Deakin University
Browse

File(s) under permanent embargo

Discourse of conscience in the assessment of voluntary assignments in equity

journal contribution
posted on 2006-01-01, 00:00 authored by Samantha HepburnSamantha Hepburn
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.

History

Journal

Journal of equity

Volume

1

Pagination

117-134

Location

Chatswood, N.S.W.

ISSN

1833-2137

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal

Copyright notice

2006, LexisNexis

Publisher

LexisNexis

Usage metrics

    Research Publications

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC