Equity in estate litigation : setting aside inter vivos transactions post mortem on the grounds of undue influence and unconscionable bargains

Where the value of an estate of a deceased person has been diminished by intervivos transfers of property, equitable doctrines provide powerful tools for practitioners advising those who are seeking to claim benefits under wills (or an intestacy) and those seeking further and better provision from the deceased estate.

Dreams and nightmares of alternative powers' futures

This chapter argues the importance of the role and nature of other powers to world order. The author suggests that, if the US are not prepared to take a lead in creating a rules-based legal order, they should and can do so – and it is in their interests to do so. America should be a natural leader in this process, taking part in a global dialogue just as they did in the transatlantic dialogue during the late eighteenth century.

Pragmatism and precision : psychology in the service of civil litigation

While forensic psychology is commonly associated with the criminal and family law domains, its ambit to offer skills and knowledge at the legal interface also makes it particularly suited to the civil law domain. At this time, civil law is arguably the least represented legislative area in terms of psychological research and professional commentary. However, it is also a broad area, with its very breadth providing scope for research consideration, as urged by Greene. The purposes of this article are (1) to review the broad role of the psychologist in the conduct of civil litigation matters in Australia, (2) to assist the novice to the area by indicating a non-exhaustive list of potentially ambiguous terms and concepts common to the conduct of professional practice, and; (3) to highlight, as an example, one area of practice not only where legal direction demands professional pragmatism but also where opportunity arises for psychological research to vitally address a major social issue.

Equity and Trusts in Principle [3rd ed.]

Equity and Trusts : in Principle, 3rd edition is updated and revised throughout. It addresses the principles of equity and trusts and provides a clear analysis of this area.

Misleading and deceptive conduct at an auction

An unusual factual situation recently arose for consideration by Lindsay J of the Federal Circuit Court. In Carter v Delgrove Holdings Pty Ltd [2013] FCCA 783, an application was brought by the owners of a residential property in Western Australia, the Carters, for damages for misleading or deceptive conduct under s 18 of the Australian Consumer Law (“ACL”) and for damages for breach of contract arising from an auction of their house. Delgrove Holdings Pty Ltd was a trustee of a family trust with Mr Ilahi being a director and shareholder of the company as well as a beneficiary under the family trust. It was established that Delgrove Holdings Pty Ltd engaged in the business of property acquisition for the purposes of generating rental income...

Shifting global power and shifting state power

The adoption of the Declaration on the Rights of Indigenous Peoples (DRIP) by the United Nations General Assembly in September 2007 has been heralded by many as a major breakthrough in the promotion of Indigenous rights under international law. Many however are sceptical as to whether DRIP actually promotes Indigenous rights or rather limits them in ways that serve the interests of nation states thereby diminishing the universality of human rights with respect to Indigenous peoples. This paper will examine how shifts in global power from the United States to the BRIC nations (Brazil, Russia, India and China) are likely to impact on the realisation of the right of self determination for Indigenous peoples. It will start by outlining the right of self determination as articulated in the Declaration, and in particular how the United States and its allies - the CANZUS group (Canada, Australia, New Zealand and United States) - were influential in shaping its form and content. The paper will then assess the extent to which the right to self determination is realised in Australia, the United States and the BRJC nations to provide an indication of the likely future direction of recognition and realisation of Indigenous rights at a global level.

Communication Interception Technology (CIT) and its use in the fight against Transnational Organised Crime (TOC) in Australia : a review of the literature

In recent times, technology has advanced in such a manner that the world can now communicate in means previously never thought possible. Transnational organised crime groups, who have exploited these new technologies as basis for their criminal success, however, have not overlooked this development, growth and globalisation. Law enforcement agencies have been confronted with an unremitting challenge as they endeavour to intercept, monitor and analyse these communications as a means of disrupting the activities of criminal enterprises. The challenge lies in the ability to recognise and change tactics to match an increasingly sophisticated adversary. The use of communication interception technology, such as phone taps or email interception, is a tactic that when used appropriately has the potential to cause serious disruption to criminal enterprises. Despite the research that exists on CIT and TOC, these two bodies of knowledge rarely intersect. This paper builds on current literature, drawing them together to provide a clearer picture of the use of CIT in an enforcement and intelligence capacity. It provides a review of the literature pertaining to TOC, the structure of criminal enterprises and the vulnerability of communication used by these crime groups. Identifying the current contemporary models of policing it reviews intelligence-led policing as the emerging framework for modern policing. Finally, it assesses the literature concerning CIT, its uses within Australia and the limitations and arguments that exist. In doing so, this paper provides practitioners with a clearer picture of the use, barriers and benefits of using CIT in the fight against TOC. It helps to bridge the current gaps in modern policing theory and offers a perspective that can help drive future research.

Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website

Criminalisation and normative theory

Criminal law scholarship is enjoying a renaissance in normative theory, evident in a growing list of publications from leading scholars that attempt to elucidate a set of principles on which criminalisation and criminal law might — indeed should — be based. This development has been less marked in Australia, where a stream of criminologically influenced criminal law scholarship, teaching and practice has emerged over nearly three decades. There are certain tensions between this predominantly contextual, process-oriented and criminological tradition that has emerged in Australia, characterised by a critical approach to the search for ‘general principles’ of the criminal law, and the more recent revival of interest in developing a set of principles on which a ‘normative theory of criminal law’ might be founded. Aspects of this tension will be detailed through examination of recent examples of criminalisation in New South Wales that are broadly representative of trends across all Australian urisdictions. The article will then reflect on the links between these particular features of criminalisation and attempts to develop a ‘normative theory’ of criminalisation.

Reconsidering the agency of a privately appointed receiver and manager in three specific circumstances

Where a secured lender elects to appoint a receiver and manager, the appointment document standardly provides for the receiver and manager to act as the agent of the debtor. This article considers the significance of this agency in the context of three specific issues that have the potential to arise in the receivership of a corporate borrower across all Australian jurisdictions.

A comparison of finite difference and finite volume methods for solving the space-fractional advection-dispersion equation with variable coefficients

Transport processes within heterogeneous media may exhibit non- classical diffusion or dispersion which is not adequately described by the classical theory of Brownian motion and Fick’s law. We consider a space-fractional advection-dispersion equation based on a fractional Fick’s law. Zhang et al. [Water Resources Research, 43(5)(2007)] considered such an equation with variable coefficients, which they dis- cretised using the finite difference method proposed by Meerschaert and Tadjeran [Journal of Computational and Applied Mathematics, 172(1):65-77 (2004)]. For this method the presence of variable coef- ficients necessitates applying the product rule before discretising the Riemann–Liouville fractional derivatives using standard and shifted Gru ̈nwald formulas, depending on the fractional order. As an alternative, we propose using a finite volume method that deals directly with the equation in conservative form. Fractionally-shifted Gru ̈nwald formulas are used to discretise the Riemann–Liouville fractional derivatives at control volume faces, eliminating the need for product rule expansions. We compare the two methods for several case studies, highlighting the convenience of the finite volume approach.

Buying, selling and building a home

A contract to buy or sell a home is the most important contract most people will ever make. It is crucial that the purchase or sale is made carefully and correctly. Similarly, maintaining a home and undertaking repairs or renovations can be significant aspects of life. This chapter will explore these issues under the broad headings of: • buying a home • selling a home • building or renovating a home.

Supporting cooperative design through "living" artefacts

We present findings from a field trial of CAM (Cooperative Artefact Memory) -- a mobile-tagging based messaging system -- in a design studio environment. CAM allows individuals to collaboratively store relevant information onto their physical design artefacts, such as sketches, collages, story-boards, and physical mock-ups in the form of messages, annotations and external web links. We studied the use of CAM in three student design projects. We observed that CAM facilitated new ways of collaborating in joint design projects. The serendipitous and asynchronous nature of CAM facilitated expressions of design aesthetics, allowed designers to have playful interactions, supported exploration of new design ideas, and supported designers' reflective practices. In general, our results show how CAM transformed mundane design artefacts into "living" artefacts that made the creative and playful side of cooperative design visible.

The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

Insurer and insured

This chapter analyses the obligations insurers and insureds owe each other and the remedies which follow a breach of obligation.