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(Download PDF) Equity and The Law of Trusts in Ireland 3Rd Edition Keane Online Ebook All Chapter PDF
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A_Equity&Trusts_3rd_edn_Prelims.fm Page i Wednesday, November 29, 2017 3:59 PM
Third Edition
by
RONAN KEANE
Former Chief Justice of Ireland
A_Equity&Trusts_3rd_edn_Prelims.fm Page iv Wednesday, November 29, 2017 3:59 PM
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Preface
Since the last edition, there has been a welcome development in our legal
structures with the establishment of the Court of Appeal. There have also been a
number of significant decisions in the law relating to equity and trusts in Ireland
and the United Kingdom.
The ‘fusion’ controversy has been resolved in Ireland by the judgment of
Hogan J in Meagher v Dublin City Council and Anor [2014] IEHC 280,
endorsed by the Supreme Court in McGrath v Stewart [2014] IESC 52. These
judgments confirm the widely held view that, while the systems of common law
and equity were no longer administered in different courts following the
Juidicature (Ireland) Act 1877, the doctrines of equity and the common law have
retained their separate identities.
The application of the maxim ‘he who comes into equity must come with
clean hands’ to the enforceability of contracts tainted with illegality has caused
much difficulty in recent times. The decision of Clarke J, as he then was,
speaking for the Supreme Court in Quinn v Irish Bank Resolution Corporation
(in Special Liquidation) and Ors [2015] IESC 29, has laid down important
principles in this area. The issues arising from the contentious decision of the
House of Lords in Tinsley v Mulligan [1994] 1 AC 340, also appear to have been
resolved by the judgments of the majority of the Supreme Court in Patel v Mirza
(2016) UKSC 42, holding that the earlier case should not be followed.
The discretionary powers of trustees have been illuminatingly analysed in the
UK Court of Appeal and Supreme Court judgments in Pitt v Holt [2011] EWCA
Civ 19 and [2013] UKSC 26. Also in that jursidiction, the House of Lords
decision on the personal liability of trustees in Target Holdings Ltd v Redferns a
firm, [1996] AC 421, has been clarified by the Supreme Court decision in AIB
Group (UK) plc v Mark Redler & Co [2014] 2 WLR 1367. The much discussed
decision of the English Court of Appeal in Armitage v Nurse (1998) Ch 241 that
a provision in a trust instrument exempting trustees from liability for gross
negligence was enforceable has not so far been considered by our courts,
although it was reviewed by the Law Reform Commission. It has been recently
reaffirmed by a majority in the Privy Council decision of Spread Trustee Co Ltd
v Hutcheson [2012] AC 194, but it remains to be seen how it will fare in this
jurisdiction.
Another area of trust law which has not received much attention in the Irish
courts is the possible invocation of a common intention constructive trust in
resolving family law disputes as to property. The House of Lords judgments
setting out the parameters of such a doctrine in Stack v Dowden [2007] 2 AC
432, have been clarified by the Supreme Court in Jones v Kernott [2012] AC
776. Unfortunately, the recent decision of the Privy Council in Marr v Collie
v
A_Equity&Trusts_3rd_edn.book Page vi Tuesday, November 21, 2017 8:54 AM
[2017] UKPC 17 has left unresolved the question as to whether the doctrine has
any application to the shares of a couple in a property purchased as an
investment rather than as a home.
As to charitable trusts, the coming into force of provisions in the Charities
Act 2009 which refine the concept of public benefit as an essential feature of
legal charities may have an effect on the charitable status of at least some fee
paying educational institutions and hospitals.
As one would expect, there has been much happening in the field of
injunctions. The tests by which courts determine whether an interlocutory
injunction should be granted laid down in Campus Oil Ltd v Minister for
Industry and Energy (No.2), [1983] IR 86, were reaffirmed by Clarke J,
speaking for the Supreme Court in Okunade v Minister for Justice, Equality and
Law Reform [2012] 3 IR 152, in a judgment which also explained the different
principles applicable where the proceedings are by way of judicial review,
specifically in cases dealing with refugees seeking asylum. The questions
arising in trade dispute cases where an interlocutory injunction is sought to
restrain picketing and which is affected by the statutory requirement that trades
unions conduct a secret ballot authorising the picket if it is to be immune from
action were authoritatively dealt with by Laffoy J in the High Court in Dublin
City Council v TEEU [2010] IEHC 286. The essentially discretionary nature of
the undertaking as to damages, particularly where public authorities are seeking
to uphold the law, was emphasised by O’Donnell J (dissenting as to the result) in
the Supreme Court decision in Minister for Justice, Equality and Law Reform v
Devine [2012] 1 IR 326.
As to injunctions in general, the judgments in the UK Supreme Court in
Coventry and Ors v Lawrence and Ors [2014] AC 822, proposing a major shift
in the law as to when damages should be awarded in lieu of an injunction are
obviously of great interest. In particular, the strongly urged view that the courts
should be able to grant injunctions where the damage relied on affects parties
other than the plaintiff would represent a significant development if adopted by
our courts.
Cases of promissory estoppel in the High Court have included a
comprehensive restatement of the general legal principles by Laffoy J in The
Barge Inn Ltd v Quinn Hospitality Ireland Operations 3 Ltd [2013] IEHC 387.
There have also been a series of cases of proprietary estoppel, also in the High
Court, led by Nayler v Maher [2012] IEHC 408 which have been strongly
influenced by such English decisions as Gillet v Holt (2001) Ch 210 and
Thorner v Major (2009) 1 WLR 776.
The Court of Appeal has clarified the law on the possible liability of wives,
partners and unmarried cohabitants as sureties and guarantors to banks where
undue influence is alleged in a number of cases, such as Ulster Bank Ireland v
de Krester [2016] IECA 171.
vi
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Preface
Ronan Keane
1 September, 2017
vii
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A_Equity&Trusts_3rd_edn.book Page ix Tuesday, November 21, 2017 8:54 AM
Contents
Preface .......................................................................................................................... v
Contents ....................................................................................................................... ix
Table of Cases .......................................................................................................... xvii
Table of Legislation ..................................................................................................... lv
Chapter 1 Introduction
Introduction ................................................................................................................... 1
ix
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Overreaching................................................................................................................69
Notice Generally ..........................................................................................................69
Registered Land ...........................................................................................................72
Judgment Mortgages ....................................................................................................74
x
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Contents
xi
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xii
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Contents
xiii
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Chapter 17 Rescission
Introduction................................................................................................................375
The Equitable Remedy of Rescission ........................................................................376
Fraudulent and Innocent Misrepresentation...............................................................376
Contracts Uberrimae Fidei .........................................................................................378
(a) Contracts of insurance ..............................................................................379
(b) Contracts to take shares in a company .....................................................380
(c) Family arrangements ................................................................................381
Mistake.......................................................................................................................381
(a) Common mistake .....................................................................................382
(b) Mutual mistake .........................................................................................385
(c) Unilateral mistake ....................................................................................387
(d) Voluntary transactions .............................................................................388
Laches, Acquiescence and Affirmation as Bars to Rescission ..................................388
Chapter 18 Rectification
Introduction................................................................................................................391
Rectification in Cases of Common Mistake ..............................................................392
Rectification in Cases of Unilateral Mistake .............................................................395
No Rectification where Parties Mistaken as to Meaning of Contract........................398
Onus of Proof in Case of Rectification ......................................................................400
Rectification not Always the Appropriate Remedy ...................................................400
Voluntary Settlements and Wills ...............................................................................401
xiv
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Contents
Chapter 21 Receivers
Introduction ............................................................................................................... 421
Circumstances in which a Receiver is appointed by the Court ................................. 421
Nature of the Office of Receiver appointed by the Court ......................................... 422
Remuneration and Security ....................................................................................... 422
Receiver by Way of Equitable Execution ................................................................. 422
Chapter 23 Election
Introduction ............................................................................................................... 431
The Essentials of Election ......................................................................................... 432
Gift under Will must be Available for Compensation............................................... 434
True Owner’s Property must be Capable of Alienation ............................................ 434
What Constitutes Election ......................................................................................... 435
Derivative Interests.................................................................................................... 435
Election and the Rule against Perpetuities ................................................................ 436
Chapter 24 Account
Introduction ............................................................................................................... 437
Cases where an Account will be Ordered.................................................................. 437
Chapter 26 Performance
Doctrine of Performance ........................................................................................... 453
xv
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Table of Cases
F
Faccenda Chicken Ltd v Fowler [1987] 1 Ch 117 ................................................ 29.17
xxvii
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