The HoL has relaxed the requirements for a constructive trust in the form of

The hol has relaxed the requirements for a

This preview shows page 10 - 11 out of 11 pages.

The HoL has relaxed the requirements for a constructive trust, in the form of CICT, by the decision of Stack , while at the same time restricting, the doctrine of proprietary estoppel. The tension between the desirability of providing a remedy and the need for certainty in the law has always been a critical feature of judicial decision-making in the common law and equity. The tension is resolved in different ways and w/ different results according to the context. Where loss or damage has been caused by unconscionable conduct, it would be wrong to provide a civil remedy if the ingredients of what is unconscionable conduct cannot be defined w/ sufficient clarity to satisfy requirement of the Rule of Law that laws should be clear and accessible. If, on the other hand, that threshold is capable of being satisfied, there is a powerful argument in favor of the provision of a principled remedy. In the case of unconscionable conduct, it is difficult to see why, as between the C and the wrongdoer, the desirability for any greater degree of certainty than is necessary to meet the threshold should be a trump card, particular if, as indeed is the case w/ circumstances. So far as concerns an innocent 3 rd party, certainty is a most important factor, especially in commerce. That is achieved in the case of a constructive trust and the right to relief for proprietary estoppel by the traditional principle of equitable interests or equities binding 3 rd parties who take w/ notice, but not otherwise. For those reasons, the necessity for certainty ought not to be an obstacle to the provision of a principled remedy for unconscionable conduct in relation to land, whether through an institutional constructive trust, proprietary estoppel, restitution, or indeed, properly fashioned, a remedial constructive trust. The problem is not one of certainty, but of achieving a coherent legal framework based on consistent policies within and between those different areas of law Problem1 No formalities, as made in informal context If circumstances are right here, we can come over the lack of formalities Taylor Fashion v Liverpool Victoria Trustee o The main principle is unconscionability “Whether, in all the circumstances of the case, it was unconscionable for the D to seek to take advantage of the mistake which, at the material time, everybody shared.” o Not necessary to meet 5 probanda The C must have made a mistake as to their legal rights over some land belonging to another The true landowner msut know of the C’s mistaken belief The C must have expended money or carried out some action on the faith of the mistaken belief The landowner must have encouraged the expenditure by the C, either directly, or by abstaining from enforcing their legal rights The owner of the land over which the right is claimed must know of the existence of their own rights, and that these are inconsistent w/ the alleged rights of the C o Broad test required “whether circumstances are unconscionable”
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