Planned exam question: Is equity past the age of child bearing? For Trusts and Equity. These notes got me a high 2:1 in Trusts and Equity. Three page plan complete with colours and pictures to aid memory.
Is Equity ‘past the age of childbearing’?
Can equity still develop i.e. can new equitable concepts still be created?
Pawlowski – ‘equity is not past the age of childbearing, but more
radical creativity is unlikely to happen in the absence of statutory
intervention’
Plenty of cases of creativity centuries ago
Knight v Knight (1840) – defining requirements for express trusts
Re Adams (1884) – overturned approach to precatory words in express trusts
Saunders v Vautier (1841) – defined rules for varying trusts
But Lord Denning recent attempts to be creativity been shot down.
‘new model constructive trust’: Hussey - ‘a trust imposed by law whenever justice
and good conscience require it’. When would be inequitable to allow D to keep
property for themselves, allows C to have property/share in the property. Merely an
extension of the concept laid down by the House of Lords in Gissing v Gissing, where
trustee induces another to act to their detriment in the belief that if they do so act to
their detriment they would acquire a beneficial interest in the land. Rejected in
Grant v Edwards. Judges in that case agreed move was a step too far.
‘deserted wife’s equity’ - National Provincial Bank Ltd v
Ainsworth – woman deserted by her husband would have an
equitable right, enforceable against third parties, to remain in
occupation of the matrimonial home. But decision reversed in
HOL. Replaced by s30 Family Law Act 1996.
Lord Denning - Eves v Eves - ‘A few years ago even equity would not have helped her.
But things have altered now. Equity is not past the age of child bearing.’
Suggests actually movement towards a creativity that didn’t previously exist, rather
than opposite of equity growing out of creativity stage.
Other judges disagree with level of creativity of Denning
Cowcher v Cowcher [1972] 1 WLR 425,
Bagnall J: just because result is unfair
does not make that an injustice. Justice
flows from application of sure and
settled principles. Doesn’t mean equity is
past childbearing, just that new
‘children’ made must arise from precedent.
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