Discourse of conscience in the assessment of voluntary assignments in equity

Hepburn, Samantha 2006, Discourse of conscience in the assessment of voluntary assignments in equity, Journal of equity, vol. 1, pp. 117-134.

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Title Discourse of conscience in the assessment of voluntary assignments in equity
Author(s) Hepburn, SamanthaORCID iD for Hepburn, Samantha orcid.org/0000-0003-3994-4677
Journal name Journal of equity
Volume number 1
Start page 117
End page 134
Total pages 18
Publisher LexisNexis
Place of publication Chatswood, N.S.W.
Publication date 2006
ISSN 1833-2137
Summary This article examines the continuing suitability of the existing Australian test for determining when a voluntary assignment of legal property has passed in equity. It suggests that the current test, which focuses upon the ‘completion’ by the donor of the all the necessary transfer formalities, and the underlying equitable maxims that support it, should be revised to better reflect the dual concerns of assignment and constructive trust. The article reviews the English authorities, in particular the English Court of Appeal in Pennington v Waine, which held that the equitable jurisdiction can validate a voluntary assignment of legal property where, in the circumstances, it would be unconscionable to allow the donor to resile. It is argued that this approach represents an appropriate progression because it provides greater scope for a particularised examination of the intention, circumstances and behaviour surrounding the purported assignment. A test which encourages greater contextual examination of the overall circumstances underlying the assignment process is consistent with the core expectations of equitable methodology. It supports the multi-layered process of determining whether a donor intended the assignment and further, whether that donor should be held liable as constructive trustee.
Language eng
Field of Research 180112 Equity and Trusts Law
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1.1 Refereed article in a scholarly journal
Copyright notice ©2006, LexisNexis
Persistent URL http://hdl.handle.net/10536/DRO/DU:30034612

Document type: Journal Article
Collections: Faculty of Business and Law
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