is to be found in the practice and requirements of the tax authorities at the relevant time.12

Superannuation Trusts [8-03] In recent years, courts have been required to construe complex pension and superannuation schemes for employees.13 In a passage in his

judgment in Re Courage Group’s Pension Schemes,14 which has been approved in a number of later decisions, Millett J began with the undoubted proposition that there were no special rules of construction applicable to pension schemes. However, his Lordship went on to point out that in the case of an institution of long duration and fluctuating membership, like a club or pension scheme, the validity of the exercise of a power of alteration in the rules must be tested by reference [page 94] to the situation at the time of the proposed change, rather than by reference to the original rules.15 This approach may be questioned, reminiscent as it is of the ‘living tree’ approach to constitutional construction. Of course, there can be no general objection to judging validity by reference to the rules as they stand from time to time, after earlier valid amendments. Further, in Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd,16 Sir Nicolas Browne-Wilkinson VC described the ‘traditional trust’ as one under which the settlor, by way of bounty, transfers property to trustees to be administered for beneficiaries who are volunteers, in circumstances where there is no legal relationship between the parties apart from the trust. His Lordship continued: Pension benefits are part of the consideration which an employee receives in return for the rendering of his services. In many cases, including the present, membership of the pension scheme is a requirement of employment. In contributory schemes, such as this, the employee is himself bound to pay his or her contributions. Beneficiaries of the scheme, the members, far from being volunteers have given valuable consideration. The company employer is not conferring a bounty. In my judgment, the scheme is established against the background of such employment and falls to be interpreted against that background.

It followed, in the view of the Vice-Chancellor, that the implied obligation of good faith in the contract of employment applied also to the exercise of rights and powers under a pension scheme.17 Thus the context of a superannuation or pension trust can be significant.18 In Finch v Telstra Super Pty Ltd,19 the High Court was required to construe a trust deed which authorised a payment of a benefit to a member who, ‘in the opinion of the Trustee … had ceased to be an Employee and is unlikely ever to engage in any gainful Work for which the Member is for the time being reasonably qualified by education, training or experience’. The court had regard to the

importance of superannuation to individual employees, its public significance, and the character of the regulatory regimes to support the conclusions that the formation of the opinion by the trustee was not a discretionary power but an ingredient in the performance of a trust duty, and that the member was not the object of a discretionary power of appointment, but had a beneficial interest in the trust property, although one which was contingent on particular events. Similar reasoning led the Federal Court to conclude that a payment from a superannuation trust to an injured employee amounted to ‘consideration’ in respect of personal injury within the meaning of the Income Tax Assessment Act 1936 (Cth), and was thus exempt from taxation.20 However, Hayne J was not prepared to extend this reasoning to displace the clearly discretionary language in a trust deed of an industry fidelity fund which permitted payments to be made to oil companies in the event of default by a participating member — notwithstanding that the oil companies were not mere objects of bounty and had dealt with distributors in the knowledge that they were members.21 [page 95]

Executed and Executory Trusts [8-04] Although the beneficiaries of a trust must be identified with certainty, it is not essential that the trust instrument or declaration should precisely delineate the nature of the beneficiaries’ interests. There may be an executory trust, where the settlor has either agreed or covenanted for the subsequent execution of a trust instrument, or (usually in a will) has made a direction or declaration from which the trustee is to prepare a formal written settlement.22 In Davis v Richards & Wallington Industries Ltd,23 Scott J approved a definition of executory trust in the following terms:24 An executory trust is one where the trust property is vested in trustees … or is the subject of an enforceable agreement to create a trust but the interests to be taken by the beneficiaries remain to be delimited in some subsequent instrument pursuant to the settlor’s clear general intention.

Thus, an executory trust ‘is to be executed by the preparation of a complete and formal settlement carrying into effect, through the operation of an apt and detailed legal phraseology, the general intention compendiously indicated by’ the settlor.25 In contrast, in an executed trust, no further document need be

brought into existence. As Lord St Leonards said of the settlor, ‘He has been his own conveyancer.’26 [8-05] Formerly, executory trusts were much more common, particularly where they arose under marriage articles (where the strong presumption that provision was intended to be made for the children of the marriage could displace even clearly expressed intentions).27 More recently, executory trusts arise in wills and in interim pension and superannuation fund schemes. [8-06] The distinction between executed and executory trusts must not be confused with that between completely and incompletely constituted trusts.28 The distinction between the latter depends on whether or not the trust property has been vested in trustees and is of vital importance in considering the rights of volunteers to enforce the trust. An executory trust may be completely constituted, in which case it will be enforceable by volunteers. An executed trust will always be completely constituted. [8-07] In any particular case it may be difficult to determine whether a trust is executed or executory. If it appears that the testator or settlor has not been ‘his own conveyancer’ but has determined to leave it to the court to frame a proper settlement from general indications of intention, then the trust will be executory.29 The intentions of the settlor or testator must, however, be indicated with sufficient certainty, otherwise no trust at all will be created or the primary beneficiary will take free from any settlement.30 Nor, in executing the trust, may the court dispense with some consent or approval required by the executory trust instrument. For example, an executory trust for the bringing into effect by a parent company of rules for a pension scheme required approval of the rules by the subsidiaries in the group.31 [page 96] [8-08] The importance of the distinction between executed and executory trusts lies in the fact that whereas the construction or interpretation of the former is governed by rules of law, the court endeavours to construe the latter so as to carry out the intention of the settlor so far as it can ascertain the same, and in so doing will have regard to the intent rather than the form. ‘In construing

the words creating an executory trust, a court of equity exercises a large authority in subordinating the language to the intent.’32 [8-09] In the case of executed trusts, the settlor’s wishes have been stated in appropriate language, clearly and precisely, and all that the court has to do is to construe the language according to its proper legal meaning. In so construing the language the court, in its equitable jurisdiction, will place the same construction on the words of limitation as a court of law would.33 A frequent source of litigation was the application of the rule in Shelley’s case,34 which has now been repealed in most jurisdictions.35 [8-10] The position is quite different in the case of executory trusts, for here the settlor’s wishes have not been expressed in formal technical legal language, but instead have been expressed in an informal way or in mere outline, or are such that they cannot be carried out as expressed. The problem the court has before it is first to determine exactly what the settlor intended, and then to direct how those intentions can best be carried out. As giving strict legal effect to technical language sometimes defeats a proper understanding of what the settlor has done, the courts, in the case of executory trusts where the language is frequently more or less informal, do not consider themselves necessarily bound by hard and fast rules as to the meaning to be given to particular words or phrases, but endeavour to give effect to the settlor’s intention as they can derive it from the instrument as a whole.36 If, however, no intention is reasonably discernible from the instrument itself or the nature of the case, the court is bound to construe any technical words strictly in accordance with their legal meaning. _____________________________ 1.

(1922) 31 CLR 268 at 273; 29 ALR 31 at 33, citing Abbott v Middleton (1858) 7 HLC 68 at 88, 114; 11 ER 28 at 36.

2. 3.

Marley v Rawlings [2015] AC 129; [2014] 1 All ER 807 at [27]. Meagher, Gummow and Lehane’s Equity, [27-005].

4. 5.

Boston Sand & Gravel Co v United States 278 US 41 at 48 (1928). See Williams on Wills, [49.1]–[100.7]; Theobald on Wills, pp 263ff; A Preece, Lee’s Manual of Queensland Succession Law, 7th ed, Thomson Reuters Australia, 2012.

6. 7.

(1922) 31 CLR 268 at 272–3; 29 ALR 31 at 33. [1970] AC 508 at 522; [1968] 3 All ER 785 at 790–1. This passage was applied in Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 at 538; [1990] 1 WLR 1587 at 1611; in Penola & District

Ratepayers’ & Residents’ Assn Inc v Wattle Range Council [2011] SASCFC 62 at [37]; in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113 at [100]; and in Application of Karla Marie Tate and Hyun Jong Chung [2015] NSWSC 639 at [28]. 8.

9.

Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 at 537; [1990] 1 WLR 1587 at 1610; Lock v Westpac Banking Corp (1991) 25 NSWLR 593 at 602, noted (1993) 67 ALJ 70; Re UEB Industries Ltd Pension Plan [1992] 1 NZLR 294 at 297; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 at 580; 147 ALR 243 at 256; Re Scientific Investment Pension Plan Trusts [1999] Ch 53 at 62; [1998] 3 All ER 154 at 161; Nick Kritharas Holdings Ltd (in liq) v Gatsios Holdings Pty Ltd (2001) 38 ACSR 57 at [18]– [19]; Local Government Superannuation Board v Thorne (2002) 76 ALD 569 at [34]. See [29-53]. See Caboche v Ramsay (1993) 119 ALR 215 at 232–3; Wilson v Law Debenture Trust Corporation plc [1995] 2 All ER 337 at 347–8.

10. (2010) 242 CLR 254; 271 ALR 236 at [27]. 11. See, for example, Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 at 537; [1990] 1 WLR 1587 at 1610; Re Landau [1998] Ch 223 at 233; [1997] 3 All ER 322 at 329; National Grid Co plc v Mayes [2001] 2 All ER 417; [2001] 1 WLR 864 at [18]–[26]; Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [111]. 12. Stevens v Bell [2002] EWCA Civ 672, quoted in Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2002) 174 FLR 1 at [216]; Aon Trust Corporation Ltd v KPMG [2005] 3 All ER 587 at [20]–[22]. 13. See the cases referred to in the preceding two footnotes; and see Wrightson Ltd v Fletcher Challenge Nominees Ltd [2002] 2 NZLR 1; Stevens v Bell [2002] PLR 247; G Moffat (1993) 56 MLR 471. 14. [1987] 1 All ER 528 at 537–8; [1987] 1 WLR 445 at 505–6. 15. Millett J referred, by way of example, to the process by which the Hurlingham Club founded in 1868 for pigeon shooters became, over the next 30 years, a country club at which pigeon shooting had been discontinued, with reference to Thellusson v Viscount Valentia [1907] 2 Ch 1. 16. [1991] 2 All ER 597 at 605–6; [1991] 1 WLR 589 at 597. 17. See also Hillsdown Holdings plc v Pensions Ombudsman [1997] 1 All ER 862 at 889–90; Prudential Staff Pensions Ltd v The Prudential Assurance Company Ltd [2011] Pens LR 239; [2011] EWHC 960 (Ch) at [122]–[150]. 18. See, for example, Beck v Colonial Staff Super Pty Ltd [2015] NSWSC 723 at [207]–[210]. 19. (2010) 242 CLR 254; 271 ALR 236 at [29]–[36]. 20. Scully v Commissioner of Taxation (1998) 84 FCR 41; 164 ALR 281. See also Byrnes v Kendle (2011) 243 CLR 253; 279 ALR 212 at [111]; Capita ATL Pension Trustees Ltd v Gellately [2011] Pens LR 153; [2011] EWHC 485 (Ch) at [50]. 21. Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1999] 3 VR 642 at [16]. 22. Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 280. 23. [1991] 2 All ER 563 at 588; [1990] 1 WLR 1511 at 1537. 24. From Underhill and Hayton, Law Relating to Trusts and Trustees, 14th ed, p 33. 25. Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 at 571. See also Miles v Harford (1879) 12 Ch D 691 at 699. 26. Egerton v Lord Brownlow (1853) 4 HL Cas 1 at 210; 10 ER 359 at 443; Sexton v Horton (1926) 38 CLR 240 at 248; 32 ALR 373. 27. Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543. 28. See [6-02]. See also Davis v Richards & Wallington Industries Ltd [1991] 2 All ER 563 at 586–7; [1990]

1 WLR 1511 at 1535. 29. Bowen v McCormack (1895) 12 WN (NSW) 59, where Owen CJ in Eq said: ‘If the testator has been his own conveyancer he appears to me to have used apt words for the purpose; if, on the other hand [the trust] is executory, it is still more clear that the restraint on anticipation must be in the settlement.’ 30. Magrath v Morehead (1871) LR 12 Eq 491; Pass v Mills (1886) 7 LR (NSW) Eq 34; Hogarth v Hogarth (1894) 15 LR (NSW) Eq 93; Pengelly v Pengelly [2008] Ch 375 at [10]. 31. Davis v Richards & Wallington Industries Ltd [1991] 2 All ER 563 at 588–9; [1990] 1 WLR 1511 at 1537. 32. Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 at 565 per Lord Westbury. 33. Re Bostock’s Settlement [1921] 2 Ch 469; [1921] All ER Rep 125; Sexton v Horton (1926) 38 CLR 240; 32 ALR 373. Contrast Re Lorking (1924) 25 SR (NSW) 46. 34. (1581) 1 Co Rep 93; 76 ER 206. 35. See Conveyancing Act 1919 (NSW) s 17; Law of Property Act 2000 (NT) s 28; Property Law Act 1974 (Qld) s 28; Property Law Act 1958 (Vic) s 130; Property Law Act 1969 (WA) s 27; and see Scott on Trusts, §12.14.2. 36. Glenorchy v Bosville (1733) Cases t Talbot 4; 25 ER 628; [1558–1774] All ER Rep 328.

[page 97]

CHAPTER 9 When an Express Trust may Fail or be Set Aside Illegality Nelson v Nelson Partial Lawful Purpose

[9-02] [9-05] [9-07]

Trusts Tending to Promote Immorality or to Interfere with the Sanctity of Marriage Trusts for Illegitimate Children Separation Deeds Restraint Upon Marriage Invasion of Sanctity of Marriage Separation of Parent and Child Conditions as to Religious Faith Other Illegal Trusts

[9-09] [9-09] [9-10] [9-11] [9-14] [9-15] [9-16] [9-17]

Restrictions on Alienation and Remoteness of Vesting Restrictions on Alienation Gift-over on Bankruptcy Protective Trusts

[9-18] [9-19] [9-20] [9-21]

The Rule Against Perpetuities

[9-28]

The Rule Against Accumulations The Rule in Saunders v Vautier

[9-33] [9-34]

Avoidance by the Settlor

[9-35]

Avoidance by Third Parties Bankruptcy Act 1966 (Cth)

[9-37] [9-38]



Undervalued Transactions Transfers to Defeat Creditors Fraudulent Conveyances Frauds on Subsequent Purchasers The Family Law Act

[9-39] [9-40] [9-41] [9-46] [9-47]

[9-01] In certain circumstances, an express private trust, otherwise satisfying the matters set out in previous chapters, may fail or be set aside. These circumstances may conveniently be grouped under three heads. First, the trust may have been created for one of several purposes [page 98] which are illegal. Secondly, the trust may be set aside by the settlor where the trust purpose has failed or there is some vitiating element such as fraud or mistake, or where the settlor has reserved a power of revocation. Thirdly, the trust may be avoided by third parties where provision to that effect is contained in legislation.

Illegality [9-02] Illegality may be the result of the operation of statute law or of public policy even though, in the latter category, there is no statutory contravention involved. Public policy is concerned not only with trusts tending to promote immorality or interference with the institution of marriage, but also with restrictions upon alienation and remoteness of vesting. But most of these public policy areas have been the subject of legislation. Obviously, where statute is the source of the alleged illegality, the terms of the law in question will be of first importance. That has been emphasised (though not always applied) in a series of recent decisions of the High Court of Australia.1 However, in certain various decisions, notably that of the House of Lords in Tinsley v Milligan,2 the text of the statute in question does not appear,

nor does any analysis of its nature and scope. Although Tinsley v Milligan continues to represent the law of England, the ensuing controversy has led to Lords Neuberger, Clarke and Carnwath recently stating in the Supreme Court of the United Kingdom that the proper approach to the defence of illegality ‘needs to be addressed by this court as soon as appropriately possible’.3 Upon its true construction a statute itself may prohibit the creation of a trust. It may do so in direct terms or by forbidding the taking of a step necessary for the formation of a trust, such as a transfer of the legal title. The prohibition may be either absolute,4 or subject to a condition or approval.5 Further, while the creation of the trust may not be forbidden in this way by statute, the creation or execution of the trust may be associated with or in furtherance of a purpose rendered illegal by statute. In such a case, as a matter of public policy, the trust will not be enforced. This analysis of the operation of the doctrine of illegality was confirmed by the High Court in Nelson v Nelson.6 Statute may also, as in the case of the Land Act 1962 (Qld), which was considered in Orr v Ford,7 render a proprietary interest liable to forfeiture if a trust be declared by the holder of the interest. [page 99] [9-03] There are suggestions8 that the maxim that those who come to equity must come with clean hands, is but the equitable counterpart of common law doctrines as to illegality. This is not the case. Illegality destroys the legal and equitable rights of the plaintiff. But the maxim merely deprives a plaintiff of the right to equitable relief, leaving the plaintiff to pursue common law rights. The result is that if the doctrine of illegality operates there is no occasion to apply the maxim as to clean hands. Equity in such cases simply follows the law. Hence, Lord Browne-Wilkinson was somewhat wide of the mark when attributing this result not to the operation of basic equitable principle, but to the adoption of a single rule as the consequence of the alleged fusion of law and equity.9 Robert Walker LJ doubted that statement in Lowson v Coombes.10 In any event, the orthodox position applies in Australia.11 [9-04] One class of trusts which were illegal because of a specific statutory prohibition were those forbidden by s 35 of the Defence Service Homes Act

1918 (Cth).12 The statute was designed to provide cheap housing for exservicemen by the Director lending moneys to eligible ex-servicemen (in whose name the property had to be vested) at advantageous rates to enable them to purchase houses. Section 35 provided that no such property, and no interest therein, might be the subject of any ‘transfer’ by the ex-serviceman owner until the loan had been repaid. The term ‘transfer’ was defined in terms which included the creation of a trust. What, then, was the result if an ex-serviceman owner of property on which a loan was outstanding agreed to hold it, in whole or part, upon trust for another party, or accepted financial contributions from a third party in circumstances which would normally give rise to a resulting or constructive trust? The result of a number of decisions was that no trust (express, resulting or constructive) would be recognised in equity in the circumstances described, because to have done so would have been to effectuate a purpose rendered illegal by statute.13 However, the third party might still have a right to an irrevocable equitable licence to occupy the house,14 or be the beneficiary of a trust of the proceeds of sale of the property, although not of the property itself,15 or be a beneficiary of the property itself as from the time when the security for the loan made pursuant to the statute was discharged.16

Nelson v Nelson [9-05] By the time of the facts in Nelson v Nelson,17 the Defence Service homes legislation had been amended to provide for bank loans at interest rates subsidised by the Commonwealth. The title to property A was taken in the name of the children of Mrs Nelson, but with the intention that she be the beneficial owner. The object was to conceal the true state of affairs so that she might later obtain a subsidised loan to assist in the purchase of a second property. She later did so. The High Court held that the ‘policy’ of the statute did not bar Mrs Nelson from recovering the proceeds of the sale of property A, but a majority of the court attached a condition to her relief which required her to account to the Commonwealth for the value of the subsidy she had received for the second property, which she still owned. [page 100]

[9-06] In Fitzgerald v F J Leonhardt Pty Ltd,18 McHugh and Gummow JJ directed attention again to the ‘policy’ of the statute, noting that where the statute required a partial denial of relief, that was readily available in respect of equitable relief by the imposition of terms. In Damberg v Damberg,19 the Court of Appeal favoured the approach of closely analysing the terms of the statute — a difficult task in that case because the evidence of the relevant German law was exiguous. Many examples of the application of these principles to the law of trusts could be given, but to little advantage. What is clear is that modern judicial thinking contends that while a contract associated with or in furtherance of illegal purposes itself may not be directly contrary to the provisions of any express or implied statutory prohibition, the court may act ‘to uphold the policy of the law, which may make the agreement unenforceable’.20 However: … that policy does not impose the sanction of unenforceability on every agreement associated with or made in furtherance of illegal purposes. The court must discern from the scope and purpose of the relevant statute ‘whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable’.21

However, the better view is that the policy of the law rests on a question of statutory construction.22 And it is to be recalled, as Gageler J has said, that ‘Judicial determination of a statutory consequence left to statutory implication has become more sophisticated as statutory regulation has become more sophisticated and more pervasive.’23

Partial Lawful Purpose [9-07] If a trust is created partly for a lawful purpose and partly for an unlawful purpose, it will wholly fail unless the property to be held for the lawful purpose can definitely be ascertained, either because it has been specifically indicated by the settlor24 or because the court can ascertain the amount which would have been sufficient to satisfy the unlawful purpose, thus leaving a specific residue for the lawful purpose.25 Where only one of the provisions in the terms of a trust is illegal, the balance of the trust may be saved if the illegal provision can be separated without defeating the purpose of the settlor in creating the trust.26 [9-08] It has been held in the field of illegal contracts that a plaintiff’s chattels may be recovered from a defendant who has detained or converted

them, even if they came into the defendant’s possession pursuant to an illegal contract and that fact appears either in the pleadings or on the evidence, provided the plaintiff does not plead the contract, does not seek to lead evidence of it, and is not forced to lead that evidence.27 So also in the field of trusts [page 101] it has been held that a plaintiff seeking to establish a trust may do so if the plaintiff neither pleads nor must by evidence necessarily reveal the illegal purposes of the trust. Thus, in Haigh v Kaye,28 the English Court of Appeal held that the plaintiff could obtain a declaration that the defendant held certain property conveyed by the plaintiff to the defendant on trust for the plaintiff, although the purpose of the conveyance was to defraud the plaintiff’s creditors. In order to prove his case, all the plaintiff had to prove was that he was the beneficial owner of the land and that the conveyance was voluntary — the presumption of a resulting trust would then arise. An essentially similar set of facts before the Victorian Full Court led to the same result in Blackburn v Y V Properties Pty Ltd.29 It will be observed that a different result would have ensued in both cases if the defendant had been the wife or child of the plaintiff, because in such circumstances proof of the voluntary conveyance would have given rise to the presumption of advancement not the presumption of a resulting trust, and in order to reject the presumption of advancement the plaintiff would necessarily have to prove the illegal purpose of the conveyance. The distinction was drawn by the House of Lords in Tinsley v Milligan.30 But this has now been repudiated by the High Court in Nelson v Nelson,31 on the ground that it allows form to triumph over procedure and pays no regard to the nature or seriousness of the illegality. McHugh J said:32 A doctrine of illegality that depends upon the state of the pleadings or the need to rely on a transaction that has an unlawful purpose is neither satisfactory nor soundly based in legal policy. The results produced by such a doctrine are essentially random and produce windfall gains as well as losses, even when the parties are in pari delicto.

English cases have, understandably, continued to apply, and refine, Tinsley v Milligan,33 while the capriciousness of the process has been criticised.34

Trusts Tending to Promote Immorality or to Interfere with the Sanctity of Marriage Trusts for Illegitimate Children [9-09] Formerly, trusts in favour of future illegitimate children were void as contrary to public policy. A rule of construction created a presumption that references to children were confined to legitimate children.35 The effect of those rules could largely and readily be evaded, either by specifying expressly or impliedly living illegitimate children,36 or identifying future children by reference to their maternity.37 But legislation has intervened. The rule of construction has been reversed in all jurisdictions,38 and it must be a necessary implication of the legislation that the [page 102] public policy has likewise changed.39 Considerations of public policy ‘must accommodate not only societal conditions but also statutory context’,40 again, depending on what the statutory context is.

Separation Deeds [9-10] A trust is void if it is to take effect upon the future separation of a husband and wife.41 A trust to take effect immediately upon a separation already agreed upon is valid.42 The reason for this rule is that the law will not countenance an action which shows a contemplation that the marriage and cohabitation of the spouses will not continue; whereas, once the spouses have agreed that cohabitation should cease, there is nothing contrary to the stated policy of the law in the arrangement of their affairs in a satisfactory manner. Where a deed provides for an immediate separation, and it is not acted upon immediately, the deed and trusts contained in it will be void.43 Although a trust to take effect upon future separation is void, a settlement made upon trust for the wife for life, the trust in her favour being determinable upon her ceasing to be the cohabiting wife or the widow of the settlor, with a gift-over, is perfectly

good.44 Similarly, a trust in favour of a deserted wife for as long as she shall be separated from her husband is also valid.45 These rules must be read in connection with the powers under the Family Law Act 1975 (Cth).46

Restraint Upon Marriage [9-11] A trust is void if it tends to a general restraint upon marriage. In Lloyd v Lloyd,47 there was a gift to the testator’s wife and another for their joint lives, remainder to the survivor ‘and in case either L or M should marry … then her share shall pass to the other, the same as if death had taken place; and should L and M both marry’ then over. The gift to M upon the marriage of the testator’s widow was held to be valid; but the condition against M’s marrying was held void. [9-12] Although a gift subject to a condition for forfeiture upon marriage is void, there is nothing to hinder property being given until marriage and then over.48 [9-13] A condition of forfeiture upon marriage is valid where it is to take effect upon marriage under any of the following circumstances: (1) Without specified consents. If there is a gift with a provision for forfeiture in case of the marriage of the donee without the consent of named persons, the provision as to forfeiture [page 103] will be enforced, provided there is a gift-over upon marriage without the specified consents.49 A consent once given cannot be retracted except for just reasons.50 (2) With a person of a particular national background, for example, a Scotsman.51 (3) With a person of a particular religion, for example, a Roman Catholic.52 (4) With a person of a particular occupation, for example, with a person

providing domestic assistance.53 (5) With a named person.54 (6) Remarriage of widow or widower. A gift may be made to a wife by her husband or by a third person subject to forfeiture upon remarriage.55 ‘According to the authorities, such a condition is not void as to the wife, the law recognising in a husband such an interest in his wife’s widowhood as to make it lawful for him to restrain her from making a second marriage, by imposing a condition that on such marriage any provision he may have made for her shall cease.’56 The position is similar in regard to a gift to a husband subject to forfeiture upon remarriage.57 (7) Where the true object of the gift is not to prevent the marriage of the donee but to make provision for the donee’s children.58 Because of this last type of case it may be more correct to say that a condition in general restraint of marriage is prima facie void.59 It should further be noted that in cases of trusts of personalty, conditions in partial restraint of marriage are only good if there is a gift-over in the event of marriage. The fact that the property will go to residuary beneficiaries is not sufficient.60

Invasion of Sanctity of Marriage [9-14] In England, any trust which is calculated to serve as an inducement for a husband to divorce his wife is void.61 Similarly, any trust or condition which is designed to deter a father from performing his parental duties is contrary to public policy and void, as, for example, a condition that his child shall, or shall not, be brought up in a particular religious faith.62 However, in Ramsay v Trustee Executors and Agency Co Ltd,63 the High Court of Australia, by a majority, held the policy of the law to maintain and preserve marriage was not offended by a proviso to a gift of income to a son that the property should be his absolutely should he cease to be married to his wife (that is, by her death or by their divorce). The High Court expressly [page 104] disagreed with the English authorities which reached the opposite conclusion

on similar facts. The High Court was not prepared to adopt a view which saw the condition as an inducement to divorce by promise of material gain.

Separation of Parent and Child [9-15] Any trust or condition which is calculated to bring about the separation of parent and child is void as being against public policy.64 Thus, where there was a bequest to such children ‘as attain the age of 30 years and do not before attaining such age reside with’ their father (the father having been divorced from the mother before the date of the will), the stipulation as to nonresidence with the father was held to be void, the gift taking effect free from it.65

Conditions as to Religious Faith [9-16] Conditions, whether precedent or subsequent, that a gift shall be forfeited if or unless the beneficiary adopts a particular religious faith, are not void as against public policy except in so far as they have a tendency to give rise to discord between spouses by creating opposition between the religious beliefs of one and a serious temporal interest of the other.66 A condition applicable to a child during infancy, effecting a forfeiture should the child adhere to a particular religious faith, does not operate until a reasonable time after attainment of majority; so construed such conditions are not void as calculated malignly to influence the discharge by parents of their duties in rearing their children.67 However, they will be void for uncertainty if it is impossible to ascertain from the will at what time, in what manner, and in what circumstances the forfeiture shall occur.68

Other Illegal Trusts [9-17] There are other dispositions on trusts other than those so far dealt with which may be void as contrary to public policy.69 A trust to procure a peerage has been held to be void.70 Trusts or conditions which tend to deter persons from entering Her Majesty’s Forces or public office are void as contrary to public policy.71 However, as Lord Atkin said in Fender v St John-Mildmay,72 the doctrine should only be invoked in clear cases in which the harm to

[page 105] the public is substantially incontestable and does not depend upon the idiosyncratic inferences of a few judicial minds.

Restrictions on Alienation and Remoteness of Vesting [9-18] The courts have always been active, as a matter of public policy, to prevent property from being unnecessarily tied up, with the result that either the property itself cannot be used or the interests created in it are completely or virtually inalienable. The State and the public have an interest in property not being frozen by the deeds of the dead.73 There are two principal methods by which a settlor may attempt to hinder the free use and enjoyment of property, namely, by imposing conditions restraining the exercise of the ordinary incidents of ownership of the interest granted, or by creating a succession of future contingent interests and so postponing to a remote period the date when the whole interest will vest in someone who has an absolute right to alienate it. The courts have made the first method impossible by the doctrine that any condition divesting the donee of an interest previously given absolutely of the power to deal with it or alienate it is void and have restrained the power to create future contingent interests by providing a rule that such interests must vest within a specified time.

Restrictions on Alienation [9-19] If a settlor gives property absolutely, any proviso or condition prohibiting the donee from alienating it or otherwise restraining the donee from exercising the ordinary incidents of ownership will be void.74 Thus, conditions attached to absolute gifts of property stipulating that the donee must not sell, assign, mortgage or charge the property and that if the donee does so his or her interest is forfeited, are regarded as being repugnant to the nature of the gift and

are void75 and any gift-over will fail. Similar provisions apply where the interest granted is a life interest. Although it is not possible validly to give property ‘to A on condition that A does not sell it and if he attempts to do so then B’,76 the intended result may be achieved by a gift of a determinable interest, for example, ‘to A until A attempts to alienate it and then to B’.77 An absolute interest with a condition subsequent is logically distinct from a limited determinable interest, and the difference is well-settled and fundamental.78 While absolute restraints on alienation are void, partial restraints on alienation will be upheld. In this connection, a ‘partial’ restraint is considered one which leaves the property holder with a considerable measure of freedom to alienate. Some contrasting cases will make the position [page 106] clear. In Re Macleay,79 a devise of property on condition that the devisee ‘never sells it out of the family’ was upheld: the condition struck only at sales and not at other forms of disposition (for example, gifts), and moreover the ‘family’ was very numerous. In Re Brown,80 a condition restraining a devisee from alienating land to any person other than his three brothers was held to be invalid. However, in Bondi Beach Astra Retirement Village Pty Ltd v Gora,81 a condition to resell a unit in a retirement village to the transferor was upheld, and in Wollondilly Shire Council v Picton Power Lines Pty Ltd,82 an absolute restraint until such time as the purchaser built certain structures was upheld as an incident of the right of resale to the vendor. There is a complex area in which restraints may validly be imposed in order to effect a lawful purpose.83 A conveyance or devise of property with complete freedom of alienation but subject to a condition that the property holder must pay away a large proportion of the proceeds of sale may yet be invalid as an undue restraint on alienation.84

Gift-over on Bankruptcy [9-20] If a vested interest has been given either in fee simple or for life, any proviso that it shall not pass to the donee’s creditors on bankruptcy, or that it shall be free from the claims of the donee’s creditors, will be void.85 Such a gift must, however, be distinguished from one where the interest given is defeasible

on bankruptcy and so automatically ceases on the happening of the determining event.86 The former involves an attempt to make an absolute interest defeasible on breach of a condition subsequent. The latter merely involves the creation of a determinable interest. Generally speaking, what cannot be achieved by the former can be achieved by the latter. To this general rule there is one certain, and two possible exceptions. The certain exception concerns a determinable interest where the settlor is also a beneficiary, where a more restrictive rule applies: if a settlor settles property upon himself or herself until bankruptcy or alienation and then over, such settlement will be void as against the general body of creditors87 although it may be good against a single alienee.88 The reason for this exception is said to be a rule of common law that no person can take advantage of his or her own bankruptcy. The first possible exception is that while it is clear that a life estate may be made determinable on bankruptcy, it is not so certain that a fee simple may; in Re Leach,89 it was held that a fee simple could be made so determinable, but that case has not escaped criticism.90 Secondly, it is necessary to consider the effect of s 302B of the Bankruptcy Act 1966 (Cth) which renders void a provision of a trust deed (whenever made), having the effect of ‘cancelling, reducing or qualifying a beneficiary’s interest under the trust or allowing the trustee to exercise a discretion to the detriment of a beneficiary’s interest’ if the beneficiary becomes bankrupt. That provision is expressed only to apply to provisions in trust deeds which have that effect, and so will not affect determinable interests otherwise created. It would appear to be aimed at decisions like [page 107] Re Aylwin’s Trusts,91 where the trust of income was for life ‘until his bankruptcy or insolvency’ and thereafter to the bankrupt’s children.

Protective Trusts [9-21] Legislation in all jurisdictions but South Australia and the Northern Territory92 provides a means whereby a settlor or testator may, by directing that income (which may include an annuity or other periodical income payment) be held ‘on protective trusts’ for a principal beneficiary, incorporate into the

settlement or will, as the case may be, the detailed provisions of the sections designed to make such income inalienable by the principal beneficiary and available, despite attempted alienation, for the maintenance, support and benefit of such principal beneficiary, his or her wife or husband, the children and remoter issue, or in certain circumstances the persons interested in corpus on the death of the principal beneficiary. [9-22] The sections provide that income may be directed to be held ‘on protective trusts’ for the benefit of any person (in the section called ‘the principal beneficiary’) for the period of that person’s life or for any less period, and where there is such a direction the income shall during the period (in the sections called the trust period), and without prejudice to any prior interest, be held upon trust as provided in the sections. The period need not be expressly stated, but may be gathered by implication.93 During the trust period, or until the trust of the income fails or determines during the subsistence of the trust period, the income shall be held on trust for the principal beneficiary. The trust of the income shall fail or determine in any of the following cases, as well as on the termination of the trust period, whichever first happens, that is to say, if the principal beneficiary does or attempts to do or suffers any act or thing or if any event happens whereby, if the income were payable to the principal beneficiary absolutely, he or she would be deprived of the right to receive the same or any part thereof. The trust of the income shall so fail or determine, whether the principal beneficiary does or attempts to do or suffers the act or thing before or after the termination of any prior interest,94 but the trust of the income shall not so fail or determine by reason of an advance under any statutory or express power.95 [9-23] There are many decided cases on what does or does not constitute a forfeiture under such protective trusts. The appointment of a receiver in lunacy, for instance, was held in Re Marshall96 not to bring the discretionary trusts into operation. In Re Baring’s Settlement Trusts,97 it was held on the particular form of the trust in that case that a forfeiture was worked by a sequestration of the property of the life tenant made in order to force her to return within the jurisdiction.98 In the case of protective trusts in the statutory form, if the principal beneficiary becomes an enemy for the purposes of the Trading with the Enemy Act 1939 (UK), a forfeiture will take place.99 In Re Porter,100 an

assignment invalid according to the law of the purporting assignor’s domicile was held, nevertheless, to cause a forfeiture. However, the assignment by [page 108] the principal beneficiary to the trustee of his marriage settlement has been held not to be an attempt to assign.101 A sequestration order may cause a forfeiture.102 A forfeiture may be brought about by a dealing by the beneficiary before his or her interest becomes possessory.103 [9-24] If the principal beneficiary does some act with the intention to create a charge, a forfeiture will be incurred even though he or she did not intend to cause such a forfeiture.104 This is so even though it is always a question of intention whether a charge was in fact intended to be created.105 But the service of a garnishee order on a trustee106 or the wrongful issue of fieri facias107 will not work a forfeiture. It has been held that service of a notice under s 218 of the Income Tax Assessment Act 1936 (Cth) did not effect a forfeiture.108 However, an order under s 27 of the Judgment Creditors’ Remedies Act 1901 (NSW) will effect a forfeiture.109 A principal beneficiary incurred a forfeiture when his trustee, having been induced by him to advance to him capital in breach of trust, exercised his right to make deductions from income in order to recover the amount wrongfully advanced.110 But a voluntary alienation made by the principal beneficiary with the sanction of the equity court will not create a forfeiture.111 If the principal beneficiary’s interest is forfeited through bankruptcy, a subsequent discharge from bankruptcy does not affect the previous forfeiture.112 It is doubtful whether under the section the principal beneficiary’s interest on bankruptcy would be absolutely forfeited where the sequestration order was subsequently annulled.113 [9-25] The destination of the income in the event of a forfeiture by the principal beneficiary is dealt with by various statutes in similar terms. In New South Wales, s 45(6) of the Trustee Act 1925 provides: (6) If the trust of the income fails or determines during the subsistence of the trust period, the income shall during the residue of that period be held upon trust for the application thereof — (a) for the maintenance, support, or otherwise for the benefit of all or any one or more

exclusively of the others of the principal beneficiary and his or her spouse, if any, and his or her children or more remote issue, if any, as the trustee in the trustee’s absolute discretion thinks fit; or (b) if there is no spouse or issue of the principal beneficiary in existence, then for the maintenance, support, or otherwise for the benefit of all or any one or more exclusively of the other or others of the principal beneficiary and the persons who would, if the principal beneficiary were actually dead, be entitled to the trust property or the income thereof or of the annuity fund, if any, or arrears of the annuity, as the case may be, as the trustee in the trustee’s absolute discretion thinks fit.

[page 109] [9-26] Once such a provision is brought into operation, the trustee must apply all income for the benefit of the persons mentioned in the subsection.114 If any income remains in the trustee’s hands at the death of the first beneficiary it must all be applied in this manner.115 There is no apportionment under s 144 of the Conveyancing Act 1919 (NSW).116 The protective trust legislation provides that any trust implied by it may be set aside in any case where an express trust to the same effect might be set aside. This is a very important provision, because it makes it clear that the purpose of the section is not to give validity to trusts which might otherwise be invalid under the law of bankruptcy, but is merely to provide a means whereby the lengthy provisions to govern a protective trust need not be set out at length in every trust instrument. Therefore, where the settlor is also the principal beneficiary, the income on bankruptcy will go, not in accord with the provisions of the section, but to the settlor’s creditors.117 However, if in such a case forfeiture has occurred prior to the bankruptcy, by reason of an earlier alienation or charge, the forfeiture will stand and the gift-over will take effect,118 subject always to the overriding effect of s 94 of the Bankruptcy Act 1966 (Cth). [9-27] Where property is held upon protective trusts for persons in succession and where the principal beneficiary is a woman past the age of child bearing, the principles upon which the court acts where there is an application for payment of the fund are conveniently summarised by Dean J in Trustees Executors and Agency Co Ltd v Margottini as follows:119 The purposes for which such an order will be made and the principles applicable are well settled. An order of the kind sought does not in any way affect the interests of those who may benefit under the trusts declared by the deed. All it does is to authorize the trustees as a matter of administration, to deal with the trust property by paying it to the person who will be entitled to

it if there is ultimately no issue. It protects the trustees if the unexpected event should occur while leaving to the possible future children the right to claim the fund from those to whom, in the event, it has been wrongly paid. Such an order will not be made where its effect would be to deprive existing persons, including next of kin of the testator or settlor, of their rights. It will not be made unless the only persons whose rights can be affected are the possible future children. Such an order will not be made unless the court is satisfied that there is no reasonable likelihood of the woman in question having children. It was formerly the practice to require the recipient of the fund to enter into a recognizance for its repayment if his right to it was subsequently destroyed; later an undertaking to repay it was sufficient, but more recently it is not unusual to require either a recognizance or an undertaking unless there are special circumstances making it desirable to do so. The age of the person in respect of whom the presumption will be made is not precisely fixed but it seems clear that it will be made without hesitation in respect of a woman the age of the second defendant who is a few months short of 60.

In Re Tomlins,120 where the circumstances were similar, the court refused to exercise its jurisdiction because there were possible future persons (other than the unborn children of the woman in question) whose rights would be affected by an order.

The Rule Against Perpetuities [9-28] The rule commonly known as ‘the rule against perpetuities’ is but one of a number of common law rules restricting dispositions of property which might ‘tend to a perpetuity’. [page 110] A detailed study of those rules is beyond the scope of this work.121 In its modern formulation, as stated in Cadell v Palmer,122 it provided that an interest in property if not vested at the time of its creation, must vest no later than 21 years after the termination of a life in being at the date of creation; if there was merely a possibility that this might not occur, the disposition was void.123 It will be observed that the rule is not strictly a rule against perpetuities, but against remoteness of vesting. In most common law jurisdictions, the rule is subject to abrogation or extensive modification by statute; as the Privy Council observed in a Jamaican appeal, where this has not occurred its application continues to be ‘remorseless’.124

Particular classes of trusts (in particular, pension schemes) have been made exempt from the operation of the rule: see Superannuation Industry (Supervision) Act 1993 (Cth) s 343; Corporations Act 2001 (Cth) s 1346, and the state and territory legislation considered below. That legislation applies retrospectively.125 More generally, all Australian jurisdictions have reformed the law, most with prospective force,126 such that common law rules will only now apply to dispositions made decades ago. For the effect of those rules, the reader is referred to the 6th edition of this work.127 The following addresses the current law. [9-29] The main rules are now as follows. First, rather than determining at the outset whether a disposition might possibly vest outside the perpetuity period, the legislation adopts a ‘wait-and-see’ approach, validating everything done until it is certain that a disposition must vest outside the period.128 Secondly, the perpetuity period in New South Wales and the Australian Capital Territory is 80 years from either the time when the settlement takes effect, or (if the interest is appointed under a special power of appointment), the time when the power is created.129 In all other jurisdictions save South Australia, the disponer may specify a period not exceeding 80 years, failing which the perpetuity period is the common law period of a life or lives in being plus 21 years.130 Thirdly, in New South Wales, the Australian Capital Territory and the Northern Territory, if, notwithstanding the foregoing rules, the perpetuity period would be infringed by reason of the vesting of an interest depending upon a person attaining a specified age, then that age is reduced to the extent necessary to avoid a perpetuity.131 [page 111] In Victoria and Tasmania, the same rule applies but an age cannot be reduced below 21 years;132 in Queensland, not below 18 years.133 In Western Australia, if a reduction of age is necessary, then the age is reduced to 21 years.134 Fourthly, class members are excluded from a class if that is necessary to avoid a perpetuity, so long as that does not exhaust the class.135 Fifthly, a disposition of an interest which is dependent upon an ulterior interest which is void is not itself void, but instead its vesting is accelerated.136 Sixthly, a provision which might cause a determinable interest to revert after the perpetuity period will, after the wait-

and-see period, be void, so that the determinable interest will thereafter no longer be determinable.137 In South Australia, the rules against perpetuities and against accumulations have been abolished,138 and replaced by a provision permitting, in most cases, an application to be made to the court to vary the terms of a disposition so that interests which have not vested may vest immediately.139 [9-30] One area of continuing importance in Australia arises in analysing gifts to unincorporated associations. The prima facie rule is that a gift to an unincorporated association operates, prima facie, as a gift to the individual members at the time when the bequest becomes operative.140 The trial judge and the majority of the High Court in Leahy v Attorney-General for New South Wales141 so construed the gift in that case, a view which was overturned on further appeal to the Privy Council.142 Accordingly, the members may sever and claim their interests. That rule may be rebutted. Thus the joint judgment in Bacon v Pianta: However, circumstances may appear which preclude this conclusion; it may appear that the disposition amounts to a trust for the benefit of both present and future members, or, that it is not for the benefit of individuals at all but stands revealed as a trust for some purpose or purposes disclosed by the terms of the bequest. In the former of these two cases the gift may well fail as infringing the rule against perpetuities and, in the latter case, it will fail unless the purpose is, in the legal sense, charitable. Indications sufficient to rebut the prima facie presumption may be found to some extent in the form which the gift takes, in the number and disposition of the members of the association, in the subject matter of the gift and in the capacity of the members to put an end to their association and distribute its assets.143

Commonly, there is found to be no intention to benefit either the present or present and future members of the association individually,144 but rather an intention for the gift to be on trust for the purposes of the association. [page 112] [9-31] In Leahy v A-G (NSW) itself,145 the Privy Council dealt with a devise of a grazing property of about 730 acres with a furnished homestead containing 20 rooms and a number of out-buildings upon trust for ‘such order of nuns of the Catholic Church or the Christian Brothers as my executors and trustees shall select’. It was held that the testator had not created a trust for the benefit of the existing members of the selected Order, nor for the benefit of existing and future

members, but rather a trust for its purposes as a continuing society. The Judicial Committee was repelled by the prospect of the individual members of an Order having been intended by the testator to become the beneficial owners of a grazing property. By way of contrast, in Re Smith,146 Joyce J held that a gift of residue in trust for a named community of Franciscan Friars in a particular locality operated as an absolute immediate gift to the members of the community at the date of the testator’s death. They were six in number. His Lordship held it was not to the point that the application of the fund by the particular Friars was controlled by their monastic vows; in the eye of the law each would be entitled to spend the money as he pleased. In Re De Vedas,147 the testator had given ‘in perpetuity’ the income from his residuary estate to ‘the Adelaide Hebrew Congregation’. Wells J held that this was a gift on trust for the purposes of the congregation. It was not a gift to the present or future members of the congregation because: (1) by the use of the term ‘congregation’ the testator had meant not just a group of persons but a responsible ‘quasi-corporate’ religious body; (2) this body included legal minors; and (3) the subject property was land and there would be considerable difficulty with a large number of joint owners. In Bacon v Pianta,148 the High Court held that a gift of money ‘to The Communist Party of Australia for its sole use and benefit’ failed. Having regard to the language of the gift (expressed to the Party, rather than its members), the geographically dispersed, numerically fluctuating membership from time to time, the likely ignorance on the part of the testator that the Party was unincorporated, and the fact that the Party rules forbad division of property to members, the court held that it was properly a gift to present and future members, in trust for the purposes of the Party, and so void. [9-32] In recent years, decisions in England and Australia have added to the complexity of the law in this field by introducing a new concept by way of addition to those of gifts to individual members (either or both present or future) and gifts for the purposes of the body (which might be charitable and good or non-charitable and bad). The new doctrine was first propounded by Cross J (as he then was) in Neville Estates Ltd v Madden.149 It was applied by Brightman J in Re Recher150 and by Adam J in Re Goodson.151 The passage in which Cross J propounded the doctrine is as follows:152

[I]t may be a gift to the existing members not as joint tenants, but subject to their respective contractual rights and liabilities towards one another as members of the association. In such a case a member cannot sever his share. It will accrue to the other members on his death or resignation, even though such members include persons who became members after the gift took effect. If this

[page 113] is the effect of the gift it will not be open to objection on the score of perpetuity or uncertainty unless there is something in its terms or circumstances or in the rules of the association which precludes members at any given time from dividing the subject of the gift between them on the footing that they are solely entitled to it in equity.

This solution conforms with the likely intention of the donor, but at a heavy price. Cross J seems to be holding that the rules of the association, as the controlling force between the members restraining severance or disposition of the ownership of each member’s share in the fund, operated to curtail the proprietary interest given by that ownership. In other words, one views the contractual obligations not as personal duties, the failure in performance of which will be at hazard of damages or injunction, but rather as a subtraction from proprietary rights. This is a fundamental misconception; one may contract as to the exercise of one’s rights of ownership while retaining those rights, as McHugh J noted in this context in Victoria v Sutton.153 Furthermore, it is also implicit in the statement by Cross J that the endowment thus created may be perpetual in duration, although a trust not for charitable purposes, intended to have perpetual duration, would fail.154 Nor is it explained how the equitable interest of a member passes on the resignation or death of the member without compliance, respectively, with the Australian equivalents of s 53(1)(c) of the Law of Property Act 1925 (UK) or s 9 of the Wills Act 1837 (UK). But the reasoning was nevertheless applied in Victoria. In Re Goodson,155 the testator left a share of residue on trust for the general purposes of the Loyal Orange Institution in Victoria, an unincorporated body. Adam J held that the purposes of that body were not charitable, but that the gift should be construed as ‘in augmentation of the general funds of the Institution to be applied in conformity with its constitution’, in accordance with the principles explained by Cross J. The gift was not to the members of the institution as joint tenants so no member could sever his or her share and claim it. As the Full Federal Court noted in Bacon v O’Dea,156 Bacon v Pianta was directly relevant but ignored.

Legislation in some states now provides that certain testamentary gifts to unincorporated associations are treated as dispositions in augmentation of the general funds of the association.157

The Rule Against Accumulations [9-33] Here, too, legislation has intervened, but in this instance largely restoring the position at common law, where a direction to accumulate income was valid if confined to the perpetuity period. Following Thellusson v Woodford,158 the Accumulations Act 1800 was enacted, establishing four alternative accumulation periods to be selected by the settlor or testator. For the Australian counterparts and their operation, see [952]–[954] of the 6th edition of this work. However, the current law in all states and territories save South Australia is to restore the common law position, but subject to wait-and-see, so that a direction to accumulate will be valid until it is demonstrated that the period of accumulation will go beyond the perpetuity period.159 In South Australia, the rule has been abolished as noted above.160 [page 114]

The Rule in Saunders v Vautier [9-34] Where there is an absolute vested gift with a direction to accumulate the income for a certain time and then to pay the original sum with the accumulations, the beneficiary, if of full age and capable of giving a valid discharge, may require payment without waiting until the appointed time. If the direction is to accumulate the income for a period exceeding that allowed by the statute, the beneficiary will benefit, as the rule makes the direction to accumulate ineffective immediately the beneficiary is capable of giving a valid discharge and claims payment, whereas apart from the rule the excessive accumulations would pass to others.161 The rule, which is a rule of law and not merely of construction, is preserved by statute162 and applies to a gift to a charity.163 If there is a gift to a charity with a direction to accumulate the income for a number of years and then to pay over the whole fund, the charity,

being capable of giving a discharge at any time, may put a stop to the accumulation and have the fund paid over at once.

Avoidance by the Settlor [9-35] The general rule is that a completely constituted trust is irrevocable by the settlor and his or her personal representatives notwithstanding that it is voluntary, unless it contains an express power of revocation.164 The absence of a power of revocation from a voluntary settlement, or the presence in the deed of unusual provisions, is no ground for setting the deed aside, provided the provisions have been brought to the settlor’s attention, and understood.165 It is not the province of a Court of justice to decide on what terms or conditions a man of competent understanding may choose to dispose of his property. If he thoroughly understands what he is about, it is not the duty of a Court of justice to set aside a settlement which he chooses to execute on the ground that it contains clauses which are not proper.166

[9-36] Equity may intervene, at the suit of the settlor, to set aside a trust on various grounds described as ‘unconscionable’,167 such as fraud, undue influence, misrepresentation or mistake. Those doctrines are addressed at length elsewhere.168 It is sufficient here to observe that: (a) Equity had long exercised a jurisdiction to set aside trusts induced by a mistake of law, rather than of fact, well before the distinction was abrogated.169 The question is whether the settlor was mistaken as to the effect of the transaction itself, not merely its consequences. [page 115] (b) The onus of proving the relevant vitiating factor is upon the settlor, except where the beneficiary owed a fiduciary obligation to the settlor or where a presumption of undue influence arose at the time of the settlement. In the former case, it is necessary for the fiduciary to show that the transaction is not merely fair, but ‘open and fair, and free from all objection’.170 In the latter, it is necessary for the beneficiary to show that the settlement was executed as the result of the free exercise of the settlor’s independent will.171

(c) No relief will be ordered if the settlor knowingly acquiesced in the settlement after the circumstances giving rise to the vitiating factor ceased.172 (d) A trust may also be set aside if its purpose has failed, for example, where a marriage settlement has been made, but the marriage has not been solemnised173 or has been annulled.174 (e) The settlement will not be cancelled unless the parties can be placed in their original positions, even where the settlement was induced by serious misrepresentations.175

Avoidance by Third Parties [9-37] In addition to the principles already considered relating to gifts-over on bankruptcy, certain statutes provide that even completely constituted trusts may be avoided in certain circumstances by the official receiver or trustee in bankruptcy or the settlor’s creditors, or subsequent purchasers for value of the trust property.

Bankruptcy Act 1966 (Cth) [9-38] The Bankruptcy Act has long provided that certain dispositions of property are void against the disponor’s trustee in bankruptcy. The current provisions, applicable to bankruptcies occurring on or after 16 December 1996, strike at ‘undervalued transactions’ (s 120) and ‘transactions to defeat creditors’ (s 121).176

Undervalued Transactions [9-39] In contrast to the former s 120 (which was aimed at voluntary settlements), the current provision renders void as against the transferor’s trustee in bankruptcy any transfer for less than market value taking place within five years of the commencement of bankruptcy. The history of the provisions is set out in Barton v Official Receiver;177 their purpose has been said ‘to prevent properties from being put into the hands of relatives to the disadvantage of

creditors’, although they are not confined to dispositions to relatives, and ‘property’ is very broadly defined.178 The amendments were intended to overcome decisions under earlier Australian and English provisions dating back to 1869 which held that valuable consideration, albeit at an undervalue, [page 116] which was not nominal, trivial or colourable, protected a settlement.179 The provision requires the court to be satisfied only that the value of the consideration was less than the market value at the date of transfer; it does not require the court to assign any particular value to the consideration.180 Further, by substituting for the notion of ‘settlement’ the notion of ‘transfer’, it was no longer necessary for the trustee in bankruptcy to establish that it was contemplated that the transferee retain the property for a period. There are exemptions relating to liabilities to pay taxation, maintenance, and under debt agreements.181 The onus is on the trustee in bankruptcy to establish that the transfer is not exempted, and was for less than valuable consideration.182 A promise to marry is now to be regarded as no consideration,183 but unremunerated work in a marriage may amount to consideration.184 A transfer is not void if it was made more than two years before the commencement of the bankruptcy, and the transferee can prove that the bankrupt was at that time solvent.185 Third parties who acquire from the transferee are protected if they took in good faith and provided valuable consideration at least as valuable as market value.186 If a transfer is void under this section, the trustee must repay to the transferee the value of consideration paid by the transferee.187

Transfers to Defeat Creditors [9-40] Section 121 renders void against the transferor’s trustee in bankruptcy a transfer of property which otherwise would probably have been available to creditors if the transferor’s main purpose was to prevent the property from becoming divisible among creditors, or to hinder or delay the process of making property available for division among creditors. The requisite purpose is taken to have been established if at the time of the transfer it can reasonably be inferred

from all the circumstances that the transferor was, or was about to become, insolvent.188 It suffices to establish that the inference of insolvency is reasonably open (notwithstanding that an inference of solvency is likewise reasonably open).189 The purpose may also be established otherwise: by admission, or by inference.190 A relevant intent to defeat creditors may be established even though there are no existing creditors at the date of the disposition.191 A transfer is not void against the trustee if the transferee provided valuable consideration at least as valuable as market value and did not know that the transferor’s main purpose was to defeat creditors, and could not reasonably have inferred that the transferor was, or was about to become, bankrupt.192 Again, the trustee is required to repay to the transferee the value of consideration paid by the tranferee if the transfer is void.193 [page 117]

Fraudulent Conveyances [9-41] In all jurisdictions there is legislation based on the Fraudulent Conveyances Act 1571.194 It provides that every conveyance of property made with intent to defraud creditors shall be voidable at the instance of any person prejudiced; there is protection for purchasers in good faith not having, at the time of the alienation, notice of the intent to defraud creditors. The principal use of these provisions today occurs where the settlor has not been made bankrupt. However, dispositions which are void under these provisions will also be void against trustees in bankruptcy and there is nothing in s 121 of the Bankruptcy Act 1966 (Cth), considered above, which supersedes or is inconsistent with these provisions; indeed, many Australian decisions interpreting the relevant state legislation are decisions of federal courts exercising bankruptcy jurisdiction on applications by trustees in bankruptcy.195 Fraudulent intent will not be presumed from the mere fact that the settlor was in debt at the time of the settlement and it is not sufficient merely to show that the effect of the settlement has been to defeat a creditor.196 However, it is not necessary to show that the debtor wanted creditors to suffer a loss or had the purpose of causing loss. It is necessary to show the existence of an intention to

hinder, delay or defeat creditors and in that sense show that the debtor had acted dishonestly.197 [9-42] The onus of proof of the settlor’s intent to defraud lies on the creditors seeking to set aside the settlement.198 Thus, in Ex parte Mercer,199 an action for breach of promise to marry was commenced against one Wise, three months after he had married. A few days after his marriage he had become entitled to a legacy of £500. Shortly after the writ was served on him he settled this legacy on his wife. Judgment was obtained against him in the following year, and two years later he was adjudicated bankrupt. He was able to show that when he made the settlement, he was able to pay his debt without recourse to the legacy200 and he satisfied the court that he was not, in making the settlement, influenced by the action. The Court of Appeal held that there was not sufficient evidence to show that the settlement was intended to defeat or defraud creditors within the meaning of the statute.201 A creditor need not show that the settlor was insolvent at the time of the settlement, but must show that the settlor was at that time so largely indebted that the intention of the settlement was fraudulent.202 All the settlor’s liabilities due or about to fall due must be considered, including contingent liabilities [page 118] where it is likely they will become debts.203 Only one creditor need be affected.204 However, a transaction could not be impeached on the ground merely that it constituted a preference of a particular creditor by his debtor.205 [9-43] Intent to defraud may be inferred from the circumstances in which the settlement was made. Thus, a settlor about to engage in a hazardous trade bears the burden of proving solvency at the time of the settlement. In Mackay v Douglas,206 a voluntary settlement made by a man on his wife and children shortly before engaging in a speculative business was held fraudulent and void, although no debt was still owing which had been incurred before the date of the settlement. In Ex parte Russell,207 a voluntary settlement made by a baker about to start a grocer’s business of which he knew nothing was held to be void on the grounds that when making the settlement his object had been to put his property out of the reach of his creditors in case the grocery business failed:208

A man is not entitled to go into a hazardous business, and, immediately before doing so, settle all his property voluntarily, the object being this: ‘If I succeed in business I make a fortune for myself. If I fail I leave my creditors unpaid. They will bear the loss.’ That is the very thing which the statute of Elizabeth was meant to prevent.

[9-44] A settlement based on valuable consideration will not be avoided unless parties to the consideration were privy to the fraudulent intent.209 In the case of a marriage settlement it follows that the settlement will not be avoided as against the children of the marriage (as they could not be parties to the fraud), but it will be avoided where both husband and wife have been parties to the fraud, as in Union Bank of London v Kent210 and Bulmer v Hunter.211 In both those cases the wife had been the husband’s mistress, and it was clear that, but for a desire to defraud creditors, the parties would not have married.212 The creditors seeking to set aside a settlement based on valuable consideration must show that it was a collusive arrangement between the parties made with the intention of defrauding creditors, and not merely that the parties knew that the effect of the settlement would be to defeat creditors.213 A bona fide purchaser for value, without notice of any fraud, of any legal or equitable interest created by the settlement is protected.214 [9-45] The avoidance of the settlement is only for the purpose of paying creditors. If there is likely to be a surplus, the settlement will not be ordered to be delivered up but the court will order that it be set aside to the extent necessary to pay the creditors, and the surplus will belong to the beneficiaries.215 If a settlement is set aside at the instance of creditors whose debts existed when it was made, the property will be available for all creditors whenever their debts arose. So long as any debts which existed at the date of the settlement are unpaid, subsequent creditors can themselves apply to have the settlement declared void;216 but if all the existing debts have been paid, it would seem that the settlement will be set aside at the instance of subsequent creditors only if they can show that the intention of the settlor was to defraud them, [page 119] or that their money has been used by the settlor to pay creditors whose debts were in existence at the date of the settlement.217

Frauds on Subsequent Purchasers [9-46] The statute, 27 Eliz I, c 4, was originally interpreted by the court so as to render void any voluntary settlement where the settlor had subsequently conveyed the land for value. Thus, if A made a voluntary settlement of land on B and subsequently sold the land to C, the court held that the conveyance to B was fraudulent and void within the meaning of the statute, as against C, even though no intention to defraud existed at the time of the first conveyance and the subsequent purchaser was aware of the existence of the voluntary settlement at the time he took his conveyance.218 This is no longer law. The presumption of fraudulent intent is removed by legislation in all jurisdictions. In New South Wales, the Conveyancing Act 1919 provides: 37B. (1) Every instrument (other than a will) which operates, or on registration would operate, as a voluntary alienation of land, shall, if made with intent to defraud a subsequent purchaser, be voidable at the instance of a subsequent purchaser. (2) For the purposes of this section no such instrument (whether made before or after the commencement of the Conveyancing (Amendment) Act 1930) shall, if registered before a subsequent purchase, be deemed to have been made with intent to defraud by reason only of that purchase, or that the instrument was not made for valuable consideration.

The section does not apply to personalty nor to any conveyance made bona fide for valuable consideration. The interests of beneficiaries under a trust based on value, but fraudulent in inception, will not be affected, provided they were not parties to the fraud, and the assigns of voluntary beneficiaries are protected.219 The legislation in the other jurisdictions220 does not require that the voluntary disposition be registered before the subsequent purchase in order that it should be freed from the operation of the old rule that the mere existence of the later purchase rendered the voluntary disposition fraudulent.

The Family Law Act [9-47] The Family Court under Pt VIII of the Family Law Act 1975 (Cth) has jurisdiction under s 79 in proceedings relating to the property of parties to a marriage or either of them. It may, in exercise of that jurisdiction, alter existing rights. It may order the parties to make a settlement in lieu of an existing interest; it may extinguish existing interests or order the creation of new ones. By s 78, it may declare the proprietary interests of parties to a marriage. By s 74, it may make orders for the maintenance of either a party to the marriage or a

child of the marriage. By s 85, it may invalidate a disposition by a party made to defeat an existing or anticipated order. The application of those broad provisions is beyond the scope of this work. _____________________________ 1.

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512 at [46]; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44 at [11]; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; 286 ALR 12 at [23]; Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [35]–[40], [64]–[65].

2. 3.

[1994] 1 AC 340; [1993] 3 All ER 65. Jetivia SA v Bilta (UK) Ltd [2015] 2 WLR 1168; [2015] 2 All ER 1083 at [15]. The same point was made by Lord Toulson in Les Laboratoires Servier v Apotex Inc [2015] AC 430 at [64]. See also Silverwood v Silverwood (1997) 74 P&CR 453; Lowson v Coombes [1999] Ch 373; Polanski v CondeNast Publications Ltd [2005] 1 All ER 945 at [19]; [2005] 1 WLR 637; Law Commission, Consultation Paper No 154, Illegal Transactions (1999).

4.

For example, as provided by Veterans’ Entitlements Act 1986 (Cth) s 125; Superannuation Act 1990 (Cth) s 41; Social Security Act 1991 (Cth) ss 66, 128, 170, 220, 280, 339, 387, 571, 654, 724, 757, 806, 870, 976, 1052, 1061W. For example, as provided by s 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which imposes special requirements upon dealings by a Land Trust with any estate or interest in land which is vested in it.

5.

6.

7. 8. 9.

(1995) 184 CLR 538; 132 ALR 133. Noted (1996) 112 LQR 386; (1997) 71 ALJ 185; D Davies, ‘Presumptions and Illegality’ in A Oakley (ed), Trends in Contemporary Trust Law, Oxford University Press, Oxford, 1996, p 33. (1989) 167 CLR 316; 84 ALR 146. See, for example, Tinsley v Milligan [1992] Ch 310 at 323–4, 340–1; [1992] 2 All ER 391 at 401, 415– 16; [1994] 1 AC 340 at 357; [1993] 3 All ER 65 at 74. Tinsley v Milligan [1994] 1 AC 340 at 375; [1993] 3 All ER 65 at 90; see also Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150; [2001] 1 WLR 1437 at [12], [34].

10. [1999] Ch 373 at 384. 11. Nelson v Nelson (1995) 184 CLR 538 at 550–1, 577, 608–9; 132 ALR 133 at 142–3, 163, 189–90; Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421 at [157]–[186]; Lewis v Nortex Pty Ltd (in liq) (2004) 214 ALR 634 at [135]–[136]. 12. Section 35 was repealed by s 10 of the Defence Service Homes Amendment Act 1988 (Cth). 13. These include Maurice v Lyons [1969] 1 NSWR 307; Pearce v Pearce [1977] 1 NSWLR 170; Horton v Public Trustee [1977] 1 NSWLR 182; Olsen v Olsen [1977] 1 NSWLR 189. 14. Pearce v Pearce [1977] 1 NSWLR 170. 15. Horton v Public Trustee [1977] 1 NSWLR 182. 16. Olsen v Olsen [1977] 1 NSWLR 189. 17. (1995) 184 CLR 538; 132 ALR 133. 18. (1997) 189 CLR 215 at 230–1; 143 ALR 569 at 580. 19. (2001) 52 NSWLR 492 at [109]–[117].

20. Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; 286 ALR 12 at [23]; Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [35]. 21. Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; 286 ALR 12 at [23]; Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [35]. 22. Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512 at [46]; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44 at [11]; Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [36]–[40], [64]–[65]. 23. Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [64]. 24. Chapman v Brown (1801) 6 Ves 404; 31 ER 1115; Re Birkett (1878) 9 Ch D 576; [1874–80] All ER Rep 242; Re Porter [1925] Ch 746; [1925] All ER Rep 179; for alternative trusts, one legal and the other illegal, see Re Mill’s Declaration of Trust [1950] 1 All ER 789, affirmed [1950] 2 All ER 292. 25. Mitford v Reynolds (1842) 1 Ph 185; 41 ER 602; Fisk v Attorney-General (1867) LR 4 Eq 521; Hunter v Bullock (1872) LR 14 Eq 45; Re Williams (1877) 5 Ch D 735; Re Birkett (1878) 9 Ch D 576; [1874–80] All ER Rep 242. 26. Scott on Trusts, §9.6.1. 27. Bowmakers Ltd v Barnet Industries Ltd [1945] KB 65; [1944] 2 All ER 579; Sajan Singh v Sardara Ali [1960] AC 167; [1960] 1 All ER 269; Kiriri Cotton Co Ltd v Dewani [1960] AC 192; [1960] 1 All ER 177; Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391; [1963] ALR 378. 28. (1872) LR 7 Ch App 469. 29. [1980] VR 290. 30. [1994] 1 AC 340; [1993] 3 All ER 65. 31. (1995) 184 CLR 538; 132 ALR 133. 32. (1995) 184 CLR 538 at 609; 132 ALR 133 at 189. In Tribe v Tribe [1996] Ch 107 at 134; [1995] 4 All ER 236 at 258–9, Millett LJ referred to the rationale of deterrence which is suggested for the illegality rule and said it was artificial to suggest that anyone would be dissuaded thereby from entering into a proposed fraud. 33. See, for example, Q v Q [2009] 1 FLR 935; O’Kelly v Davies [2015] 1 WLR 2725; Patel v Mirza [2015] Ch 271; [2015] All ER 326 at [53]–[63]. 34. See Tribe v Tribe [1996] Ch 107; [1995] 4 All ER 236; Jetivia SA v Bilta (UK) Ltd [2015] 2 WLR 1168 at [69] and the decisions referred to in [9-02] above; and see R Chambers, ‘Is There a Presumption of Resulting Trust’ in C Mitchell (ed), Resulting and Constructive Trusts, Hart Publishing, Oxford, 2010, pp 270–2. The Law Commission has recommended legislative intervention: The Illegality Defence (2010). 35. Hill v Crook (1873) LR 6 HL 265; [1874–80] All ER Rep 62; Re Ayles (1875) 1 Ch D 282. 36. Dorin v Dorin (1875) LR 7 HL 568; [1874–80] All ER Rep 71; Re Eve [1909] 1 Ch 796; [1908–10] All ER Rep 131. 37. Occleston v Fullalove (1874) 9 Ch D 147; Re Hastie (1887) 35 Ch D 728; Re Loveland [1906] 1 Ch 542; Re Te Huango [1993] 3 NZLR 77. 38. Birth (Equality and Status) Act 1988 (ACT) s 6; Status of Children Act 1996 (NSW) ss 5, 6; Status of Children Act 1978 (NT) s 6; Status of Children Act 1978 (Qld) s 3; Family Relationships Act 1975 (SA) s 6; Status of Children Act 1974 (Tas) s 3; Status of Children Act 1974 (Vic) s 3; Property Law Act 1969 (WA) s 31A; Wills Act 1970 (WA) Pt IX. 39. See Harris v Ashdown (1985) 3 NSWLR 193 at 199–200 and cf by analogy Smits v Roach (2004) 60 NSWLR 711 at [69]. Alternatively, it may be that it can no longer be said that such a trust is so contrary to the ideas prevailing in the community as to the conditions necessary to its welfare: see

Stevens v Keogh (1946) 72 CLR 1 at 28; cf Seidler v Schallhofer [1982] 2 NSWLR 80 at 89, 101. 40. Gnych v Polish Club Ltd (2015) 89 ALJR 658 at [72]. 41. Westmeath v Westmeath (1830) 1 Dow & Cl 519; Re Moore (1888) 39 Ch D 116; [1886–90] All ER Rep Ext 187. 42. Wilson v Wilson (1848) 1 HL Cas 538; 9 ER 970; (1854) 5 HL Cas 40; 10 ER 811. 43. Hindley v Westmeath (1827) 6 B & C 200; 108 ER 427; Westmeath v Westmeath (1830) 1 Dow & Cl 519; Bindley v Mulloney (1869) LR 7 Eq 343. 44. Re Hope-Johnstone [1904] 1 Ch 470. 45. Re Charleton [1911] WN 54. 46. See [9-47]. 47. (1852) 2 Sim (NS) 255; 61 ER 338. 48. Morley v Rennoldson (1843) 2 Hare 570 at 579; 67 ER 235 at 239 per Sir James Wigram VC. 49. Re Whiting’s Settlement [1905] 1 Ch 96; Leong v Lim Beng Chye [1955] 2 All ER 903. 50. Re Brown [1904] 1 Ch 120. The rule as to forfeiture upon marriage without consent is one long settled in the law. Earlier cases on the subject are the following: Aston v Aston (1703) 2 Vern 452; 23 ER 890; Scott v Tyler (1788) Dick 712; 5 ER 241; Stackpole v Beaumont (1796) 3 Ves 89; 30 ER 909; Dashwood v Bulkeley (1804) 10 Ves 230; 32 ER 832; Lloyd v Branton (1817) 3 Mer 108; 36 ER 42; Re Nourse [1899] 1 Ch 63. 51. Perrin v Lyon (1807) 9 East 170; 103 ER 538. Such a provision may now fall foul of s 9 of the Racial Discrimination Act 1975 (Cth). Section 8 saves only provisions conferring charitable benefits. 52. Duggan v Kelly (1847) 10 Ir Eq R 295. 53. Jenner v Turner (1880) 16 Ch D 188 at 196–7 per Sir James Bacon VC. 54. See Jarvis v Duke (1681) 1 Vern 19; 23 ER 274; Jenner v Turner (1880) 16 Ch D 188. 55. Lloyd v Lloyd (1852) 2 Sim (NS) 255; 61 ER 338; Leong v Lim Beng Chye [1955] 2 All ER 903. 56. Lloyd v Lloyd (1852) 2 Sim (NS) 255 at 263; 61 ER 338 at 341 per Sir James Kindersley VC. 57. Allen v Jackson (1875) 1 Ch D 399 at 403–4 per James LJ. 58. Re Hewett [1918] 1 Ch 458; [1918–19] All ER Rep 530; see also Re Fentem [1950] 2 All ER 1073, a gift to the testatrix’s brother for life with gift-over on his death, ‘if he shall have married’. 59. See Leong v Lim Beng Chye [1955] 2 All ER 903. 60. Leong v Lim Beng Chye [1955] 2 All ER 903. 61. Re Caborne [1943] Ch 224; [1943] 2 All ER 7. This case concerned a condition. But in Re Johnson’s Will Trusts [1967] 1 All ER 553, the same principle was applied to a trust. 62. Re Borthwick [1933] 1 Ch 637; [1933] All ER Rep 737. 63. (1948) 77 CLR 321; [1949] ALR 105; see also Ellaway v Lawson [2006] QSC 170; Jones v Krawczyk [2011] NSWSC 139. The difficulty in reconciling Ramsay with Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339 is discussed by D Hodgson (1962) 4 SydLR 131. 64. Re Sandbrook [1912] 2 Ch 471; [1911–13] All ER Rep 559; Re Boulter [1922] 1 Ch 75; Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 at [328]–[337]. 65. Re Piper [1946] 2 All ER 503. 66. Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339; Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 at [63]. 67. Blathwayt v Lord Cawley [1976] AC 397; [1975] 3 All ER 625.

68. Public Trustee v Gower [1924] NZLR 1233; Re Blaiberg [1940] Ch 385; [1940] 1 All ER 632; Re Evans [1940] Ch 629; Clayton v Ramsden [1943] AC 320; [1943] 2 All ER 16; Re Donn [1944] Ch 8; [1943] 2 All ER 564; Re Moss’s Trusts [1945] 1 All ER 207; Re Lockie Guardian [1945] NZLR 230; Re Biggs Public Trustee v Schreider [1945] NZLR 303; Re Myers [1947] NZLR 828; Blathwayt v Lord Cawley [1976] AC 397; [1975] 3 All ER 625; Re Tuck’s Settlement Trusts [1978] Ch 49; [1978] 1 All ER 1047; Re Sutcliffe [1982] 2 NZLR 330. See also Re Allen [1953] Ch 810; [1953] 2 All ER 898; Re Selby’s Will Trusts [1965] 3 All ER 386; [1966] 1 WLR 43 and Re Abraham’s Will Trusts [1969] 1 Ch 463; [1967] 2 All ER 1175, where the view is expressed that the tests for ascertaining certainty are less stringent with conditions precedent than conditions subsequent. This distinction was treated (albeit without enthusiasm) as accepted in English law, by the House of Lords in Blathwayt v Lord Cawley [1976] AC 397; [1975] 3 All ER 625; however, the existence of such a distinction was denied by the High Court of Australia in Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; [1961] ALR 339. 69. See K Mackie, ‘Testamentary Conditions’ (1998) 20 UQLJ 38. 70. Kingston v Lady E Pierepont (1681) Vern 5; 23 ER 264. 71. Re Baird [1908] 1 Ch 383; Re Edgar [1939] 1 All ER 635. 72. [1938] AC 1 at 12; [1937] 3 All ER 402 at 407, quoted by Windeyer J in Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394 at 415; [1961] ALR 339 at 350–1. 73. Elton v Cavill (No 2) (1994) 34 NSWLR 289 at 299. 74. Hall v Busst (1960) 104 CLR 206 at 217–18, 223–4, 236, 246; [1961] ALR 508 at 512–13, 517–18, 525–6, 532; Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 649– 50; 116 ALR 26 at 33–4; Caboche v Ramsay (1993) 119 ALR 215 at 225–6; Elton v Cavill (No 2) (1994) 34 NSWLR 289; John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334 at [99]–[121]. 75. Brandon v Robinson (1811) 18 Ves 429; 34 ER 379; Graves v Dolphin (1826) 1 Sim 66; 57 ER 503; Green v Spicer (1830) 1 Russ & Myl 395; 39 ER 153; Ware v Cann (1830) 10 B & C 433; 109 ER 511; Snowdon v Dales (1834) 6 Sim 524; 58 ER 690; Attwater v Attwater (1853) 18 Beav 330; 52 ER 131; Hood v Oglander (1865) 34 Beav 513; 55 ER 733; Re Dugdale (1888) 38 Ch D 176; [1886–90] All ER Rep Ext 1505; McKay v McKay (1902) 22 NZLR 121; Re Cockerill [1929] 2 Ch 131; Downes v Maddrell (1941) 41 SR (NSW) 268; Re Goode [1960] VR 117; Caldy Manor Estate Ltd v Farrell [1974] 3 All ER 753; [1974] 1 WLR 303. 76. Re Machu (1882) 21 Ch D 838. The condition will be void for repugnancy and the gift construed as an absolute gift to A. Cf Palmer v Permanent Trustee Co (1915) 16 SR (NSW) 162. 77. See Lockyer v Savage (1733) 2 Stra 947; 93 ER 959; Ex parte Hinton (1808) 14 Ves 598; 33 ER 650; Brandon v Robinson (1811) 18 Ves 429 at 433; 34 ER 379 at 381; Joel v Mills (1857) 3 K & J 458; 69 ER 1189; Oldham v Oldham (1867) LR 3 Eq 404; Hatton v May (1876) 3 Ch D 148. A gift-over is not essential: Dommett v Bedford (1796) 6 TR 684; 101 ER 771; Craven v Bady (1869) LR 4 Ch App 296. 78. Caboche v Ramsay (1993) 119 ALR 215 at 226. 79. (1875) LR 20 Eq 186. 80. [1954] Ch 39; [1953] 2 All ER 1342. See also Grayson v Grayson [1922] St R Qd 155; Re Mavromates [1964] VR 612. 81. (2011) 82 NSWLR 665. 82. (1994) 33 NSWLR 551 at 555. 83. Grayson v Grayson [1922] St R Qd 155; Elton v Cavill (No 2) (1994) 34 NSWLR 289. The authorities are considered in detail in Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665.

84. Re Elliott [1896] 2 Ch 353; Re Patterson [1939] VLR 66. 85. Brandon v Robinson (1811) 18 Ves 429; 34 ER 379; Graves v Dolphin (1826) 1 Sim 66; 57 ER 503; Snowdon v Dales (1834) 6 Sim 524; 58 ER 690; Caboche v Ramsay (1993) 119 ALR 215 at 226–8. 86. Brandon v Robinson (1811) 18 Ves 429; 34 ER 379; McIntosh v Pogose [1895] 1 Ch 505. Cf Re Solomon [1908] SALR 107. 87. Higinbotham v Holme (1812) 19 Ves 88; 34 ER 451; Re Pearson (1877) 3 Ch D 807; Re Detmold (1889) 40 Ch D 585; Re Brewer’s Settlement [1896] 2 Ch 503; Re Burroughs-Fowler [1916] 2 Ch 251. 88. See Knight v Browne (1861) 7 Jur NS 894: settlement good as against a mortgagee. 89. [1912] 2 Ch 422. 90. See C Sweet, ‘Restraints on Alienation’ (1917) 33 LQR 236. 91. (1873) LR 16 Eq 585. 92. The provisions in the Trustee Acts and Trusts Acts of the various jurisdictions are as follows: ACT s 45; NSW s 45; Qld s 64; Tas s 30; Vic s 39; WA s 61. These provisions are derived from s 33 of the Trustee Act 1925 (UK). See L Sheridan, ‘Protective Trusts’ (1957) 21 Conv 110. 93. Re Wittke [1944] Ch 166; [1944] 1 All ER 384. 94. This is an expression to the contrary within the meaning of s 29C(1) of the Conveyancing Act 1919 (NSW). 95. Cf Re Rees’ Will Trusts [1954] Ch 202; [1954] 1 All ER 7. 96. [1920] 1 Ch 284; [1920] All ER Rep 190. Re Cunstance’s Settlements [1946] Ch 42; [1945] 2 All ER 441 was overruled by Re Westby’s Settlement [1950] Ch 296; [1950] 1 All ER 479. 97. [1940] Ch 737; [1940] 3 All ER 20. 98. For other examples, see also Re Moir [1909] 2 Ch 280; Re Williams [1912] 1 Ch 399; Re Smith [1916] 1 Ch 369 (on this case, see Re Forder [1927] 2 Ch 291; [1927] All ER Rep 324); Re Dennis’ Settlement Trusts [1942] Ch 283; [1942] 1 All ER 520; Re Hayne’s Will Trusts [1949] Ch 5; [1948] 2 All ER 423. 99. Re Gourju’s Will Trusts [1943] Ch 24; [1942] 2 All ER 605; Re Wittke [1944] Ch 166; [1944] 1 All ER 384. However, in cases where the protective trusts were in other forms, no forfeiture has been incurred. See Re Hall [1944] Ch 46; [1943] 2 All ER 753; Re Harris [1945] Ch 316; [1945] 1 All ER 702. 100. [1892] 3 Ch 481. 101. Re Tancred [1903] 1 Ch 715; [1900–3] All ER Rep 251. 102. Re Baring’s Settlement Trusts [1940] Ch 737. 103. McQuade v Morgan (1927) 39 CLR 222; 33 ALR 258. 104. Perpetual Trustee Co Ltd v Smith (1938) 39 SR (NSW) 19. 105. See earlier and Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148. In the latter case, it was held that notice to the trustee of a writ of foreign attachment did not work a forfeiture. It is not clear whether an order made under matrimonial causes legislation (for example, Family Law Act 1975 (Cth) s 79) altering a protected interest effects a forfeiture: see Re Richardson’s Will Trusts [1958] Ch 504; [1958] 1 All ER 538; General Accident Fire & Life Assurance Corp Ltd v Inland Revenue Commissioners [1963] 3 All ER 259; [1963] 1 WLR 1207, noted (1963) 27 Conv (NS) 517. 106. Re Greenwood [1901] 1 Ch 887; [1900–3] All ER Rep 97. 107. Permanent Trustee Co Ltd v Cormack (1920) 21 SR (NSW) 1. 108. Permanent Trustee Co Ltd v University of Sydney [1983] 1 NSWLR 578; cf Perpetual Trustee Co (Ltd) v Holdsworth [1966] 2 NSWR 755.

109. Permanent Trustee Co Ltd v University of Sydney [1983] 1 NSWLR 578. 110. Re Balfour’s Settlement [1938] Ch 928; [1938] 3 All ER 259. 111. Conveyancing Act 1919 (NSW) s 29C(1)(b), in cases where the instrument and the sanction of the court take effect after the Conveyancing (Amendment) Act 1930 (NSW). 112. Re Walker [1939] Ch 974; [1939] 3 All ER 902. 113. See Re Clark [1926] Ch 833; [1925] All ER Rep 219; and cf Re Forder [1927] 2 Ch 291; [1927] All ER Rep 324. 114. Re Gourju’s Will Trusts [1943] Ch 24; [1942] 2 All ER 605. 115. Re Forster’s Settlement [1942] Ch 199; [1942] 1 All ER 180. 116. Re Jenkins [1915] 1 Ch 46; Re Gourju’s Will Trusts [1942] Ch 24; [1942] 2 All ER 605. 117. See Re Detmold (1889) 40 Ch D 585, and other cases cited earlier. 118. Re Detmold (1889) 40 Ch D 585; Re Johnson [1904] 1 KB 134; Re Balfour’s Settlement [1938] Ch 928; [1938] 3 All ER 259. 119. [1960] VR 417 at 421. 120. [1961] VR 552. Cf Wilcox v Poole [1974] 2 NSWLR 693. 121. But see J C Gray, The Rule Against Perpetuities, 4th ed, 1942; J Morris and W Leach, The Rule Against Perpetuities, 2nd ed, Stevens, London, 1962. See also C Sappideen and P Butt, The Perpetuities Act 1984, Law Book Co, Sydney, 1986; J Glover (2007) 14 APLJ 225. 122. (1883) 1 Cl & Fin 372; 6 ER 956. 123. Re Dawson (1888) 39 Ch D 155 at 159; Re Wood [1894] 3 Ch 381 at 387; Ward v Van de Loeff [1924] AC 653; [1924] All ER Rep 542; Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375; [1952] ALR 729. 124. Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 at [29]. 125. In England, retrospective legislation (now found in the Social Security Act 1973) was enacted following the decision in Lucas v Telegraph Construction and Maintenance Co Ltd [1925] LN 211: see Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 at [28]; and see now Perpetuities and Accumulations Act 2009 (UK) s 2(4). 126. The statutes apply to dispositions made on or after: Australian Capital Territory: 19 December 1985; New South Wales: 31 October 1984; Queensland: 1 April 1973; Tasmania: 1 December 1992; Victoria: 10 December 1968; Western Australia: 6 December 1962; In South Australia and the Northern Territory, the legislation has retrospective effect. 127. See [931]–[955]. 128. Perpetuities and Accumulations Act 1985 (ACT) s 9; Perpetuities Act 1984 (NSW) s 8; Law of Property Act 2000 (NT) s 190; Property Law Act 1974 (Qld) s 210; Perpetuities and Accumulations Act 1992 (Tas) s 9; Perpetuities and Accumulations Act 1968 (Vic) s 6; Property Law Act 1969 (WA) s 103. See, for example, Nemesis Australia Pty Ltd v Federal Commissioner of Taxation (2005) 61 ATR 119. 129. Perpetuities Act 1984 (NSW) s 7; Perpetuities and Accumulations Act 1985 (ACT) s 8. 130. Law of Property Act 2000 (NT) s 187; Property Law Act 1974 (Qld) s 209; Perpetuities and Accumulations Act 1992 (Tas) s 6; Perpetuities and Accumulations Act 1968 (Vic) s 5; Property Law Act 1969 (WA) s 101. For the rules governing the specification of the lives in being, see the 6th edition of this work at [936]–[937]; and see Re Green [1985] 3 All ER 455. 131. Perpetuities Act 1984 (NSW) s 9(1); Perpetuities and Accumulations Act 1985 (ACT) s 10; Law of Property Act 2000 (NT) s 191.

132. Perpetuities and Accumulations Act 1968 (Vic) s 9; Perpetuities and Accumulations Act 1992 (Tas) s 11. 133. Property Law Act 1974 (Qld) s 213. 134. Property Law Act 1969 (WA) s 105. 135. Perpetuities and Accumulations Act 1985 (ACT) s 10(3); Perpetuities Act 1984 (NSW) s 9(4); Law of Property Act 2000 (NT) s 191(4); Property Law Act 1974 (Qld) s 213(4); Perpetuities and Accumulations Act 1992 (Tas) s 11(4); Perpetuities and Accumulations Act 1968 (Vic) s 9(4); Property Law Act 1969 (WA) s 106. 136. Perpetuities and Accumulations Act 1985 (ACT) s 18; Perpetuities Act 1984 (NSW) s 17; Law of Property Act 2000 (NT) s 199; Property Law Act 1974 (Qld) s 215; Perpetuities and Accumulations Act 1992 (Tas) s 12; Perpetuities and Accumulations Act 1968 (Vic) s 11; Property Law Act 1969 (WA) s 109. 137. Perpetuities and Accumulations Act 1985 (ACT) s 15; Perpetuities Act 1984 (NSW) s 14; Law of Property Act 2000 (NT) s 196; Property Law Act 1974 (Qld) s 219; Perpetuities and Accumulations Act 1992 (Tas) s 16; Perpetuities and Accumulations Act 1968 (Vic) s 16; Property Law Act 1969 (WA) s 111. 138. Law of Property Act 1936 (SA) s 61. 139. Law of Property Act 1936 (SA) s 62. 140. Bowman v Secular Society Ltd [1917] AC 406; [1916–17] All ER Rep 1; Re Ogden [1933] Ch 678; [1933] All ER Rep 720; Bacon v Pianta (1966) 114 CLR 634; [1966] ALR 1044; Bacon v O’Dea (1989) 25 FCR 495 at 503–5; 88 ALR 486 at 492–5. 141. (1958) 98 CLR 538; [1958] ALR 257 sub nom Attorney-General (NSW) v Donnelly. 142. [1959] AC 457; (1959) 101 CLR 611. See H Ford, Unincorporated Non-Profit Associations, pp 1–49. 143. (1966) 114 CLR 634 at 638; [1966] ALR 1044 at 1045. 144. Although formerly such a gift would be void as being capable of vesting outside the perpetuities period, the effect of the legislative wait-and-see and class reduction rules noted above would appear to have the effect of validating such a gift. This possibility has not been taken up in the cases, but see P Matthews, ‘The New Trust: Obligations without Rights’ in A Oakley (ed), Trends in Contemporary Trust Law, Oxford University Press, 1996, 1 at 17–18. 145. [1959] AC 457; (1959) 101 CLR 611. 146. [1914] 1 Ch 937. 147. [1971] SASR 169. 148. (1966) 114 CLR 634; [1966] ALR 1044. 149. [1962] Ch 832; [1961] 3 All ER 769. 150. [1972] Ch 526; [1971] 3 All ER 401. See also Re Lipinski [1976] Ch 235; [1977] 1 All ER 33 (on which, see K Widdows (1977) 41 Conv 179; B Green (1980) 43 MLR 626 at 628); Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42 at 63–4 per Vinelott J, affirmed [1982] 2 All ER 1; [1982] 1 WLR 522; Hanchett-Stamford v Attorney-General [2009] Ch 173; [2008] 4 All ER 323, noted (2009) 21 Denning LJ 107; Re St Andrew’s (Cheam) Lawn Tennis Club Trust [2012] 1 WLR 3487 at [60]–[62]. 151. [1971] VR 801. 152. [1962] Ch 832 at 849; [1961] 3 All ER 769 at 778. 153. (1998) 195 CLR 291; 156 ALR 579 at [80]; see also at [7]–[8]. 154. Unless saved by the modern perpetuity legislation.

155. [1971] VR 801. 156. (1989) 25 FCR 495 at 504; 88 ALR 486 at 494. 157. Succession Act 2006 (NSW) s 43; Succession Act 1981 (Qld) s 33Q; Wills Act 1997 (Vic) s 47. 158. (1799) 4 Ves 227; 31 ER 117. 159. Perpetuities and Accumulations Act 1985 (ACT) s 19; Perpetuities Act 1984 (NSW) s 18; Law of Property Act 2000 (NT) s 202; Property Law Act 1974 (Qld) s 222; Perpetuities and Accumulations Act 1992 (Tas) s 22, 27; Perpetuities and Accumulations Act 1968 (Vic) s 19; Property Law Act 1969 (WA) s 113. 160. See [9-29]. 161. (1841) 4 Beav 115; 49 ER 282; see [23-08]ff. 162. Perpetuities and Accumulations Act 1985 (ACT) s 19(2); Perpetuities Act 1984 (NSW) s 18(2); Law of Property Act 2000 (NT) s 202(2); Property Law Act 1974 (Qld) s 222(2); Law of Property Act 1936 (SA) s 62A; Perpetuities and Accumulations Act 1992 (Tas) s 22(2); Perpetuities and Accumulations Act 1968 (Vic) s 19(2); Property Law Act 1969 (WA) s 113(2). 163. Wharton v Masterman [1895] AC 186; [1895–9] All ER Rep 687. On the limitation of the circumstances in which the rule can be applied, see Berry v Green [1938] AC 575; [1938] 2 All ER 362; Thomas v Perpetual Trustee Co Ltd (1955) 94 CLR 537; [1956] ALR 85; Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406; Robertson v Allen (2003) 11 BPR 21,213 at [23]–[29]. 164. Bale v Newton (1687) 1 Vern 464; 23 ER 589; Sear v Ashwell (1739) 3 Swan 411n; 36 ER 928; Lanham v Pirie (1857) 3 Jur NS 704; Paul v Paul (1882) 20 Ch D 742; Standing v Bowring (1885) 31 Ch D 282; [1881–5] All ER Rep 702. 165. Phillips v Mullings (1871) LR 7 Ch App 244. 166. Dutton v Thompson (1883) 23 Ch D 278 at 281. 167. Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; 197 ALR 153 at [80]. 168. Meagher, Gummow and Lehane’s Equity, Chs 12–16. 169. David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; 109 ALR 57; Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349; [1998] 4 All ER 513: see Gibbon v Mitchell [1990] 3 All ER 338 at 343; [1990] 1 WLR 1304 at 1309; Dent v Dent [1996] 1 All ER 659 at 669; [1996] 1 WLR 683 at 693; Smithson v Hamilton [2008] 1 All ER 1216; [2008] 1 WLR 1453 at [106]–[123]; Meagher, Gummow and Lehane’s Equity, [14-015]. 170. Lewis v Hillman (1852) 3 HL Cas 607 at 630; 10 ER 239 at 249; Maguire v Makaronis (1997) 188 CLR 449 at 465; 144 ALR 729 at 738. 171. Johnson v Buttress (1936) 56 CLR 113 at 134; [1936] ALR 390 at 397–8; Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66 at [71]. 172. Allcard v Skinner (1887) 36 Ch D 145; [1886–90] All ER Rep 90; Rain v Fullarton (1900) 21 LR (NSW) Eq 311; Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30. 173. Essery v Cowlard (1884) 26 Ch D 191; Bond v Walford (1886) 32 Ch D 238. 174. Re Garrett (1905) 93 LT 117; Re Ames’ Settlement [1946] Ch 217; [1946] 1 All ER 689. 175. Johnston v Johnston (1884) 52 LT 76, where a marriage settlement was induced by fraudulent representations, but it was held that, since the marriage had been solemnised, the settlement could not be cancelled. 176. For the former provisions, see the 6th edition of this work at [960].

177. (1986) 161 CLR 75 at 80–4; 66 ALR 355 at 357–60; Cook v Benson (2003) 214 CLR 370; 198 ALR 218 at [30]. 178. Re Abbott [1983] Ch 45 at 54, 57; Barton v Official Receiver (1986) 161 CLR 75 at 84–5; 66 ALR 355 at 360–1; Official Trustee in Bankruptcy v Lopatinsky (2003) 129 FCR 234 at [86]–[90]. 179. Anscor Pty Ltd v Clout (2004) 135 FCR 469 at [29]–[31]; cf Jack v Smail (1905) 2 CLR 684 at 700–1; 11 ALR 372 at 376–7. 180. Anscor Pty Ltd v Clout (2004) 135 FCR 469 at [33], [36], approved Vale v Sutherland (2009) 237 CLR 638; 258 ALR 1 at [6]. 181. Bankruptcy Act 1966 (Cth) s 120(2). 182. Mateo v Official Trustee in Bankruptcy (2002) 117 FCR 179; 188 ALR 667 at [27]. 183. Bankruptcy Act 1966 (Cth) s 120(5)(c). 184. Mateo v Official Trustee in Bankruptcy (2002) 117 FCR 179; 188 ALR 667 at [30]–[33]. 185. Bankruptcy Act 1966 (Cth) s 120(3). 186. Bankruptcy Act 1966 (Cth) s 120(6). 187. Bankruptcy Act 1966 (Cth) s 120(4). For a detailed analysis of the provision, see Vale v Sutherland (2009) 237 CLR 638; 258 ALR 1 and Anscor Pty Ltd v Clout (2004) 135 FCR 469 at [24]–[43]. 188. Bankruptcy Act 1966 (Cth) s 121(2). Contrast Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; 153 ALR 163, on an earlier form of the legislation. 189. Re Jury (1999) 92 FCR 68. 190. See generally Prentice v Cummins (No 5) (2002) 124 FCR 67; Andrew v Zant Pty Ltd (2004) 213 ALR 812 at [20], [88]–[90]. 191. Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370 at 374; P T Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525–6; 107 ALR 199 at 209; Windoval Pty Ltd v Donelly (2014) 314 ALR 622 at [144]. 192. Bankruptcy Act 1966 (Cth) s 121(4). 193. Bankruptcy Act 1966 (Cth) s 121(5). 194. 13 Eliz I, c 5. Civil Law (Property) Act 2006 (ACT) s 239; Conveyancing Act 1919 (NSW) s 37A; Law of Property Act (NT) s 208; Property Law Act 1974 (Qld) s 228; Law of Property Act 1936 (SA) s 86; Conveyancing and Law of Property Act 1884 (Tas) s 40; Property Law Act 1958 (Vic) s 172; Property Law Act 1969 (WA) s 89. The conscious departure from the original statutory language, and its significance, is explained in Marcolongo v Chen (2011) 242 CLR 546; 274 ALR 634 at [17]–[20]. 195. P T Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 521–2; 107 ALR 199 at 205–6, where the relation between the statutes is discussed. 196. Ex parte Mercer (1886) 17 QBD 290; Lloyds Bank Ltd v Marcan [1973] 3 All ER 754; [1973] 1 WLR 1387, but it might be void under s 120 of the Bankruptcy Act 1966. It has been held in some cases, for example, Freeman v Pope (1870) LR 5 Ch App 538; Spirett v Willows (1865) 3 De GJ & S 293; 46 ER 649, that where the defeating of some creditors has been the necessary consequence of the settlement, intent must be presumed, but this view was strongly dissented from in Ex parte Mercer (1886) 17 QBD 290. 197. Marcolongo v Chen (2011) 242 CLR 546; 274 ALR 634 at [32], approving Regal Castings Ltd v Lightbody [2009] 2 NZLR 433 at 456–7 and Lloyds Bank Ltd v Marcan [1973] 3 All ER 754 at 759–60. In the latter case, Cairns LJ said that ‘at any rate where the conveyance is for consideration’ intention involving ‘actual deceit or dishonesty’ is a necessary element, but this interpretation has been criticised, with reference to earlier authority; B Langstaff, ‘The Cheat’s Charter?’ (1975) 91 LQR 86 at 92–6.

198. Re Williams (1934) 50 CLR 341 at 372; Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; 153 ALR 163. 199. (1886) 17 QBD 290. 200. This point was important in regard to possible proceedings under the Bankruptcy Act, in view of the time which had elapsed from the date of the settlement to the date of his bankruptcy (the time within which the settlement would, under English law, have been void without proof of ability to pay debts was two years). 201. See also Re Holland [1902] 2 Ch 360. 202. Holmes v Penny (1857) 3 K & J 90 at 99; 69 ER 1035 at 1038–9. 203. Re Ridler (1882) 22 Ch D 74. 204. Re Maddever (1884) 27 Ch D 523. Cf Re Sarflax Ltd [1979] Ch 592 at 602–8; [1979] 1 All ER 529 at 537–42. 205. P T Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525; 107 ALR 199 at 208. 206. (1872) LR 14 Eq 106. See also Williams v Lloyd (1934) 50 CLR 341. 207. (1882) 19 Ch D 588. 208. (1882) 19 Ch D 588 at 598–9. See also Re Mackay (1951) 16 ABC 18. 209. Conveyancing Act 1919 (NSW) s 37A(3). But the consideration must not be merely technical: Re Ridler (1882) 22 Ch D 74; cf Harris v Tubb (1889) 42 Ch D 79; Pearce v Bulteel [1916] 2 Ch 544. 210. (1888) 59 LT 714. 211. (1869) LR 8 Eq 46. 212. Cf Kevan v Crawford (1877) 6 Ch D 29; Re Reis [1904] 2 KB 769. 213. Darvill v Terry (1861) 6 H & N 807; 158 ER 333. 214. Halifax Joint Stock Banking Co v Gledhill [1891] 1 Ch 31; Harrods v Stanlon [1923] 1 KB 516; [1923] All ER Rep 592; Brady v Stapleton (1952) 88 CLR 322; [1952] ALR 989. 215. Ideal Bedding Co Ltd v Holland [1907] 2 Ch 157. 216. Freeman v Pope (1870) 5 Ch App 538. 217. Spirett v Willows (1865) 3 De GJ & S 293; 46 ER 649; Taylor v Coenen (1876) 1 Ch D 636. 218. De Mestre v West [1891] AC 264. This doctrine did not apply where the voluntary gift was to charity: Ramsay v Gilchrist [1892] AC 412. 219. Prodger v Langham (1662) 1 Keb 486; 83 ER 1068. 220. Civil Law (Property) Act 2006 (ACT) ss 239–240; Law of Property Act (NT) ss 208–209; Property Law Act 1974 (Qld) s 229; Law of Property Act 1936 (SA) s 87; Conveyancing and Law of Property Act 1884 (Tas) s 41; Property Law Act 1958 (Vic) ss 173–174; Property Law Act 1969 (WA) ss 90, 91.

[page 120]

CHAPTER 10 Charitable Trusts General Principles Legal and General Meanings of ‘Charity’ Preamble to Statute of Elizabeth Tests for Application of Preamble The Four Pemsel Classes

[10-01] [10-01] [10-02] [10-03] [10-04]

Charitable Trusts: For Purposes not Persons Charitable ‘Institutions’ Public Purposes Public Benefit Baddeley’s Case Promoting Legislation Changed Circumstances Motive of the Donor Control of the Court

[10-05] [10-05] [10-06] [10-10] [10-11] [10-12] [10-13] [10-14] [10-15]

The Relief of Poverty Absolute Destitution not Necessary Form of Relief Immaterial No Specific Reference to Poverty Necessary Aged Impotent Restrictions to Locality or Class Poor Relations

[10-17] [10-17] [10-19] [10-20] [10-21] [10-23] [10-24]

The Advancement of Education Advancement of Learning Alone not Enough Law Reporting

[10-26] [10-26] [10-27]



Foundation of Institutions Political Education Education of a Class Particular Branches of Study Sporting and Recreational Activities

[10-28] [10-29] [10-30] [10-31] [10-32]

The Advancement of Religion Meaning of ‘Religion’ Public Benefit Building and Maintaining Churches

[10-33] [10-33] [10-34] [10-35] [page 121]



Churchyards and Tombs Church Ornaments The Clergy and Church Workers Masses for the Dead Closed Orders Worship Prayer Choir, etc Non-charitable Objects

[10-36] [10-38] [10-39] [10-40] [10-41] [10-42] [10-43] [10-45] [10-46]

Purposes Beneficial to the Community The Residual Fourth Class Benevolent Purposes Sport Hospitality or Entertainment Political Purposes Other Cases: General Public works Relief of rates or national exchequer The relief of distress Armed forces Animals

[10-47] [10-47] [10-48] [10-49] [10-50] [10-51] [10-52] [10-53] [10-54] [10-55] [10-56] [10-57]





Miscellaneous

[10-58]

General Problems in Charitable Trusts Purpose Outside the State Charitable and Private Trusts Contrasted Certainty as to the Objects and Property Bound Trustee’s Discretion Mixed Charitable and Non-charitable Trusts

[10-59] [10-59] [10-60] [10-61] [10-62] [10-63]

Schemes The Enforcement of Charitable Trusts The Effectuation of Charitable Trusts by Schemes Donor’s Directions Insufficient Variation of the Original Purposes: Cy-près Schemes Legislation Dormant Funds Act 1942 (NSW) Charitable Trusts Act 1993 (NSW) Charitable Funds Act 1958 (Qld) Romilly’s Act 52 Geo III c 101 The Religious Successory and Charitable Trusts Act 1958 (Vic) Charities Act 1978 (Vic)

[10-67] [10-67] [10-68] [10-69] [10-70] [10-74] [10-75] [10-76] [10-77] [10-78] [10-79] [10-80]

Other Charity Problems The Rule Against Perpetuities Accumulations for Charity

[10-81] [10-81] [10-82] [page 122]



Directions to Pay Income Only Lapse Charity in Commonwealth Legislation

General Principles

[10-83] [10-84] [10-87]

Legal and General Meanings of ‘Charity’ [10-01] The charitable trust is a form of express trust. It is often called a ‘public’ trust. But it is important to distinguish clearly between charitable trusts and declared private trusts. That is because important principles of law relating to the former are not applicable to the latter. It will be seen later that there are many ways in which charitable trusts are more favourably treated by law than non-charitable trusts.1 The meaning given by law to the word ‘charitable’ in this connection does not coincide completely with the popular meaning of the word.2 In popular usage ‘charitable’ means ‘eleemosynary’ or ‘benevolent’. ‘[T]he popular conception of a charitable purpose covers the relief of any form of necessity, destitution or helplessness which excites the compassion or sympathy of men, and so appeals to their benevolence for relief.’3 There are many purposes which might be regarded as being charitable in the popular sense of the term which will not bring trusts for those purposes within the category of charitable trusts. An example is a trust for the education of the children of one’s employees.4 Other trusts might be regarded as charitable in law although they are not popularly so regarded. Examples include a trust ‘for my country England’5 or a trust to found chairs of learning at a university.6

Preamble to Statute of Elizabeth [10-02] The general requirements which a trust must fulfil to be classed as charitable are now well settled. But the term ‘charitable trust’ defies satisfactory short definition. Indeed, it has been stated ‘It is probably impossible to define what is a charitable [trust], and it is certainly not advisable to attempt to do so’.7 To determine whether a purpose is charitable or not in law, it has been the practice of the courts to refer to the preamble of the Statute of Charitable Uses 1601, 43 Eliz I, c 4.8 This statute does not define ‘charitable uses or trusts’. However, it contains in its preamble a list of certain uses which are deemed to be charitable. These are: the relief of the aged, [page 123]

impotent, and poor; the maintenance of schools of learning, and free scholars in universities; the repair of bridges, ports, havens, causeways, churches, seabanks, and highways; the education and preferment of orphans; the relief, stock or maintenance of houses of correction; the marriage of poor maids; the support, aid and help of young tradesmen, handicraftsmen, and persons decayed; the relief, or redemption, of prisoners or captives; and the aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers, and other taxes. In addition, any purpose analogous to these uses has been regarded by the courts as charitable. That is because the courts have accepted the principle that the objects mentioned in the preamble are instances and not the only objects of charity. Thus it can be said that the term ‘charitable trust’ includes:9 (1) all trusts for objects which are expressly mentioned in the preamble to the statute 43 Eliz I, c 4; and (2) trusts for objects which by analogy the court has deemed or deems within the ‘spirit and intendment’ of this statute. The object of the Mortmain Act 1736 was to hamper devises of land for charitable purposes and thereby to assist the interests of the heir at law. The broader the definition of charity, the greater the protection to the heir at law. Thus decisions which might be thought to have aided charity by a broad definition in fact had the opposite effect.10 The Act was repealed in England in 1888 and was never in force in Australia11 but decisions given while it was in force must be seen against this background. In Gilmour v Coats, Lord Simonds said:12 When I speak of the law of charity, I mean that law which the Court of Chancery and its successor, the High Court of Justice, has evolved from a consideration of the statute 43 Eliz c 4. It is a commonplace that that statute, as its title implied, was directed not so much to the definition of charity as to the correction of abuses which had grown up in the administration of certain trusts of a charitable nature. But from the beginning it was the practice of the court to refer to the preamble of the statute in order to determine whether or not a purpose was charitable. The objects there enumerated and all other objects which by analogy ‘are deemed within its spirit and intendment’ and no other objects are in law charitable. That is settled and familiar law. I refer to it for two reasons. First, I think that it follows that, however valuable an investigation of the earlier law may be for determining the legality of religious practices (as was shown in Bourne v Keane13), it is of negligible importance for determining whether an object is charitable. Three hundred and fifty years have passed since the statute became law; few, if any, subjects have more frequently occupied the time of the court. The law of mortmain, the law of perpetuity, and in latter days the revenue law, in all these aspects it has over and over again been the vital issue whether or not an object is charitable, and always it is primarily to the Statute of Elizabeth and not behind it that the court has looked for guidance. And this leads me to my second reason. A great body of law has thus grown up. Often it may appear illogical and even capricious. It could

hardly be otherwise when its guiding principle is so vaguely stated and is liable to be so differently interpreted in different ages.

Whether a trust is charitable thus depends on its purpose. A trust with a charitable purpose remains charitable even though the means of effectuating that purpose, or the incidental consequences of carrying the purpose out, are not intrinsically charitable,14 for example, the fees of the trustees15 or the professional protection of members of a college of surgeons.16 [page 124]

Tests for Application of Preamble [10-03] How do the courts determine whether a given purpose is within the ‘spirit and intendment’ of the preamble to the Statute of Elizabeth I? The words are not to be given any ‘narrow or archaic construction’.17 In Scottish Burial Reform and Cremation Society v Glasgow Corp,18 the House of Lords found the promotion of inexpensive and sanitary methods of disposal of the dead, in particular by cremation, to be such a purpose. Lord Wilberforce continued what he called the evolutionary process, which had taken charity from the ‘repair of churches’ specified in the preamble through the maintenance of burial grounds in a churchyard or in a cemetery extended from a churchyard, to embrace cremation of the dead. On the other hand, in Royal National Agricultural and Industrial Association v Chester,19 the High Court could find in the preamble no analogue for the breeding of racing pigeons. It therefore held a trust for such a purpose to fail, even though it might be conceded that in a general way this purpose was beneficial to the community. Further, the High Court in this case in terms rejected the views expressed by Russell LJ and Sachs LJ in Incorporated Council of Law Reporting for England & Wales v A-G,20 that any purpose beneficial to the community was brought within the ambit of the preamble to the statute unless there was some particular reason for excluding it from the concept of legal charity. Analogy must provide but a partial and imperfect guide in this field. An attempt to reason from a stratum of principle was made by Barwick CJ in Incorporated Council of Law Reporting of Queensland v Federal Commissioner of Taxation. He held that the production, not for private gain, of law reports was within the spirit of the preamble:21

Out of certain of the instances given in the preamble to the Act of 1601 a broad concept emerges of the kind of object of public utility which will satisfy the quality of charity. Any notion that that concept is of an eleemosynary nature is seen to be untenable by some of those very instances themselves, eg, the repair of bridges, havens, causeways, seabanks and highways and the setting out of soldiers. Further, these instances seem to regard the provision of some of the indispensables of a settled community as charitable. The ability to move from place to place and to do so without let of rivers and streams, protection of the land from the ravage of the sea, security against enemies, are fundamentals of the society seen to be within the concept of charitable public benefit as much as assistance to the needy and as education of the generations. Consistently with the spirit and width of this concept of charity the promotion of agriculture is seen to be charitable (Inland Revenue Commissioners v Yorkshire Agricultural Society22) and even the promotion of horticulture (Re Pleasants23). Agriculture partakes of that fundamental social quality which can give a charitable nature to a trust or purpose relating thereto which is beneficial to the community. So it would seem does horticulture. On occasions, a benefit of that kind to a section of the public less than the whole community by the trust or purpose may be enough … The sustenance of the law is a benefit of a material kind which enures for the benefit of the whole community. Is not its administration, with regularity, and with as much consistency as a system based on human judgment can attain, as socially fundamental as the instances which I have taken from the preamble? Surely it is.

[page 125]

The Four Pemsel Classes [10-04] Lord Macnaghten, in Income Tax Special Purposes Commissioners v Pemsel,24 divided charitable trusts into the following four classes: (1) trusts for the relief of poverty; (2) trusts for the advancement of education; (3) trusts for the advancement of religion; and (4) trusts for other purposes beneficial to the community not falling under any of the preceding heads. A trust not falling within one of these classes and hence not falling within the preamble or its spirit and intendment is not charitable even if beneficial to the community. And a trust falling within one of the four classes derived from the preamble may not be charitable if not beneficial to the community.25 All charitable trusts must fall within one of these classes. But not every object which might be brought within one of them is ipso facto a charity. That is because whatever class it may come within, it must further be of a public nature, that is, for the benefit of the public, and also capable, if necessary, of being

controlled by the court. Whether it fulfils all these conditions is a question to be decided by the court.26 The concept of legal charity is one which changes and develops in each age.27 The purpose to which the property is devoted is what must be considered in determining whether any particular purpose is charitable. The source of the property or the person of the trustee is not relevant in determining the question.28 And where the trust rests on writing, the characterisation of the trust as charitable depends on construction of the writing, not on subsequent activities.29

Charitable Trusts: For Purposes not Persons Charitable ‘Institutions’ [10-05] All charitable trusts are trusts for purposes not persons.30 It is important to bear this fact firmly in mind owing to the habit of using expressions such as ‘charitable institutions’. The habit has, it is submitted, vitiated some academic writings31 and even judicial dicta32 on the law of charities. To speak of institutions or entities as public charities is to introduce a concept which is not only confusing, but inaccurate. Unless an institution or entity, which is loosely called a charity, is

[page 126] bound as trustee to carry out a public charitable purpose, there is no public charity. If it is bound the public charity is not the institution itself, but the institution as an organisation subject to an established trust for charitable purposes.33

This distinction has led to some practical difficulty in construing statutes which, for example, confer exemptions from rating on ‘charitable institutions’, a topic which, however, is outside the scope of the present work.34

Public Purposes [10-06] All charitable trusts must have some ‘public’, as distinct from ‘private’, purposes.35 Thus, a gift for a ‘private charity’ would not be a charitable trust.36 Of course, it might be valid as a private trust if the object to be benefited

were certain and it otherwise complied with the requirements for private declared trusts. But drawing the distinction between the two types of purpose, though frequently done, can be difficult. It is clear that the fact that a trust purpose is restricted so that only a limited number of persons may benefit from it because of residential or other qualifications37 will not necessarily render that purpose non-charitable.38 But the possible beneficiaries must not be numerically negligible and the quality which distinguishes them from other members of the community, so that they form by themselves a section of it, must be a quality which does not depend upon their personal relationship to a single propositus or to several propositi, as, for example, that they are related by blood to a named person or that they are employees or the relatives of employees of a named firm.39 In Re Compton,40 the court had to determine whether a gift for the education of the descendants in perpetuity of three named persons was charitable. In holding that the gift was to be regarded as a family trust and not as one for the benefit of a section of the community, Lord Greene MR said:41 No definition of what is meant by a section of the public has, so far as I am aware, been laid down, and I certainly do not propose to be the first to make the attempt to define it. In the case of many charitable gifts it is possible to identify the individuals who are to benefit, or who at any given moment constitute the class from which the beneficiaries are to be selected. This circumstance does not, however, deprive the gift of its public character. Thus, if there is a gift to relieve the poor inhabitants of a parish the class to benefit is readily ascertainable. But they do not enjoy the benefit, when they receive it, by virtue of their character as individuals but by virtue of their membership of the specified class. In such a case the common quality which unites the potential beneficiaries into a class is essentially an impersonal one. It is definable by reference to what each has in common with the others, and that is something into which their status as individuals does

[page 127] not enter. Persons claiming to belong to the class do so not because they are AB, CD, and EF but because they are poor inhabitants of the parish. If, in asserting their claim, it were necessary for them to establish the fact that they were the individuals AB, CD, and EF, I cannot help thinking that on principle the gift ought not to be held to be a charitable gift, since the introduction into their qualification of a purely personal element would deprive the gift of its necessary public character. It seems to me that the same principle ought to apply when the claimants, in order to establish their status, have to assert and prove not that they themselves are AB, CD, and EF, but that they stand in some specified relationship to the individuals AB, CD and EF, such as that of children or employees …. The fact that in cases where a personal element forms an essential part of the qualification the numbers involved may be large does not appear to me to make any difference to the principle to be applied. Once that element is present numbers can make no difference. The gift is in such a case a personal gift …. I come to the conclusion, therefore, that

on principle a gift under which the beneficiaries are defined by reference to a purely personal relationship to a named propositus cannot on principle be a valid charitable gift.

On these principles, in Re Mills42 the South Australian Full Court held that a devise to the Salvation Army of certain real estate ‘for the construction and administration of an eventide settlement thereon, for the use of the descendants of’ certain named persons, failed as a charitable trust. [10-07] In Re Income Tax Acts (No 1),43 Lowe J said: It may not be easy or even possible to enumerate in advance the differentiae of a ‘section of the public’ within this rule, but I illustrate along what lines a conclusion may be arrived at. Having regard to the composition of the public, certain large groups may readily be recognized, the members of which have a common calling or adhere to a particular faith or reside in a particular geographical area. There is no bar which admits some members of the public to those groups and rejects others. Any member of the public may, if he will, follow a particular calling, adhere to a particular faith, or reside within a particular area. Of the members of such a group it may be said in a real sense that they are primarily members of the public, and such a group may well constitute a section of the public. They stand on one side of the line. Each group, it is true, may consist of many individuals, but number alone is not the criterion by which to determine whether the group constitutes a section of the public. A club, a literary society, a trade union may all have numerous members, but I think that none of these could properly be called a section of the public. They stand on the other side of the line. The distinguishing feature of each of these latter bodies is that it is an association which takes power to itself to admit or exclude members of the public according to some arbitrary test which it sets up in its rules or otherwise. Each of them does oppose a bar to admission within it. It is not one of the groups into which the community as a matter of necessary organization or by convention is divided, but it is in a sense an artificial entity which exists for the benefit of its members as members thereof and not as members of the public.

[10-08] This analysis was approved and adopted in Thompson v Federal Commissioner of Taxation.44 The High Court held, in effect, that the purpose of conducting a school for the children of members of the Masonic Order was not a valid charitable purpose. In Stratton v Simpson,45 the High Court reaffirmed its attitude in this regard by adopting and applying Thompson v Federal Commissioner of Taxation. The case involved a testamentary bequest of residue in favour of any bodies which were ‘exempt from duty under’ a particular statute which were selected by the testator’s executors. Those bodies included ‘any school which pursuant to [another statutory provision] is included in the latest list of schools published in the Gazette that have been inspected and found efficient or have been certified to be efficient for the purposes of that Act’. A majority of the court, through Gibbs J, pointed out46 that if any of those schools provided tuition limited to persons selected on the same kind of basis as the

[page 128] persons educated in the Masonic Schools referred to in Thompson v Federal Commissioner of Taxation, those schools would not be charitable in law. The House of Lords in Oppenheim v Tobacco Securities Trust Co Ltd47 dealt with a trust of income to be applied in providing for the education of children of employees and former employees of a specified British company or any of its subsidiary or allied companies. The trust was held not to be charitable although the employees so indicated numbered over 110,000.48 Re Compton49 was distinguished in Re Tree,50 where there was a trust for the purpose of assisting persons who resided in a specified borough in or prior to the year 1880 or their descendants to emigrate to any of the British Dominions. In Re Compton, the ancestors were individually selected by the testator, in Re Tree they were determined by the application of the impersonal test of residence. In Davies v Perpetual Trustee Co (Ltd),51 the Privy Council considered a devise of land to ‘Presbyterians the descendants of those settled in the Colony hailing from or born in the north of Ireland to be held in trust for the purpose of establishing a college for the education and tuition of their youth in the standards of the Westminster Divines as taught in the Holy Scriptures’. This was held not to constitute a valid charitable trust. Applying the test laid down by Lord Greene MR in Re Compton, it was held that there was involved a purely personal element in the selection of the beneficiaries, thus necessarily depriving the trust of the required public element. It was there suggested that Re Tree was incorrectly decided in so far as it had tried to distinguish Re Compton, and that Re Tree could only be supported, if at all, as a trust for the relief of poverty, where, anomalously, the necessity for the element of public purpose perhaps does not apply. [page 129] [10-09] In Dingle v Turner,52 the House of Lords upheld the validity of a trust to apply the income of a fund of £10,000 ‘in paying pensions to poor employees of’ a named company. The ‘public purpose’ tests enunciated in Re Compton53 and Thompson v Federal Commissioner of Taxation,54 were held not to apply to

trusts for the relief of poverty. In this respect the decision is comparatively orthodox. However, the case contains strong dicta that the Re Compton test may not even be the correct test to apply to trusts other than trusts for the relief of poverty, that Lord MacDermott’s dissenting speech in Oppenheim’s case is preferable to the speeches of the majority in that case, and even that the mere fact that the potential beneficiaries are numerous is sufficient to constitute a purpose a ‘public purpose’. If these dicta are followed by future authorities, the law of charitable trusts as hitherto understood will be revolutionised.

Public Benefit [10-10] No trust will be deemed to be charitable unless the carrying out of its object will be of benefit to the public.55 This benefit will be presumed until the contrary is proved in the case of trusts for the relief of poverty and the advancement of education and religion, but must be affirmatively proved in all other cases.56 In order to displace the prima facie assumption of public benefit it is not necessary to show that the trust purpose is detrimental to the public, but only that it is ‘non-beneficial to the public’.57 The mere belief of the donor of the section of the public said to be benefited that the purpose of the trust is charitable is not effectual in itself to make the purpose charitable in the eyes of the law.58 The court will not, therefore, be satisfied with proof of an intention to benefit the public, but must itself decide whether there is any basis for the donor’s views. In other words, the court must determine, first, whether the objects of the trust are such that benefit to the public in general must necessarily result from their execution. If the trust meets that first test, the court must decide whether the trust is beneficial to the community in a way which the law regards as being charitable.59 If the court decides upon the evidence before it that, however well intentioned the donor may have been, the achievement of the donor’s intention will not be to the public benefit, the object of the trust will not be charitable.60 Accordingly, even if a trust appears, prima facie, to be charitable, and even if it has objects which have been held to constitute valid charitable trusts in other cases, it may be wholly void because of some other object which it contains. On the other hand, public benefit does not cease to exist merely because a trust, otherwise charitable, operates by way of bargain rather than purely by way of bounty. Thus, in Joseph

[page 130] Rowntree Memorial Trust Housing Association Ltd v A-G,61 a trust to provide cheap housing for elderly persons in need of housing was not invalidated because the housing was to be sold, not given, to those eligible.

Baddeley’s Case [10-11] In Inland Revenue Commissioners v Baddeley,62 a conveyance of land on trust for the physical and spiritual wellbeing of members or prospective members of the Methodist church living in a defined geographical area was held by a majority of the House of Lords not to constitute a good charitable trust on the ground that the words were too vague to be charitable in a legal sense. Viscount Simonds (with whom Lord Somervell of Harrow agreed) expressed the view that even if the purposes of the trust were charitable in a general sense, the choice of the beneficiaries prevented the trust being charitable. Lord Reid dissented and Lords Porter and Tucker did not express any view on the latter point. Viscount Simonds’s speech is open to the construction that no charitable trust can exist if there is any restriction at all on the beneficiaries entitled under the trust,63 a view which, if correct, would be revolutionary. Alternatively, it means that in order to have a valid charitable trust there must not only be a recognised head of charity and a class of beneficiaries which is a ‘section of the public’ within the meaning of the cases already discussed, but there must also be a logical nexus of relevance between the nature of the gift and the class of beneficiaries chosen to enjoy it, that is, that the beneficiaries should have some special need of a gift of the kind made. Even if either principle exists, it is uncertain whether it is applicable only to trusts in the fourth class or whether it is generally applicable to all charitable trusts.64

Promoting Legislation [10-12] For some time, in both England and Australia, it has been thought that a trust will fail as a charity if one of its objects is to promote legislation to give effect to its main object — that is, if its purpose is to secure a change in the existing law. A trust established to secure a change in the law is political in character even though the particular law which it is designed to change does

not cause acute political controversy. Such a trust cannot be held to be charitable because ‘the law could not stultify itself by holding that it was for the public benefit that the law itself should be changed’.65 The court must proceed on the principle that the law is right as it stands.66 [page 131] Thus Dixon J said:67 A coherent system of law can scarcely admit that objects which are inconsistent with its own provisions are for the public welfare. Thus, when the main purpose of a trust is agitation for legislative or political changes, it is difficult for the law to find the necessary tendency to the public welfare, notwithstanding that the subject of the change may be religion, poor relief, or education. When the subject matter is none of these and the case must fall under the fourth class, viz, that of undefined purposes for the public good, the difficulty becomes even greater.

That state of the law has been criticised, judicially and extra-judicially, for its relatively recent development and its difficulty of application. But it was regarded as well-settled, and many twentieth century cases relied on it and reflected it. However, the High Court has cast considerable doubt on these approaches. It is said that the Constitution ‘informs’ the development of the common law, including equity.68 ‘Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of [the Constitution system of representative and responsible] government.’69 Thus an implied constitutional provision of which Dixon J knew nothing is invoked, apparently, to invalidate what he said. And the potentially controversial process by which private law is ‘constitutionalised’ — used as a technique to change the rules of private law — proceeds. The High Court decision has thus left open various questions. Is the protected form of free speech limited to debate about the four heads of charity? Or is the protected form of free speech limited to debate about anything political — that being a freestanding aspect of the fourth head? Or is the protected form of free speech debate about anything at all? The High Court also said: ‘It may be that some purposes which otherwise appear to fall within one or more of the four heads in Pemsel nonetheless do not contribute to the public welfare in the sense to which Dixon J referred … But that will be by reason of the particular ends and means involved, not disqualification of the purpose by

application of a broadly expressed “political object” doctrine.’70 These propositions point to a misty future.

Changed Circumstances [10-13] It is, of course, possible that an object held to be charitable in one age may in another be regarded differently. By reason of change in social ideas, habits, or needs of the community, or by change of law, or by the advancement of knowledge, a purpose, once thought to be beneficial and therefore charitable, may become superfluous, detrimental to the community, or even illegal. Conversely, with the passing of time, an object or purpose formerly held not to be charitable may come to be regarded as charitable.71 But it would need a radical change of circumstances, established by sufficient evidence, to compel the court to accept a new view of the matter.72 This is not to say that a charity, once established, may fail. If the purpose should become superfluous or illegal, it would be the duty of the trustees to make application to the court for a cy-près scheme to be established and the nature of the charity thus changed. [page 132]

Motive of the Donor [10-14] In determining whether a gift is charitable, the motive of the donor in making the gift is immaterial.73 Thus a gift to provide a parish church with stained glass windows is a good charitable gift notwithstanding that the motive of the donor is not to beautify the church but to perpetuate the memory of the donor and his relatives.74 Similarly, in a bequest for the saying of masses, it is immaterial that the dominant purpose was the testator’s own spiritual advantage and that any edification of the public is merely incidental to this purpose.75 A gift of which the necessary result is altruistic public benefit does not cease to be charitable because it originates in an egotistic motive. On the other hand, it would seem in accordance with principle that a donor could not render a predominantly selfish purpose charitable by the addition of some merely incidental element of charity.76 It is immaterial that the donor’s motive is to obtain a tax deduction.77

Control of the Court [10-15] Lord Eldon said in Morice v Bishop of Durham:78 As it is a maxim, that the execution of a trust shall be under the controul of the court, it must be of such a nature, that it can be under that controul; so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust: a trust therefore, which, in case of maladministration, could be reformed; and a due administration directed; and then, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided that the Court can neither reform maladministration, nor direct a due administration.

In that case, a bequest for ‘such objects of benevolence and liberality as my trustee shall most approve’ was held to be void. Lord Eldon’s reasoning is circular. ‘What is charitable?’ ‘What can be controlled by the Court of Chancery.’ ‘What can that court control?’ ‘Only what is charitable, because only that is sufficiently certain.’ More recently a devise and bequest of a house and contents to the National Trust upon an ultimate trust ‘preferably for some purpose in connection with Australia as the National Trust … may decide’ was held not to create a valid charitable trust.79 In Re Hummeltenberg,80 a bequest to establish a college for the training of spiritualistic mediums was held not to be charitable for the same reason. [10-16] All the foregoing principles have received minute consideration by the House of Lords in several cases which will be referred to again under appropriate headings. One in particular requires further consideration here. In National Anti-Vivisection Society v Inland Revenue Commissioners,81 the question was whether a society having as its object the total suppression of vivisection was a charity and therefore exempt from income tax. The society was one of the three concerned in the case of Re Foveaux.82 In that case, Chitty J held that as the predominant purpose of the societies was the suppression of cruelty to animals, and as this was a charitable purpose, the societies were charities notwithstanding the fact that the proponents of the practice of vivisection could show that manifold detriment to mankind would accrue from the prohibition of the practice. He said: ‘The purpose of these societies, whether they [page 133]

are right or wrong in the opinions they hold, is charitable in the legal sense of the term. The intention is to benefit the community; whether, if they achieved their object, the community would, in fact, be benefited is a question on which I think the Court is not required to express an opinion.’83 He also said: ‘[I]n determining this question of charity the court does not enter into or pronounce any opinion on the merits of the controversy which subsists between the supporters and opponents of the practice of vivisection. It stands neutral.’84 For almost 50 years following on from this decision, anti-vivisection societies were regarded as charitable. But several subsequent cases contained dicta difficult to reconcile with the decision or casting grave doubts upon it.85 When the matter came before the court again, Macnaghten J held that he ought not to follow Re Foveaux. His decision was upheld in the Court of Appeal86 and the House of Lords. The importance of the case is that it confirms the principle that the question of public benefit is one of fact that the court must itself determine and, if there is any controversy as to whether the purpose is for the benefit of the public or not, the court must determine the question on the evidence. It cannot remain neutral. The main ground on which the case was decided in the House of Lords was scarcely mentioned in the courts below — namely, that the primary purpose of the society was to obtain a change in the law, and this purpose cannot be held to be charitable. Some doubt now surrounds the perimeter of that ground: see [10-12], [10-29] and [10-51].

The Relief of Poverty Absolute Destitution not Necessary [10-17] A trust may be charitable under this head even though the persons who may benefit may not be completely destitute. ‘Poverty does not mean destitution; it is a word of wide and somewhat indefinite import; it may not unfairly be paraphrased for present purposes as meaning persons who have to “go short” in the ordinary acceptation of that term, due regard being had to their status in life, and so forth.’87 A trust may even be charitable although those who are absolutely destitute are excluded from its benefits. Thus, in Re De Carteret,88 the court upheld as a valid charitable trust a bequest to be used in providing annual allowances of £40 each to widows and spinsters in England whose incomes otherwise ‘shall not be less than £80 or more than £120 per annum’.

Similarly, gifts to ‘ladies of limited means’,89 ‘ladies by birth and education who had become reduced in circumstances but who were possessed in their own right of not less than £20 … per year’,90 ‘old and wornout clerks’,91 and ‘persons of moderate means’92 have been held to be charitable. Eve J stated in Re Gardom:93 ‘It is true that ladies of limited means are not destitute, and that the expression “limited means” may vary in its signification according to the standard by which the means are measured, but these arguments provoke the rejoinder that there are degrees of poverty less acute than abject poverty or destitution but poverty nevertheless ….’ In Re Coulthurst (decd),94 a legacy of £20,000 was bequeathed as a trust fund, the income of which was to be applied for the benefit of the widows and orphans of deceased officers and ex-officers of a bank as the bank should ‘in its absolute [page 134] discretion consider by reason of his or her or their financial circumstances to be most deserving of such assistance’. It was held by the English Court of Appeal that, having regard to all the terms of the gift, it constituted a valid charitable gift for the relief of poverty. In Dilworth v Commissioner of Stamps,95 a gift by will for the maintenance and education of boys who were orphans or the sons of parents in straitened circumstances was held to be charitable. In Ballarat Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation,96 the High Court of Australia was prepared to treat a trust to apply the income of a fund so as to provide free accommodation to persons who were deserving and who were unable to pay any fees, or such fees as were usually demanded for patients at the hospital, as a valid charitable trust. In Downing v Federal Commissioner of Taxation,97 the same court held that a trust ‘for the amelioration of the condition of the dependants of any member or ex-member of Her Majesty’s naval military or air forces or the naval military or air forces of the Commonwealth’ was a valid charitable trust for the relief of poverty. [10-18] But a trust which is to be exclusively devoted to those who cannot be classed as poor will not be charitable under this heading. In Re Gwyon,98 a testator devised his residuary estate upon trust. The income was to be applied forever in providing knickers for boys who resided in a specified district, who were not supported by any charitable institution and whose parents were not in

receipt of parochial relief. It was held that none of the conditions necessarily imported poverty and the gift accordingly failed as a charity. In Re Drummond,99 it was held that the workpeople of a firm, most of whom earned 15 shillings per week and none more than two pounds per week, could not be classed as poor and that a gift to provide them with contributions towards their holiday expenses could not be classed as being for the relief of poverty. In Re Sanders’ Will Trusts,100 a gift to provide or assist in providing dwellings for the working classes and their families resident in a particular area was held not to be charitable on the ground that no inference could be drawn that the gift was for the relief of poverty, as ‘the working classes’ were not necessarily poor. The last cases also serve to emphasise that no precise test can be adopted to determine what is ‘poverty’. The answer will necessarily depend upon the standard of living and the social conditions of the times. An interesting contrast is provided by the cases of Re Cole101 and Re Sahal.102 Re Cole concerned a devise of lands to the East Sussex County Council ‘upon trust to apply the income therefrom … for the general benefit and general welfare of the children for the time being in Southdown House …’. Southdown House was maintained by the County Council (under statutory power) as a home for the children committed to its care. Those children would at any time in the main comprise delinquent children, children beyond their parents’ control and children who had been exposed to moral danger. The English Court of Appeal held, by majority, that the devise failed as a charitable trust because it would be possible to apply the income of the gift for some purposes which were not charitable, for example, the provision of a television set or a gramophone and records for delinquent children. In Re Sahal, a devise of a home to the Salford Corp on trust to use and maintain it as a children’s home and, in the event of its use being discontinued, on trust to use and maintain it as a hostel for young soldiers, sailors, airmen, or merchant seamen or for poor, aged or infirm people of the neighbourhood, was upheld as a valid charitable trust. [page 135]

Form of Relief Immaterial [10-19] Provided that the object of the trust is to relieve poverty, the method

directed by the donor to achieve this end is immaterial.103 Thus, the following have been held to be charitable: the provision of a soup kitchen and cottage hospital,104 the purchase of land for the building of cottages,105 a nursing home for persons of moderate means,106 a home for working girls,107 religious communities having as their object the relief of poverty,108 a working man’s hostel,109 the supply of coal and the making of loans to ‘poor and deserving’ inhabitants of a town,110 the provision of accommodation for transient Aborigines111 and the support of psychiatric hospitals.112 On the other hand, a trust to provide for doctors’ widows has, perhaps surprisingly, been held not to be charitable.113

No Specific Reference to Poverty Necessary [10-20] It is not necessary to find poverty expressed in the gift in so many words. But the court will look at the whole gift, and, if it comes to the conclusion that the relief of poverty was meant, will give effect to it although the word ‘poverty’ is not to be found in it.114 Thus, where a testator gave the income from certain funds in trust ‘to the oldest respectable inhabitants in Gunville to the amount of 5 shillings per week each’, the court held that the amount of the gift implied poverty and, coupled with the use of the word ‘oldest’, implying age, was sufficient to render the gift a good charitable bequest.115 In Re Central Employment Bureau for Women and Students’ Careers Association,116 a fund established ‘for the purpose of helping educated women and girls to become self-supporting’ and which had no commercial end in view was held to be a valid charitable trust, as being for the advancement of education and the relief of poverty. The expressed purpose of the gift was a sufficient implication that its recipients were poor within the meaning of the Statute of Elizabeth. The requirement of poverty had also been imported into a gift to ‘aged widows and spinsters’117 and to ‘widows and orphans’.118 In Armenian General Benevolent Union v Union Trustee Co of Australia Ltd,119 a gift by a will dated 28 June 1946, of income to the above-mentioned Union ‘for the benefit of the orphans whose fathers fought with the Russian Army against Germany and Japan in the World War which ended last year’ was held to be a valid charitable trust provided the children were under the age of 21 years (that is, orphans within the meaning of the will) at the date of the testator’s death and were in need of assistance or protection. The gift to such

orphans was good so long as they needed assistance, even though that might be after they had attained the age of 21 years. [page 136] In Re Niyazi’s Will Trusts,120 a residuary bequest ‘for the construction of … a working men’s hostel’ was held to constitute a valid charitable trust. The expressions ‘working men’s’ and ‘hostel’, together with certain surrounding evidence, had a sufficient connotation of poverty.

Aged Impotent [10-21] In many of the older cases the requirement of poverty has been imported into gifts for the aged and afflicted. Thus, in Re Lucas,121 the gift to the ‘oldest respectable inhabitants’ was construed as a gift to the aged poor, Russell J stating, ‘Speaking for myself, I am not satisfied that the requirement of old age would of itself be sufficient to constitute the gift a good charitable bequest …. [He knew of no case] where the decision has been based upon age and nothing but age’. Similarly, in Re Elliott,122 a gift for the maintenance of blind persons was construed to mean ‘poor’ blind persons. In Re Glyn’s Will Trusts,123 part of residuary estate was bequeathed ‘on trust … for … building … free cottages for old women of the working classes of the age of sixty years or upwards’. Danckwerts J held that this constituted a good charitable bequest having regard to the fact that the preamble to the Statute of Elizabeth included the relief of the aged, impotent and poor. He pointed out that those words must be read disjunctively, because otherwise those who were poor could not be the objects of charity unless they were also aged and impotent. This case was followed in Re Bradbury,124 where a bequest was made for the maintenance of aged persons in a nursing home. It was also followed in Re Robinson,125 where the gift was for ‘the old people over sixty-five years of Hazel Slade near Hednesford as my trustees think best’: Vaisey J held that the gift was to a group of people ‘who are, within the Charitable Uses Act 1601, qualified not by poverty, sickness or impotence, but by age’.126 Thus the requirement of poverty need not be imported also into gifts to the blind (as in Re Elliott)127 or other persons suffering from physical infirmity. In Re Paylings Will Trusts,128 it was

held that a trust to ‘found a house for aged persons’ was a valid charitable trust. In Re Constable (decd),129 a trust to build a home and a hospital for the aged was held to be charitable by Pape J, although it was not (expressly or implicitly) limited to the aged poor. In Re Hart (decd),130 Mitchell J was of the same view with regard to a trust ‘to build homes for the Aged and Infirm people in Millicent’, a disposition not limited to the aged and infirm poor of Millicent. [10-22] These decisions are confirmed by the Privy Council in Re Resch’s Will Trusts.131 Their Lordships said: A gift for the purposes of a hospital is prima facie a good charitable gift. This is now clearly established both in Australia and in England, not merely because of the use of the word ‘impotent’ in the preamble to 43 Eliz I c 4, though the process of referring to the preamble is one often used for reassurance, but because the provision of medical care for the sick is, in modern times, accepted as a public benefit suitable to attract the privileges given to charitable institutions.

[page 137] Moreover, this was said where it was clear that some, if not many, of the hospital’s patients were far from poor. There are cases holding that the relief of the aged is not of itself a charitable purpose, but only becomes so if the relief is clearly restricted to the aged poor.132 But these cases have been either not followed or overruled.133

Restrictions to Locality or Class [10-23] A trust for the relief of poverty may either be general or be restricted to a locality or class. There are many cases of gifts to the poor of parishes or towns,134 of particular religious denominations,135 of specified institutions,136 and of classes or groups within the community, as, for example, unsuccessful literary men,137 servants,138 victims of a disaster,139 the employees,140 and the widows and orphans of employees,141 of a specified firm and the poor relations of the donor. A gift for ‘the relief of distress in Europe’ has been held to constitute a valid charitable bequest in the relief of poverty.142

Poor Relations

[10-24] No trust will be classed as charitable unless it is of a public nature. The benefits of a trust may be restricted to a class of the community and the trust still be of a public nature, provided that the class is not defined by reference to a purely personal relationship to a named propositus.143 The socalled ‘poor relations’ cases form an exception to this principle. They upheld as charitable gifts for the relief of poverty among relations of the settlor.144 Trusts for the relief of poverty among poor employees of a firm have also been held to be charitable.145 The ‘poor relations’ cases were very severely criticised both in Re Compton146 and in later cases. In those cases the court was asked to extend the rule established by them to educational trusts for members of specified families or the relatives of employees of firms, where no element of poverty has been required by the donor.147 However, the House of Lords set the matter at rest [page 138] by holding in Dingle v Turner148 that trusts for the relief of poverty may be valid charitable trusts even though the objects are confined to ‘poor relations’ of the settlor, or members of a club, or, as in the instant case, employees of a particular company. As Lord Evershed said in Re Scarisbrick’s Will Trusts:149 ‘The “poor relations” cases may be justified on the basis that the relief of poverty is of so altruistic a character that the public element may necessarily be inferred thereby; or they may be accepted as a hallowed, if illogical, exception.’ The rule they establish has not been extended to any other class of charitable trust. In Re Scarisbrick’s Will Trusts,150 the question for determination was whether a gift to poor relations distributable within the period allowed by the rule against remoteness of vesting could be classed as a charitable trust. The English Court of Appeal held that the principle of the ‘poor relations’ cases applied whether the trust is intended to be perpetual or not. ‘The exception … is of “poor relations” cases generally — that is, of cases in which the relief of poverty is to be exercised within a class of persons identified by reference to relationship with particular individuals, and not within a class constituting, in strictness, a class of the community.’151 In Re Young’s Will Trusts,152 the principle of the ‘poor relations’ cases was applied to uphold as charitable a bequest for fellow members of the

testator’s club who might fall on evil days. If the explanation of Re Tree153 (the facts of which have already been noted)154 which was suggested in Davies v Perpetual Trustee Co (Ltd)155 be accepted, the requirement of public purpose is unnecessary in all charitable trusts for the relief of poverty despite the emphatic statements referred to that the ‘poor relations’ cases are an anomaly which will not be extended. [10-25] That the explanation is correct is demonstrated by the decision of the House of Lords in Dingle v Turner,156 which is (at least) authority for the proposition that the normal tests of public purpose do not apply to charitable trusts for the relief of poverty. But it would be impossible to deny that Dingle v Turner157 raises its own difficulties. One would have thought, granted that the Re Compton158 test did not apply to charitable trusts for the relief of poverty, as Dingle v Turner requires, that all trusts in favour of persons who are in fact poor would be supported as valid charitable trusts, no matter in what way the beneficiaries were selected or by what language described. But this, apparently, does not follow. According to Dingle v Turner, notwithstanding the inapplicability of the Re Compton159 test, some ‘poverty’ trusts can still fail as being ‘private’ rather than ‘public’. If, as a matter of construction, a trust is one for the relief of poverty among a particular description of poor people (however described), it is — according to Dingle v Turner — a valid charitable trust; whereas if it is a gift to particular persons (the relief of poverty among them being the motive of the gift) it is non-charitable. This is a difficult distinction. [page 139]

The Advancement of Education Advancement of Learning Alone Not Enough [10-26] The advancement and propagation of education and learning generally are good charitable purposes irrespective of the financial circumstances of the persons for whose benefit trusts for such purposes are created.160 But a trust the object of which is to increase knowledge, without propagating that knowledge, is not charitable.161 Thus, it has often been said

that a trust for the advancement of research is not of itself charitable. This view, however, has not gone entirely unchallenged.162 In Whicker v Hume,163 a gift for the ‘advancement and propagation of education and learning all over the world’, according to the discretion of trustees, was held valid by the House of Lords. The words ‘education and learning’ were treated as meaning education connected with learning. The opinion suggests that if the gift had been for the advancement of learning only, it would have been held invalid. Expert evidence is admissible to support or negative the existence of the educational value of a gift.164

Law Reporting [10-27] Is the preparation and publication of accurate reports of judicial decisions a valid charitable purpose? It has been held in England, by the Court of Appeal in Incorporated Council of Law Reporting for England and Wales v AG,165 and in Australia, by the High Court in Incorporated Council of Law Reporting of Queensland v Commissioner of Taxation,166 that it is. In England, the basis of the decision was that the purpose was both a valid charitable purpose in the fourth class because law reporting makes a significant contribution to the sound development, administration and knowledge of the law, and a valid charitable purpose in the second class, being a purpose for the advancement of education. The Australian decision is founded only on the former ground. But it is submitted that the latter is still open here. This is in no way inconsistent with the previous decision of the High Court in Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation,167 which merely held that the appellant body was not a ‘public educational institution’ within the meaning of a particular statutory provision. It did not hold that the purpose of law reporting was not a valid charitable purpose for the advancement of education.

Foundation of Institutions [10-28] Gifts for the foundation and support of schools, universities and the like168 are charitable whether made generally or in particular,169 provided the principles applicable [page 140]

to charitable trusts generally are complied with. Thus a bequest to trustees of a leasehold house, where a school had been established for religious teaching and elementary education, the expenditure on which exceeded the fees, with a direction to the trustees to carry on the school, was held charitable.170 But a gift for the establishment of a college for training spiritualistic mediums was not.171 In the latter case, the trust was not one which the court could, if necessary, administer and control. Gifts for the erection or maintenance of buildings to be used in connection with schools and colleges are likewise charitable, for example, a house for a school-master.172 So are gifts for the establishment of professorships,173 fellowships,174 lectureships,175 scholarships176 and prizes.177 In Re Leverhulme,178 a gift of property on trust for the benefit of a staff training college of a company was held not to be a charity. The college was run as an educational establishment, with three full-time professional teachers, and attendance for the younger employees of the company during working hours was compulsory.

Political Education [10-29] There is English authority, long thought to be correct, that a trust which is expressed to be educational, but which has as its object the furtherance of the principles of a particular political party, is not charitable.179 On the other hand, a bequest to establish an essay competition with the purpose of popularising and promoting principles which the testator had always advocated in his published works, namely, the adoption of measures to prevent deaths of infants, the improvement of Australian food habits and the extension of the teaching of technical education in state schools was held in Royal North Shore Hospital of Sydney v Attorney-General (NSW)180 not to be void as being a trust for the attainment of a political object. However, in Australia, this line of authority may be open to question since the High Court denial that trusts for ‘political objects’ were invalid on the ground that the constitutional freedom of political communication permitted agitation to change the law.181 Does this mean that since the operation of representative and responsible government depends on the conflict of political parties, particularly in debates politicians have with journalists, the public and each other, a trust in favour of a political party is now charitable? Does it mean

that Bacon v Pianta,182 holding that a gift for the purposes of the Communist Party of Australia was void, must now be seen as wrongly decided? For what it is worth, gifts of this kind are outside the definition of ‘charity’ in s 5 of the Charities Act 2013 (Cth). See [10-87]. [page 141] In Re Shaw (decd),183 the testator (the Irish dramatist, George Bernard Shaw) by his will directed his trustee to hold his residuary trust funds, and the annual income thereof for a period of 21 years from his death, on trust for two purposes. The first was to ascertain by inquiry how much time could be saved by persons who speak and write the English language, by the substitution for the present English alphabet of a proposed British alphabet containing at least 40 letters; to show the extent of the time and labour wasted by the use of the present alphabet; and, if possible, to show the loss of time in terms of loss of money. The second purpose was to transliterate one of his plays, ‘Androcles and the Lion’, into the proposed British alphabet; to advertise and publish the transliteration with the original lettering opposite the transliteration, page by page; and to present copies thereof to public libraries, so as to persuade the government or the public to adopt the proposed alphabet. Harman J held that the trust was not a valid charitable trust in that it was merely a trust for the increase of knowledge, lacking any element of teaching or education. On the other hand, in Re Hopkins Wills Trusts,184 Wilberforce J denied that ‘education’ means ‘teaching’ and asserted that academic research could be educative. It was also held in Re Shaw (decd) that, by analogy with the trusts for political education considered above, it was a trust for the advocacy of a change of the law of the land and therefore invalid, although the new alphabet could have gained currency without legislative intervention. That latter reasoning now stands under a question mark.

Education of a Class [10-30] Trusts for educational purposes, like all other charitable trusts (except the anomalous cases of ‘poor relations’) must be of a public nature. A trust may provide only for the education of a section of the community, such as

the daughters of missionaries,185 persons professing particular religious doctrines,186 or persons residing in a particular locality, or ‘for orphan lads being Australians’,187 and still be of a public nature. But if the nexus between the possible beneficiaries is their relationship to a single propositus or several propositi, then the beneficiaries are neither the community nor a section of the community for charitable purposes188 and a trust for their education cannot be a charity.189 This question arises in regard to two classes of persons, namely (1) the relations of the donor and (2) the employees or relatives of employees of firms. Trusts for the education of the donor’s relatives are not charitable. In Re Compton,190 a will provided that funds were to be invested under a trust forever ‘for the education of Compton and Powell and Montague children … not over the age of twenty six years …. It is not to be used as a pension or income for anyone and it is to be held as scholarships at the pleasure of the trustees. It is to be used to fit the children to be servants of God serving the nation, not as students for research of any kind’. The children were defined as the lawful descendants of three named persons, and when the will took effect there were 28 eligible persons under the age of 26 years. The points at issue were (1) whether a trust for the education of the descendants in perpetuity of three named persons, irrespective of their means, was a charity; (2) if not, whether the present trust was a charity by reason of the kind of education specified; and (3) whether [page 142] the decisions upholding gifts to ‘poor relations’ of the donor should be extended by analogy to cover trusts for the purpose of education of an equally limited class. It was held191 that as the beneficiaries were defined by reference to a personal relationship, the trust was merely a family trust and so lacked the public element necessary to make it charitable, that the direction as to the kind of education to be provided was not sufficient to make the trust charitable, and that the principle of the ‘poor relation’ cases should not be extended to an educational trust without a poverty qualification. In later proceedings192 it was held that the gift also failed as a private trust, because of the direction that it should be carried on forever.

The principles applied in Re Compton were approved by the House of Lords in Oppenheim v Tobacco Securities Trust Co Ltd.193 There the income of real and personal property was settled in trust to be applied ‘in providing for … the education of children of employees or former employees’ of a specified company or any of its subsidiary or allied companies. There were over 110,000 employees. But it was held that although the group of persons indicated was numerous, the nexus between them was employment by particular employers. Accordingly, the trust did not satisfy the test of public benefit requisite to establish it as charitable.194 However, the trust for the education of the donor’s relatives must be distinguished from a primary trust for education which is of a public nature, coupled with a direction or request to prefer as individual beneficiaries thereunder persons who are kin to or of the same name as the founder or persons who are members of some other limited class, which is not a class of the public for charitable purposes. A trust of the latter type is good, because initially it is for the benefit of the public. But in the former type of trust the only possible beneficiaries are members of a class which are not a section of the public. Thus, in a gift for the promotion and furtherance of commercial education, the primary class was defined as British born subjects of either sex with insufficient means. Then followed a direction to give preference to employees of a named company and the families of such employees. Upjohn J held that the gift was valid.195 The same principle was applied in Permanent Trustee Co v Presbyterian Church (NSW) Property Trust.196 But it was received with so little enthusiasm by the Privy Council in Caffoor Trustees v Commissioner of Income Tax, Colombo197 as to place its standing in doubt. The requirement that a trust for charitable purposes must benefit a section of the public has been held to lead to the conclusion that a trust which excludes the poor from benefit cannot be for charitable purposes.198 Thus a trust having the purpose of giving financial support for the education of children whose families can afford to pay substantial fees has been held not to benefit a section of the public.199 However, the ‘poor’ can include persons capable of paying relatively low fees.200

Particular Branches of Study [10-31] Educational purposes include the promotion of education in

particular branches of study as well as education in general. Thus, trusts have been upheld for education in drama,201 [page 143] music,202 science,203 technical training,204 archaeology,205 medicine,206 nursing,207 engineering,208 geology209 and law.210 In Royal Choral Society v Commissioners of Inland Revenue,211 it was argued that nothing could be educational which did not involve teaching. The English Court of Appeal rejected this view. It held that, if the main purpose of a properly established trust is educative, it will not fail as a charity because some element of entertainment inevitably follows. The promotion of the performance of choral works by choral singing and concerts was accordingly held to be a charitable purpose as being educative or, in any event, beneficial to the community under the fourth class. Education in music includes not only the direct training of executants, but also improvement of appreciation of music by the general public,212 and the encouragement of composition, writing and research in matters musical.213 Gifts to learned societies and institutions are also charitable, as, for example, the Royal Society,214 the Royal Geographical Society,215 and the Royal Literary Society.216 A zoological garden has been held to be an educational charity,217 and also museums, botanical gardens, public libraries and observatories.218 A trust to buy land for the purpose of preserving and conserving native Australian flora and fauna is charitable within the second class.219 A trust to establish, endow and maintain an annual prize for portrait painting has been held to be a valid charitable trust for the advancement of education.220 A bequest to trustees of a fund to be applied in promoting an annual chess tournament open to boys and young men under 21 resident in Portsmouth was held to be a valid charitable trust, having regard to the restriction of the gift to a class of the inhabitants of a particular locality, the public and educational quality of the named trustees, and evidence tendered as to the educational value of chess.221 A bequest for the furthering of the Boy Scouts’ movement, the purpose of which was the instruction of ‘boys of all classes in the principles of discipline, loyalty and good citizenship’, has been held to be a valid charitable trust.222 It has been held223 that the objects of a society whose principal object

was ‘the study and dissemination of ethical principles and the cultivation of a rational religious sentiment’ were charitable objects for the advancement of education, as ethics and rational sentiment could only be understood by a course of educational instruction and could only be disseminated by education. [page 144]

Sporting and Recreational Activities [10-32] The promotion of sport either directly or indirectly by means of trophies is not in itself a charitable purpose.224 But the promotion of organised games at a school and the provision of prizes for events in school sports are charitable purposes as being for the advancement of that part of the educational work of the school which has to do with the physical development of the students.225 Thus a trust to provide ‘a proper swimming baths’ for Marlborough School has been held to be charitable.226 A purpose of fostering the sport of Rugby Union at the University of Sydney has been held to be charitable.227 Nor need the trust be one expressed for the benefit of a particular school or university. The House of Lords has held that a trust to promote sport, or a particular sport, among school children or university students generally will be a valid charitable trust.228 A trust of a fund to provide a treat or field day for all the school children of a town has been held to be charitable on two grounds. First, as it tended to the advancement of education by giving the children an opportunity of observing objects of the countryside and nature about which they had been taught at school, and also by affording an incentive to regular attendance and industry in order to be selected as participants. Secondly, as it was for purposes beneficial to a particular section of the community — namely, the schoolchildren resident or being educated at the specified town.229 But a bequest to provide ‘a pennyworth of sweets each for all boys and girls below the age of 14 resident within the parish’ has been held not to be charitable.230 A trust to establish a rose garden at the Hebrew University of Jerusalem has been held to be a valid charitable trust.231 In some jurisdictions, legislation provides that trusts for the promotion of sport simpliciter may be valid charitable trusts if they are within the definition of ‘recreational trusts’.232

The Advancement of Religion Meaning of ‘Religion’ [10-33] As a preliminary matter, it may be noted that the court’s administration of charities for the advancement of religion is an illustration of the principle that a religious dispute is not to be treated as non-justiciable where the determination of the dispute is necessary in order to decide a matter of disputed legal rights.233 [page 145] The term ‘religion’ in connection with charities would appear to embrace all religions which have as their central doctrine the worship of God. Thus gifts to promote the Christian religion are undoubtedly charitable irrespective of denomination; and so also are gifts to promote the Jewish religion.234 Courts have rarely had to decide what constitutes a ‘religion’. But one such case was Church of the New Faith v Commissioner of Payroll Tax (Vic).235 The appellant’s object was the presentation, practice and propagation of scientology. It claimed exemption from payroll tax on the ground that it was a ‘religious institution’ within the meaning of s 10 of the Payroll Tax Act 1971 (Vic). All five of the High Court justices who heard the case decided scientology was a religion. Mason ACJ and Brennan J decided that the criteria of a ‘religion’ were twofold: belief in a supernatural being, thing or principle and acceptance of canons of conduct to effectuate that belief. Wilson and Deane JJ held that a number of indicia of varying importance had to be considered. The most important were: that the collection of beliefs and/or practices involves belief in the supernatural; that the ideas relate to the nature and place of humanity in the universe and its relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance; that the adherents constitute an identifiable group or groups; and that the adherents see this collection of ideas and practices as constituting a religion. None of these criteria was in itself determinative of the question, but a body which had them all was certainly a religion and a body lacking all or most

of them was not. Murphy J considered that any body of belief which resembled an earlier ‘cult’, or which believed in a supernatural being, or whose beliefs offered a way to find a meaning or purpose in life, was a religion. In Keren Kayemeth Le Jisroel Ltd v Inland Revenue Commissioners,236 reference was made to Rowlatt J having defined ‘the promotion of religion’ as meaning ‘the promotion of the spiritual teaching of the religious body concerned and the maintenance of the spirit of its doctrines and observances’.237 In the same case, Lord Hanworth MR said: ‘The promotion of religion means the promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines on which it rests, and the observances that serve to promote and manifest it — not merely a foundation or cause to which it can be related.’238 Re Thackrah239 emphasises that a gift cannot be deemed to promote religion unless it advances religious doctrine or teaching. The case concerned a gift to the Oxford Group. The evidence showed that there was no association known as the Oxford Group and the group had no constitution. The gift could not therefore take effect as a gift to a definite body and it could not be construed as a gift for a charitable purpose, as there was no group existing solely for the purpose of promoting religion in the sense in which Rowlatt J defined that expression above. Similarly, the promotion of ‘ethical principles’ and ‘rational religious sentiment’ is not a charitable purpose for the advancement of religion.240 A gift in connection with a religion which has as its central doctrine ancestor worship is not charitable under this head. In Yeap Cheah Neo v Ong Cheng Neo, a gift of a house ‘for performing religious ceremonies to my late husband and myself’ was held to be void. The grounds were that ‘[a]lthough it certainly appears that the performance of these ceremonies is considered by the Chinese to be a pious duty, it is one which does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage and can [page 146] benefit and solace only the family itself’.241 However, subject to the overriding requirement of public benefit, which will be considered more fully later, the court does not concern itself with the truth of the religion or of the particular doctrine or belief that the gift is designed to promote. Thus, in Thornton v

Howe,242 a bequest for distributing the works of Joanna Southcott, ‘a foolish, ignorant woman’, was held to be charitable. In Re Price,243 the opinion was expressed that a gift to the Anthroposophical Society in Great Britain ‘for carrying on the teaching of the founder, Dr Rudolf Steiner’, was charitable. Similarly, the following have been held charitable: a trust in favour of the Esoteric School of Theosophy,244 a trust in favour of a new religion founded in New Zealand by Herbert Thomas Potter245 and a trust in favour of a small group of faith healers.246 In Thornton v Howe,247 Sir John Romilly MR stated that the attitude of the court to such gifts was as follows: In this respect, I am of opinion that the Court of Chancery makes no distinction between one sort of religion and another. They are equally bequests which are included in the general term of charitable bequests. Neither does the Court, in this respect, make any distinction between one sect and another. It may be that the tenets of a particular sect inculcate doctrines adverse to the very foundations of all religion, and that they are subversive of all morality. In such a case, if it should arise, the Court will not assist the execution of the bequest, but will declare it to be void …. The general immoral tendency of the bequest would make it void …. But if the tendency were not immoral, and although this Court might consider the opinions sought to be propagated foolish or even devoid of foundation, it would not, on that account, declare it void, or take it out of the class of legacies which are included in the general terms charitable bequests.

The court cannot say that any one religion confers upon the public greater benefit than another.248 A valid charitable trust for the promotion of religion can exist even though the religious beliefs to be promoted do not belong to any recognised religion or sect. Thus a trust ‘for the continuance of the work of God as it has been maintained by [my husband] and myself since 1942 by God’s enabling … in propagating the truth as given in the Holy Bible’ in the will of a nondenominational Christian has been upheld.249 Likewise, a trust to found a new religion may be a valid charitable trust.250 The charitable purpose may be expressed in general terms or may be particularised. Gifts for ‘promoting religion’;251 ‘for the worship of God’;252 ‘for God’s work’;253 ‘for spread of the Gospel’;254 or of ‘Christianity’;255 or to the Church of England;256 to the Church of Rome;257 or to be used ‘in the service of my Lord and Master’258 have all been held to be charitable. [page 147]

A gift for religious purposes will be deemed to be a gift for such religious purposes as are in their nature charitable, unless a contrary intention appears.259 However, more than an incidental connection with religion is necessary. There must be a direct religious purpose. On this ground a trust to establish a ‘Catholic daily newspaper’ was held not to be a good charitable trust.260

Public Benefit [10-34] Previously it was not clear to what extent the requirement of public benefit should be applied to trusts for the advancement of religion. Indeed, it was argued that those trusts are completely exempt from this test.261 The House of Lords, however, held in Gilmour v Coats262 that the element of public benefit is essential to render a purpose charitable in law and this applies equally to religious as to other charities, with the result that a Roman Catholic priory consisting of a community of cloistered nuns engaging in no exterior works cannot be held, in law, to be a charity. In this connection Lord Greene MR stated in the Court of Appeal:263 In deciding whether a gift is for the advancement of religion, the court does not concern itself with the truth of the religion, a matter which is not susceptible of proof. This does not mean that the court will recognize as a religion everything that chooses to call itself a religion. But when once the religion is recognized by the court as a religion, the beneficial character of a gift for its advancement will prima facie be assumed. But this is not enough. The trust, in order to have all the necessary characteristics, must not only be for the advancement of religion, it must not only be of benefit, but it must be of public, not merely private, benefit. Save to the extent which I shall presently mention, [I know of no English authority], in which the existence of a benefit of the necessary public character has, when challenged, been shown to exist otherwise than by proof of works which have a demonstrable impact on the community or a section of it. I use the word ‘impact’ for want of a better word as covering the benefits conferred by teaching and ministration, by the performance of religious services, by the provision or repair of churches and church ornaments, and so forth. I use the word ‘demonstrable’ as meaning that the benefit must be capable of proof in a court of law. In my opinion, the question whether a trust is beneficial to the public is an entirely different one from the question whether a trust is for the advancement of religion. In answering the latter question the court is not concerned with the truth or otherwise of the religious beliefs entertained by particular religions which it recognizes as such. When, however, the question is whether a particular gift for the advancement of religion satisfies the requirement of public benefit, a question of fact arises which must be answered by the court in the same manner as any other question of fact, ie, by means of evidence cognizable by the court. If this be right (and I entertain no doubts about it) religious beliefs, which in their nature are incapable of proof, cannot be accepted as having for this purpose probative force. On the other hand, it is clear that, provided it involves the public generally, any trust for the promotion of religion will be presumed to be for the public benefit until the contrary is proved.264

[page 148]

Building and Maintaining Churches [10-35] Bequests for the building of places of worship are clearly charitable;265 as are, similarly, houses for the clergy.266 Endowments267 for the maintenance and repair of such buildings268 and for the payment of debts269 on them are also charitable. But a gift for the endowment of a private chapel in a country house lacks the necessary element of public benefit and is therefore not charitable.270

Churchyards and Tombs [10-36] Gifts for the maintenance of burial grounds associated with churches have been held to be charitable. But different reasons have been assigned for regarding them as charities. In Re Vaughan,271 North J stated that ‘God’s Acre’ is ruled by the same considerations as ‘God’s House’, and that a trust for the upkeep of a churchyard is charitable because it relieves the parishioners of the duty of keeping it in repair. In Re Manser,272 Warrington J held that a gift of money for the purpose of providing or keeping in good order burial grounds for the Society of Friends was charitable for the reason that a burial ground is as ancillary to a church or chapel as the ornaments, which are clearly charitable. ‘I think one naturally connects the burial of the dead with religion.’ However, a trust for the establishment of a private cemetery is not charitable as for the advancement of religion.273 Gifts for the maintenance or erection of tombs in churches are also charitable.274 Thus in Re Pardoe,275 a gift of money for the erection and maintenance of headstones to the graves of pensioners who should be buried in a specified churchyard was held valid. But gifts for building, maintaining or repairing a monument or tomb not forming part of the fabric or ornament of a church, whether as a memorial to the donor or the donor’s family, are not charitable. In certain circumstances it is possible that they may be valid as private trusts if they are not perpetuities.276 [10-37] Various devices have been adopted in order to secure the maintenance of tombs and graves. In Re Tyler,277 a bequest was made to a

charitable institution subject to a condition that it should keep the testator’s tomb in repair, with a gift-over to another charitable institution on failure to comply with the condition. It was held that the rule against perpetuities had no application and that the condition was valid. The gift, in effect, did not impose any obligation on the first-mentioned charity to maintain the tomb nor was there any stipulation that the income of the fund should be used to maintain the tomb. The presence of such an obligation [page 149] caused a somewhat similar gift to fail in Re Dalziel.278 In that case, £20,000 were bequeathed to a charitable institution on condition that the income should be used as far as necessary for the upkeep and rebuilding of a mausoleum, costing over £20,000, and on failure to do this the whole bequest was to go to other charities. It was held that the gift was void. It was not a gift subject to a void condition subsequent which could be struck off, thus making the gift absolute, but a direction, intended to be binding in law, that the gift should be used in a specified manner, which could conceivably use up all the income and the capital. A different method of securing the upkeep of a tomb succeeded in Re Eighmie.279 A testatrix bequeathed a sum of money to the rector and church wardens or other governing body of a specified church for the purpose of keeping the burial ground and monument therein to her late husband and herself in good and sufficient repair, and for the maintenance of the church and decorations thereof. The testatrix was buried in a cemetery immediately adjoining the church burial ground (which had been closed for a long time) but in the same grave as her husband. It was held that the bequest was valid and that it should be divided equally between the vicar and churchwardens of the church as the controllers of the church and burial ground, and the borough council as managers of the cemetery. This case may be contrasted with Re Norton’s Will Trusts,280 where a testator bequeathed £500 to a church council, and expressed certain preferences or suggestions of a precatory character as to the mode in which he thought the legacy might be applied, among which were that a ‘small provision’ might be applied for keeping his wife’s parents’ graves in repair. It was held that while the gift of £500 was valid, the upkeep of the graves

was not a charitable purpose and the council could not lawfully make any provision for that purpose. A third method of providing for the upkeep of a tomb was adopted in Re Chardon,281 a case which has been the subject of a great deal of controversy. A testator gave £200 to his trustees on trust to invest it and to pay the income thereof to a cemetery company ‘during such period as they shall continue to maintain and keep’ two specified graves ‘in the said cemetery in good order and condition with flowers and plants thereon as same have hitherto been kept by me’. He declared that if the graves should not be kept in such order and condition the trustees were to apply the income for the trust expressed in regard to his residuary estate. Romer J held that the gift was valid on the ground that the rule against remoteness of vesting deals with the commencement of interests, not their duration.282 It is submitted that trusts for the erection and maintenance of tombs may also be upheld to a limited extent as non-charitable purpose trusts.283 With the exception of the scheme adopted in Re Tyler,284 a testator could hardly be comfortably assured that the other schemes which have been held by the courts to succeed would necessarily have the same fortune if again the subject of judicial decision.

Church Ornaments [10-38] The ornaments of a church are governed by the same principles as apply to the church itself. In Hoare v Osborne,285 Sir Richard Kindersley VC said: ‘… it is clearly for the benefit of the parish that not only the fabric, but also that the ornaments … should not be permitted to [page 150] fall into a state of dilapidation and decay.’ Charitable purposes include the provision and repair of a chancel,286 spire or tower,287 gallery,288 clock,289 stained glass window,290 and monuments.291

The Clergy and Church Workers

[10-39] Examples of charitable trusts include the establishment of a bishopric,292 the provision of clergy293 or preachers,294 or the increase of their stipends295 and gifts to a minister and his successors296 or to a minister for the time being,297 but not a gift to a particular minister in office.298 Assistance to candidates studying for Holy Orders is a charitable purpose.299 Gifts to the clergy may be made subject to conditions, such as the preaching of certain doctrines,300 or a sermon commemorating the donor,301 or wearing a black gown in the pulpit,302 or preaching to a particular class of persons, such as prisoners.303 In Re Mylne,304 trustees were directed, inter alia, to apply the residue of an estate ‘for the benefit of persons who are or have been engaged in evangelistic work including retired missionaries or missionaries still engaged as such, or continuing Christian workers of any other description’ as the trustees should in their absolute discretion select, but so that no one should benefit unless he or she should be a Protestant and a wholehearted believer in the Deity of Christ and the full inspiration of the Scriptures. It was held that the direction created a charitable trust, and that the conditions as to eligibility made the specified beliefs essential in beneficiaries. The court distinguished the case from cases of forfeiture clauses in wills operating on the marriage of persons not of a particular faith. In the latter cases the forfeiture clauses must be strictly construed and the court cannot ascertain, for the purpose of construing them, whether persons are or are not ‘of’ a particular faith, which is a matter of state of mind. But in the present case the intended beneficiaries were missionaries and other Christian workers, and the trustees could easily ascertain by inquiry into their records as missionaries and workers whether they complied with the conditions as to eligibility. A gift of income to be applied for the relief of sick and infirm priests is charitable as tending to advance religion.305

Masses for the Dead [10-40] Legislation at the time of the English Reformation rendered the saying of the mass illegal. Any trust for the saying of masses was accordingly void. After the passing of the Roman Catholic Relief Act 1829, it was wrongly still believed that trusts for masses [page 151]

were void as gifts to superstitious uses under the Statute of Chantries 1 Edw VI c 14.306 The question whether masses for the dead are charitable came before the court in Victoria in 1895 in Re Purcell,307 where there was a bequest to a Roman Catholic priest for masses for the repose of the testator’s soul. It was held that the Statute of Chantries, 1 Edw VI c 14, was not reasonably applicable to the colony of New South Wales at the time of the passing of the Act, 9 Geo IV c 83, and that therefore it was not in force in Victoria. As a result such masses were not void as a superstitious use. The view that trusts for masses were void in England by reason of the Statute of Chantries was corrected in 1919 in Bourne v Keane.308 In Re Caus,309 such trusts were held to be charitable as, being for the advancement of religion, they enable a ritual act to be performed which is the central act of the religion of a large proportion of Christian people and that they assist in the endowment of priests whose duty it is to perform the act.310 In Re Michel’s Trusts,311 in 1860, a trust for the recital of Cawdish, a prayer, on the anniversary of the death of a Jewish testator, there being no reference to praying for his soul, was held not to be void as a superstitious use. Presumably such trusts would be held to be charitable today. The Roman Catholic Relief Act 1829, which was adopted in New South Wales by Act 10 Geo IV No 9, apart from the reliefs therein given, contained provisions for the suppression of male religious orders bound by monastic vows of the Church of Rome and forbade persons belonging to such orders to enter the realm. It also forbade the joining of such orders within the realm. Gifts for such monastic orders have therefore only been held to be good in England if capable of being construed as a gift to the members for the time being of such orders.312 When the question came before the courts in New South Wales it was first held that the gift was good if it could be construed as a gift to the order at large, so that it could be applied in countries where the order was legal.313 Later, however, in Perpetual Trustee Co (Ltd) v Wittscheibe,314 it was held that the adoption of the Roman Catholic Relief Act 1829 in New South Wales did not apply the prohibitions of the English statute to gifts to monastic orders in New South Wales. Therefore a gift to such an order in New South Wales for its purposes in New South Wales was not illegal.

Closed Orders

[10-41] In Cocks v Manners,315 in 1871, a question arose as to the charitable nature of gifts to a Dominican convent and a Community of Sisters of Charity. Sir John Wickens VC held that the community was a charitable institution on the ground that, although the primary object of the sisters was selfsanctification, they employed themselves as a means thereto in the exercise of works of piety and charity in teaching the poor and nursing the sick. The gift to [page 152] the Dominican Convent was held not to be charitable, being neither within the letter nor the spirit of the statute, 43 Eliz I c 4. Sir John Wickens VC stated:316 A voluntary association of women for the purpose of working out their own salvation by religious exercises and self-denial seems to me to have none of the requisites of a charitable institution, whether the word ‘charitable’ is used in its popular sense or in its legal sense. It is said, in some of the cases, that religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public; an annuity to an individual, so long as he spent his time in retirement and constant devotion, would not be charitable, nor would a gift to ten persons, so long as they lived together in retirement and performed acts of devotion, be charitable.

In 1947, in Re Coats’ Trusts,317 a summons was taken out by trustees to determine the effect of a declaration of trust of a sum of money the income of which was to be applied for the purposes of a priory consisting of a community of cloistered nuns, who devoted their lives to contemplation and selfsanctification within their convent and engaged in no exterior works. On the authority of Cocks v Manners,318 the trust was not charitable, but counsel for the convent advanced three reasons why it should be held to be charitable: that the purposes of the convent in interceding for the whole human race were charitable purposes for the advancement of religion among the public; that the edification or good example by the existence of the way of life of the convent and its inmates turns minds to spiritual matters and benefits the public by advancing religion among them; and that the result of the trust was to endow the convent which enabled any woman to enter a fuller religious life, just as an endowment of a scholarship enables students to pursue higher education. The judgments of Jenkins J, the Court of Appeal and the House of Lords (the last point was argued only in the House of Lords) contain many dicta of importance to all trusts for the promotion of religion. All were unanimous in holding that the trust was not charitable because of the absence of public benefit. The

benefit of intercessory prayer to the public is not susceptible to legal proof and the court can only act on such proof. Further, the element of edification by example is too vague and intangible to satisfy the test of public benefit. In Leahy v A-G (NSW),319 the principles stated above were confirmed, the Privy Council holding that a trust for a contemplative order of nuns did not amount to a valid charitable trust.

Worship [10-42] Corporate devotional worship in its many forms is charitable as tending to promote religion,320 but the emphasis is upon the edification or instruction of the public in contradistinction to attempting to improve one’s own mind or save one’s own soul.321 This may best be illustrated under separate headings.

Prayer [10-43] The charitable character of prayer has had to be considered in several cases. In Re Joy,322 a legacy of £1000 was left to a society named the ‘Society for Suppressing Cruelty by United Prayer’. The society had had, at various times, some thousands of members. It had no [page 153] rules, but the members were required to buy a card costing twopence and use a prayer printed on the card. Chitty J held that the gift was not charitable. He said: [T]his is not a gift for the suppression of cruelty to animals generally. The object is to suppress it by united prayer. What I mean by this is, that you cannot cut the sentence into two parts, and say there were two objects. There is one object, and one object only, and that is by united prayer to suppress cruelty to animals. Then I have to inquire what the meaning of ‘united prayer’ here is …. It was not by public prayer. It was by what the lady termed ‘united prayer’ which means prayer of the description I have already stated — private prayer — and it is clear that if the purpose is a mere improvement of the individual by private prayer, that is not a purpose of public or general utility within the statute, or within the analogy of the statute of Elizabeth.

The charitable nature of private prayer received detailed consideration in the

‘closed orders’ cases, Cocks v Manners323 and Gilmour v Coats.324 In the former case, it was held that a gift to a Dominican convent, the inmates of which sought sanctification by prayer and contemplation and engaged in no outside activities, was not charitable. In Re White,325 where a gift was made ‘to the following religious charities’ (the names being left blank), Lindley LJ, in delivering the judgment of the court that the gift constituted a valid charitable bequest in respect of which a scheme should be directed, stated: ‘A society for the promotion of private prayer and devotion by its own members, and which has no wider scope, no public element, no purposes of general utility, would be a “religious” society, but not a charitable one.’ In Re Coats’ Trusts, Jenkins J said:326 Thus, in my judgment, the element of public benefit which a religious trust or purpose must, in order to be charitable, be shown to possess is to be sought, not in the blessings (whether spiritual or temporal) which the prayers of the faithful, according to the tenets of the particular sect, may cause God to bestow on the public at large, but in the instruction, edification, or spiritual comfort which the execution of the trust or purpose may be expected to impart to members of the public by the operation on their minds through the recognized human channels of communication and perception of the religious activities directly or indirectly promoted or maintained by such execution. In a word, I think the law recognizes the spiritual benefit as a product, or potential product, of religious charity which men derive from being taught to pray and from praying as they have been taught to do, but not the benefits whether spiritual or temporal which their prayers may cause God to bestow on other people. This, I think, accords with the view taken by Chitty J in Re Joy,327 of a trust to suppress cruelty to animals by united prayer.

This view was affirmed in the Court of Appeal and the House of Lords. [10-44] Thus the promotion of corporate public prayer is a charitable purpose within the meaning of the Statute of Elizabeth, but the promotion of private intercessory prayer is not. This must be read subject, however, to Re Caus,328 which decided that a gift for the saying of private masses is charitable. But in view of the comments on this decision in Gilmour v Coats,329 it may well be that it would not be sustained if the matter came before the court again. In Neville Estates Ltd v Madden,330 a trust to promote attendance at a synagogue was upheld on the ground that members of the synagogue ‘live in this world and mix with their fellow citizens’.331 Clearly, a different result would have been reached if the members had segregated themselves from the outside world. In Re Warre’s Will Trusts,332 a trust to maintain a diocesan retreat failed as a charitable trust on the curious ground that it lacked the necessary element of public benefit.

[page 154] But this case was not followed in Association of Franciscan Order of Friars Minor v City of Kew,333 precisely on the ground that a retreat house is open to the public. In a later case, Re Banfield (dec’d),334 a trust for the purposes of an unincorporated religious association was upheld as a charitable trust on proof that it was not an enclosed order and that members of the public in need of spiritual help were free to resort to its premises. An important decision along the lines submitted to be correct is that of the New South Wales Court of Appeal in Ashfield Municipal Council v Joyce.335 That case dealt with the religious ceremonies of the sect known as ‘the Exclusive Brethren’, which ceremonies were ‘private’ in the sense that they are not open to members of the public generally. It was nonetheless held that a trust to promote such ceremonies would constitute a valid charitable trust. As Hutley JA put it:336 Even if the ceremonies of the Exclusive Brethren in the hall can be regarded as a temporary withdrawal from the world, those ceremonies are a preparation for the assumption of their place in the world in which they will battle according to their religious views to raise the standards of the world by precept and example. From the fact that they prepare themselves in private nothing can be deduced to deny the conclusion that these religious ceremonies have the same public value in improving the standards of the believer in the world as any public worship. I am, therefore, of the opinion that the doctrine of Gilmour v Coats does not apply to the Exclusive Brethren, and, from the fact that their religious ceremonies cannot be classed as public worship, it cannot be deduced that they are not for the public benefit.

Where the predominant function of a small religious healing movement was public faith healing, a gift for the furtherance of its spiritual work was not prevented from being charitable by the possibility that private services, not themselves charitable, might be held as part of the total activity.337 The situation may, therefore, be summarised as follows: (1) In the case of the usual religious trust involving no ‘private’ element at all, public benefit will be presumed and the trust will, prima facie, be a valid charitable trust for the promotion of religion — that is the rationale of cases like Re Watson338 and Bourne v Keane.339 (2) In the case of a religious trust which is purely private, where the activities in question are not open to the public and the persons who participate in them have excluded themselves from the world at large, public benefit will not be presumed and must be proved if the trust is to be upheld — that is the rationale of Gilmour v Coats340 and Re Joy.341

(3) In the case of religious trusts for the promotion of religious ceremonies which, while themselves ‘private’, are designed to enable their participants to engage in a more spiritually endowed manner in their normal public life, public benefit will be presumed — that is the rationale of the City of Kew case342 and Joyce’s case.343

Choir, etc [10-45] A gift for the benefit of the choir — that is, for the maintenance and improvement of the musical services — is a charitable purpose.344 [page 155] A gift for the purchase and maintenance of an organ and the purchase of music for it is a charity,345 and so also is a gift to maintain an organist at church.346 A gift of sums of money to be paid to the ringers of a church for ringing a peal of bells on the anniversary of the restoration of Charles II in commemoration of that event has been upheld on the ground that it connoted ‘a notion of worship and gratitude to heaven’,347 but a gift of sums to be paid annually to the ringers of the parish church in consideration of their ringing the bells half-muffled on the anniversary of the donor’s death has been held invalid as an endeavour on the part of the donor to commemorate his own memory.348

Non-charitable Objects [10-46] In England and Australia, there have been a number of cases concerning the effect of a gift to an institution or a person which would be charitable but for the addition of words which indicated purposes for which the gift may be applied.349 Thus, in Re Ashton,350 gifts were made to the vicars and churchwardens of two churches ‘for parish work’. It was argued that certain aspects of parish work are not charitable in the legal sense and that the gifts accordingly failed for uncertainty. This view was upheld by Luxmoore J, the Court of Appeal and the House of Lords. Similarly, in Dunne v Byrne,351 a gift ‘to the Roman Catholic Archbishop of Brisbane and his successors to be used

and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese’ was held to be expressed in terms too wide for the gift to be charitable. In Union Trustee Co of Australia Ltd v Church of England Property Trust,352 Nicholas CJ in Eq held that a gift to apply certain property ‘in such manner and for such purposes relating to the work of’ a certain named church ‘as the rector and churchwardens for the time being of the said church shall in their absolute discretion think fit’ was too wide to be charitable and was only saved by the application of s 37D of the Conveyancing Act 1919 (NSW).353 Similarly, in Re Davies,354 a trust for ‘work connected with the Roman Catholic Church’ was invalidated on the ground that the gift did not relate to any specific church, its fabric and services, but was rather concerned with the work carried on by the religious body known as the Roman Catholic Church, not all of the activities of which were charitable. And in Re Tomkins,355 a gift for, inter alia, ‘church purposes’ was held not to be for exclusively charitable purposes. On the other hand, in Re Macgregor356 it was held by Long Innes J that bequests to the Anglican Bishop for the time being of the Diocese of Grafton and Armidale ‘for diocesan purposes’ and for ‘diocesan purposes generally’ were good charitable bequests because strictly every diocesan purpose proper was a religious purpose and therefore a charitable purpose in the legal sense. The same conclusion was reached by the Court of Appeal in Re Rumball,357 where the words were ‘to the Bishop for the time being of the Diocese of the Windward Islands, to be used by him as he thinks fit in his diocese’. It was held that the addition of the general [page 156] words indicating purpose did not destroy the charitable nature of the gift to the bishop358 but were inserted merely to indicate who should have the discretion in the exact application of the gift. In this way, the result in Re Ashton359 is avoided, but it is not so easy to distinguish Re Macgregor360 from Re Ashton,361 and it may be that Re Macgregor must be taken to have been wrongly decided.362 So in Re Garrard,363 a gift to the vicar and churchwardens ‘to be by them applied in such manner as they shall in their sole discretion think fit’ was upheld as a charitable trust. In Re Norman,364 a bequest ‘to the editors of the

missionary periodical called Echoes of Service to be applied by them for such objects as they may think fit’ was also upheld; although the evidence showed that the editors were the trustees of the churches of the Brethren, and that Echoes of Service was not only the title of a periodical, but also the designation of a charity for distributing gifts for the purposes of the Brethren. In Re Bain,365 a gift ‘in connection with the Church’ was upheld, as was the bequest in Re Eastes366 to the vicar and churchwardens to be used by them ‘for any purposes in connection with the said church which they may select it being my wish that they shall especially bear in mind the requirements of the children in the said parish … And I declare that in no circumstances shall they … use any portion of the said moneys in connexion with the furtherance of overseas missions’. In Re Flinn,367 a bequest to ‘His Eminence the Archbishop of Westminster Cathedral, London, for the time being … to be used by him for such purposes as he shall in his absolute discretion think fit’ was also upheld as a valid charitable trust. In Green v Trustees of the Property of the Church of England in Tasmania,368 a trust for the trustees of the church ‘to be used for the benefit of such Diocese as [they] think fit’ was upheld. The position of such gifts in all jurisdictions is now affected by legislation designed to sever and save the charitable objects from the non-charitable elements mixed with them. The legislation is discussed later.369

Purposes Beneficial to the Community The Residual Fourth Class [10-47] Under this heading are grouped all the purposes which either are specifically mentioned in the preamble to the Statute of Elizabeth or have been held to be within its spirit, but which do not come under the first three heads already considered. The various purposes defy any orderly classification, and the only element they have in common is that they are regarded as being of public benefit. Yet not all purposes which are beneficial to the public are charitable. The trust must be of direct and general benefit to the public, but the mere fact that it is for purposes which may tend to be of general public utility is not sufficient.370 For the trust to be charitable it must be within the spirit or intendment of the

preamble, it must be for the benefit of the public, it must be of a public nature, and it must also be capable, if necessary, of being administered and controlled by the court. With only these broad [page 157] principles as a guide, it is not surprising that the particular distinctions which have been drawn between charitable and non-charitable purposes can appear to be somewhat arbitrary.371 Charitable trusts of this fourth class were considered by the House of Lords in Inland Revenue Commissioners v Baddeley.372 In that case, land and buildings were conveyed to trustees upon trust for the promotion of the religious, social and physical wellbeing of persons resident in West Ham and Leyton by the provision of facilities for religious services and instruction and for the social and physical training and recreation of such of them as, in the opinion of the leaders of the Stratford Newtown Methodist Mission, were members or likely to become members of the Methodist Church, and of insufficient means otherwise to enjoy the advantages provided, and by promoting and encouraging all forms of such activities as were liable to contribute to the health and wellbeing of such persons. Another gift was in similar, though not identical, terms. The trusts were examined in order to see if they fell within any of the first three classes because there was reference in them to poverty, to education and to religion. It was held that they did not fall into any of these classes. There remained then the fourth class in Lord Macnaghten’s classification. It was argued in favour of validity that there was a public element sufficient to support validity because the trusts were for the benefit, not of individuals, but of an appreciable class in the community, the purpose was within the spirit and intendment of the preamble to the Statute of Elizabeth, and it was not necessary that the benefits under the trust be available to all members of the public. But the House of Lords, by majority, held the words of the conveyance too vague to qualify as charitable; further, a minority held that the public element necessary in a trust under the fourth class was different from the public elements sufficient in the other classes of charity. Lord Simonds and Lord Somervell (the other members of the majority standing mute on this point) appear to have stated that for a trust to be good under the fourth class it must be open to enjoyment by all

members of the public who are capable of enjoying it.373 Thus a trust to build a bridge is a good charitable trust under the fourth class, providing the bridge is intended for all members of the public who, having regard to the location of the bridge, are capable of enjoying its use. In fact, those members of the public may be very few. But when the enjoyment of the use of the bridge is limited by the terms of the trust to a section of the public — to give an example quoted by Lord Simonds in his speech, to ‘impecunious Methodists’ — that section of the public, however sufficient to support a trust for the relief of poverty or the advancement of religion, is not sufficient to support a trust to build a bridge, which could only be valid under the fourth class.374 The trusts in the case, being sustainable, if at all, only under the fourth class, were in the same situation as a trust to build a bridge, and, being limited in enjoyment to a class determined by a test other than capacity to enjoy the particular benefit, were therefore invalid. ‘[It is necessary] to observe the distinction … between a form of relief extended to the whole community yet, by its very nature, advantageous only to the few, and a form of relief accorded to a selected few out of a larger number equally willing and able to take advantage of it.’375 Lord Somervell of Harrow said:376 I cannot accept the principle … that a section of the public sufficient to support a valid trust in one category must as a matter of law be sufficient to support a trust in any other category …. There might well be a valid trust for the promotion of religion benefiting a very small class. It would not at all follow that a recreation ground for the exclusive use of the same class would be a valid charity ….

Charitable trusts of the fourth class have also been considered by the High Court of Australia in Royal National Agricultural and Industrial Association v Chester.377 There the testamentary [page 158] gift of a fund to a charitable body to apply the income thereof for the purpose of ‘improving the breeding and racing of homing pigeons’ was held not to constitute a valid charitable trust, although such a trust would have provided recreation for quite a number of pigeon fanciers; would have produced birds which were interesting, beautiful and at times useful as a means of communication; and would have afforded an opportunity for the scientific study of the birds’ remarkable homing instinct. The purpose was neither specifically

mentioned in the preamble to the Elizabethan Statute, nor was it within its spirit and intendment.

Benevolent Purposes [10-48] There have been many cases where trusts have been held not to be charitable under the general law because the purposes have been designated by words of a general import which could include purposes not within the spirit and intendment of the Statute of Elizabeth. Thus gifts for ‘benevolent’ objects,378 ‘for benevolence and liberality’,379 for ‘philanthropic objects’,380 for ‘patriotic purposes’381 and the like have been held not to be charitable. Most gifts of this nature, at least in most jurisdictions of Australia, would now be validated by legislation, the terms of which are discussed below.382

Sport [10-49] Gifts for the encouragement of sport are not charitable. Thus in Re Nottage,383 where a testator bequeathed a sum of money, the interest of which was to be expended in providing a cup to be given for the encouragement of yachting, the gift was held not to be charitable and to be void as a perpetuity. Similarly, in Re Clifford,384 a gift to a society having as its object the preservation and improvement of angling in certain parts of a river was held not to be a good charitable bequest. Gifts to benefit fox-hunting385 and for the teaching of cricket386 have also been held not to be charitable. But the provision of means for public recreation, such as playing fields, parks and gymnasiums, is a charitable object.387 The English Court of Appeal in Oldham Borough Council v Attorney-General388 treated a trust to hold certain playing fields for the benefit of the inhabitants of a defined area as a valid charitable trust. And in Guild v Inland Revenue Commissioners,389 a trust ‘to the town council of North Berwick for the use in connection with the sports centre in North Berwick or some similar purpose in relation to sport’ was also upheld, although in reliance on the Recreational Charities Act 1958 (UK). But for that Act it would have failed. [page 159]

A gift to encourage sport at school is, however, charitable, on the ground that sport is part of a person’s education.390 So also is a gift for the encouragement of sports tending to increase the efficiency of the armed forces391 or of the police force.392 Moreover, in Western Australia, Queensland, South Australia and Tasmania ‘recreational charities’ are recognised. Section 5 of the Charitable Trusts Act 1962 (WA) is modelled to some extent on the Recreational Charities Act 1958 (UK). 5. (1) Subject to the provisions of this Part, it is, and shall be deemed always to have been, charitable to provide, or to assist in the provision of, facilities for recreation or other leisure-time occupation, if the facilities are provided in the interests of social welfare. (2) The requirement of subsection (1) that the facilities be provided in the interests of social welfare is not satisfied unless — (a) the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and (b) either — (i) those persons have need of those facilities by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances; or (ii) the facilities are to be available to members, or to male or female members, of the public at large. (3) Subject to the requirement of subsection (1) that the facilities be provided in the interests of social welfare, that subsection applies in particular to the provision of facilities at public halls, community centres, and women’s institutes, and to the provision and maintenance of grounds and buildings to be used for purposes of recreation or leisure-time occupation, and extends to the provision of facilities for those purposes by the organising of any activity. (4) Nothing in this section derogates from the principle that a trust or institution, to be charitable, must be for the public benefit.

It will be seen that the section modifies the general law very considerably. Section 103 of the Trusts Act 1973 (Qld),393 s 69C of the Trustee Act 1936 (SA)394 and s 4(1) of the Variation of Trusts Act 1994 (Tas) are to the same effect.

Hospitality or Entertainment [10-50] A trust which has as its dominant purpose hospitality or entertainment is not charitable. In Re Corelli,395 a woman’s will placed the residue of her estate, including her estate at Masons Croft, in the care of her trustees, to enclose all the land at Masons Croft as a breathing space and air

zone for the health of the town of Stratford-on-Avon, her expressed intention being that the ultimate trusts of the house and grounds at Masons Croft be continued in perpetuity for the benefit and service of distinguished visitors who would otherwise seek their quarters in a hotel. She also directed that the income of the estate and other property should be held for the upkeep of Masons Croft, to be used for the promotion of science, literature and music among the people of Stratford. Cohen J held that this was not a charitable gift and, as the trusts were to continue in perpetuity, the gift was void. Although the directions for the establishment of the air zone and for the promotion of science, literature and music might have constituted a charitable bequest, the dominant motive of the testator was to be found in the trust for the establishment of an hotel for the entertainment of distinguished visitors [page 160] from far countries, which was not a charity. Similarly, a trust under which the trustees were empowered, inter alia, to maintain an institute and meeting-place for the benefit of Welsh people in London, with a view to creating a centre to promote ‘the moral, social, spiritual and educational welfare of Welsh people’, has been held not to be a charity.396 The fact that the social activities are to be carried on as an adjunct to other activities which are clearly charitable, for example, a social club attached to a church, makes no difference.397 It is to be noted, however, that if the object of the trust is charitable, the fact that it will afford entertainment or pleasure to the public will not render it noncharitable.398 Furthermore, a trust to apply the income of a fund in payment of the expenses of dinners consumed by members of a charitable religious society399 or of the trustees of a charitable trust400 when attending meetings has been held to be charitable as increasing the usefulness and efficiency of the society or promoting the efficient management of the trust. A devise of lands on trust ‘for the use of the High Commissioner or other person representing the Government of the Commonwealth of Australia in England for the time being to be used by him as a country residence in a way similar to that in which Chequers is used by the Prime Minister of England’ failed as a charitable trust in Re Spensley’s Will Trusts.401 A trust for the advancement of music is a valid charitable trust.402

Political Purposes [10-51] It has already been mentioned that, according to traditional thinking, if one of the objects of the trust is to secure a change of the law the trust will fail as a charity. On that approach, while the encouragement of temperance is a charitable object, a trust, one of the objects of which is to secure the abolition of the liquor traffic by legislation, is not charitable. Similarly, a trust of residue to be used ‘for the advancement and propagation of the teaching of socialised medicine’ was held for this reason not to constitute a valid charitable trust.403 The decision of Slade J in McGovern v A-G404 concerning the trusts of Amnesty International is an interesting application of these principles. In so far as the trust purpose was attempting to secure the release of prisoners of conscience, it was a trust for political purposes and therefore not charitable, since the means envisaged was the bringing of moral pressure on foreign governments. In so far as the purpose was the abolition of torture and inhuman or degrading punishment, it was likewise political and non-charitable. In so far as its purpose was the promotion of research into the maintenance and observance of human rights, it was a valid charitable trust. As its purposes were thus mixed, it failed entirely. This rather curious result may well indicate reasoning which is on any view — the traditional approach or the High Court’s approach — defective [page 161] particularly as it is clear that a trust for the relief of human suffering is per se charitable, the Elizabethan Statute itself mentioning the relief or redemption of prisoners and captives, and it being difficult to see how such compassionate objects are capable of achievement otherwise than by (at least) the exertion of moral pressures. The impact on these authorities of limitations imposed by the High Court in Aid/Watch Inc v Federal Commissioner of Taxation on the ‘political purposes’ doctrine is as yet unclear.405 However, the High Court has specifically denied the existence of any ‘general doctrine which excludes from charitable purposes “political objects” and has the scope indicated … by McGovern v Attorney-General’.406 A trust for the elimination of war has been held charitable.407

It has been contended that in Australia even before Aid/Watch v Federal Commissioner of Taxation a trust may be charitable even if its object is to introduce new law, so far as the new law ‘is consistent with the way the [existing] law is tending’, for there is ‘then no longer contrariety with an established policy of the law’.408

Other Cases: General [10-52] Trusts which have been held to be charitable under the fourth group in Lord Macnaghten’s classification may conveniently be considered under the following headings.

Public works [10-53] The repair of bridges, ports, havens, causeways, seabanks and highways is specifically mentioned in the Statute of Elizabeth as a charitable purpose. Many cases may be cited as illustrations: the repair of highways and bridges,409 the provision of a water-supply,410 paving and lighting a town,411 afforestation,412 and public amenities in a defined locality such as a public library,413 a public hall,414 and playing fields and parks.415 Others include a trust to provide grazing rights on a defined area of land to the freemen of an ancient borough,416 a trust for the promotion of agriculture and horticulture, and a trust permanently to set aside land ‘for showground, park and recreation purposes’.417 In Schellenberger v Trustees Executors and Agency Co Ltd,418 a bequest for the beautification and advancement of the township of Bunyip was held to be a valid charitable gift. ‘The Preamble refers to “Bridges, Ports, Havens, Causeways … and Highways”. Freely accessible car-parks might be regarded as “Havens” from the “Highways” or as so necessarily incidental to the latter in modern times as to be almost indistinguishable in [page 162] public purpose and utility from them …’.419 On the other hand, a trust to erect a carillon on the foreshores of Sydney Harbour was held not to be charitable.420

Relief of rates or national exchequer [10-54] The aid or ease of any poor inhabitants concerning payment of taxes is also specifically mentioned in the preamble to the Statute of Elizabeth. So gifts ‘to my country England’,421 ‘for the benefit of the country to be applied by the Chancellor of the Exchequer’,422 or for the relief of taxes,423 or in reduction of the National Debt,424 have all been held to be charitable.

The relief of distress [10-55] Various trusts having as their purposes the advancement of medical knowledge or the treatment of sickness or the alleviation of other forms of distress have been held to be charitable. Thus gifts to medical societies,425 to hospitals,426 to cancer research,427 to nursing associations,428 to ‘sick and wounded’,429 to asylums,430 for the benefit of those suffering from particular diseases431 and ‘for the benefit of Australian Aborigines’,432 have all been held to be charitable. A gift to provide accommodation at a hospital for the relatives of patients critically ill has been upheld as a charity as being a purpose of the hospital.433 A gift to the National Lifeboat Institution has been held to be charitable under this head.434 So also has a trust for the relief of victims of a cyclone.435 Many such bodies are partly funded by government. While the fact that a body may be funded by government does not preclude its functions being for charitable purposes,436 if it is merely carrying out a function of government, its functions will not be charitable.437 A gift to erect a hospital supported by fees from patients is a gift for a charitable purpose so long as the poor are not excluded and so far it is not to be operated for commercial profit.438 [page 163] A company can have a charitable purpose even though it does not itself advance charitable purposes directly, but raises funds from commercial activity and gives them to organisations which do advance charitable purposes directly.439

Armed forces [10-56] Gifts tending to increase the efficiency of the armed forces are charitable, as, for example, gifts for the benefit of a volunteer corps,440 to provide prizes for competition among cadets or officers,441 to ameliorate conditions of dependants of members of the armed forces,442 to encourage rifle shooting,443 to train boys to become officers in the Navy or Mercantile Marine,444 for defence against air attack,445 for an officers’ mess,446 to provide plate and a library for the mess,447 and to form a regimental fund for the promotion of sport.448 A bequest ‘for the benefit of New South Wales returned soldiers’ is a good charitable bequest.449

Animals [10-57] In Re Grove-Grady,450 which concerned the validity of a secret trust for the protection and benefit of animals, Russell LJ stated: There can be no doubt that upon the authorities as they stand a trust in perpetuity for the benefit of animals may be a valid charitable trust if in the execution of the trust there is necessarily involved benefit to the public; for if this be a necessary result of the execution of the trust, the trust will fall within Lord Macnaghten’s fourth class in Pemsel’s case …. So far as I know there is no decision which upholds a trust in perpetuity in favour of animals upon any other ground than this, that the execution of the trust in the manner defined by the creator of the trust must produce some benefit to mankind.

The benefit to the public in such trusts lies in the fact that they are calculated to promote public morality by checking the innate tendency to cruelty, or as Swinfen Eady LJ said in Re Wedgwood:451 [A] gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race.

Thus gifts to societies for the prevention of cruelty to animals,452 to promote prosecutions for cruelty to animals453 and for homes for lost cats and dogs454 have been held to be charitable. [page 164]

But in Re Grove-Grady,455 a trust to establish a refuge for animals and birds of all kinds in a state of nature, with no provision to prevent the stronger preying on the weaker, was held not to be charitable as not affording any advantage to animals useful to mankind or any protection from cruelty to animals generally. However, where there is a benefit to the public in the preservation of the animals for scientific and educational purposes the trust will be valid.456 In Re Green,457 a trust for the ‘rescue, maintenance and benefit of cruelly treated animals’ was held to be valid. A trust for the benefit of individual animals is not charitable, but may be valid as a private trust if it does not infringe the rule against perpetuities,458 even though there is no beneficiary to enforce it. Thus a trust for the maintenance of specified horses and dogs so long as they shall live has been held to be valid.459

Miscellaneous [10-58] Among the public purposes which have been held to be charitable but which do not come under any of the foregoing heads are the furtherance of vegetarianism,460 the preservation of places of historic interest or natural beauty,461 the encouragement of gardening,462 the encouragement of temperance,463 cremation,464 and a war memorial intended not only to commemorate the dead, but also to serve some purpose for the betterment of the living.465 A trust for the encouragement of law reporting is a valid charitable trust within the fourth class (as well as possibly falling within the second class).466 A trust to dedicate a parcel of bush land for the encouragement of native fauna and flora thereon was held not to constitute a valid charitable trust by Anderson J in Re Green.467 But this case was probably wrongly decided. It was not followed in A-G (NSW) v Sawtell,468 where Holland J upheld a trust for the preservation of native wild life (both fauna and flora). A trust for accountants’ and solicitors’ fidelity funds has been held not to be charitable.469 Provided there is no contrary language,470 a gift to a particular class of inhabitants within a locality is construed as being restricted to benefits which are charitable471 and hence is a [page 165]

valid charitable gift.472 A reference in the gift to ‘community’ does not amount to contrary language.473 A reference to the ‘Black community’ does not render the gift uncertain, because the class of inhabitants of a specified area need not be identified with the same degree of certainty as the beneficiaries of a private trust: see [5-29].474 The purpose of providing housing accommodation, otherwise than for those in some relevant charitable need, is not within the spirit and intendment of the preamble.475 While there is a presumption that a beneficial purpose is charitable, there is no presumption which would artificially restrict general words to purposes within the spirit and intendment of the preamble.476

General Problems in Charitable Trusts Purpose Outside the State [10-59] If the objects of a trust are necessarily valid as a charity in New South Wales,477 it is immaterial that the capital or income is to be expended wholly outside New South Wales, provided that the objects are also valid where the funds are to be spent.478 Thus trusts created in England for the poor of a German town,479 for the benefit of German ex-soldiers disabled in the First World War,480 for the relief of distress in Europe,481 and for Armenian orphans482 have been held to be charitable and not contrary to public policy. So an English court has upheld a trust to be performed in Famagusta,483 and New South Wales courts have upheld trusts to establish a rose garden at the Hebrew University in Jerusalem484 and to advance education in Israel.485 But the court will not normally control the administration of such trusts, and if the court has no discretion in selecting objects486 and the objects are wholly situated abroad, it may direct that the funds be transferred to the trustee abroad.487 If the specific trust purpose fails, it would appear that the court will not direct a scheme cyprès, and the trust will fail.488 This law is well established, but has its conceptual difficulties. It is probably true to say these difficulties have only been recognised and formulated after the law became established, and when it was too late to alter it. The first is that, although it is a generally recognised [page 166]

principle that the Attorney-General of New South Wales must be in a position to supervise the management of the charitable trust and that no trust can be recognised as charitable unless the Attorney-General is so placed,489 so that the court will not administer charitable trusts not resident in the jurisdiction,490 it is not easy to see how this principle can be complied with if the whole capital is transferred to alien countries. The second is that when the law requires a trust to be for the benefit of the ‘public’ or for a ‘public’ purpose in order to be a charitable trust, the ‘public’ referred to must be the local public — here, the public of New South Wales not the ‘public’ of Bhutan or Romania. These difficulties have been grappled with to some extent in England in Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners,491 and, in Australia, in Re Lowin492 and in Kytherian Association of Queensland v Sklavos.493 So far as the first difficulty is concerned, all that can be done is endeavour to administer the trust whilst retaining the capital in the local jurisdiction, although obviously this will not always be possible. So far as the second difficulty is concerned, it can be met to some extent by a recognition — for ‘no man is an island’ — that a trust to promote, say, music-writing in Romania is a benefit to those music-lovers in New South Wales who hear the result. Similarly, a trust for the relief of poverty in Bhutan fulfils the local sense of obligation to feed the world’s poor. But this type of reasoning does lead to the result that not all activities which would, if local, be charitable, would be charitable if conducted abroad. A trust for the Australian Army, for example, is a valid charitable trust: ‘the setting out of soldiers’ is a purpose specifically mentioned in the preamble to the Elizabethan Act. But a trust for the Iraqi Army would not be held to be a valid charitable trust. Analogous but not identical difficulties arose in Re Levy,494 when there was a bequest of a large estate to ‘the State of Israel for charitable purposes only’. The gift was held to be a valid charitable trust, but subject to the trustees of the estate settling a list of charities which would be charitable according to the law of Ontario and not offensive to public policy.

Charitable and Private Trusts Contrasted [10-60] A gift for charitable purposes is of a general or public nature even if given to a particular charity. Charitable trusts are treated by the law to some extent in exactly the same way as private trusts. For example, certainty as to the intention to declare a binding trust is as strictly insisted upon in charitable as in

private trusts. If there is a gift for legal and illegal purposes, the gift will be sustained in favour of the legal purposes if the purposes can be separated, otherwise not. Trusts for the accumulation of income are disregarded if the capital is vested in a charity, just as such accumulation is disregarded in the case of private trusts. In several ways, however, charitable trusts are specially favoured by the law. (1) Certainty of objects: To sustain a trust for charitable objects it is not essential that the settlor should have set out a specific object to be benefited provided it can be ascertained that the settlor had a general intention of charity. It must, of course, be quite certain that that intention existed (although under s 10 of the Charitable Trusts Act 1993 (NSW) that intention will be presumed). If no object is specified, the court will select one. Similarly, once property is impressed with a charitable trust, that trust is binding upon it in perpetuity. As a consequence of the application of the cy-près doctrine there is no resulting trust on the lapse of the particular charitable objects indicated by the settlor. [page 167] A related difference is that where a charitable trust is originally created in general or vague terms, the trustee may execute a more specific deed limiting the terms of the trust: see [10-68]. (2) Certainty as to property bound: Where a bequest was made for charitable purposes and also for an indefinite purpose which was not charitable and no apportionment was made by the settlor, so that the whole might be applied for either purpose, the legal rule was that the whole gift was void. In New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, legislation saves the charitable elements in some gifts of this nature.495 (3) Rule against perpetuities: As charities are almost invariably intended to be perpetual, the rule forbidding the perpetual duration of trusts has no application to them. The rule against remoteness of vesting is also relaxed in certain important respects. (4) Revenue law: Gifts to many forms of charities were exempt from gift and death and estate duties when they were levied, and the income of certain

charitable organisations is exempt from income tax. However, there is no special rule of construction by which revenue legislation should be construed in favour of the interests of those claiming exemption on the ground that a trust is arguably charitable.496 (5) Absolute gifts with directions as to disposal: In certain cases where there are absolute gifts of capital or income with specific directions as to their disposal, as, for example, a gift of $10,000 to a parish to build a church, and the purpose does not exhaust the amount of the gift, there is no resulting trust of the surplus to the settlor. Much, however, depends upon the form of the gift.

Certainty as to the Objects and Property Bound [10-61] Charitable trusts are not held void for uncertainty of objects if there is a clear indication of a general purpose of charity. In this respect, charitable trusts are treated more favourably by the law than private trusts. For example, a bequest to A upon trust to distribute it among such persons as he pleased would be void for uncertainty, but if the bequest were upon trust to distribute the fund among such charitable institutions as the trustee at his discretion should select, the trust would be good. It is not necessary for creators of trusts to specify the particular mode in which they wish their charitable intentions to be carried out, so long as their intention to give to charity is quite clear. The selection of the charitable objects may be left to the discretion of trustees or executors,497 or may be left to the appointment of a named person,498 or the testator may express an intention to give to charitable purposes to be named subsequently but neglect to specify any such purposes or to name anyone with power to specify them.499 In all these cases the charitable intentions of the testator will be given effect. The testator is said to exhibit a general intention of charity, and the rule to be applied was [page 168] defined by Lord Eldon in Mills v Farmer500 as follows: ‘In all cases in which the testator has expressed an intention to give to charitable purposes if that intention is declared absolutely, and nothing is left uncertain but the mode in

which it is to be carried into effect, the intention will be carried into execution by this court, which will then supply the mode, which alone is left deficient.’501 However, where there is a testamentary gift not by way of trust but direct to a named beneficiary who has ceased to exist and a general charitable intention is disclosed, the court has no jurisdiction and the subject matter must be administered in accordance with directions to be given under the royal prerogative.502 If it is clear from the terms of the will that the testator meant to make a gift for the purposes of charity, the court will give effect to that intention. For example, in Pocock v A-G,503 there was a bequest by codicil for various charitable purposes, and then a direction that the executors should give the residue to charitable institutions named by him in a future codicil, and ‘in default of any such gift’ to be distributed by the executors at their discretion. No subsequent codicil was made. It was held that there was a good charitable gift. Similarly, a bequest for certain charitable purposes mentioned by the testator and ‘other charitable purposes as I do intend to name hereafter’, none being named by the testator, is a good charitable bequest.504 The charitable intention is as clearly expressed by saying, ‘I give my property to charitable purposes’, as by saying, ‘I give my property to A for charitable purposes’.505 In Moggridge v Thackwell,506 there was a gift by will to such charitable purposes as V should appoint. V died before the will took effect but the trust for charity was held good notwithstanding the death of V. In Re Lea,507 a legacy ‘To General William Booth … for the spread of the Gospel’ was held to be a good charitable bequest, distributable at the discretion of General Booth of the Salvation Army. Evidence is admissible to remove the uncertainty where the testator’s description of the particular charitable object is imperfect.508 In Re Huxtable,509 a gift was given to C ‘for the charitable purposes agreed upon between us’. The gift was held to be good, and evidence was admitted as to what the purposes agreed upon were. Where the uncertainty as to the amount to be given arises from a previous gift being void, as a general rule a subsequent gift of the surplus to charity will nevertheless be good. A frequent case of this occurs where there is a gift to a trustee upon trust for the perpetual repair of a tomb, the surplus to be devoted to a charitable purpose. In such cases the whole goes to the charity, the bequest for the perpetual upkeep of a tomb being void.510

[page 169]

Trustee’s Discretion [10-62] Where a gift is given to trustees for charitable purposes at the discretion of the trustees, there is a good charitable trust. In Re Piercy,511 the gift was to ‘such charitable institutions and objects as my said trustees may determine’. In Crawford v Forshaw,512 the gift was in the words ‘the amount to remain at the disposal of my executors for distribution to such charities or charitable institutions as they approve of’. In Salusbury v Denton,513 a testator bequeathed a fund to his widow to apply part for charitable purposes and the remainder ‘to be at her disposal’ among the testator’s relatives as she should direct. She died without making any apportionment. The court held that the bequest was not void for uncertainty, but that half should be appropriated to charitable purposes and half to the testator’s relatives who were capable of taking within the Statutes of Distribution.

Mixed Charitable and Non-charitable Trusts [10-63] While, as has already been stated, a general trust for a charity can never be void for uncertainty (provided always that it be certain that the trust is for charitable purposes) this position does not necessarily obtain where the trust comprises non-charitable objects in addition to those which are charitable. In Hunter v A-G,514 Lord Davey divided cases of mixed charitable and noncharitable trusts into three categories. The first category comprises cases where charitable purposes are mixed up with other purposes of such a shadowy and indefinite nature that the court cannot execute them (such as ‘charitable or benevolent’ purposes, ‘charitable or philanthropic’ purposes or ‘charitable or pious’ purposes), or where the description includes purposes which may or may not be charitable (such as ‘undertakings of public utility’) and no discretion is vested in the trustees. In such cases (subject to certain statutory provisions in New South Wales, Queensland, Victoria, South Australia, Western Australia and Tasmania)515 the whole gift fails for uncertainty. There are a great number of cases which may be cited as illustrations.516 In Vezey v Jamson,517 the trust was to dispose of the

residue for such charitable or public purposes as the laws of the land would admit, or to any persons as the trustees in their discretion should think fit, or as they should think would have been agreeable to him, if living, and as the laws of the land did not prohibit. Sir John Leach VC said: ‘The testator has not fixed upon any part of this property a trust for a charitable use; and I cannot therefore devote any part of it to charity …. The necessary consequence is that the purposes of the trust being so general and undefined that they cannot be executed by this Court, they must fail altogether, and the next of kin become entitled to the property.’518 In Morice v Bishop of Durham,519 where a bequest was made to the bishop upon trust [page 170] for such ‘objects of benevolence and liberality’ as he should approve, Sir William Grant MR said: ‘The question is not whether the trustee may not apply it upon purposes strictly charitable, but whether he is bound so to apply it.’ It was held that the trustee could apply it for non-charitable purposes, and the bequest was held void for uncertainty. This type of case must be distinguished from that where the terms of the gift specify requirements which are intended to be cumulative, so that any object to be benefited must possess all the characteristics mentioned, as, for example, ‘charitable and benevolent institutions’, ‘charitable and pious uses’,520 ‘religious and benevolent purposes’,521 and ‘charitable and deserving objects’.522 Whether the words used create cumulative characteristics or cumulative classes of objects is a matter of construction. The word ‘and’ is not always construed conjunctively.523 For example, in Attorney-General of the Bahamas v Royal Trust Co,524 the Privy Council held that a trust for ‘any purposes conducted for and/or connected with the education and welfare of Bahamian children and young people’ was to be read disjunctively. The second category of cases comprises those in which the trustees have a discretion to apportion between charitable objects and definite and ascertainable non-charitable objects. In such a case the trustees cannot devote the whole of the property to non-charitable objects, and in default of any apportionment by them the court will divide the property between the objects charitable and non-charitable equally.525 For example, in Salusbury v Denton,526

there was a bequest of a fund to be at the disposal of the testator’s widow, by her will, therewith to apply a part to the foundation of a charity school or such other charitable endowment for the benefit of certain poor as she might prefer; and the remainder to be at her disposal among the testator’s relatives as she might direct. It was held that, although the fund was to be applied as to a part, without saying what part, for one set of objects and as to the remainder for another, and the widow died without exercising her power of determining the proportions in which each were to take, the bequest was not void for uncertainty, but the court would divide the fund in equal moieties, and give one moiety to charitable purposes and the other to the testator’s relatives. In extension of this principle it was established that, if the gift was for a charitable purpose and for a purpose indefinite and void, then, provided the gift was not in such a form as would permit the whole amount to be devoted to the indefinite purpose, the court would allocate half of the amount to the charitable purpose and only half the gift would fail. Likewise, if the gift is for several purposes, some valid and some invalid, the court will make an equal division in order to ascertain how much goes to the purposes which do not fail. In Hoare v Osborne,527 a fund was given upon trust out of the income thereof to keep in repair a monument in a church, a vault in the churchyard, and an ornamental window in the church. It was held that the trust for the repair of the vault was not charitable and was void, but that the trusts for the repair of the monument and window were valid as being charitable. The court directed the fund to be equally divided into three parts on the [page 171] ground that the nature of the gift made it impracticable to ascertain the proportions that would be required for the three objects respectively. In Re Clarke,528 Romer J applied this same principle where the non-charitable objects were indefinite, namely, ‘such other funds, charities and institutions as my executors in their absolute discretion shall think fit’, and divided the fund into four equal parts, the part affected by the trust quoted, being void, going to the next-of-kin.529 The third category of cases comprises those in which there is a general overriding trust for charitable purposes, but some of the particular purposes to

which the fund may be applied are not strictly charitable, or one of two alternative modes of application is invalid in law. In such cases the trust is good and the court will give effect to the general charitable trust, but the trustees are restricted from applying the fund to the purposes or in the manner which is objectionable. Re Hood530 is an illustration. In that case, there was a gift of a fund to be applied in spreading Christian principles and ‘in aiding all active steps to minimise and extinguish the drink traffic’. It was held that the terms of the gift showed that its main object was the advancement of Christian principles with a suggestion as to a particular method by which the advancement could be furthered and that method was subsidiary and ancillary. The whole gift was therefore good, being one for the advancement of Christian principles. It would appear that Congregational Union of New South Wales v Thistlethwayte531 is an example of the application of this principle. In that case, although the fundamental purpose of the Congregational Union was the advancement of religion, it had many subsidiary objects which were not charitable in the legal sense when regarded apart from the main object. It was held that gifts to be applied for the benefit of the Union were good, as the subsidiary objects could only validly be carried on in furtherance of the primary charitable object. Similarly, in Re De Vedas (decd),532 Wells J said: A court would, I think, shed its common sense if it were to hold that, just because a congregation, whose central purpose was manifestly the practice and strengthening of its religious rites and beliefs, had effected some transactions and undertaken some activities that were not, strictly speaking, religious, that congregation and its principal works must, ipso facto, be no longer categorized as wholly religious.

[10-64] From the foregoing it will be seen that the following types of trusts are valid: (1) Where the objects which may be benefited, at the discretion of the trustees, are described by two or more words, one of which specifies that the objects must be charitable and the other or others would embrace objects not charitable, but the context shows that the words are intended to be cumulative, as, for example, ‘charitable and benevolent objects’, which would be construed as benevolent objects which are charitable.533 (2) Where one part of a fund is given for charitable purposes and the other for non-charitable purposes of a definite534 or indefinite535 nature, and the trustees are given a power to apportion the fund in their discretion. Here the fund will vest in the objects equally, the portion vesting in the charitable objects being valid, provided the terms of the trust required that

portion be devoted to each object. [page 172] The following classes of trusts for mixed charitable and non-charitable purposes are invalid under the general law apart from statute: (1) Where property is directed to be held upon trust for charitable or noncharitable purposes indiscriminately, so that the trustees could, if they chose, apply the whole to non-charitable objects.536 This may occur in two ways: (a) Where the word ‘charitable’ is used with non-charitable words and the context shows that they are meant to be read disjunctively, for example, ‘charitable or benevolent’. (b) Where one word or phrase is used which could embrace objects both charitable and non-charitable, for example, ‘undertakings of public utility’, ‘good works’.537 (2) Where property is given upon trust to an institution, the primary object of which is charitable, or for an individual associated with charity, and words are added directing the property to be applied for purposes which could be non-charitable, for example, ‘to the vicar and churchwardens for parish work’.538 [10-65] The categories of mixed charitable and non-charitable gifts which are invalid according to the general law must now be considered in the light of the provisions of s 23 of the Charitable Trusts Act 1993 (NSW). This section materially provides as follows: 23. (1) A trust is not invalid merely because some non-charitable and invalid purpose as well as some charitable purpose is or could be taken to be included in any of the purposes to or for which an application of the trust property or of any part of it is directed or allowed by the trust. (2) Any such trust is to be construed and given effect to in the same manner in all respects as if no application of the trust property or of any part of it to or for any such non-charitable and invalid purpose had been or could be taken to have been so directed or allowed.

This section re-enacts s 37D of the Conveyancing Act 1919 (NSW). This was passed after a bequest of £100,000 was held void on the grounds that the gift ‘to such charities hospitals philanthropical institutions or objects free libraries or

mechanics’ institutes churches or any other objects of a like and similar nature in the State of Victoria as they shall in their absolute discretion deem fit’ was void for uncertainty.539 It was enacted in New South Wales following the suggestion of Long Innes CJ in Eq in Re Price.540 Similar suggestions have been made by judges in England.541 Most jurisdictions have similar legislation.542 In some respects a conflict of judicial opinion has developed, but certain points may be regarded as clear. In the first place, the section will not be applied to render charitable and valid a gift in vague and uncertain terms not disclosing any general intention of charity. Thus in Re Hollole,543 a case decided under the Victorian statute, where a testator had given his residuary estate ‘to my trustee and executor to be disposed of by him as he may deem best’, it was held that the section could not be applied, on the ground that the section has no application to ‘a trust [page 173] which is entirely undefined and uncertain as to subject matter’.544 Similarly, in Re White,545 it was held that the section did not save a gift of residue to the testator’s trustee ‘to dispose of the same as my trustee in his absolute discretion shall appoint or think fit’. Secondly, and at the opposite end of the scale, the section will be applied where the donor has stated separate and distinct objects so that by excising those which are non-charitable, definite charitable objects are left. In Re Griffiths,546 there was a gift of residue to trustees to be divided ‘three-fourths among my near relatives and one fourth amongst other persons and/or charitable institutions or organisations’. The gift of the one-fourth share would, under the general law, have been void for uncertainty, but the court applied the section so as to authorise striking out the non-charitable purposes, and the gift was then upheld as a gift to ‘charitable institutions and organisations’. In Re Bond,547 a legacy ‘to the blind and their children’ was construed as two independent gifts in undefined proportions, and the section was applied to strike off the invalid gift ‘to their children’, the whole legacy then being ‘for the blind’. In Re Thureau,548 the section was applied to a gift upon trust ‘for such charitable institutions or other public bodies’ as the trustees should declare. In Re Spehr,549 the section was applied to a trust to build monuments to the

testator’s parents and to beautify a lake (the latter, but not the former, being a charitable purpose). However, there are a large number of cases which do not fall within these two classes. These are trusts which, on the one hand, are not so vague that no purpose at all can be said to be designated but which, on the other hand, do not specify distinct and severable charitable and non-charitable purposes; they are trusts where the creator of the trust has used a composite expression which may comprehend purposes both charitable and non-charitable. One principle governing these cases seems to be clear; namely, that the section will not be applied to convert an invalid trust which the creator of the trust intended into something entirely different which the creator did not intend. This is shown by another Victorian case, Roman Catholic Archbishop of Melbourne v Lawlor.550 The trust was ‘to establish a Catholic daily newspaper … the income … to be used for Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand, to found the daily paper’. The gift to found a daily newspaper was held to be void as being non-charitable and the court would not invoke the section to limit the purpose to the founding of a Roman Catholic religious newspaper, which, presumably, would have been charitable. The principal gift having failed, the accessory intermediate charitable gift of income also failed. The decision in this case appears to remain good law. No later decision has thrown any doubt on it. The section cannot convert a predominantly non-charitable gift into a valid charitable gift. This point was made clear by the High Court in Downing v Federal Commissioner of Taxation.551 That case involved the trust of the residue of a deceased estate ‘for the amelioration of the condition of the dependants of any member or ex-member of Her Majesty’s naval, military or air forces of the Commonwealth’. The court held that the trust, properly construed, applied to poor dependants; but that, even if it did not so apply, it would be saved by s 131 of the Property Law Act 1958 (Vic). However, Walsh J, with whom the other members of the court agreed, observed:552 What I have said about s 131 does not mean that every gift for the purpose of providing benefits to members of a specified class of persons may be treated as capable of separation into a gift for

[page 174] the benefit of the poor members of that class and a gift for the benefit of those who are not poor.

It does not mean, as was suggested in argument, that a gift for the benefit of stockbrokers may be remoulded by means of s 131 into a valid charitable gift for the benefit of poor stockbrokers.

One must start with a gift which, while primarily charitable, also includes non-charitable elements. There was formerly a difference of approach between the courts of Victoria, on the one hand, and those of New South Wales and New Zealand, on the other hand. In Re Belcher,553 income from certain property was left to trustees ‘for the Navy League Sea Cadets Geelong Branch or any other youth welfare organisations …’ as the trustees should think fit. The gift to ‘youth welfare organisations’ was held to be invalid, and the court declined to apply the section to this portion of the gift so as to restrict it to those activities of youth welfare organisations which would be charitable in law, on the ground that the section applied ‘only where the testator has indicated a distinct and severable class of charitable objects’. The section was then applied to save the gift to the Sea Cadets. Fullagar J said, following certain dicta in Re Hollole:554 In the case supposed by the statute there is an invalidity which not merely arises from the uncertainty of the objects but can be saved by the possibility of a constructional severance of the charitable from the non-charitable trusts. It will, I think, apply only where the testator has expressly indicated a distinct and severable class of charitable objects as among the possible recipients of his bounty.555

A different view was taken in New South Wales. In Union Trustee Co of Australia Ltd v Church of England Property Trust,556 a gift of income to be applied ‘in such manner and for such purposes relating to the work of St John the Baptist Church of England … as the Rector and Church Wardens … in their absolute discretion think fit’ was upheld for the reason that ‘there does not appear to be any doubt that the mischief which [the section] was intended to remedy was that state of the law in relation to charities which defeated the intentions of testators not merely when there are enumerated charitable and non-charitable objects, but when the powers in one expression might be used for charitable or non-charitable objects at the discretion of the trustee’. Similarly, in Re Ashton,557 where there was a gift of residue ‘to the trustees of the Church of Christ, Wanganui, to help in any good work’, the New Zealand Court of Appeal, preferring the latter view, held that the gift was validated by the section, an application of which required that the gift be construed as a trust for charitable good works. [10-66] After the decision of the Privy Council in Leahy v A-G (NSW),558 the narrower Victorian view must be regarded as wrong. The true principle to be

applied is that suggested by the New South Wales and New Zealand cases, namely that the section will be applied where the gift is for a purpose described by a compendious expression which is apt to include both charitable and noncharitable purposes, provided that the expression used significantly indicates a charitable intention on the part of the testator.559 In Leahy v A-G (NSW),560 the compendious expressions used in the testator’s will were ‘Order of Nuns of the Catholic Church or the Christian Brothers’ in Clause 3 thereof and ‘Convents’ in Clause 5. There was no dispute that the phrase ‘Order of Nuns’ was not used in its strict canonical sense but included also [page 175] congregations of sisters and that some convents included contemplative orders whose members were not engaged in any activity recognised by the law as charitable. The trustees of the testator’s will had a discretion as to which Order of Nuns or Brothers was selected. Their Lordships said:561 Thus whether the gift be to Orders of Nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words ‘benevolent’ and ‘philanthropic’ has more than others disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts.

Some examples illustrate the application of the principles of Leahy’s case.562 In Re Tomkins,563 a bequest of a fund ‘for … church purposes’ was construed as comprehending both charitable and non-charitable purposes and was saved by the section. Similarly, in Re Gillespie,564 a gift of a share of residue ‘for the benefit of an ex-member or ex-members of the Australian Army, Naval or Air Forces to be selected by my trustee’ was upheld. The section will be applicable not only where there is an express trust for stated purposes but also where there is a gift simpliciter to a corporation. ‘I am unable to see any distinction for the present purpose between a gift to an institution for stated purposes, some only of which are charitable and a gift simpliciter to an institution having objects some only of which are charitable … a gift to a body is necessarily a gift to it for its permitted objects’, said Dean J, in

Re Lloyd,565 where the income of one share of residuary estate was bequeathed to ‘the Zelman Memorial Symphony Orchestra’. At the date of the testatrix’s death the orchestra had been incorporated. Dean J found that the institution’s objects were partly charitable and partly non-charitable, but that its main objects were wholly charitable. He applied the section to read it down as a trust for the charitable objects of the institution. In Re Inman,566 on the other hand, the court was concerned with a gift of a share of net annual income which was to be ‘paid and/or applied to and/or for the Anti-Vivisection Society’ at a named address. The society was an unincorporated body whose by-laws included the object: ‘to oppose vivisection absolutely and entirely and without attempt at compromise of any kind’. This object was never to be changed or departed from. Gowans J held that the section did not apply. It seems to be implicit in his Honour’s judgment that this was so because the objects of the society were either predominantly or substantially non-charitable. In Stratton v Simpson,567 an attempt was made to argue that s 102 of the Trustees Act 1962 (WA) should be read as applying only to trusts for purposes and not to trusts to distribute property among institutions. It met with no success. In In the Estate of Cole (decd),568 s 69A of the Trustee Act 1936 (SA) was used to confine a trust ‘to support Christian work activity projects or other recognised Welfare Programmes such as those organised under the Methodist Church of Australasia the Australian Council of Churches, the United Nations Organisation or their affiliates’ to such of the described purposes as were charitable.

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Schemes The Enforcement of Charitable Trusts [10-67] The court has a general controlling power over all charities.569 It has power, therefore, to enforce the performance of charitable trusts and to redress breaches of trust.570 Thus in Ex parte Greenhouse,571 a corporation which was a trustee of a charity committed a breach of trust by taking down a chapel, selling the materials, and leasing the ground to one of its members at an absurdly low rental. The court ordered the corporation to account for the moneys received and pay them over. It also ordered an inquiry as to the expense of restoring the chapel and burial ground. Where a fund has been given in trust for charitable purposes and devoted to charitable purposes, it cannot be resumed for private purposes, but must remain forever to be used for charitable purposes, even though the particular charitable purposes fail. In the famous Clifford’s Inn case, Smith v Kerr,572 where property had been conveyed for purposes of legal education nearly 300 years before and the educational functions had apparently ceased, those in whom the property was vested had treated it as their private property. Action was brought in 1901 and the trust for legal education was ordered to be carried out. In a claim by one charity against another, lapse of time is not necessarily a bar. In A-G v Christ’s Hospital,573 a charity which had become entitled to land through a devise from a purchaser of land belonging to another charity was ordered to reconvey the land after 150 years had elapsed, the purchaser and the devisee having had full notice that the sale had been made in breach of trust. It is a first principle applicable to charities that the intentions of the founder should be carried into effect so far as they are capable of being carried into effect in accordance with the law. There are numerous instances where the courts have given directions to enforce charitable trusts in accordance with the intentions of the original donor.574 It is the duty of the Crown, as parens patriae, to protect property devoted to

charitable purposes, and that duty is executed by the Attorney-General as the officer who represents the Crown for all forensic purposes.575 The AttorneyGeneral represents the beneficial interest; in other words, the object of the charity.576 As such, the Attorney-General may obtain any injunctive or other remedial relief to prevent any breach of trust by the trustees of a charitable trust.577 There is in Australian jurisdictions no administrative body comparable with the Charity Commissioners in England. Therefore, the Attorney-General is always a necessary party to legal proceedings connected with a gift to charity generally or for undefined charitable purposes, in other words, not to an already established institution.578 However, if the proceedings [page 177] concern a gift to a particular charitable institution, the Attorney-General is not a necessary party, unless, for example, questions are likely to arise as to the internal management of the institution. In that event, even if all the subscribers to a charitable fund are made plaintiffs, an action for the regulation of the charity is defective unless the Attorney-General is also a party.579 The Attorney-General is the proper person to commence proceedings to enforce a charitable trust. The Attorney-General may sue by information, either alone or on relation.580 When no trust is created and property is given to charity generally, that is, where no trustees are nominated and the charitable objects are not defined, it is the duty of the Crown to dispose of the property.581 Similarly, where a gift is given to a named beneficiary directly but that beneficiary has ceased to exist and a general charitable intention is disclosed, the subject matter must be administered by the Crown.582 Where a charitable body (whether incorporated or not) is seeking to recover property to which it claims to be entitled, or to protect property in which it claims an actual or contingent interest, that body is the proper plaintiff and the Attorney-General is not a necessary party.583 A dispute about which of two incorporated associations was the trustee and whether one of them should be removed was one in which only the Attorney-General had standing.584 Where a proposal is made to alter a charitable scheme or the powers of a charitable body, normally the Attorney-General is the proper party to represent the charity concerned and not the charitable institution itself. Where, however,

a question of construction arises, or where the proposal involves the rival rights of more than one charity, the charitable body or bodies concerned are necessary parties.585 While, in general, the only person who may enter a binding agreement for the alteration of a charitable body’s rights is the AttorneyGeneral,586 this proposition appears to have been misapplied by Kearney J in Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd.587 His Honour held that two charitable institutions which were the sole objects of a discretionary trust might not combine without joining the Attorney-General to put an end to the trust under the rule in Saunders v Vautier; but this was not varying or altering the rights of the charities so much as exercising them. An interesting example of the operation of these principles in relation to compromise of a probate suit is provided by Re King.588 The testator had died in confinement as a lunatic, leaving various testamentary instruments, some of which contained gifts, to charitable institutions. A compromise of a probate suit, involving a grant of probate of certain of the testamentary instruments, was agreed to by the Attorney-General in the absence of the charities. They had been cited but had not appeared. They were notified of the result and took no objection. In later proceedings in Chancery instituted by the trustees, Younger J held that the charities were bound by the compromise. However, it was not asserted that the Attorney-General had been a necessary party to the probate proceedings. It was implicit that the compromise would have [page 178] been effective if made by the charities themselves. Younger J589 adopted the following passage from the judgment of Sir John Romilly MR in Ware v Cumberlege:590 The general principle which regulates them I take to be something of this description: the Attorney-General represents all absent charities, and it is sufficient to have him here to represent all absent charities. But absent charities may obviously be of two different characters: they may either be under gifts to specified individual charities, or to charity generally. In case the gift is for charity generally, no one can represent it but the Attorney-General, and he must be here to represent such general charities. When there are specified individual charities, then the Attorney-General’s presence is not universally necessary; but it is required by the Court upon various occasions, as, for instance, where any rules are required for the regulation of the internal conduct of the charity itself, such as the establishment of a scheme and the like; there the Attorney-General is necessary for the purpose of aiding and assisting the Court in directing and sanctioning the general system and principle that ought to govern charities of those descriptions.

But there are other cases where there is no question as to the conduct or management of the charities, but only whether the charity is entitled to a particular legacy or not. In those cases, the Attorney-General is rather in the nature of a trustee for those charities, and the Court prefers having before it the charities beneficially interested, for the purpose of putting their interests before the Court in the light which they consider most favourable to them. In those cases I think it preferable that the charity itself should appear, rather than that the Attorney-General should represent it. This appears to me to be one of that latter class of cases, and therefore it would be better that the charity should appear. Having stated that as my general view of the case, it is very obvious, as counsel will see, that there may be mixed cases in which it is impossible to lay down a rule beforehand, and in which the Court must act on the matter before it in such manner as, according to the best exercise of its discretion and judgment, it may think best calculated to promote justice.

In Australia, an Attorney-General who seeks an interlocutory injunction to restrain the breach of a charitable trust, must give the court an undertaking as to damages. But in England, apparently, this need only be done if the Crown is asserting a contractual or proprietary right of its own.591 In several jurisdictions the position of the Attorney-General has been strengthened by statute. In New South Wales, a variety of powers have been given to the Attorney-General under Pt 2 of the Charitable Trusts Act 1993. These provisions merely spell out the powers which the Attorney-General has in any event. They do not give any powers of inspection and supervision, as does the Charities Act 1978 (Vic).

The Effectuation of Charitable Trusts by Schemes592 [10-68] One respect in which charitable trusts are treated more liberally than others arises where a charitable trust is originally created by donors in general or vague terms. It is open to the trustee to execute a more specific deed which limits the terms of the trust, provided it does not conflict with the terms on which the donors make their donations. The terms of the specific deed may be challenged by the Attorney-General, and possibly the donors.593 Failing that, in many cases it is necessary to effectuate a charitable trust by means of a scheme. Indeed, if it becomes necessary for a court to administer a charitable trust, the court usually does so by means of a scheme. The necessity for the scheme arises in a number of situations where the details of the trust either are not to be discovered by merely interpreting the trust instrument, or, if so discovered, cannot, for some reason, be effectuated.

[page 179] In order to understand this branch of the law of charitable trusts, it is necessary to appreciate three fundamental distinctions. The first, and most important, of these distinctions is the distinction between a general charitable intention and a merely particular charitable intention. In New South Wales, there is now a statutory presumption in favour of a general, rather than a particular, charitable intention.594 A merely particular charitable intention exists when the creator of a charitable trust displays an intention to benefit the particular charitable purpose designated in the trust instrument and none other; where, in other words, if it were not possible to apply the trust propert