Equitable Compensation and Trust Law MLL405

MLL405 Equity and Trusts

Trimester 3 2022

Assessment Task 1 Research Paper

Description

This assignment gives you the opportunity to demonstrate your ability to undertake legal research in the field of equity and trusts. You will be able to further develop your research skills, and to use those skills to answer important legal questions concerning the distinctive character of equitable principles and remedies.

You may write your research paperindividually, or in pairs.

The audience for your research paper is the Unit Chair or someone with a similar degree of knowledge about and interest in private law, equity and trusts.

Your research paper should be an essay in an academic style, of the sort that one might read in (for instance) theAustralian Law Journalor theAustralian Bar Review. There is a long tradition in Australia and Britain of leading members of the legal profession setting out their arguments about legal doctrines and legal developments in this style, and works of this sort are often cited by judges in their own reasoning about what the law requires.

Specific Requirements

Here is the topic/question for the research paper; it is followed by some additional notes and hints:

InTarget Holdings v Redfern[1966] 1 AC 421Lord Browne-Wilkinson asked whether trustees were liable to compensate the beneficiary not only for losses caused by the breach but also for losses which the beneficiary would, in any event have suffered, even if there had been no such breach? (at 437)

Courts have adopted different views as to the basis of an award for equitable compensation for misapplied trust property.

Some have focussed on the performance of the fiduciary and awarded compensation on the basis of the breach of fiduciary duty alone; while others have analysed whether the breach caused the loss.

Compare these approaches and reasons for them.

Your analysis may consider (without being required or limited to):

• The significance of, and responses to, the remarks of Street J inRe Dawson (decd); Union Fidelity Trustee Co Ltd V Perpetual Trustee Co Ltd[1966] 2 NSWR 211 (NSWSC) that earlier authority established an approach (that did) not appear to involve any inquiry into whether the loss was caused by or flowed from the breach (but) whether the loss would have happened if there had been no breach. (at 215)
• whether the remedial response differs according to the nature of the duty that has been breached
• whether, in what circumstances, and to what extent, evidence may be led that the transactions caused by the unauthorised acts would have proceeded regardless of the defaulting fiduciarys conduct
• whether the case law is tending towards a uniform approach to the issue

Your discussion must include detailed case analyses.

The judgments referred to in the question (above), and the readings and lectures on equitable remedies and equitable compensation, provide you with a starting point for answering the question set out above.

However, you must undertake additional research and reading in order to produce a strong argument ad complete a strong assignment.

Additional instructions

Please ensure that you write in clear and grammatical English. Consistently with the remarks aboutaudienceabove, please use a formal tone and an appropriate structure. Two hallmarks of a good structure are

1. that the heading of each section accurately describes what is dealt with in that section, and
2. that the sequence of paragraphs within each section, and of sections overall, present a logically coherent and unfolding response to the questions asked.

Please followAGLC 4style for all features of your assignment, including referencing, formatting, and punctuation.

Please include a bibliography at the end of your submitted paper, beginning on a separate page.

It is important to note thatthe word limit is strict and includes headings and footnotes butnotthe bibliography. Any additional words will not be read by the examiner.

Learning Outcomes

This task allows you to demonstrate achievement towards the following unit learning outcomes. These ULOs are aligned with specific graduate learning outcomes that is, the skills and knowledge graduates are expected to have upon completion of their studies and this assessment task is an important tool in determining achievement of those outcomes. If you do not demonstrate achievement of the unit learning outcomes, you will not be successful in this unit.

It is good practice to familiarise yourself with the ULOs and GLOs as they provide guidance on the knowledge, understanding and skills youre expected to demonstrate upon completion of the unit. In this way they can be used to guide your study.

Submission

You are to submit your assignment in the individual Assignment Dropbox in the MLL405 CloudDeakin unit site on or before the due date.

The name and student number of the student or students making the submission must appear on the front page of the document.

If you are submitting an individual assignment, please name your document using the following syntax: . For example: Bozzi_12345679_MLLL405.doc.

If you are submitting an assignment as a pair,each member of the pair should upload the samedocument, which should be named using the following syntax:. For example: Emerton_123456789_Campbell_987654321_MLL405.docx.

Submitting a hard copy of this assignment isnot required.

You must keep a backup copy of every assignment you submit, until the marked assignment has been returned to you. In the unlikely event that one of your assignments is misplaced, you will need to submit your backup copy.

Any work you submit may be checked by electronic or other means for the purposes of detecting collusion (other than your work as a group) and/or plagiarism.

When you submit an assignment through your CloudDeakin unit site,you will receive an email to your Deakin email address confirming that it has been submitted.You should check that you can see your assignment in the Submissions view of the Assignment Dropbox folder after upload,and check for,and keep,the email receipt for the submission.

Marking and feedback

The marking rubric for this task will be provided as soon as possible, and will be available on the MLL405 CloudDeakin unit site in the Assessment folder (under Assessment Resources).

It is always a useful exercise to familiarise yourself with the criteria before completing any assessment task. Criteria act as a boundary around the task and help identify what assessors are looking for specifically in your submission. The criteria are drawn from the units learning outcomes ensuring they align with appropriate graduate attribute/s.

Identifying the standard you aim to achieve is also a useful strategy for success and to that end, familiarising yourself with the descriptor for that standard is highly recommended.

Students who submit their work by the due date will receive their marks and feedback on CloudDeakin 15 working days after the submission date.

Extensions

Extensions will only be granted for exceptional and/or unavoidable circumstances outside the students control.Any extension granted to a member of a group will extend the submission date for that groups assignment. This will be communicated to all group members, but the identify of the group member granted an extension, and the reasons for the grant of an extension, will be kept confidential.

If you are seeking an extension for the assignment please follow the procedure outlined on the Deakin University assignments page at:

Please note: Requests should be submittedbefore the assignment is dueand as soon as you realise you will have difficulty meeting the due date/time.You must provide a valid reason for the extension and the length of time you are seeking for the extension. You may be asked to supply supporting documentation about the difficulties you are facing, and evidence of the work you have completed so far.

Please also note the basis and application process for Special Consideration.

Late submission

The following marking penalties will apply if you submit an assessment task after the due date without an approved extension: 5% will be deducted from available marks for each day up to five days, and work that is submitted more than five days after the due date will not be marked and will receive 0% for the task.

'Day' means working day for paper submissions and calendar day for electronic submissions. The Unit Chair may refuse to accept a late submission where it is unreasonable or impracticable to assess the task after the due date.

Calculation of the late penalty is as follows:this is based on the assignment being due on a Thursday at 8:00pm

• 1 day late: submitted after Thursday 11:59pm and before Friday 11:59pm 5% penalty (2 marks).
• 2 days late: submitted after Friday 11:59pm and before Saturday 11:59pm 10% penalty (4 marks).
• 3 days late: submitted after Saturday 11:59pm and before Sunday 11:59pm 15% penalty (6 marks).
• 4 days late: submitted after Sunday 11:59pm and before Monday 11:59pm 20% penalty (8 marks).
• 5 days late: submitted after Monday 11:59pm and before Tuesday 11:59pm 25% penalty (10 marks).

Dropbox closes the Tuesday after 11:59pm AEST time.

Support

The Division of Student Life provides a range ofStudy Supportresources and services, available throughout the academic year, includingWriting MentorandMaths Mentoronline drop insand the SmartThinking 24 hour writing feedback service atthis link. If you would prefer some more in depth and tailored support,make an appointment online with a Language and Learning Adviser.

Referencing

Any material used in this assignment that is not your original work must be acknowledged as such and appropriately referenced. You can find information about plagiarism and other study support resources at the following website:http://www.deakin.edu.au/students/study-support

Academic misconduct

For information about academic misconduct, special consideration, extensions, and assessment feedback, please refer to the documentYour rights and responsibilities as a studentin this Unit in the first folder next to the Unit Guide in the Resources area of the CloudDeakin unit site.

Rubric