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The subject will enable students to develop a broad and critical understanding of the law of trusts. We will consider what a trust is and what functions it performs in modern Australian society. We will examine in detail the rules and principles governing the validity of express trusts, exploring the relationships between trust and contract and trust and debt along the way. We will also consider trusts for charitable and non-charitable purposes, asking whether the law relating to charitable trusts is in need of reform. We will look at trustees’ duties, including the duty of trusteeship itself, fiduciary duties and duties relating to the investment of trust assets. We will consider resulting and constructive trusts, before finally exploring remedies for breach of trust, including personal remedies against a defaulting trustee or a third party, and remedies that arise when misapplied trust assets may be traced into a defendant’s hands and made the subject of a proprietary claim.
Trusts builds on the foundational knowledge of trusts that students will have acquired from the compulsory subject Obligations. The subject emphasises contemporary applications of the rules, principles and remedies surrounding the trust. It also explores issues in contemporary trusts law that are presently unresolved and the subject of contention.
Intended learning outcomes
A student who has completed Trusts should have an advanced, integrated and comparative knowledge of the law of trusts. In particular, such a student will be able to:
- Demonstrate an integrated understanding of conceptual issues and debates in modern trusts law, including: whether the trust is best conceived as property or obligation; the extent to which the law of trusts overlaps with the law of unjust enrichment; and the character of resulting and constructive trusts;
- Demonstrate a sophisticated appreciation of, and ability to engage in, the complex policy and practical debates surrounding modern trusts law, on topics such as: the proprietary consequences of trusts on insolvency; the proper relationship of the law of trusts and statutory law; and purpose trusts, especially those for charitable purposes;
- Demonstrate a high-level capacity to critically and independently evaluate a range of propositions and arguments about conceptual and policy dimensions of modern trusts law;
- Demonstrate a high-level capacity to critically and independently evaluate responses to issues in modern trusts law in different jurisdictions from a comparative perspective;
- Locate and understand the significance of the place of trusts law within the private law as a whole; and
- Use effective written communication skills in structuring and presenting relevant analysis, argument and conclusions.
On completion of the subject, students should have developed their skills in the following areas:
- Specialist understanding, interpretation, critical reflection, synthesis and comparison of judicial decisions, statutory provisions, and other primary source materials, on modern trusts law;
- Interpretation, critical reflection, synthesis and comparison of academic literature on modern trusts law; and
- Generating and evaluating proposals for the reform of Australian trusts law having regard to international experience and academic writings.
Last updated: 2 December 2019