Discuss the role of equity in commercial life under Australian law

Equity and Trusts Research Essay (2,500 words)

Before getting started, please be noted that ALL of your work has to be based on AUSTRALIAN sources and authorities (see Research and Referencing). If you have not complied with any of my instructions provided below, I will have to ask you to edit the essay. (For your information, this has happened quite often and I had to ask the writer to edit more than four times in one instance). Thank you for taking my work and I look forward to your awesome work.

The Research Essay provides an opportunity to examine more deeply some of the challenging and fascinating aspects of equity and to develop formal legal writing skills. These writing skills are essential tools of a lawyer: making submissions to court or writing about the law requires accurate research skills and a high level of written communication skills.

Aim of Research Essay: The aim of the exercise is to attempt to write an article to submit to a refereed legal journal such as the Australian Law Journal, or the Journal of Equity. You should assume that you are writing to qualified lawyers, but lawyers who may not be experts in equity.

Assessment Criteria: Markers of the research essays will be looking for evidence that you:
• _use the Introduction to set out the argument to be developed (not just to repeat the question);
• _understand the relevant law and can apply it to the particular question the subject of the essay;
• _have developed his or her own argument through the essay;
• _can write with appropriate use of legal conventions, and in an appropriate academic style.
• _address all the main aspects of and clearly answer the question;
• _can use correct grammar, punctuation and spelling;

• _structure and organise the essay in a way that is easy for the reader to follow (the use of headings and sub-headings is encouraged);

• _demonstrate a critically reflective and insightful approach to the issues raised by the question;

• _display evidence of your research skills, using a variety of appropriate sources (i.e., scholarly writing and case law, including a full bibliography attached to the essay) and evidence that the research is current (not merely drawn from a textbook without checking to see if it remains current law); and

• _finish the essay with a conclusion that draws together the argument which has been developed through the essay in answer to the question.

Research and Referencing: Research skills are central to this assessment task. If you are not confident of your research skills, the following is a list of basic steps to take in addressing any research question in Equity and Trusts.

1. Consult texts: Read a couple of authoritative general texts on the particular doctrine, case or issue, such as Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 4th ed, 2002) for a general understanding of the issues covered in the question. Check the library catalogue to see if there are any specialist texts on that topic area or question. Most relevant texts are easily obtainable from our library. The purpose of the texts is to provide a better understanding of a topic or issue, to illustrate the arguments which are made by other academics and to act as a stimulus for ideas and research. It is important to use texts as a resource for deeper understanding of an issue and not to refer to passages from texts as statements of fact.
2. Cases: Do a subject and/or case search in case citators and search engines such as Austlii, CASEBASE, Firstpoint, or JADE for the particular topic to find relevant cases. Get copies of important judgments in the area and read them. Read the search results and also consider the more recent cases which have applied the key cases.

3. Journals: Check the CASEBASE and First point search results obtained for relevant cases for journal articles which discuss those key cases. Then do a further search for relevant journal articles in our library and online in AGIST, Westlaw, HeinOnline. Do not cite journal articles in your essay unless they are in peer-reviewed journals such as the Journal of Equity, Law Quarterly Review, or Melbourne University Law Review etc.
4. DO NOT refer to student texts, nutshell books, solicitor firm websites or blogs in a research essay.
5. Quotations and referencing: Quotations from texts, journals and cases should be kept to a minimum and must be properly referenced. Uncritical or improperly referenced use of text from books, journals or cases will be obvious to the marker and will detract from your work.

6. Footnotes: Every time reference is made to a text or judgment, a footnote which contains the complete citation for a text or full citation to the authorised or best report for a case, or a reference back to a previous footnote containing that reference is required, together with a pinpoint reference to the relevant page or paragraph. You must follow the Australian Legal Guide to Citation (3rd ed) conventions for referencing in footnotes.

Word Count: You must display an accurate word count on the title page of the assignment; approximate counts will not be accepted. Students will be allowed a 10% leeway either side of 2,500 words. Students who exceed the upper word limit may be penalised. Word limits do not include footnotes or the bibliography. Footnotes and bibliography are assessable components of the assignment.


Presentation: Assignments must:
– be typed in 12 point Arial font.
– have adequately spaced paragraphs and numbered pages


Research Essay Topics
Students must choose one of the two available essay topics below:



In its discussion of accessory liability under the second limb of Barnes v Addy (1874) LR 9 Ch App 244, the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 affirmed and clarified a test based on knowledge and left for another day the question as to whether accessory liability under the second limb of Barnes v Addy should be reformulated on the basis of dishonesty as applied by the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378.


Discuss and compare the two different approaches to determining accessory liability under English law and Australian law respectively. In your discussion, consider also the extent to which if at all, each approach may result in a different outcome. Your answer should assess the advantages and disadvantages of each of them together with the approach which you favour and the reasons for that conclusion.


In an address to a Commercial Law Conference, reported in (2002) 23 Aust Bar Rev 24, Hayne J observed:

Sir Peter Millett (now Lord Millett) identified three reasons for concluding that ‘Equity’s place in the law of commerce, long resisted by commercial lawyers, can no longer be denied’. First, there is the increasing complexity and professionalisation of commercial life and the fact that on each side of a commercial transaction there will very likely be relationships of trust and confidence. Secondly, he considered that ‘there has never been a greater need to impose on those who engage in commerce the high standards of conduct which equity demands’ — loyalty, fidelity, integrity, respect for confidentiality, and the disinterested discharge of obligations of trust and confidence. The third factor he identified was the profession’s discovery of the apparent advantages of alleging breaches of trust or fiduciary duty with the result that a statement of claim was to be considered seriously deficient if it did not contain reference to those concepts.

Discuss the role of equity in commercial life under Australian law.


Topic 1: Introduction to Equity / History and Nature of Equity
Prescribed Reading:
Radan & Stewart (2014): Ch 1-3
Harris v Digital Pulse (2003) 56 NSWLR 298

Topic 2: Undue Influence/ Unconscionable Transactions
Prescribed Reading:
Radan & Stewart (2014): Ch 10, 11
Louth v Diprose (1992) 175 CLR 621
Johnson v Buttress (1936) 56 CLR 113

Topic 3: Introduction to Estoppel / Proprietary Estoppel
Prescribed Reading:
Radan & Stewart (2014): Ch 12
Sidhu v Van Dyke (2014) 251 CLR 505
Delaforce v Simpson-Cook (2010) 78 NSWLR 483

Topic 4: Promissory Estoppel
Prescribed Reading:
Radan & Stewart (2014): Ch 12
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Saleh v Romanous (2010) 79 NSWLR 453

Topic 5: Nature of Equitable Interests in Property
Prescribed Reading:
Radan & Stewart (2014): Ch 4
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Latec Investments Ptd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265

Topic 6: Assignment of Property I (Methodology of an Assignment Problem and Future Property)
Prescribed Reading:
Radan & Stewart (2014): Ch 5
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9

Topic 7: Assignment of Property II (Failed assignment of legal property
Prescribed Reading:
Radan & Stewart (2014): Ch 5
Corin v Patton (1990) 169 CLR 540

Topic 8: Assignment of Property III (Equitable Assignment of Equitable Property)
Prescribed Reading:
Radan & Stewart (2014): Ch 5
Grey v Inland Revenue Commissioners [1960] AC 1

Topic 9: Fiduciary Obligations
Prescribed Reading:
Radan & Stewart (2014): Ch 9
Boardman v Phipps [1967] 2 AC 46
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

Topic 10: Accessorial Liability for Breach of Fiduciary Duty or Trust
Prescribed Reading:
Radan & Stewart (2014): Ch 28 pp 677-691
Barnes v Addy (1874) LR 9 Ch App 244
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Topic 11: Tracing and Account of Profits
Prescribed Reading:
Radan & Stewart (2014): Ch 29 (Tracing), Ch 30 pp 730-733 (Account of Profits)
Re Hallett’s Estate (1880) 13 Ch D 686

Topic 12: Equitable Compensation
Prescribed Reading:
Radan & Stewart (2014): Ch 26 pp 616-626.
Nocton v Lord Ashburton [1914] AC 932
Youyang v Minter Ellison Morris Fletcher (2003) 212 CLR 484

Topic 13: Constructive Trusts
Prescribed Reading:
Radan & Stewart (2014): Ch 28 pp 649-676, 691-708.
Muschinski v Dodds (1985) 160 CLR 583

Topic 14: Resulting Trusts
Prescribed Reading:
Radan & Stewart (2014): Ch 19
Nelson v Nelson (1995) 184 CLR 538

Topic 15: Express Trusts
Prescribed Reading:
Radan & Stewart (2014): Ch 15-17
Byrnes v Kendle (2011) 243 CLR 253

Topic 16: Nature of Trustee’s Duties and Powers, Rights and Liabilities; Rights of Beneficiaries
Prescribed Reading:
Radan & Stewart (2014): Ch 20, 21
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Re Diplock [1948] Ch 465