Soton Equity and Trusts - alastairhudson.com

Ferguson, ‘Constructive trusts – a note of caution’ (1993) 109 LQR 114
Hayton, ‘Constructive trusts – a bold approach’ (1993) 109 LQR 485
Oakley Constructive Trusts (Sweet & Maxwell, 1997), 64-84
(Hudson, Swaps, restitution and trusts (1999), ch.12 - a place for common intention in
commercial transactions?)
6. Identifying an equitable interest: three alternative approaches.
6.1 The “balance sheet” approach
Reading: Hudson, section 15.5
Bernard v. Josephs [1982] Ch 391
**Springette v. Dafoe (1992) HLR 552; [1992] 2 FLR 388
**Huntingford v. Hobbs [1993] 1 FLR 936
6.2 The “family assets” approach
Reading: Hudson, section 15.6
**Hammond v. Mitchell [1991] 1 WLR 1127 (this case is well worth a read!)
**Midland Bank v. Cooke [1995] 4 All ER 562 (undertake a survey of the entire course of dealing):
[T]he duty of the judge is to undertake a survey of the whole course of dealing
between the parties relevant to their ownership and occupation of the property and
their sharing of its burdens and advantages. That scrutiny will not confine itself to the
limited range of acts of direct contribution of the sort that are needed to found a
beneficial interest in the first place. It will take into consideration all conduct which
throws light on the question what shares were intended. Only if that search proves
inconclusive does the court fall back on the maxim that ‘equality is equity’. (Waite
LJ)
6.3 The “unconscionability” approach
Reading: Hudson, section 15.8
6.3.1 The drift towards unconscionability
**Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P&CR 100
**Oxley v Hiscock [2004] 2 FLR 669, [2004] Fam Law 569, per Chadwick LJ:
‘… what the court is doing in cases of this nature, is to supply or impute a common
intention as to the parties’ respective shares (in circumstances in which there was in
fact no common intention) on the basis of that which, in the light of all the material
circumstances (including the acts and conduct of the parties after the acquisition) is
shown to be fair … and it may be more satisfactory to accept that there is no
difference in cases of this nature between constructive trust and proprietary
estoppel.’
Crossley v Crossley [2005] EWCA Civ 857
Tuner v Jacob [2006] EWHC 1317 (Ch)
6.3.2 Cases illustrating how Rosset did not apply
**Cox v Jones [2004] 3 FCR 693, [2004] EWHC 1486 (this case is well worth a read!)
Kean v McDonald [2006] All ER (D) 348
6.3.3 Traditional constructive trust models
Van Laetham v Brooker [2005] EWHC 1478 (Ch), [2006] 2 FLR 495
Oates v Stimson [2006] EWCA Civ 548
Cf. Australia
6.3.4 The tacit approval for this approach in Stack v Dowden
6.4 What can be included: deposits, discounts and washing-up
6.4.1 Long-term relationships
*Springette v. Dafoe (1992) HLR 552; [1992] 2 FLR 388
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