In conclusion the paramount issue regarding secret trust is adressed in a positive manner. The fact that there are a lot of cases and reasons for the scepticism behind this doctrine does bring with it a lot of equitable aspects. In analysing the case law as well as the legality of if the papper concludes that the conundrum of secret trust has justification as well a equitable basis to it. The legal element is not there in statute but as shown through sufficient case law; it is a a justifiable doctrine when theories are composed together regarding different aspects of the doctrine.
As the Attachments did not create any proprietary interest the Board found that the assets to which they relate should be included in the mandatory statutory trust resulting from the BVI winding up order; (b) the equitable jurisdiction of the court to uphold statutory distribution: Based, inter alia, on the case of Carron Iron Company Proprietors v Maclaren (1855) 5 HLC 415 the Board considered that the granting of the sought injunction was justified where a creditor invoked a foreign jurisdiction to bypass the statutory scheme of distribution. It considered that failure to do so would "disturb the general principle of equal distribution which the court is always anxious to enforce". Exercising the Anti-Suit Jurisdiction The Privy Council found that the jurisdiction to grant the relief sought should be exercised
Before the requirement of causation, common law and equity cannot be said to have been completely untouched by each other. Both systems were anchored on the fundamental principle that claimant is to be put in the position he would have been had the breach not occurred. Furthermore, the primary obligation of both systems is performance of the trust or contract and the secondary obligation is to pay damages or compensate for loss. However, common law can be distinguished on the basis that the aim of the remedy is to remove the loss caused by the breach while in equity, equitable compensation aims to eradicate the breach instead. Furthermore, no fault was required to claim for a remedy in breach of trust.
The special relationship needed to constitute constructive possession depends on the relationship between the individual and the owner of the property. Constructive possession depends upon a special relationship with the owner of the property in which the owner confers authority or responsibility to protect their property in another; not upon one's motives to recover the property. Sykes v. Superior Court, 35 Cal. Rptr. 2d 571, 574 (1994).
In the case of Edgar, Cathy can be established as the fiduciary and Marmot the principle. The differentiating characteristic of a fiduciary is the duty of loyalty. This principle was established in Boardman v Phipps . It illustrates precisely how the courts strictly interprets the breach of the duty of loyalty. In the case of Motthew Lord Millet J also said that, "the principal is entitled to the single-minded loyalty of his fiduciary.
It is the main component that must be set up to continue with an activity in negligence. The claimant must have the ability to demonstrate an obligation of care forced by law which the defendant has broken. Thus, breaking a duty may subject a person to risk. The obligation of care might be forced by the duty of law between people with no current direct relationship, however, in the long run, end up related in some way, as characterized by customary law (which means case
DISCRETIONARY TRUSTS AND POWERS Discretionary trusts are the second area of trust law where the three certainties, and in particular the certainty of objects, apply. These trust differ from those of a fixed nature in that the property to be given to the beneficiaries are at the discretion of the trustee to allot as they see fit. Prior to 1971 the courts used the same test they did for fixed trust. However, the case of McPhail v Doulton utilized and applied a new test to deal with discretionary trusts. Powers fall under discretionary trust and are not held to the same standard as discretionary trusts.
Bettini v Gye (1846) 1 QB 183 - Bettini was in breach of warranty and therefore the employer was not entitled to end the contract. Missing the rehearsals did not go to the root of the contract. Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460 - This case considered the issue of privity of contract and whether or not a party was firstly a party to a contract and secondly whether or not they could enforce the contract where they had given no consideration. The case also considers the joint promise rule and the elements of that rule. Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 - This case involved a bailee’s duty to take reasonable precautions against theft of a motor vehicle.
Also, it could be said that the case of Ghaidan v Godin-Mendoza opened the floodgates and its decision helped future case where it concerned human rights especially section 3 of Human Rights Act 1998. For instance, in the case of Nutting v Southern Housing Group Ltd , the claimant and the defendant formed a homosexual relationship. However, their relationship was volatile and Mr Roberts stated that it has ended. Then he died and the association brought possession proceedings against the defendant, which he defended on the ground that he was entitled to succeed to the tenancy under Housing Act 1988, s.17. The court set out the test to be applied when determining whether a person applying to succeed to an assured tenancy had been the deceased tenant's "spouse".
The ordinance after reformed provides a degree of protection to beneficiaries in such exemption clauses may not create a trustee from liability for fraud, misconduct or gross negligence or otherwise such clauses will be void. The problem of the initial Trust Ordinance is that the Trust duties are obligations contained in the trust instrument or imposed by law, which must be carried out by the trustees. If the trustees fail to carry out their duties, it will be counted as a breach of trust and the trust beneficiaries (subject to the existence of an exemption clause) may take action to recover any loss caused to the trust by the trustees’ failure. The relatively unrestricted nature of trustees’ liability for breach of trust has resulted in the use of common form clauses in trust instruments which exclude or restrict that liability. This terms of such clauses in early trust instruments were fairly narrow and they were strictly construed against