1. ET? s.53(1)(b) PLA must be in writing,

signed by Trustee. Must be a clear intention to create a

trust.

2. RT? Did one party acquire property at the others expense? There must have been a direct financial contribution

to the purchase of the property (Calverley v Green); Does the presumption of advancement apply?; OR Is there a contrary intention

3. CT? There are 4 possible types

(i) CT from specifically enforceable contract (specific performance)

(ii) Common intention CT (iii) Unconscionability CT

NB: s.53(2) PLA: RTs and CTS do not have to be in writing

(i) Specific performance 1. Contract needs to have been valid

and enforceable: a. Be in writing (s53(1) PLA); b. There is sufficient writing

(ANZ v Windin): i. The relevant piece of land;

ii. The parties who are part of the contract;

iii. The relevant amount; and iv. It must be signed by the

parties 2. The contract must have been

breach (and unenforceable); and 3. There must be no bar to remedy

Part Performance 1. Oral agreement or insufficient

writing (ANZ v Windin); 2. Acts done in part performance

must be in reliance of the contract or consistent with the contract or on encouragement of the grantor;

3. Unequivocal acts performed for the purpose of carrying out the agreement (Ogilvie); and

4. Other than the writing requirement the agreement is capable of specific performance (Mason v Clarke)

Is there an oral contract?

(i) Common intention CT? Did the parties have a common

intention about the beneficial ownership of the property (Rasmussen); and

The party claiming the beneficial interest acted to their detriment on the basis of the common intention (Rasmussen; Ogilive); and

It would be unconscionable for the legal title holder to deny the interest (Ogilvie)

(ii) Unconscionability CT? 1. Is there a joint venture or

polling of resources (Baumgartner);

2. The contributions must be made for the purpose of the joint venture;

3. The property was acquired for the purposes of the joint venture; and

4. It would be unconscionable for the legal owner to deny the beneficial interest of the other party

May be difficult to establish

if only non-financial contributions made

4. Estoppel Did other party make a

representation on which claimant relied to her detriment?

Failure to inform claimant of situation where other person knows or ought to know there is reliance is enough (Waltons Stores)

Object: to heal detriment, not to make good representation (Verwayen)

Court should award minimum equity to do justice (Giumelli)

Was there a reasonable expectation?

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