TRUSTS FLOW CHART

1.

ET? s.53(1)(b) PLA must be in writing, signed by Trustee. Must be a clear intention to create a trust. NB: s.53(2) PLA: RTs and CTS do not have to be in writing

2.

RT? Did one party acquire property at the others expense? There must have been a direct financial contribution to the purchase of the property (Calverley v Green); Does the presumption of advancement apply?; OR Is there a contrary intention

3. CT? There are 4 possible types (i) CT from specifically enforceable contract (specific performance) (ii) Common intention CT (iii) Unconscionability CT

(i) Specific performance 1. Contract needs to have been valid and enforceable: a. Be in writing (s53(1) PLA); b. There is sufficient writing (ANZ v Windin): i. The relevant piece of land; ii. The parties who are part of the contract; iii. The relevant amount; and iv. It must be signed by the parties 2. The contract must have been breach (and unenforceable); and 3. There must be no bar to remedy

(i) Common intention CT? Did the parties have a common intention about the beneficial ownership of the property (Rasmussen); and The party claiming the beneficial interest acted to their detriment on the basis of the common intention (Rasmussen; Ogilive); and It would be unconscionable for the legal title holder to deny the interest (Ogilvie) Was there a reasonable expectation?

(ii) Unconscionability CT? 1. Is there a joint venture or polling of resources (Baumgartner); 2. The contributions must be made for the purpose of the joint venture; 3. The property was acquired for the purposes of the joint venture; and 4. It would be unconscionable for the legal owner to deny the beneficial interest of the other party May be difficult to establish if only non-financial contributions made

Is there an oral contract? Part Performance 1. Oral agreement or insufficient writing (ANZ v Windin); 2. Acts done in part performance must be in reliance of the contract or consistent with the contract or on encouragement of the grantor; 3. Unequivocal acts performed for the purpose of carrying out the agreement (Ogilvie); and 4. Other than the writing requirement the agreement is capable of specific performance (Mason v Clarke)

4.

Estoppel Did other party make a representation on which claimant relied to her detriment? Failure to inform claimant of situation where other person knows or ought to know there is reliance is enough (Waltons Stores) Object: to heal detriment, not to make good representation (Verwayen) Court should award minimum equity to do justice (Giumelli)