equitable assignment australia

Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

• Programs and Courses

Equity and Trusts

An undergraduate course offered by the ANU Law School .

• Code LAWS2205
• Unit Value 6 units
• Offered by ANU Law School
• ANU College ANU College of Law
• Course subject Laws
• Areas of interest Law
• Academic career UGRD
• Prof Pauline Ridge
• Mode of delivery Online or In Person
• Offered in Second Semester 2021 See Future Offerings

• Introduction

Learning Outcomes

Indicative assessment, inherent requirements, requisite and incompatibility, prescribed texts, preliminary reading, assumed knowledge, other information.

• Offerings and Dates

The objective of the course is to provide students with an overall understanding of the law of equity with special emphasis on fiduciary obligations, trusts, equitable assignment of propoerty and equitable remedies.  The course will consider the history of equity, basic principles which dominate its jurisprudence and the relevance of equity today; the nature of fiduciary obligations, recognised categories of fiduciaries and the extension of these categories in recent times, breach of fudiciary obligations, defences and remedies for the breach of fiduciary obligations; the requirements for express trusts, the liability of a third party to a breach of trust or fiduciary duty, and the remedies for breach of trust and fiduciary duty, including tracing.  The course then shifts its focus to equity more generally by considering the equitable rules for assignment of property and the remedies of specific performance and injunctions.

Upon successful completion, students will have the knowledge and skills to:

• Explain and apply to a factual problem the law relating to fiduciary obligations, trusts (including express, resulting and constructive trusts), equitable remedies, tracing and equitable assignment. Such discussion should note any unresolved or ambiguous questions of law and propose a reasoned answer to the problem that acknowledges strengths and weaknesses of the arguments made;
• Analyse and predict how unresolved or ambiguous questions of equitable doctrine could be resolved by the courts;
• Describe and evaluate fundamental themes underlying and connecting the specific doctrines covered, including the relationship of equity to other parts of the law.

This course assumes a knowledge of contract, property and legal history. The subject reinforces and deepens understanding of specific doctrines referred to in other courses such as Contracts, Property, Corporations Law and Family Law.

• The assessment for this course will include a compulsory mid-semester component (format TBA) [25%], a compulsory, end of semester formal exam [65%] and a compulsory tutorial participation component [10%]. The indicated mark allocations are based upon the 2013 assessment scheme and are subject to change. (25) [LO null]

The ANU uses Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. While the use of Turnitin is not mandatory, the ANU highly recommends Turnitin is used by both teaching staff and students. For additional information regarding Turnitin please visit the ANU Online website.

Not applicable

G E Dal Pont,  Equity and Trusts: Commentary and Materials , ( Lawbook Co). The current edition of this casebook as at June of the year that the course is taught will be prescribed. If in doubt, check with the course convenor.

Students must rely on the approved Class Summary which will be posted to the Programs and Courses site approximately 2 weeks prior to the commencement of the course.

The course assumes knowledge of contract, property and legal history. The subject reinforces and deepens understanding of doctrines referred to in other courses such as Contract, Property, Corporations Law, Restitution Law and Family Law.

Tuition fees are for the academic year indicated at the top of the page.  

Commonwealth Support (CSP) Students If you have been offered a Commonwealth supported place, your fees are set by the Australian Government for each course. At ANU 1 EFTSL is 48 units (normally 8 x 6-unit courses). More information about your student contribution amount for each course at Fees . 

If you are a domestic graduate coursework student with a Domestic Tuition Fee (DTF) place  or international student you will be required to pay course tuition fees (see below). Course tuition fees are indexed annually. Further information for domestic and international students about tuition and other fees can be found at  Fees .

Where there is a unit range displayed for this course, not all unit options below may be available.

Course fees

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Second Semester

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Equitable Assignment: The question is how the parties viewed the transaction not how the transaction was recorded

Business Finance Pty Ltd (receiver and manager appointed) v Partner Invest Pty Ltd (in liquidation) [2022] NSWSC 1 was a dispute between the external administrators of the plaintiff and defendant companies. Marcus Ayres was the appointed receiver and manager of Business Finance Pty Ltd ( Business Finance ) and Andrew Sallway was the liquidator of Partner Invest Pty Ltd ( Partner Invest ).

In a transaction that occurred before the external administrators were appointed, there was a question as to whether Partner Invest had assigned its rights as a lender, mortgagee, and secured party in a particular loan to Business Finance as an equitable assignment for value.

These two companies were related and shared a common director, Frankie McDad. At the time of the loan, Partner Invest was wholly owned by McDad, who was the sole director. In September 2016, Business Finance was incorporated and wholly owned by Partner Invest. The primary business of both companies was to raise funds from private investors to use in providing non-bank business loans which were secured by mortgages, caveats, general security agreements, and personal guarantees. Business Finance and Partner Invest executed an Administrative Services Agreement on 28 September 2016, and accordingly, Partner Invest was involved in administering Business Finance’s loans.

The loan that was the subject of the case was to JML Property Group ( JML ). In 2017, JML borrowed funds from Partner Invest for the purposes of constructing two townhouses and to purchase a sand quarry (the JML Loan ). The security of the loan was first-ranking mortgages in favour of Partner Invest over properties in Kangaroo Flat, Bendigo, and Golden Square. Personal guarantees were also provided by the family members of the sole director and shareholder of JML and further, a security interest was granted by JML over all present and after-acquired property.

In the lead up to settlement, Business Finance transferred $830,000 from their operating account to Partner Invest’s solicitors trust account with the description ‘Buy Loan 652’. These funds were recorded in the trust account statement as received from Partner invest and described as ‘Mortgage – Advance from Partner Invest to JML’.

Intercompany Transfers

As the companies were related, other intercompany transfers did take place. From 27 October 2016, funds were credited to Business Finance’s account from Partner Invest. Mr Sallway reconstructed Partner Invest’s trust accounts, which revealed that at the time of the JML Loan, Business Finance had received $2.7 million from Partner Invest. By August 2018, Partner Invest had transferred $4.25 million and emails from McDad indicated the purpose was to sponsor equity to boost Business Finance’s loan book amount to $34 million.

Equitable Assignment

Mr Ayers submitted on behalf of Business Finance that the JML loan had been equitably assigned by Partner Invest, by reason of the $830,000 transfer from Business Finance. Mr Sallway however, put forward that Mr Ayers evidence was miscellaneous, unsigned correspondence that had been cobbled together.

There was no record of an agreement to assign the loan or show any intention to assign or transfer the JML Loan to Business Finance. However, the records kept by Business Finance and Partner Invest, as noted a number of times by Her Honour, were poor and incomplete. Further, the records kept by Partner Invest’s solicitors were ‘something of a mess.’ [1]

As a purported assignment in equity, the transaction should take the form of and be intended as an immediate transfer of the beneficial interest, distinct from an agreement to assign it. [2] Except where writing is required by the Statute of Frauds , no formality is necessary beyond a clear expression of an intention to make an immediate disposition. The JML Loan is an interest in land, so section 53 of the Property Law Act 1958 (Vic) and section 126 of the Instruments Act 1958 (Vic) were relevant. Section 126 states that an agreement can be evidenced by a memorandum or note of the agreement so long as it is signed by the person to be charged.

In considering the existence of an equitable assignment, Justice Rees asked two questions:

• Was there a manifestation by Partner Invest of an intention to transfer the equitable interest in the JML Loan and associated security to Business Finance in a manner binding upon itself?
• Was there a clear expression of an intention to make an immediate disposition?

Based on the transaction documents, Her Honour considered that Partner Invest intended to immediately sell and Business Finance intended to immediately buy the JML loan and associated securities. Although the documents were executed by Partner Invest as lender and mortgagee, when the time came to complete the transaction it was apparent that the loan would be a Business Finance loan and would form part of its portfolio. Partner Invest wanted to support the establishment of Business Finance’s portfolio of loans, which is evidenced by providing funds to Business Finance and transferring loans as sponsor equity.

Justice Rees was less interested in how the companies and Partner Invest’s solicitors recorded the transactions and considered how the parties to the transaction viewed the matter. By doing so, her Honour ordered that on 2 January 2018, by equitable assignment for value, Partner Invest had assigned to Business Finance all of its rights as the lender under the JML Loan. As a result, Business Finance holds an equitable mortgage over the Kangaroo Flat and Bendigo properties and a charge over the property subject to the PPSR.

Key Takeaway

The existence of an equitable assignment for value does not necessarily turn on how the documents record the transaction. Instead, it is important how the parties to the transaction view the matter and whether they would consider that the transfer was for an equitable interest and for immediate disposition.

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Authored by:

Guy Edgecombe, Partner Caitlin Miller, Graduate

[1] Business Finance Pty Ltd (receiver and manager appointed) v Partner Invest Pty Ltd (in liquidation) [2022] NSWSC 1 (7 January 2022) at [5].

[2] Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 30–1; [1963] HCA 21.

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Home » Insights » Assigning the right to sue – the new provisions’

Assigning the right to sue – the new provisions’

Author: Thomas Russell

Service: Restructuring & Insolvency

External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims.

External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims. Previously these were considered rights that could only be utilised by the appointed liquidator and so could not be assigned. Now they can.

Thomas Russell ,  Partner  and  Brendan May ,  Lawyer  discuss these new changes and what they mean for insolvency practitioners.

When did this start?

• This has already begun. It commenced on 1 March 2017.

What legislation brought this about?

• The  Insolvency Law Reform Act 2016  (Cth) has introduced a  new schedule  to the  Corporations Act 2001  (Cth). The schedule is called “ Schedule 2 – Insolvency Practice Schedule (Corporations) ”( the Schedule ).
• The external administrator is able to assign his or her right to sue under section 100-5 of the Schedule.
• The  Bankruptcy Act 1966  (Cth) now also has a  Schedule 2  called “ Schedule 2 – Insolvency Practice Schedule (Corporations) . Section 100-5 similarly provides that any right to sue conferred upon a trustee of a debtor’s estate (including a bankrupt estate) can be assigned.

How does it happen?

• In the usual way anything is assigned, for example by Deed of Assignment. The right is broad, and – subject to one or two things – allows the external administrator to assign “ any right to sue that is conferred on the external administrator by this Act ”.
• if the external administrator’s action has already begun, the external administrator cannot assign the right to sue without the approval of the Court;
• before assigning any right to sue, the external administrator must give written notice to the creditors of the proposed assignment; and
• once assignment has been effected, a notice of assignment must be issued that complies with  s 12 of the  Conveyancing Act 1919  (NSW) . Note this is a piece of New South Wales legislation, however there are equivalent provisions in other state legislation.
• if the right is assigned pursuant to an arrangement that will extend for more than three months, for instance an assignment in exchange for, among other consideration, an uplift or success fee upon the entry of judgment or recovery of monies; or
• if the right being assigned is a debt due to the company (for instance a right to recover compensation for insolvent trading) and the circumstances of the assignment are such that this “debt” is effectively being compromised. There is (for obvious reasons) yet to be any case law on this situation but liquidators would be well advised to play it safe.

Who does this apply to?

• It applies to “External Administrators”. This is defined in item 5-20 of the Schedule:

5-20 Meaning of external administrator of a company

A person is an external administrator of a company if the person is:

(a) the  administrator of the company ; or

(b) the  administrator under a deed of company arrangement  that has been entered into in relation to the company; or

(c) the  liquidator of the company ; or

(d) the  provisional liquidator  of the company.

Note: A person is  not  an external administrator of a company for the purposes of this Schedule merely because the person has been appointed as a receiver, receiver and manager, or controller in relation to property of the company.

Why could this not happen before?

• The simple reason it couldn’t happen before is that people tried it, and the Courts said it couldn’t be done.
• A right to sue is known as a  chose in action . The  common law  had long held a distrust of assignment of choses in action. However  equity  permitted it to happen, and over time it became accepted. However, the ability to assign a chose in action has always been the exception, rather than the rule.
• The law has also had a historical wariness of “champerty” and “maintenance” – allowing a third party to meddle in and/or to profit off litigation. They used to be crimes and “torts” (unlawful acts).
• section  588M  (insolvent trading) the statute provides “The company’s liquidator may recover from the director, as a debt due to the company, an amount equal to the amount of the loss or damage”, or
• section  588FF  (voidable transactions) provides “Where, on the application of a company’s liquidator, a court is satisfied that a transaction is voidable…”

…and said that the statute says only a liquidator can bring the action, so we won’t let the liquidator assign it to someone else.

• This has now changed.

What could an external administrator already assign before these provisions?

• A liquidator of a company could (and still can) sell or otherwise dispose of, in any manner, property of the company pursuant to section  477(2)(c) .
• Common law rights of action, vesting in the liquidator, are considered to be property of the company. So an external administrator always had a right at common law to assign debts, and some other causes of action which we will discuss shortly.
• Likewise, straight-up debts (such as trading debts due by customers of the company) are, and always have been, assignable.
• The only condition with debts and other legal actions is that notice of the assignment must be given to the debtor in order to effect a legal assignment pursuant to  section 12  of the  Conveyancing Act 1919  (NSW). Without this, it is only an “equitable assignment”, that is, a partly-completed assignment that still needs to be completed by compliance with the correct legal procedure.
• Note that there is a general principle that claims for misleading and deceptive conduct cannot be assigned. The reason is that the relevant statutory provision giving a right to damages for loss suffered as a result of a breach (section 82 of the TPA, now section 236 of the  Australian Consumer Law ) does not provide for the award of damages in respect of a loss suffered by another, i.e. one that was not suffered by any party to the proceedings:  Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd  [2006] FCA 1352 .
• The good news is that there is a line of authority, including in NSW ( CBD Prestige Property Holdings No 3 Pty Ltd v Metropolitan Local Aboriginal Land Council  [2013] NSWSC 1005 ), that suggests a liquidator is a special exception to the general principle above. The bad news is that this is in conflict with other authority from other states and at federal level on the same point, meaning that the position is not settled as far as the law is concerned.
• If you are ever required to consider whether or not you are able to assign a claim for damages for misleading and deceptive conduct, specific legal advice should be sought and your advisor’s attention should be drawn to the two cases mentioned above.

What’s the big deal about notice and the  Conveyancing Act ?

• It must be an absolute assignment (so you cannot legally assign part of something, e.g. half a bank account if it was a debt);
• It must be in writing;
• It must be signed by the assignor; and
• Written notice must be given to the debtor or potential defendant. Note that the written notice has to come  after  the assignment, and it does not matter whether written notice comes from the assignor or the assignee, as long as somebody tells them ‘The right, title and interest to the claim against you has been assigned by  x  to  y ’.

What happens if notice is not given?

• If notice is not given, you only have an equitable assignment, not a legal assignment.
• This means legal title to that claim has not actually passed – only that (provided consideration has been paid) equity will treat it that it should have been passed. So the assignor technically retains legal title to the action, while the assignee has equitable title. The assignee can sue on the claim, but a rule of practice and procedure requires the assignor to be a party to the action.
• If the assignor is not joined in such an action, there are decisions (see  Jennings v Credit Corp Australia Pty Ltd As Assignee From Citicorp Person To Person Financial Services Pty Ltd  [2000] NSWSC 210 ) which have held that until the legal assignor is joined or notice given, the equitable assignee cannot recover under the claim. The easiest way if notice hasn’t been given but proceedings have commenced is just to give notice. It is then perfected into a legal assignment and will operate retrospectively.
• An equitable assignment is also susceptible of being defeated by other principles of equity (for example, if the equitable assignee does not come to court with ‘clean hands’).

Who will be interested in purchasing these claims?

• Litigation funders would seem to be the most obvious market for these claims.
• controlling the vote at a meeting of creditors (see Rule 75-110(4) of the bankruptcy IPRs re valuation of assigned claims, but note that no equivalent rule exists for corporations); or
• ensuring the claim is under the control of a friendly party, for asset protection reasons or to obtain a tax benefit.

Should you have any questions, please contact either Thomas Russell or Brendan May.

Thomas Russell

+61 2 9253 9906

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70517 Equity and Trusts

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject. Subject handbook information prior to 2024 is available in the Archives .

Description

This subject explores the range of doctrines and remedies that were originally developed in the Courts of Chancery in England to ameliorate the harshness of the common law and provide remedies where none were available at law. Equitable principles are all fundamentally grounded in the concept of 'conscience'. Despite the antiquity of these doctrines, equitable principles continue to have enormous practical relevance, particularly in modern commercial litigation. Equitable doctrines and principles reach into many areas of legal practice: family law, superannuation, wills and probate, property law and intellectual property, to name a few. But it is in civil litigation that a solid understanding of equitable principles and remedies is essential: no litigation lawyer can afford not to be aware of how to apply equitable principles to seek the valuable remedies available in equity. The subject also examines the equitable concept of the 'trust' whereby an interest in property is legally owned by one party, but held for the benefit of another person or purpose permitted by law. Trusts are commonly used in both private arrangements and increasingly for commercial purposes. The popularity of unit trusts and trading trusts as versatile commercial vehicles is on the rise, as there are particularly advantageous consequences for taxation and insolvency through the use of a trust. Significant developments to equitable principles have occurred through a number of Australian High Court decisions, particularly since the 1980s. The subject compares Australian equity with other common law jurisdictions to understand international divergence in the scope of certain principles.

This subject takes a very hands-on, practical approach to learning the skills required in practice in applying equitable principles.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

• Legal Knowledge A coherent understanding of fundamental areas of legal knowledge including: a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge; b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy; c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1)
• Ethics and Professional Responsibility A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including: a. An understanding of approaches to ethical decision making and professional responsibility; b. An ability to recognise, reflect upon and respond to ethical issues likely to arise in professional contexts in ways that evidence professional judgment, promote justice and serve the community; and c. An ability to reflect on and engage constructively with diversity in practice. (LAW.2.1)
• Critical Analysis and Evaluation A capacity to think critically, strategically and creatively, including the ability to: a. Identify and articulate legal issues in context, including the skill of critical reading and writing; b. Apply reasoning and research to generate appropriate responses; c. Engage in critical analysis and make a reasoned choice amongst alternatives; and d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1)
• Research skills Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1)
• Communication Effective and appropriate communication skills including: a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments; b. An ability to communicate to inform, analyse, report and persuade; c. An ability to strategically select an appropriate medium and message; d. An ability to assess how messages are received and alter communication strategies accordingly; and e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)

Teaching and learning strategies

Strategy 1. Preparation for lectures

You will need to read the prescribed text and set case(s) set out in the Subject Guide on Canvas and listen to podcasts addressing the lecture topics. Tutors will assume students are already familiar with the lecture materials.

Strategy 2. Online Quiz

The first assessment is a 20 Question Quiz on Canvas to test the essential principles from the lectures in Modules 1 and 2. A solid working knowledge of legal principles underpins the Graduate Attribute (Legal Knowledge (1.0)) and enables you to more confidently engage in finding solutions to legal problems. The quiz is assessable and will make up 10% of your total assessment. The quiz will provide you with early feedback on your developing understanding of essential principles.

Strategy 3:

The tutorial program has been specifically designed to scaffold your learning in the skills of analysing legal problems and communicating that analysis in relation to the availability of equitable relief for a client. These skills are practised and developed throughout the tutorial program.

There are 10 x 2 hour tutorials in the course. In the tutorial series, students will have the opportunity to discuss the principles applicable to giving legal advice on hypothetical legal problems, and discuss theoretical / jurisprudential aspects of the Equitable principles and doctrines.

The tutorial discussion topics and problems are all set out on the Canvas site. You will need to read and prepare for your participation in tutorials each week. You should also read over and think about all the tutorial questions, to understand the scope of the tutorial and be able to contribute to the discussion in class. During this time, tutors will provide you with feedback in relation to the relevance and strength of your contributions and you will have the opportunity to ask for further feedback on your understanding of the issues.

Strategy 4:

Research skills are essential for every lawyer. In this subject, your mid-session Assessment Task 2 is a piece of written advice based on legal research. The advice must be written in a plain legal English style, appropriate for professional client communication. You will need to commence researching and analyzing the relevant cases when the question is released to allow enough time for writing and proof-reading the advice. You will have the opportunity to ask questions in tutorials about how to approach this task.

Strategy 5:

The skills practised throughout the session in relation to articulating reasons for legal advice culminate in an assessable task, applying your written communication skills as covered in Graduate Attribute 5.0 Communication and Collaboration.

Written Legal Advice: being the final assessment task, the written Legal Advice is due in the final assessment period. This is written legal advice in a form appropriate for a communicating with clients or other legal professionals, which is done under authentic time constraints: it is due 2 days after the questions are released online. The best preparation for this final assessment task is ongoing revision of the analytical approaches to giving legal advice practised in tutorials throughout the session.

Subject Delivery:

The course is structured around learning two topics per week through engaging with the online lectures and other materials, and then developing skills in applying those principles during the corresponding tutorial (1x 2hours) held in the following week. There are 12 weeks of lectures and 10 tutorials.

The topics, the prescribed reading, tutorial questions and assessment tasks are all set out in the Equity & Trusts Subject Guide available on Canvas. Read this Guide before commencing the course for further information about the course, and on a weekly basis in relation to what to do each week.

Content (topics)

Module 1: HISTORY AND NATURE OF EQUITY

Introduction to Equity

• Comparison between common law and Equity Historical development of Equity
• Maxims of Equity
• Judicature System and modern administration of Equity

Module 2: EQUITY AND THE LAW OF OBLIGATIONS?

Doctrines of Unconscionable Dealing and Undue Influence

• Undue Influence – elements and application
• Unconscionable Dealing – elements and application
• Categories of estoppel at common law and in equity Proprietary Estoppel
• Promissory Estoppel

Module 3: EQUITY AND PROPERTY – EQUITABLE INTERESTS IN PROPERTY AND ASSIGNMENT OF PROPERTY IN EQUITY

Equitable Estates and Interests

• What is Property?
• Multiple classification of equitable rights
• Equitable proprietary interest, mere equity and personal equities
• Examples of equitable proprietary interests

Assignment of Property in Equity

• Equitable assignment of legal property
• Equitable assignment of equitable property
• Assignment of future property
• Writing requirements for the assignment of equitable interests

Module 4: TRUSTS

Express Trusts

• Elements of a trust
• Creation of Express Trusts
• Types of Express Trusts, including Charitable
• The three certainties: intention, subject matter, object
• Complete constitution, secret and precatory trusts
• Charitable trusts

Duties, Powers, Liabilities and Rights of Trustees, Rights of Beneficiaries

• Duties of a trustee
• Powers of a trustee
• Rights of a trustee
• Liability of a trustee for breach of trust
• Rights of beneficiaries and beneficiaries under a discretionary trust

Trusts imposed by Law – Resulting Trusts

• Automatic resulting trusts
• Presumed resulting trusts
• Presumption of advancement Illegality
• The Quistclose trust

Module 5: EQUITABLE REMEDIES AND PROCESSES

Constructive Trusts

• Nature of a constructive trust

Liability of Third Parties for Breach of Fiduciary Obligation or Breach of Trust

• The rule in Barnes v Addy
• Knowing receipt
• Knowing assistance
• Nature and purpose of tracing

Account of Profits

• Nature of remedy
• Calculation of account of profits

Equitable Compensation

• Nature of the Remedy and its availability
• Calculating Equitable Compensation

Assessment task 1: Online Quiz

Assessment task 2: Client Advice

Assessment task 3: Take-home assignment

Required texts

M W Bryan , S E Degeling, M S Donald and V J Vann, A Sourcebook on Equity & Trusts (Cambridge University Press, 3rd ed, 2023)

Recommended texts

• Bryan MW, Vann VJ and Barkerhall Thomas S, Equity & Trusts in Australia (Cambridge, 3rd ed., 2023)
• Evans M, Jones B and Power T, Equity & Trusts (Lexis Nexis Butterworths, 4th ed., 2016)
• Heydon D, Leeming M, Turner, P, Equity Doctrines & Remedies , (LexisNexis Butterworths, 5th ed, 2015)
• Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia , (LexisNexis Butterworths, 7th ed, 2006)
• Radan P, Stewart C, Principles of Australian Equity & Trusts Cases and Materials (LexisNexis Butterworths, 2nd ed, 2014)
• Heydon JD & Loughlan PL, Cases and Materials on Equity & Trusts , (LexisNexis Butterworths, 8th ed, 2011)
• Covell W & Lupton K, Principles of Remedies , (LexisNexis Butterworths, 2008)
• Ford HAJ, Lee WA, Bryan MW and Glover J, Law of Trusts (Thomson Reuters, available via Westlaw AU)

Students are advised to use the databases in the UTS online library resources to locate authorised reports of cases on line.

Students may also access case reports on austlii, and medium neutral citations of recent cases (since 2000) are provided in the Subject Guide for this purpose.

Reports, Journals and General References

• Journal of Equity
• Law Quarterly Review
• Australian Guide to Legal Citation

Other resources

Other Materials

Students are advised to be aware of relevant policies, rules and regulations that might be applicable to their candidature and assessment matters.

• UTS Coursework Assessment Policy
• UTS Coursework Assessment Procedures

Unauthorised Recording of Classes

Audio or visual recording of classes by a student for this subject is strictly prohibited unless written approval is sought and given in advance from the Subject Coordinator. Approval for audio or visual recording will usually be limited to medical or hardship reasons, and if approved, must be arranged by the student.

Lecture Recordings

Apart from the three in person lectures noted in the program, lectures will be pre-recorded and made available on Canvas, so that students can listen to them at a convenient time, but always ahead of the tutorial covering the same material. Tutorials will be conducted on the assumption that students have already listened to the lecture material and completed the readings. Tutorials will be held face-to-face (with one tutorial on zoom ), and will not be recorded. Attendance at tutorials is compulsory.

UTS: Handbook | Site map

Equitable Ownership / Equitable Assignment / Equitable Title

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Moored in the Marina: the Federal Circuit Court refuses to imply a licence restriction for the use of sailing footage

A fresh reminder to agree and document positions on ip 4 min read.

The Federal Circuit Court provides a fresh reminder of the need for businesses in the creative industry to agree and clearly document positions on intellectual property ( IP ). A videographer who made a video under commission, without agreeing the IP position with the commissioner, found out that it was not the copyright owner in the video. Although the parties later signed a retrospective assignment, this did not have retrospective effect on third parties. As a result, the videographer could not claim copyright infringement against a party that had been given permission to use the video by the commissioner.

Key takeaways

Who in your organisation needs to know about this, who owns a commissioned video, retrospective assignment, actions you can take now.

• The party that commissions and pays for the creation of a film is generally the copyright owner, unless a contrary intention is agreed at the time.
• A retrospective 'confirmatory' agreement cannot change the copyright ownership position. A retrospective assignment is not effective to bind third parties, except where it is perfecting an earlier equitable assignment and conveying rights to sue for past infringement.
• Copyright licences will bind each successive owner of the IP.

Legal team, procurement and commercial contract management team, content creators. 

Emprja Pty Ltd owns Abell Point Marina ( APM ). During the 2016 Clipper Round the World Yacht Race, APM hosted a stopover for the race, and Project 64 Pty Ltd, which operated a helicopter sightseeing business, participated in hosting the welcome party. Project 64 commissioned Whitsunday Aerial Solutions Professionals Pty Ltd ( WASP ) to film drone footage of the event.

Project 64 gave the footage to APM, and APM later authorised other parties to include the footage in videos on social media to promote later events.

WASP and Project 64 had no written agreement in 2016 about ownership of copyright in the footage, although after discovering APM's usage (in 2018) they entered into a 'confirmatory deed' stating that WASP was the copyright owner, and an assignment deed of the copyright which was stated to have retrospective effect. WASP claimed APM's usage was outside the terms of any licence which Project 64 was permitted to grant to APM, and therefore infringed WASP's copyright.

In Whitsunday Aerial Solutions Professionals Pty Ltd v Emprja Pty Ltd [2021] FCCA 1548, the Federal Circuit Court found Project 64 to be the copyright owner in the 2016 footage. Under Australian law, copyright works are generally owned by the author, even if it is created under commission, unless the author assigns the rights to another person. However, under section 98(3) of the Australian Copyright Act 1968 , copyright in films made pursuant to an agreement for valuable consideration is owned by the commissioner, subject to any agreement to the contrary. In this case, the oral agreement to engage WASP's videography services did not include any discussion of copyright ownership, suggesting any agreement contrary to the default position at law. The 2018 'confirmatory deed', which purported to formalise the oral agreement, could not retrospectively change that position.

The court then turned to consider the 2018 assignment deed, which WASP said vested all copyright in the footage to WASP 'with effect from the date of creation of ' the footage.

The court found that the 2018 assignment was generally valid and effective, but retrospective rights in an assignment could only be established insofar as they perfect an equitable assignment retrospectively and validly convey rights to sue for past infringement. An equitable (ie, beneficial) assignment can arise where the parties agree to transfer IP, but the assignment does not fulfill the formalities required for a legal assignment – such as the requirement for a legal assignment of copyright to be in writing. In this case, WASP failed to establish that there was any agreement that it would own the copyright when the footage was commissioned. There was therefore no earlier equitable assignment. The 2018 assignment was an assignment of legal and beneficial title, not the perfection of an earlier equitable assignment. As against other parties, such an assignment cannot retrospectively change the legal reality that, in 2016, Project 64 was the owner of the copyright.

Further, the licence granted to APM by Project 64 (as the owner at the time) binds WASP as the successor in title.

WASP also argued that the licence granted by Project 64 to APM was limited to use of the video to promote the 2016 event, but the court was not convinced that there was sufficient evidence to support this argument.

• When entering into any arrangement for the creation of new IP, parties should ensure that the agreed arrangements as to ownership and usage rights in relation to the IP is clearly documented in writing, before the IP is created.
• Purchasers acquiring IP assets should undertake appropriate due diligence in relation to all licences and other encumbrances on any material IP.

• Practical Law

Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate
• Breach of Lease Covenants
• Security and Quasi Security

Call: 0437770392

This document provides a scaffold with all the relevant law and legal tests for an assignment or exam question on equitable assignments. Each element is broken into a scaffold to make it very easy to follow and use. The document covers the type of property right assignment, distinguishing between future and present property, and the tests for assigning each type of property interest possible equity. This scaffold has be written by a lecturer in law and is designed to summarise all relevant law and explain it clearly in a logical structure.

Equitable Assignments

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• > Equity and Trusts in Australia
• > Equitable Assignments

Book contents

• Frontmatter
• Table of Cases
• Table of Statutes
• Abbreviations
• Part A Introduction
• Part B Equitable Remedies
• Part C Equity, Contract and Property
• 7 Equity in Contract Law
• 8 Equitable Proprietary Interests
• 9 Equitable Assignments
• Part D Equitable Obligations
• Part E Express Trusts
• Part F Performing the Trust
• Part G Breach of Trust
• Part H Non-Consensual Trusts

9 - Equitable Assignments

from Part C - Equity, Contract and Property

Introduction

In chapter 8 we saw that equity recognises as property certain assets not recognised at common law, such as the beneficiary's interest in a trust. We also saw that property interests can be created more informally in equity than at law. One aspect of this is equity's attitude to assignments of property.

Assignments are transfers of property either for consideration or as gifts. The question whether property has been effectively assigned is of considerable commercial significance. It is not always an easy question to answer. The law of assignments stands at the intersection of common law, equity and statute. The common law developed basic rules for the transfer of property. Equity acts as a ‘gloss’ and recognises assignments in various cases where the common law would not. Many assignments are also effected by statute. So when we consider whether an assignment has been effective we need to be able to apply law from all three sources.

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• Equitable Assignments
• Michael Bryan , University of Melbourne , Vicki Vann , Monash University, Victoria
• Book: Equity and Trusts in Australia
• Online publication: 05 August 2012
• Chapter DOI: https://doi.org/10.1017/CBO9781139194013.013

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