Improper Dealings with Trust Property [Change of Schedule to 2.30 pm - 4 pm]
posted by Faculty of Law for HKU and Public
Event Type: Public Lecture/Forum/Seminar/Workshop/Conference/Symposium
Event Nature: Law and Politics
[Change of Schedule to 2.30 pm - 4 pm]
You are cordially invited to a Private Law Research Group Seminar of the Faculty of Law, The University of Hong Kong on Tuesday, 13 March 2018 at Room 708 of the Faculty of Law from 12.30 - 2pm:
Speaker: Jessica Hudson, Senior Lecturer, UNSW Law School
Title: Improper Dealings with Trust Property
It is uncontroversial that a trustee can confer beneficial title on a third party to property held on express trust when the trustee has the power to do so. A concordant process is overreaching, whereby the trustee’s exercise of power also extinguishes the beneficiary’s existing title under the trust and any proprietary claim in respect of that property. The situation is different where a trustee appoints property in breach of trust, the beneficiary’s title under the trust may not have been overreached. Labels like ‘unauthorised’, ‘misapplied’ or ‘breach of trust’ have been used to identify when overreaching has not occurred and when the beneficiary’s proprietary claim is available. However this leads to analytical instability as it is unclear precisely when the beneficiary’s proprietary claim is (and is not) available. As Millett LJ stated in Armitage v Nurse, ‘[b]reaches of trust are of many different kinds’.
This paper examines the role of fraud on the power in defining the availability of the beneficiary’s proprietary claim. Drawing upon the case evidence, it will be argued that fraud on the power imposes a disability on the trustee. The power to overreach beneficial title can only be exercised for a proper purpose. Overreaching cannot occur when the donee of the power has an improper purpose, the consequence being that the beneficiary’s proprietary claim remains. These arguments contribute to a more precise definition of the elements of the beneficiary’s proprietary claim, and have broader theoretical implications in relation to multiple issues in trusts law and private law generally. These issues include the content of equitable proprietary rights arising under an express trust, and who can enforce those proprietary rights. Further, the doctrine of fraud on a power may have a continuing and unique role to play in regulating the exercise of equitable powers in trusts that confer broad discretionary powers on trustees, donees, and protectors/guardians.
Jessica Hudson is a Senior Lecturer at UNSW Law and researches in the areas of equity, trusts, restitution, unjust enrichment and corporations law. Current research interests include the relationship between equitable property and fraud on a power, and (jointly with Professor Simone Degeling) applied fiduciary theory in the context of different advice relationships, including financial advice and robo investment advice. Jessica teaches the core subject Equity & Trusts and the elective of Restitution. Before joining UNSW Law in 2014 as a Lecturer, Jessica was a solicitor at King & Wood Mallesons in Dispute Resolution, specialising in financial services litigation, acting for public and private companies, investment and retail banks in litigation and mediations. Previously, Jessica worked in Public M&A and Equity Capital Markets acting for publicly listed corporations, corporate advisers, and underwriters in public capital raisings and takeovers. Jessica worked as a Tipstaff to The Honourable Justice Julie Ward when Her Honour was a Judge in the Equity Division of the Supreme Court of New South Wales.
For inquiries, please email Coria Cheng at firstname.lastname@example.org
|Venue||Room 7.08, 7th Floor, Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong |
Registration is open from 01/03/2018 12:00(HKT) to 13/03/2018 12:00(HKT) on a first-come-first-served basis. The registration quota for this event is 20. Registrants will be placed on a waiting list if the registration quota is reached.
* Registration is now closed.
Should you have any enquiries, please feel free to contact Coria Cheng by email at email@example.com