ABSTRACT
The final part of the text is completely devoted to a detailed examination of one the foremost emanations of the equitable jurisdiction, the trust. The importance of the trust in the modern legal world cannot be overstated. Its essential characteristic, the separation between legal and equitable interest, has been used for a multitudinous array of purposes. Family trusts have been created, utilising the device as a means of achieving future benefit for young children, or as a means of splitting income to obtain tax advantages. Employers and employees alike have embraced the trust as a means of establishing superannuation and pension funds for the future benefit of employees. Trading companies have applied the trust as a means of coordinating business functions and maximising tax advantages. Investors have used the unit trust as an alternative to investment within a share portfolio, as it confers equitable protection upon the unit holders and is often perceived to have a greater investment potential. Courts have utilised the trust as a remedial device for according justice within certain prescribed instances including: fair and equal distribution of property between de facto partners, protection against a defaulting trustee, the knowing receipt of trust property by a third party and certain contractual arrangements entered into for the express benefit of a third party. Where the trust is being imposed by the court, rather than created by the settlor, different policy considerations will be relevant. Courts are paying increasing attention to the consequences surrounding the application of constructive trusts, including the type of unfairness warranting the application of a proprietary interest and the impact that such an interest may have upon the competing claims of other interested parties.
