Soton Equity and Trusts - alastairhudson.com

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A transfer to the existing members beneficially as an accretion to the association’s funds - Re Recher A transfer to the officers with a mandate to use it for particular purposes - Conservative Association v Burrell, per Brightman LJ Various analyses of transfer to unincorporated association Leading case exhibiting this analysis Abstract purpose trust “People trust” Gift passing “complete control” An accretion to funds Taking property as agent subject to mandate Leahy v Att- Gen NSW Re Denley Re Lipinski Re Recher Conservative Association v Burrell Valid or Void? Void Valid Valid Valid Valid Does the transfer retain control of money after transfer? Is it clear who owns property? Yes, but void Yes, but void Yes, because governed by trustee’s fiduciary duties Yes, held on trust No, because all title passes No, because governed only by terms of association’s constitution Yes No No Yes, because governed by agent’s fiduciary duties If there has been a transfer made for the benefit of an association and/or its members, then these are the analytical possibilities of that transfer. You should consider the facts of each transfer and decide which you consider to be the most appropriate analysis of the facts in front of you. (C) Winding up unincorporated associations Reading: Hudson, section 4.3.4 1) The problem of terminating unincorporated associations When an association is wound up, how is the property which is held connected to its purposes to be distributed: among the existing members, to identified persons only according to the association’s constitution, or to the Crown? 2) Terminating unincorporated associations & the division of property Re Sick and Funeral Society of St John’s Sunday School, Golcar [1973] Ch. 51 (per capita distribution among members at time of dissolution). *Re West Sussex Constabulary’s Widows, Children and Benevolent (1930) Fund Trust [1971] Ch. 1 (the old view – resulting trust). *Re Bucks Constabulary Fund (No 2) [1979] 1W.L.R. 936 (modern view: contract decisive) Re GKN Bolts & Nuts Ltd, etc. [1982] 1 WLR 774 (the broad sword of common sense) Westdeutsche Landesbank v Islington [1996] AC 669 (the bona vacantia principle) Air Jamaica v Charlton [1999] 1 WLR 1399 **Re Horley Town FC [2006] EWHC 2386 Hanchett-Stamford v Attorney-General [2008] EWHC 330 (Ch), [2008] 4 All ER 323 (if there was still one member left of a moribund association then the property attributed to that association would not pass bona vacantia to the Crown) (D) Is the beneficiary principle justifiable? 1) Problems of enforceability, uncertainty, perpetuity associated with private purpose trusts. 2) Other means of control: the striking down of capricious purposes. Brown v. Burdett (1882) 21 Ch. D. 667(a trust, requiring trustees to board up a house for twenty before transferring it to a named beneficiary, was held to be void by striking out the capricious 28
purpose of blocking the house up and instead allowing the named beneficiary to take the house during the twenty years.) 3) Challenges to beneficiary principle: is the beneficiary principle necessary for the modern trust? Reading: Hudson, paras 4.2.8 and 21.2.3 **Langbein, “The contractarian basis of the law of trusts” (1995) 105 Yale Law Journal 625. **Hayton, “Developing the obligation characteristic of the trust” (2001) 117 LQR 96. Hudson, section 21.2 4) A politics of trusts law Reading: Hudson, para 2.7.3 (a) The attitude to tax avoidance John Galsworthy, The Man of Property, (Book 1 of The Forsyte Saga, Vol 1 of The Forsyte Chronicles: originally published by William Heineman, 1906; republished in Penguin Classics, 2001), p.12: ‘… no Forsyte had as yet died; they did not die; death being contrary to their principles, they took precautions against it, the instinctive precautions of highly vitalized persons who resent encroachments on their property.’ (b) Asset protection trusts and tax havens Alastair Hudson, “Asset Protection Trusts”, in International Trusts Law, ed. D Hayton (Jordans, 2011), Chapter 6. Jurisdictions without the beneficiary principle as part of their trusts law: this enables investment of one’s assets without ownership for tax purposes. The use of “protector” or “enforcer” in place of the beneficiary. Organisation for Economic Co-operation and Development (“OECD”) used four criteria to identify a “tax haven” (Towards Global Tax Co-operation 2010, OECD Publishing, 2010): o Levying of no taxes or only nominal taxes. o A lack of transparency so as to prevent the open and consistent implementation of tax laws and the preparation of appropriate accounting information. o The absence of laws or administrative practices which prevent the giving of relevant information to other governments or supra-national bodies. o The absence of any substantial activities being carried on in the tax haven itself by entities which have the protection of that jurisdiction’s laws. The problem of the “limping trust”. (c) The impact of international investment trusts on real people: the ethics of international trusts law Ashley Seager and James Lewis, ‘How top London law firms help vulture funds devour their prey’, The Guardian, 17 October 2007. ‘Make UK more like a tax haven – Tory treasurer’, front page – The Guardian, 21 September 2012 29
Page 1 and 2: University of Southampton Law Schoo
Page 3 and 4: Lay-out of materials These “Lectu
Page 5 and 6: Formative assessment - (i.e. non-as
Page 7 and 8: How to study for this module 1. Uni
Page 9 and 10: Common law and equity were always d
Page 11 and 12: (E) The rudiments of express trusts
Page 13 and 14: Lord Browne-Wilkinson in Westdeutsc
Page 15 and 16: (2) Trusts as opposed to merely mor
Page 17 and 18: (3) after all valid claims in (2) h
Page 19 and 20: Topic 2. CERTAINTY OF OBJECTS Readi
Page 21 and 22: 10) Mechanisms for eluding the “a
Page 23 and 24: Topic 3. THE BENEFICIARY PRINCIPLE
Page 25 and 26: (C) Alternative interpretations of
Page 27: **Leahy v. Att.-Gen. for New South
Page 31 and 32: Topic 4. THE CONSTITUTION OF TRUSTS
Page 33 and 34: Richards v. Delbridge (1874) L.R. 1
Page 35 and 36: *s. 53 (1) (b): "A declaration of t
Page 37 and 38: Topic 5. THE DUTIES OF TRUSTEES & B
Page 39 and 40: [Considered in detail in relation t
Page 41 and 42: (a) to any special knowledge or exp
Page 43 and 44: ule does not afford the right to th
Page 45 and 46: Burrell v Burrell [2005] EWHC 245,
Page 47 and 48: (F) Judicial control of trustees’
Page 49 and 50: 1) Specific Restitution Harris v Ke
Page 51 and 52: EQUITY & TRUSTS PART II TRUSTS IMPL
Page 53 and 54: Topic 6. RESULTING AND QUISTCLOSE T
Page 55 and 56: (b) (c) father and child Bennet v.
Page 57 and 58: II. QUISTCLOSE TRUSTS Reading: Huds
Page 59 and 60: e. … other commercial-contract la
Page 61 and 62: (c) The nature of the constructive
Page 63 and 64: (b) where the company is a public c
Page 65 and 66: 6) Profits from theft Reading: Huds
Page 67 and 68: Topic 8. TRUSTS OF HOMES General Re
Page 69 and 70: (5) Each case will turn on its own
Page 71 and 72: Ferguson, ‘Constructive trusts -
Page 73 and 74: *Pascoe v. Turner [1979] 2 All ER 9
Page 75 and 76: inging up the children is no doubt
Page 77 and 78: first sight this may seem surprisin
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(ii) Cases looking to the character
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*Niru Battery Manufacturing Co v Mi
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Hudson, 20.5.2. Hudson, Securities
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C. EQUITABLE TRACING Reading: Hudso
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D. REMEDIES AFTER TRACING Reading:
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e) Is change of position now equita
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2) The four heads of charity in Pem
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(c) (d) (e) Gifts for relief of dis
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(D) Advancement of education. Readi
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(H) Requirement of the exclusivity
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THEORETICAL PERSPECTIVES ON EQUITY
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Polly Peck International v Nadir (N
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Concepts Contract Torts Property Fi
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of what has been called unjust enri
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actions, then the claimant should b
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o Recovery of an enrichment will no
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£200,000 on Static plc shares whic
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