recent developement 2013

Hunter v Moss - argument: similar to wills.
- Hayton's criticism: a will is different, the executor divest all of the legal and beneficial title. In a trust, the alleged settlor only creates an imperfect gift.
- Criticism 2: equity does not perfect an imperfect gift.
- Alternative approach: the court impose a constructive trust on M, M holds the trust for Hunter and himself, 50 of the shares are for Hunter and 900 shares for Moss himself, as tenants in common.
- This approach is approved by Pearson v Lehman Brothers Finance, White v Shortall

Grainage v Wilberforce
Nelson v Greening & Sykes - the trustee of the sub-trust never drops out of the picture. So 53(1)(c) should never apply in cases where a sub-trust is declared.

Standard of proof in the case of secret trust:
Re B (Children): there is only one civil standard of proof, and that is proof that the fact in issue more probably occurred than not.

Resulting trust -
s.199 Equality Act 2010 - the presumption of advancement is abolished
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Glister, J. ‘Section 199 of the Equality Act 2010’ 2010 73 MLR 807.
Although the presumption of resulting trust assumes that the recipient was not meant to receive the property beneficially, the presumption of advancement does not just assume that beneficial title was indeed intended to
pass—in fact it goes further and presumes that an outright gift was intended. This
means that, for example, both presumptions are rebutted by evidence that the donor
actually intended to make a loan to the recipient.

Sub-rule model
Maitland described the presumption of advancement as a ‘sub-rule’ of the general
presumption of resulting trust, by which he meant that the advancement
presumption was just one way of rebutting the overarching presumption of
resulting trust.
- fall to the donor to rebut the presumption of advancement, to show that they formed no intention to make a
gift to the recipient

Absence model
For Ashburner there should be no presumption of resulting trust at all in cases where a presumption of advancement applies.

Dullow v Dullow, Hope JA called the presumption of resulting trust
completely anachronistic and said that reform was overdue
This abolitionist view commands much judicial and academic
support,48 but in practice judges have not felt able to overthrow the presumptions.
Instead those presumptions have been described as entrenched ‘landmarks’ in the
law of property.49 It is therefore argued that in Australia the presumptions are

here to stay,50 at least for the moment, and so are still worthy of comment.

Standard of proof
in Pettitt v Pettitt, Lord Upjohn
commented that either presumption could be rebutted by comparatively slight
evidence.Court of Appeal case of McGrath v
Wallis confirmed, Laskar v Laskar seems to confirm that a presumption of advancement

between parent and child may be rebutted with slight evidence.

The three English cases all involved shared homes, and it could be
that the slight evidence requirement is actually a reflection of the general English
judicial dislike for both presumptions in shared home cases

Stack v Dowden: ‘in a case about beneficial ownership of a matrimonial or
quasi-matrimonial home (whether registered in the name of one or two legal
owners) the resulting trust should not in my opinion operate as a legal
presumption’.

More recent cases:
Damberg v Damberg (australia case), Lohia v Lohia (UK), Pecore v Pecore (Canada) : civil standard needed to rebut presumptions

Exactly what must the transferor prove?

what kind of trust?
Sub-rule model -
Absence model - express trust

p.15
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Re Buckinghamshire Constabulary Fund - when only one member left, the property was held on trust for the Brown bona vacantia

Hanchett‐Stamford v A‐G- Lewison J:  dissolution occurs by death of the members makes no difference to the destination of rights on dissolution

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Briggs, A. ‘Co‐ownership and equitable non sequitur’ (2012) 128
LQR 183.------------------------------------------------------------------------
Mee, J. ‘Ambulation, Severance, and the Common Intention
Constructive Trust’ (2012) 128 LQR 500.<-----------------------------------------------------------------------
Sinclair Investments v Versailles Trade Finance -
Facts: D is director of VGP and TGL. VGP is a public company, it fabricated large business transactions. TGL is an investment company, it transfer client's investment to VGP. Share price of VGP rose enormously. D sold part of his shareholdings in VGP.
Held: the receipt of a bribe does not normally give rise to a constructive trust.
A beneficiary will only have a personal claim against the fiduciary in respect of property which neither belonged to the beneficiary nor was acquired by taking advantage of an opportunity that rightfully belonged to the beneficiary. Thus a beneficiary can only claim the original value of any bribes taken by the fiduciary and not any subsequent additional profit.

Category 1: where the benefit is or was an asset belonging beneficially to the principal
(most obviously where the fiduciary has gained the benefit by
misappropriating or misapplying the principal's property)
Category 2: where the benefit has been obtained by the fiduciary by taking an advantage of an
opportunity which was properly that of the principal.
Category 3: all other cases

Category 1 & 2: constructive trust. Category 3: does not

Lister & co v Stubbs: 

FHR European Ventures LLP v Mankarious (2013) - Lister & Sinclair are both correct. Held: a secret commission obtained by a purchasing agent was held on constructive trust for the
principal.
Etherton C: this case is borderline between category 2 and 3.