Australian Contract Law: The Knowing Receipt Doctrine

However, due to this idea of strict liability offences not requiring proof of fault leads to the simple moral claim of ‘is it right to punish a person who had no intent to commit a crime, and took precautions not to let anyone get harmed in any way, to still be convicted?’ This opens the argument against the use of strict liability as it suggests that no matter what the opposing says, strict liability is a criminal offence and it is not vigorously enforced. This in turn lowers the respect to law and the criminal justice system as it appears that the justice system cannot

In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.

Mary McDonald, an 86-year-old woman, was frequently complaining about the high cost of maintenance of her house and high property taxes. She decided to cancel her fire insurance to reduce expenses. Mary’s daughter was aware of her mother’s concern about the property, and she took Mary to the lawyer’s office to sign some papers that would protect her mother. When Mary came to the lawyer’s office, she was advised that the paper she was going to sign was the deed to the property. Mary signed a document. Later on, when the municipal tax bill arrived, Mary McDonald was really surprised to see that the property was in her daughter’s name.

“Whenever a devise, conveyance, assignment, or other transfer of property, including a beneficial interest in a land trust, maintained or intended for maintenance as a homestead by both husband and wife together during coverture shall be made and the instrument of devise, conveyance, assignment, or transfer expressly declares that the devise or conveyance is made to tenants by the entirety, or if the beneficial interest in a land trust is to be held as tenants by

This essay will briefly explain negligence and its elements and will further critically analyse the UK compensation culture and discuss whether it exist, or whether it is a perception created by the media. This essay will further discuss whether the UK laws encourage people to blame and claim and what the UK law has done to prevent an increase in the compensation culture.

B) a transaction in which the third party does not know the identity of the agent

The four D’s of negligence are duty, dereliction of duty, direct or proximate cause, and

Vicarious liability is a doctrine where a company is held liable for the negligent acts of the employees while the doctrine of identification supposes a situation where the crimes committed by the company can be directed towards the directors or managers of the company who are the directing mind and will of the company and can be held liable for the acts committed by a separate legal entity namely the company. In the case of Tesco Supermarkets Ltd v Nattrass, the Appellant was offering a discount on washing powder and this was advertised on posters displayed in stores, but the Defendant did not find the packet of washing powder at the reduced price, as advertised. The Defendant therefore filed a complaint under the Trade Descriptions Act, 1968 for falsely advertising the price of washing powder. In defense

Given the discordant state of the Australian authorities, the High Court took the opportunity in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, (‘Farah Constructions’) to clarify the Australian position on knowing assistance. Their Honours declared, in obiter, that Australian courts should continue to follow the decision in Consul Development v DPC, thereby continuing to see as necessary the requirement of a dishonest design on the part of the fiduciary, and subscribing to the proposition that where the third party’s knowledge falls within the first four categories of the Baden scale it will answer the requirement of knowledge under the second limb of Barnes v Addy.

He pointed out that a trust should not be dependent on this distinction and that a trustee should look for beneficiaries in order to fulfill their fiduciary duty under the trust. In his opinion, Lord Wilberforce, noted that a discretionary trust is a trust and the trustee must identify beneficiaries. He continued that where a trust was made for the benefit of a group, the complete list test will not be appropriate in establishing certainty of objects. The list of beneficiaries in a discretionary trust cannot be completed and the trustee is, therefore, not required to provide equal benefits for all beneficiaries. In his view, the most appropriate test would be to inquire whether an individual is or is not a member of a beneficial

Certainty of subject matter is where there must be an identification of the trust property and certainty as to whom is which part of the trust property to be held. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect (Boyce v Boyce). However the trust will not fail where the method of distribution is not stipulated by the sethlow leaving the court to intervene (re napton). If there is an effect of lack of certainty in

Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See:

The following is a case study of Blackwell v Blackwell, that is connected to the principle of Secret Trusts and particularly Half Secret Trusts. In order for the principle to be understood, it is significant to expatiate on what secret trusts are and the several laws revolving around them. In general terms, a secret trust arises where a testator, A, tells B that he is leaving property to B on his death, and that he wishes B to hold it on trust for C, even though no trust for C has been set out in any formal will executed by A. If B agrees, when the property passes to B on A's death, the court will enforce the secret trust despite its informality and require B to hold the property for C. In secret trusts, two different types are recognised by the courts, one where the trustee and the terms of the trust are not mentioned in the will, this is a fully secret trust while a half secret trust is subject to a trust obligation which is apparent on the face of the Will, but the terms of the trust and the identity of the beneficiary are not disclosed. The trustee is not in position to deny the trust and can not fraudulently take the property because he is a trustee for someone. Equity will not allow him take the property beneficially. The major difference between both is the extent in which disclosure is made as to the recipient of the gift intends to take the property as a trustee rather than for himself. Secret Trusts can also arise where there is no will, it may be in a case of

In Re Montagu’s Settlement Trusts (1987) Megarry J held that in order to found a claim for knowing receipt, the defendant had to have actual knowledge that his receipt was in breach of trust or was ‘willfully blind’ shutting his eyes to the obvious; or willfully and

In one circumstance it neglects to only allow reliable evidence. In its oblique way it allows unreliable evidence. It could also be called circular because if it process to justify a secret trust. It works better with a fully secret trust rather than a half secret trust because it barely justifies the enforcement of a half secret trust. The Fraud theory is the first justification aspect of secret trusts. It was based on the resemblance with a secret trust and the statutory provisions contained in the Statute of Fraud 1677 preventing a legatee who accepted being a trustee, but then relied on the provision to take the full benefit. This would in case be seen as fraud. The predicament that occurs is the one of question why the courts should even allow the admittance of unreliable evidence. It is questionable whether the courts should in the case just assume that the legatee has the right to the full benefit they are supposed to hold trust in regards to a fully secret trust and in the case of a half secret trust the courts could assume that a testamentary trust fails to be upheld given the fact that in a half secret trust the object of the trust is kept a secret and therefor it fails. Hence it becomes an resulting trust in favour of the testators estate rather than who it was initially intended to be in favour for. Therefor in order to justify secret trust the fraud theory is used in certain