The emergence of the concept of unjust enrichment in New Zealand, its relationship to the remedial constructive trust and the development of the status of joint ventures in equity

From the 1970s onward there have been numerous attempts to persuade the courts of New Zealand that unjust enrichment might be an acceptable basis for imposing equitable remedies. The foundation for this proposition rests upon the supposed existence of a broad principle that the imposition of a constructive trust is justified in any circumstances where it would be against equity or good conscience to allow the retention of property by one who has an ostensible legal title. So the unjust enrichment, once established, becomes the cause of action and the constructive trust follows as an equitable remedy of a proprietary nature which is available to prevent the unjust enrichment. This has important ramifications for the development of the law pertaining to restitution in this country. This paper will show that the acceptance of the remedial constructive trust is linked to the development of a law of restitution founded upon the principle of unjust enrichment. It will also be shown that, while the roots of the conceptual distinction between law and equity remain intact, in many courts the practical ramifications of that distinction are being eroded, particularly in commercial cases

Wobbling: personal reflections on selfdoubt

This book section is a short piece on 'self-doubt and emotional resilience' and the well-being of research students, and is a personal and scholarly reflection. It is an unusual, autobiographical piece of research writing and was selected for a publication initiated by Charlotte Morris and the Centre for Learning and Teaching at the University of Brighton

The family trust in New Zealand and the claims of ‘Unwelcome Beneficiaries’

In June 2009, at the Transcontinental Trusts conference in Geneva, His Honour Justice David Hayton said that the New Zealand Court of Appeal had got aspects of the law of trusts wrong in its decision in Official Assignee v Wilson [2008] 3 NZLR 45. The Court held that the test for proving a trust was a sham was whether the trustees and settlor had a common intention that the trust was not to be a genuine entitiy. Hayton prefers a more objective approach and looks to the objective effect of a shammer’s conduct and not look for secret dishonest intentions which will hardly ever be revealed. Hayton’s approach would ensure that trust property would be made available to creditors so that they were paid what they were due by declaring the trusts to be shams. Family trusts have become big business in New Zealand and are commonly used to protect a businessman’s assets from creditors. While there is nothing illegal in setting up a family trust, it is my contention that the law pertaining to family trusts in New Zealand has become so far removed from the accepted principles of equity as to demand investigation. This paper explores the origins of equity and compares the modern family trust against the equitable principles which have been developed over hundreds of years, even as far back as Plato’s Greece. The paper links the equity of Ancient Greece to Cicero in Rome, through the early Roman Church to the Chancellors serving English Kings. The law of England leads to the law of modern New Zealand. The paper goes on to examine the way the family trust has been used to defeat the legitimate claims of creditors. I aim to show that the approach taken by the New Zealand Court of Appeal is too narrow and favours the ‘shamming’ settlor at the expense of creditors who have given good consideration in comparison with volunteer beneficiaries. Moreover the family trust has become a mechanism that bears little relationship to recognised equitable principles and should lose the protection accorded to properly constituted trusts

Sider's stage theory and expectancy prior to personal fission

According to Sider’s stage theory a subject about to undergo personal fission should expect to experience each outcome simultaneously as distinct persons. How is the subject to make sense of this ? I argue that their most paradigmatically self-interested future-directed behaviour, betting for personal gain, ought to be exactly the same as in equivalent games of chance where the possible outcomes correspond to the fission output branches. So this novel form of expectancy, albeit strange, can be a reliable guide to actio

Commercial equity: the Quistclose trust and asset recovery

This paper examines the impact of equitable principles on the sphere of commercial law. It will make particular reference to the effect of the incursion of equity on ordinary creditors with regard to obtaining priorities in cases of insolvency. It will analyze the Quistclose trust and show how this type of trust may be used to obtain an advantage by those who would otherwise be ordinary creditors. It will refer to the use of equitable tracing to recover assets in a money-laundering scheme The paper will suggest that judicial acceptance of the concept of the remedial constructive trusts has enhanced the development of proprietary restitutionary remedies in commercial transactions where no proprietary remedy would have previously existed

Perceptual experiences, concepts and the reasons behind our beliefs : a thesis presented in partial fulfilment of the requirements for the degree of Master of Arts in Philosophy at Massey University

[FROM INTRODUCTION]How does perception tell us about the world around us? Do our perceptual experiences represent the world to us? If so, how are they representational? Moreover, how do our perceptual experiences provide the basis for our empirical beliefs? 1 The way in which one characterises perceptual experience shapes one's subsequent account of how perceptual experiences cause empirical beliefs. Therefore the answer to the question 'what is a perceptual experience?' will largely affect the response to 'how can perceptual experiences cause beliefs?' (Why this is the case will be shown in the following discussion.) These questions are among those that are central to the philosophy of perception. Let us look at the first one: How does perception tell us about our environment? Many philosophers agree that perception tells us about the way the world is by being representational of the world. This theory of perception is one of many amongst the philosophy of mind that fall under the umbrella of Intentionalism, or representationalism

The 14-19 Diploma: partnering and piloting the agenda within Higher Education to enhance and inspire future learners

The following description is taken from the pdf of the conference programme. In collaboration with local schools consortia, professional practitioners and widening participation partners, this paper reflects on successful pilot workshops already held for the Creative and Media Diploma, and considers the vital role of higher education establishments in progressing and developing potential students for the future