2 pooling of resources or contributions for the

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2. Pooling of resources or contributions for the benefit of a joint venture – although actual pooling is not required. Non-financial contributions may count depending on the nature of the relationship ( Parij ). 3. Joint venture ends without fault ( Muschinsky ). 4. Would be unconscionable to retain the benefit. If made out you get the percentage that you contributed ( Baumgartner 45:55 ; Parij ). In Muschinsky they paid bills and expenses and then paid back initial contributions and divided the rest 50:50. Nature of Trusts Generally Arising by Operation of Law The first 2 types of trust require intent. Baumgartner CTs do not require intent – it is imposed. A CT can be seen as institutional in that it arises as soon as the elements are satisfied. A CT may be viewed as remedial in nature – when does the equitable interest arise? A CICT arises as soon as the elements are satisfied ( Parsons ). Baumgartner CTs arises flexibly – it may arise earlier or later. Some lower cases suggest that it arises earlier rather than later. May arise o When elements are fulfilled o When the court declares the interest o When the court declares that they can backdate it For married couples Family Law Act takes over. For de facto couples (including same sex) see Part 9 of the Property Law Act. (Relationship must be less than two years) CTs also cover people all types of relationships. In some situations there may both a resulting and constructive trust. They are not mutually exclusive. 7
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Estoppel (Read 7.180-7.215, 7.160-7.180) (TextBook P297) Estoppel has become very intertwined with property law. Common law estoppel – representation or statements about existing facts. (Used as a shield – defence) Equittable estoppel – representations about future conduct (promises). (Can be used as both a shield and a sword). o Promissory estoppel o Proprietary estoppel – Like promissory estoppel – but deals with representations involving land (can be used as a sword). Definition of Prop Estoppel: Land owner creates or encourages an expectation in another that they will have or acquire a property interest . That person must reasonably act to their detriment in reliance on that expectation. It must be unconscionable for the landowner to deviate from that expectation. Text Book 3275. Facts: Jack Baker couldn’t afford land. Father owned 6 acres and said he could build the bungalow on his land. Jack was encouraged to build it on his father’s land – leading him to believe that he could live there indefinitely. He lived there for 20 years until the father died leaving his land to his de facto wife and children. Held: JB had established prop estoppel. The father had created a reasonable expectation in JB that if he built the bungalow it would be his home for life. JB spent that money in the expectation that he would be able to stay and live there. In the circumstances the court will not allow that expectation to be defeated where it would be inequitable to do so. It was found appropriate to enforce the right by way of a ‘licence to occupy for life’. Party holds an ‘equity’
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