SketchNotes front cover-2 - Monash Law Students` Society


Monash Law Students’ Society
!
STUDENT TUTORIAL
PROGRAM 2015
Equity
SKETCH NOTES
!
!
!
!
!
DISCLAIMER – PLEASE READ BEFORE CONSULTING THESE
NOTES
!
1. The following SketchNotes have been prepared and provided by a law student
as a skeleton or sketch of the course material for this unit;
!
2. It is the responsibility of users to make note of any changes to course content;
!
3. SketchNotes may exclude some topics, cases and legislation and may therefore
be inconsistent with current Faculty of Law course content or recent
developments in the law;
!
4. Neither the Law Students' Society nor its sponsors endorse or take responsibility
for the quality or accuracy of these SketchNotes;
!
5. SketchNotes should not be solely relied upon;
!
6. SketchNotes are to provide users with a basis from which they can create
individual and extensive notes for their own assessments;
!
7. SketchNotes are not to be replicated, either in part or in full, during Faculty of
Law assessments for this unit;
!
8. SketchNotes are designed to be used as a teaching aid in the Student Tutorial
Program;
!
9. For copyright reasons, SketchNotes are not to be printed or altered by users;
!
10.It is against the Monash Law Students' Society's policy to provide further
materials to law students in relation to course content for this subject. Student
may not make any such request to the Monash Law Students' Society or it its
student tutors;
!
11.It is against the Monash Law Students’ Society’s policy for students to contact
tutors directly via email. Any requests for further assistance outside of tutorials
must be made to Pearl Jin at [email protected]. Questions regarding
course content should be made to the relevant Faculty lecturers or tutors;
!
12.The aim of the Student Tutorial Program is to facilitate collaborative learning
and increase student exposure to practice problems. It's role is not to
substitute Faculty teaching or provide a way for students to pass assessments
without engaging in course content;
!
13.If you have any questions, please do not hesitate to contact Pearl Jin at
[email protected]
!
!
!
Breach of Confidence
!
!The four elements are derived from Megarry’s statement in Coco v AN Clark.
!
1. The information must be sufficiently specific
- Not extremely wide (Ocular Sciences)
- Must be able to be specifically identified (O’Brien v Komesaroff)
- Can be non-commercial info, eg
- Genetic structure in wood (Franklin v Giddins)
- Info concerning the personal affairs and private life (Giller VSC decision per Gillard)
- Religious or social info (Foster & Ors v Mountford)
!
2. Information must be necessary quality of confidence
2a. Information must be sufficiently secret
- Not sufficiently secret if public knowledge or common knowledge (AFL v The Age)
- Generally, publishing something in widely circulated print media = public knowledge
(AFL)
- Info of a public profession is public (O’Brien)
- Religion by initiation meant info about the religion is secret (Foster v Mountford)
- Info generated on private property is not necessarily private/secret (ABC v Lenah)
- Merely expanding the circle of secrecy does not break the secret (AFL, Jane Doe)
2b. Secrecy of the info must be sufficiently valuable to be worth protecting
- Cf banal, completely standard info, nothing special or unique (ABC, Douglas per Lord
Walker)
- Where banal info is combined in a way that is a feat of human ingenuity, this is sufficiently
valuable (Talbot per Harris, Megarry in Coco)
- Interests that equity will respond to:
- Human ingenuity / profiting from fruits of ingenuity (Talbot)
- Dignity, freedom from humiliation, personal autonomy, control of personality (Giller,
Jane Doe, also of community Foster v Mountford)
- Commerciality of endeavor (Franklin v Giddens)
!
3. The circumstances of acquisition of the info impose a duty of confidence
- Two ways this is satisfied (Gummow in Smith Kline, approving Swinfen in Lord
Ashburton):
- ‘Confidential information improperly or surreptitiously obtained’
- ‘Information imparted in confidence’ – reasonable man realized on reasonable grounds
that info was being given in confidence (Megarry J in Coco) (eg security arrangements
Douglas cf Lenah)
- Special burden: business circumstances – info of commercial value given in business
circumstances, ‘heavy burden’ to prove it wasn’t acquired in circumstances imparting
obligation of confidentiality (Megarry J in Coco)
- Where it is clearly one of these (eg theft (Franklin v Giddens)), say that and move on.
- Where it is borderline:
- Where info is blurted out in public or communicated in circumstances which negative
!
!
duty of confidence, there is no duty of confidence owed (Megarry J in Coco)
- Where info is ‘wafted’ and someone finds it, and it is clearly confidential, this imposes
duty of confidence (Lord Goff in A-G v Guardian, approved by Gleeson in Lenah)
- Eg secret diary or confidential document, and obviously so, blown out a window
- Chain of transmission
- Along Ds – look and see the circumstances in which each D acquired the info
- Ps cannot transmit the duty of confidentiality owed to them (Douglas per Lord Walker)
!
4. Breach of duty
- Unauthorised use – so look to the scope of the authority/permission to use the info
- Relevant factors:
- Compulsory or voluntary disclosure:
!!
!!
!!
!
Fiduciary Relationships and Breach of Fiduciary Duty
!
!
Do you have a fiduciary relationship?
- Mason J definition from Hospital Products – fiduciary’s exercise of power or discretion can
affect dependent’s legal or practical interests
!
Assumed categories
- Trustee/beneficiary – fiduciary has control over the prop and owns it
- Director/company – dependent owns the property, director has physical ability to deal with
the prop
- Agents/principals
- Employees/employers – Nettle J says employment as an accepted category isn’t useful
because each employment situation is unique
- Partners to partners – mutuality of assets and mutuality of endeavor, each partner is
vulnerable to the exercise of the power of the other partners, all property is owned by the
partnership
- Can often analogise a joint venture to a partnership
- Solicitors/clients – Client actually acts, solicitor just provides advice, but recognises the
strong influence solicitor’s advice has over client, high vulnerability of the client, in reality
can’t step behind the advice
- NOT Doctors/patients:
- Health is not an interest equity responds to, we have negligence and contract for that
- Interests equity will respond to:
- Commercialisation of patient’s body (Gummow in Breen v Williams)
- Commercialisation of medical records (Gaudron, McHugh in Breen v Williams)
!
!
- Getting tests and treatment at a fair price (Dawson, Toohey in Breen v Williams)
- Receiving proper medical advice that is honest and reasonable (Dawson, Toohey in
Breen v Williams)
- Judges take divergent views (Gummow vs everyone else in Breen) on whether the
underlying dr/patient relationship is fiduciary, but the practical effect of both views is the
same – there needs to be additional circumstances that trigger equity’s intervention
- NOT Aus government to citizens re: foreign/public powers:
- Jurisdiction – no court has jurisdiction over Cth gvt’s exercise of foreign powers
- Cth’s did not have an interest in conflict with it’s duty to Habib
- The Cth, when exercising public powers, can’t bring itself into the private lives
!
!
Personal Remedies in Equity
!
Specific Performance
- Elements:
- 1. Inadequacy of CL damages / the legal remedy of damages
- 2. Breach (in equity)
- = Breach of contract or estoppel or if a land contract, part performance + oral
agreement
- 3. Does it require continued supervision or is it once and for all?
- Courts will not award specific performance where continued supervision is required
(Dixon J in JC Williamson).
- ie in specie specific performance is unavailable – specific performance can only be
used when it is to both settle/define the parties’ rights AND enforce them (not just
settle/define)
- 4. Must not be to enforce a services contract – must not amount to slavery (Dixon J in JC
Williamson)
- Common examples:
- Sale of land – damages usually inadequate because land usually unique
- Building contracts – damages usually adequate, also generally requires supervision of the
court
- Repairing covenants in leases – look at specific clause, damages might be adequate,
constant supervision might be required, might not be sufficiently specific
- Sale of goods – damages usually adequate
- Contracts to pay or lend money – damages usually adequate, unless it is virtually
impossible to calculate damages or where loan is part of a wider arrangement and has
flow-on consequences
- Personal service – usually akin to slavery
!
Injunction
- Elements:
- 1. Inadequacy of CL damages
- 2. Cause of action / serious question to be tried / ‘just’ = in accordance with legal rights
and duties (s37(1) Supreme Court Act)
!
!
- No cause of action = no injunction (eg ABC v Lenah), it is ‘axiomatic’ to have a cause
of action (Gaudron in Lenah)
- Unconscionability alone (ie no other cause of action) not sufficient (Gleeson Gaudron
Hayne Lenah)
- 3. Balance of convenience
- For interlocutory injunctions
- Basically, could we compensate if we got this wrong? What is practically more
convenient right now? (eg Aitkins v Cooper – custody of the dog)
- Breaks a legal tie
- Egs:
- Delivery up – mandatory injunction – eg Franklin v Giddins
- Foster v Mountford – aboriginal book case
- An injunction that amounts to indirect specific performance is NOT allowed (Lumley v
Wagner, Atlas Steel)
- Look for situations where P wants an injunction to enforce a negative covenant
- Lumley – obligation to not perform at another theatre – could perform overseas = NOT
indirect specific performance
- Cf Atlas Steel – obligation to not distribute through anyone else – couldn’t physically
move, only alternative was to cease trading altogether (but not commercially realistic) =
indirect spef perf = injunction not granted
Lord Cairns’ Act Damages (s38 Supreme Court Act)
- Elements:
- 1. Jurisdiction
- If specific performance/injunction is available at start of proceedings, there is
jurisdiction for LCA damages regardless of subsequent events that render
!!
Equitable Proprietary Remedies
!
Constructive Trust (CT)
- Disgorgement remedy, specific remedy (it has a subject matter)
- Eg Chan v Zacharia
- When it looks like wrongdoer is going to go insolvent, beneficiary gets to assert privileges
of ownership over the trust asset
- Where the asset has increased in value since the breach, ownership will give P access to the
value of the asset + windfall gain
!
Equitable Lien
- Security interest
- Need to specify a) what the debt is and how it arises and b) the proprietary interest that
gives rise to the right to a security interest
- Relevant in insolvency situations – if it looks like wrongdoer is going to go bankrupt and/or
other creditors are around, lien gives P priority access to relief
!
!
!
!
!
!
!
!
!
!
What is awarded when?
- 1. Misappropriation of fiduciary asset = CT
- 2. Misappropriation of fiduciary opportunity = CT (VUT, Warman)
- 3. Bribes
- Where fiduciary acquires an asset but if hadn’t engaged in wrongful conduct, would never
have left the hands of the third party
- ! We only really care where prop has increased in value. If it has gone down, go for
compensation.
- Grimaldi (Aus case on point) – CT is not automatically available, court needs to exercise
its discretion.
- Where there are 3P creditors, probably not available (protect creditors + don’t give
wrongdoing fiduciary access to future profits)
- Where there are no 3P creditors, then CT is available.
- If discretionary factors point away from CT being available, Giumelli (discussed in
Grimaldi) suggests EL is still available as a second-best option (but we don’t know if
Lister is more correct, that where no CT, you get nothing)
- Lister & Sinclair – because property was never on pathway to P, no CT available over
assets obtained through a bribe
- A-G HK – CT is available in bribe scenarios – probably sympathetic facts, policy
reasons strongly in favour of finding a CT
- Sinclair said to look to account of profits or extend equitable compensation doctrine –
NO – the whole point is that P never had/doesn’t get title to the bribe property!
!
Tracing
- Following = following equitable title as it passes from hand to hand
- Tracing = tracing equitable title into assets substituted for the property in which P has title
!
- When property is mixed with P’s property:
- 1. Brady v Stapleton principle – if items in the bundle are wasted, it is said that D’s items
are wasted first. If items are improved, P’s items are improved first.
- 2. Which situation do you have?
- A. Mixing two things to improve an existing tangible asset
- ! Equitable title is extinguished, all tracing and following end
- P should seek a monetary remedy (eg for equitable comp for dissipated asset or
AoP)
- P can get an equitable lien over the improved asset for the value of the monetary
remedy (Scott v Scott, Foskett)
- B. Mixing two things to create/acquire a new tangible asset
!
!
!
!
Assignment of Property Rights
!!
- Step 1: Is it a present property right or a future property right?
- X can only assign a property right they actually have, a future property right that doesn’t
current exist cannot be assigned (for no value)
- A present right that is temporally extended (eg royalty payments under a licence) can be
assigned (voluntarily) (Williams)
- Conflicting case law:
- Shepherd suggests it is a matter of wording, if you can describe the part of the
property right you wish to assign, you can assign i.
- Norman says you can only assign objectively legally recognised parts of the
property. EG next year’s undeclared dividends are not ‘part’ of a share.
!
- Step 2: Is value given?
- If future + value – title goes to promise as soon as promisor receives it (Tailby)
- Otherwise, no transfer - cannot transfer something you do not yet have for no value
(Williams, Norman, Shepherd)
- If present + no value, it is a voluntary assignment. Continue.
!
- Step 3: Is it legal property or equitable property?
- A. Assignment of legal property
- ! Has assignment been completed according to relevant transfer rules?
- Goods
- Delivery + intention to pass title
- Delivery = legally able to get custody (Thomas v Times Book)
- Where legal requirements for delivery not made out (eg cheque not
endorsed), no delivery (Jones v Lock)
- Constructive delivery is sufficient, past delivery is sufficient (Re Stoneham)
- Land
- 1. Execute a transfer document per statutory requirements
- 2. Produce duplicate certificate of title
- 3. File with Registrar and Registrar amends the register
- Shares
- 1. Produce share certificate
- 2. Give to Co Sec and Co Sec registers the change in share ownership
- Other legal choses in action s134 Property Law Act
- Assignment of a legal right to be paid (eg debt, bank account, life insurance
policy)
- 1. PLA only permits absolute assignment
- 2. Must be in writing (doesn’t matter what form)
- 3. Must be signed by assignor (! In exam speculate if signed)
!
!
!
!
!
- 4. Express notice must be given to third party (ie creditor) by SOMEONE
- Note: Assignment of a chose in action just transfers the chose in action
itself, not the status of someone who created it (Equuscorp) – so if the right
to be paid was illusory, the chose in action doesn’t actually exist and
assignee has nothing
- ! If not, has donor done all that they alone can do (Corin v Patton)?
- Griffiths in Anning, Windeyer in Norman, extension of Re Rose.
- If assignor has done everything necessary within their control to effect
transfer, but legal title hasn’t moved, equitable title will move.