ABSTRACT
The Australian High Court has recognised the ability of a court of equity to uphold and enforce a right as an in rem right.1 For a full equitable proprietary interest to exist, the right should be enforceable against third parties. The mere fact that an equitable right is specifically enforceable, or its breach prevented by injunction, does not necessarily mean that the right is proprietary (National Provincial Bank Ltd v Ainsworth (1965)). Nevertheless, as noted by Finkelstein J in Wily v St George Partnership Banking Ltd (1999):
Equitable interests may be expressly created where a holder of property intends to create a trust and complies with all of the requirements for the valid creation of such a trust. A trust may be created by transferring the property to a third party trustee for the benefit of a named beneficiary, or where the settlor declares that he or she holds the property on trust themselves for a named beneficiary.
