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Summary Quistclose Trusts Tutorial Notes
Comprehensive tutorial notes from a 1st class student.
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Tutorial 5Quistclose trusts – ESSAY Q IN EXAM!!!!
Essential reading
Virgo ch 8.4 (NB this is only one section of chapter 8)
Barclays Bank Ltd v Quistclose Ltd [1970] AC 567 (HL)
Twinsectra v Yardley [2002] 2 AC 164 (HL) (paras 2, 12-17, 71-103)
B D Chan, ‘The Enigma of the Quistclose Trust’, (2013) 2 UCL Journal of Law and
Jurisprudence 1-39 (available on Learning Central).
(Note that this is written by a Masters student at UCL. It is very readable and should
assist your understanding of this subject).
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Recommended Extended Reading
E Hudson, ‘A Normative Approach to the Quistclose Trust’, (2017) 80 (5) Modern
Law Review 775-811 (available on Learning Central).
A Hudson, ‘What is a Quistclose trust and why is it so difficult to tell?’ in Great
Debates in Equity and Trusts (pp144-151) (available on Learning Central).
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Task
In pairs, discuss how Quistclose trusts do or do not accord with one of the following theories
(to be allocated by your tutor) and why:
1. Quistclose trusts as express trusts
Lord Hoffman in Twinsectra – possibly.
It could be argued that money is held on express trust moment contract is formed.
The express trust set up in lender’s favour.
Borrower is trustee for lender.
Borrower has limited power to use property for specified purpose.
Accepted in Australia – Re The Australian Elizabethan Theatre Trust 1991
2. Quistclose trusts as constructive trusts
Carreas Rothmans Ltd – Peter Gibson J: unconscionable for borrower to retain
beneficial interest in property. N.B. Not backed up with authority or opinion.
3. Quistclose trusts as resulting trusts
Secondary – lender retains equitable interest. Meant to be an automatic resulting
trust.
Lord Wilberforce though says – common law and equity coming together. Not a
resulting trust.
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