MLLL405 Equityand Trusts Trimester 1 2023
MLLL405 Equityand Trusts Trimester 1 2023
Assessment Task 1 Research Paper Individual/Group
DUE DATE:Monday, April 24th, by 8:00pm (Melbourne time)
PERCENTAGE OF FINAL GRADE:40%
WORD COUNT:Maximum 3,000 words (this includes headings and footnotes)
Description
Purpose
This task provides you with the opportunity to develop and apply your knowledge of the relationship between, and differences between, the ways that common law and equity deal with the assignment of property rights (ULO1; GLO1, GLO4). Completing this task will require you to synthesise your knowledge of, and critically evaluate, these matters (ULO2; GLO4), and by crafting a persuasive and cohesive argument, you will contribute to the legal scholarship concerning equitable assignments (ULO3; GLO2).
Context
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) the Australian Law Journal or the Australian 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
Consider the passages from three cases below. Why does equity acknowledge a gift as complete in the circumstances described in the passages from Corin v Patton and Norman v Federal Commissioner of Taxation? Is equitys approach consistent with the certainty and stability appropriate to property rights, particularly rights in real property and in choses in action? In answering this second question, you must have regard to the passage from Thomas v Times Co. You may also consider other relevant cases and scenarios.
Corin v Patton (1990) 169 CLR 540, 55860 (Mason CJ and McHugh J)
The rationale for refusing to complete an incomplete gift is that a donor should not be compelled to make a gift, the decision to give being a personal one for the donor to make. However, that rationale cannot justify continued refusal to recognize any interest in the donee after the point when the donor has done all that is necessary to be done on his part to complete the gift, especially when the instrument of transfer has been delivered to the donee. Just as a manifestation of intention plus sufficient acts of delivery are enough to complete a gift of chattels at common law, so should the doing of all necessary acts by the donor be sufficient to complete a gift in equity. The need for compliance with subsequent procedures such as registration, procedures which the donee is able to satisfy, should not permit the donor to resile from the gift.
Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.
Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself.
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9, 2829 (Windeyer J)
[T]he general rule of equity is that an effective assignment occurs only if the donor does all that, according to the nature of the property, he must do to transfer the property to the donee. But the weight of authority is, I think in favour of the view that in equity there is a valid gift of property transferable at law if the donor, intending to make, then and there, a complete disposition and transfer to the donee, does all that on his part is necessary to give effect to his intention and arms the donee with the means of completing the gift according to the requirements of the law
I think therefore that, if a man, meaning to make an immediate gift of a chose in action that is his, executes an instrument that meets the requirements of the [Property Law Act (Vic) s 134] and delivers it to the donee, actually or constructively, he has put it out of his power to recall his gift.
Thomas v Times Book Co Ltd [1966] 1 WLR 911, 91315, 919 (Plowman J)
This is an action by Mrs. Caitlin Thomas, who is the widow of the late Dylan Thomas and the sole administratrix of his estate, to recover from the defendants, the Times Book Company Ltd., the manuscript of Dylan Thomas's best-known work, Under Milk Wood. The defendants claim that Dylan Thomas made a gift of this manuscript to Douglas Cleverdon, a British Broadcasting Corporation producer, and they claim title through him.
The primary question with which I am concerned is, therefore, whether Dylan Thomas made a gift of this manuscript to Cleverdon.
[O]n Thursday, October 15, 1953, Dylan Thomas delivered the manuscript to Cleverdon at his office in the B.B.C. In that office there was also present Cleverdon's secretary, Miss Fox. Dylan Thomas was due to fly to America on the following Monday, October 19, and he was going there to try to raise some money by giving readings of Under Milk Wood. He told Cleverdon that he wanted his manuscript back by Monday to take to the United States with him. Cleverdon told his secretary, Miss Fox, to cut a stencil of the manuscript as quickly as possible. She did so, and she gave Dylan Thomas his manuscript back on the morning of Saturday, October 17, and he lost it. He was perturbed about this loss; he had not any other copy of it, he was due to fly to America on the following Monday and he needed the manuscript for that trip.
Some time over the weekend Dylan Thomas telephoned Cleverdon at the latter's home and told him that he had lost the manuscript. Cleverdon told him not to worry about it because the B.B.C. had had this script stencilled, and he, Cleverdon, would take three copies of it to the London air terminal at Victoria Station on Monday and hand them over before Dylan Thomas left for America. On the Monday Cleverdon told his secretary what had happened; he asked her to get three copies rushed off, and that was done. Cleverdon, in the early evening, took a taxi to the London air terminal and there he found Dylan Thomas in company with his wife and a Mr. and Mrs. Locke. Cleverdon handed over to him the three copies of the B.B.C. script. I now quote the actual words of Cleverdon's evidence, which I read from a press cutting which is substantially the same, and is the same in all material respects as my own note. Cleverdon said that the poet was extremely grateful, and then I quote:
The only words I can recall him actually saying were that I had saved his life. I said it seemed an awful pity that the original had been lost, and that it meant an awful lot to me. I had been working on it very closely over six or seven years, and it was the culmination of one of the most interesting things I had produced. He said if I could find it I could keep it. He told me the names of half a dozen pubs, and said if he had not left it there he might have left it in a taxi.
Either later that day or the next day probably, I think, the next day Cleverdon told his secretary, Miss Fox, what had happened. He told her that Dylan Thomas had given him the manuscript, which was still missing, and he told her that he was going to look for it. Within a day or two he found it, and he found it in one of the public-houses in Soho, the name of which he had been given by Dylan Thomas. He took possession of it and he retained it until 1961, when he sold it to a one Cox, through whom it came to the defendants.
[I]n order to establish a gift the defendants have to prove two things, first of all, the relevant animus donandi, or the intention of making a gift, and secondly, a delivery of the subject-matter of the gift, this manuscript, to the donee.
It is said on behalf of the plaintiff that even if Dylan Thomas intended to give this manuscript to Cleverdon, he did not succeed in giving effect to that intention because there was no delivery of the subject-matter of it to Cleverdon by Dylan Thomas. I feel bound to reject that argument. The fact is that Cleverdon got possession of this manuscript from the Soho public-house in which it had been left by Dylan Thomas and that he got that possession with the consent of Dylan Thomas. That, in my judgment, is sufficient delivery to perfect a gift in Cleverdon's favour.
Additional Instructions
Please ensure that you write in clear and grammatical English. Consistently with the remarks bout audience above, please use a formal tone and an appropriate structure. Two hallmarks of a good structure are (i) that the heading of each section accurately describes what is dealt with in that section, and (ii) that the sequence of paragraphs within each section, and of sections overall, present a logically coherent and unfolding response to the questions asked.
Your references should follow AGLC 4 style. Please also follow AGLC 4 style for your formatting, punctuation and so on also. Please include a bibliography at the end of your submitted paper, beginning on a separate page. The word limit is strict and includes headings and footnotes but not the bibliography. Any additional words will not be read by the examiner.
Learning Outcomes
This task allows you to demonstrate your achievement towards the Unit Learning Outcomes (ULOs) which have been aligned to the Deakin Graduate Learning Outcomes (GLOs). Deakin GLOs describe the knowledge and capabilities graduates acquire and can demonstrate on completion of their course. This assessment task is an important tool in determining your achievement of the ULOs. If you do not demonstrate achievement of the ULOs you will not be successful in this unit. You are advised to familiarise yourself with these ULOs and GLOs as they will inform you on what you are expected to demonstrate for successful completion of this unit.
The learning outcomes that are aligned to this assessment task are:
Unit Learning Outcomes (ULOs) Graduate Learning Outcomes (GLOs)
ULO1 Analyse and apply equitable doctrines, including the law of trusts, having regard to their relationship to and differences from the common law. GLO1: Discipline-specific knowledge and capabilities
GLO4: Critical thinking
ULO2 Synthesise and critically evaluate legal questions that arise in relation to equity and trusts. GLO4: Critical thinking
ULO3 Contribute to the legal scholarship of equity and trusts by crafting a persuasive and cohesive argument relevant to a contemporary problem in this area. GLO2: Communication
Submission
If you are submitting an individual assignment, please name your document using the following syntax: <family name_student ID_MLL405.doc (or .docx)>. For example: Emerton_12345679_MLLL405.doc.
If you are submitting your assignment as a pair, please name your document using the following syntax: <family name of first member_first student ID_family name of second member__second student ID_MLL405.doc (or .docx)>. For example: Emerton_123456789_Campbell_987654321_MLL405.docx.
Additional instructions on the dropbox arrangements for submission by pairs will be provided soon.
Submitting a hard copy of this assignment is not 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 and/or plagiarism and for authenticating work.
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 indicates the assessment criteria for this task. It will be made available in the CloudDeakin unit site in the Assessment folder, under Assessment Resources, soon. Criteria act as a boundary around the task and help specify what assessors are looking for in your submission. The criteria are drawn from the ULOs and align with the GLOs. You should familiarise yourself with the assessment criteria before completing and submitting this task.
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 can only be granted for exceptional and/or unavoidable circumstances outside of your control. Requests for extensions must be made by 12 noon on the submission date using the online Extension Request form under the Assessment tab on the unit CloudDeakin site. All requests for extensions should be supported by appropriate evidence (e.g., a medical certificate in the case of ill health).
Applications for extensions after 12 noon on the submission date require University level special consideration and these applications must be must be submitted via StudentConnect in your DeakinSync site.
Late submission penalties
If you submit an assessment task after the due date without an approved extension or special consideration, 5% will be deducted from the available marks for each day after the due date up to seven days*. Work submitted more than seven days after the due date will not be marked and will receive 0% for the task. The Unit Chair may refuse to accept a late submission where it is unreasonable or impracticable to assess the task after the due date. *'Day' means calendar day for electronic submissions and working day for paper submissions.
An example of how the calculation of the late penalty based on an assignment being due on a Thursday at 8:00pm is as follows:
1 day late: submitted after Thursday 11:59pm and before Friday 11:59pm 5% penalty.
2 days late: submitted after Friday 11:59pm and before Saturday 11:59pm 10% penalty.
3 days late: submitted after Saturday 11:59pm and before Sunday 11:59pm 15% penalty.
4 days late: submitted after Sunday 11:59pm and before Monday 11:59pm 20% penalty.
5 days late: submitted after Monday 11:59pm and before Tuesday 11:59pm 25% penalty.
6 days late: submitted after Tuesday 11:59pm and before Wednesday 11:59pm 30% penalty.
7 days late: submitted after Wednesday 11:59pm and before Thursday 11:59pm 35% penalty.
The Dropbox closes the Thursday after 11:59pm AEST/AEDT time.
Support
The Division of Student Life provides a range of Study Support resources and services, available throughout the academic year, including Writing Mentor and Maths Mentor online drop ins and the SmartThinking 24 hour writing feedback service at this link. If you would prefer some more in depth and tailored support, make an appointment online with a Language and Learning Adviser.
Referencing and Academic Integrity
Deakin takes academic integrity very seriously. It is important that you (and if a group task, your group) complete your own work in every assessment task 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 referencing (and avoiding breaching academic integrity) and other study support resources at the following website: http://www.deakin.edu.au/students/study-supportYour rights and responsibilities as a student
As a student you have both rights and responsibilities. Please refer to the document Your rights and responsibilities as a student in the Unit Guide & Information section in the Content area in the CloudDeakin unit site.
MLL405 T1 2023 Research Assignment Rubric
Performance level/ Criteria (marks available out of 40) N (029) N (3049) P (5059) C (6069) D (7079) HD (80100)
Research (8)
ULO1, ULO2GLO1, GLO4 0.02.32 marks
No additional research 2.43.92 marks
Little additional research 4.04.72 marks
Some additional research 4.85.52 marks
Additional research, both cases and academic works 5.66.32 marks
Significant additional research, both cases and academic works 6.48 marks
Extensive additional research, both cases and academic works
Understanding of technical legal issues (12)
ULO1GL02, GLO4 0.03.48 marks
Fails to identify the issues 3.65.88 marks
Significant technical errors in the attempt to identify the issues 6.07.08 marks
Correctly identifies some of the issues, but with technical errors 7.28.28 marks
Identifies most of the issues, with some technical errors 8.49.48 marks
Identifies most of the issues, with few technical errors 9.612 marks
Correctly identifies all of the issues
Account of whether equitys approach, as set out in the judgments of Mascon CJ and McHugh J and Windeyer J, is consistent with the certainty and stability appropriate to property rights (4)
ULO2GL04 0.01.16 marks
No account 1.21.96 marks
Simplistic account (eg generic reference to certainty or stability) 2.02.36 marks
Some attempt at an account that relates to the rule set out by Mason CJ, McHugh J and Windeyer JJ 2.42.76 marks
An account that relates to, and draws upon, the legal analysis with some degree of clarity 2.83.16 marks
An account that clearly relates to and draws upon the legal analysis 3.24 marks
Sophisticated account, that relates to and draws upon the legal analysis in a sound fashion
Academic writing, including structure, analysis and argument (12)
ULO2, ULO3GL02, GLO4 0.03.48 marks
The entirety of the assignment is unclear and lacks structure, analysis and argument 3.65.88 marks
The assignment has some structure, but overall lacks any clear analysis or argument 6.07.08 marks
The assignment has some structure, and its analysis and argument are clear at some points 7.28.28 marks
The assignment has a structure, including an introduction, and is generally clear in its analysis and argument 8.49.48 marks
The assignment has a clear structure, and is clear in its analysis and argument 9.612 marks
The assignment has a very clear structure, and is strong in its analysis and argument
Presentation: spelling, syntax, punctuation and AGLC4 compliance (4)
ULO3GL02 0.01.16 marks
A large number of errors in one or more respects 1.21.96 marks
A number of errors in one or more respects 2.02.36 marks
Some errors 2.42.76 marks
Few errors 2.83.16 marks
Few errors, and no significant errors 3.24 marks
No errors
