Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

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

Socially responsible investment in market downturns : implications for the fiduciary responsibilities of investment fund trustees

This paper investigates whether Socially Responsible Investment (SRI) is more or less sensitive to market downturns than conventional investment, and examines the legal implications for fund managers and trustees. Using a market model methodology, we find that over the past 15 years, the beta risk of SRI, both in Australia and internationally, increased more than that of conventional investment during economic downturns. This implies that companies acting as fund trustees, managed investment schemes and traditional institutional fund managers risk breaching their fiduciary or statutory duties if they go long - or remain long - in SRI funds during market downturns, unless perhaps relevant legislation is reformed. If reform is viewed as desirable, possible reforms could include explicitly overriding the common law to allow all traditional funds to invest in SRI; granting immunity to directors of trustee companies from potential personal liability under sections 197 or 588G et seq of the Corporations Act; allowing companies acting as trustees, managed investment schemes and traditional institutional fund managers and trustees to invest in SRI without triggering a substantial capital gains tax liability through trust resettlement; tax concessions for SRI (eg. introducing a 150% tax deduction or investment allowance for SRI); and allowing SRI sub-funds to obtain “deductible gift recipient” status or the equivalent from relevant taxation authorities. The research is important and original insofar as the assessment of risk in SRIs during market downturns is an area which has hitherto not been subjected to rigorous empirical investigation, despite its serious legal implications.

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.

Australian foundations and the downturn

Building on the investigation of the Charity Commission (2009) on the effects of the economic downturn on the largest trusts and foundation in the United Kingdom, the purpose of this research was to assess the extent to which Australian trusts and foundations were taking an actively strategic approach to their investments and pursuit of mission (including grant-making), and the relationship between the two in the context of the economic downturn. Focus was given to identifying the issues raised as a consequence of the economic downturn, rather than providing a generalised snapshot of the ‘average’ foundations response. In September 2009, semi-structured, in depth interviews were conducted with executives of 23 grant making trusts and foundations. The interviews for this research focused on the largest grant makers in terms of grant expenditure, however included foundations from different geographical locations and from across different cause areas. It is important to stress at the outset that this was not a representative sample of foundations; the study aimed to identify issues rather than to present a representative picture of the ‘average’ foundation’s response. It is also important to note that the study was undertaken in September 2009 at a time when many foundations were beginning to feel more optimistic about the longer term future, but aware of continuing and possibly worsening short term income problems. But whatever the financial future, some of the underlying issues, concerning investment and grant making management practices, raised in this report will be of continuing relevance worthy of wider discussion. If a crisis is too good to waste, it is also too good to forget. One other introductory point – as previously noted, interviews for this study were conducted in September 2009 – just one month prior to the introduction of the new Private Ancillary Fund (PAF) legislation which replaced the previous Prescribed Private Fund (PPF) arrangement1. References to PAFs and/or PPFs reflect that time.

Should funds invest in socially responsible investments during downturns?

Purpose: This paper investigates whether Socially Responsible Investment (SRI) is less sensitive to market downturns than conventional investments; the legal implications for fund managers and trustees; and possible legislative reforms to allow conventional funds more scope to invest in SRI. ----- ----- Design/methodology/approach: The paper uses the market model to estimate betas over the past 15 years for SRI funds and conventional investment funds during economic downturns, as distinct from during more ‘normal’ (non-recessionary) economic times. ----- ----- Findings: The beta risk of SRI, both in Australia and internationally, increases more than that of conventional investment during economic downturns. Traditional fund managers and trustees in Australia are therefore likely to breach their fiduciary duties if they go long - or remain long - in SRI funds during economic downturns, unless relevant legislation is reformed. ----- ----- Research limitations/implications: The methodology assumes that alpha and beta in the market model are constant. This is the subject of ongoing research. Second, it categorises the state of the market into ‘normal’ economic conditions and downturns using dummy variables. More sophisticated techniques could be used in future research. ----- ----- Practical implications: The current law would prevent conventional funds from investing in SRI. If SRI is viewed as socially desirable, useful legislative reforms could include explicitly overriding the common law to allow conventional funds to invest in SRI; introducing a 150% tax deduction or investment allowance for SRI; and allowing SRI sub-funds to obtain Deductible Gift Recipient status from the Australian Tax Office and other taxation authorities. ----- ----- Originality/value: The accurate assessment of risk in SRIs is an area which, despite its serious legal implications, is yet to be subjected to rigorous empirical investigation. Keywords - SRI, market model, GARCH, trust fund, fiduciary duties, market downturns, Australia.

The Profits of Charity : International Perspectives on the Law Governing the Involvement of Charities in Commerce

"The Profits of Charity examines the contemporary law governing the involvement of charity in commerce and explores the reasons why this involvement is dramatically changing. From a perspective familiar to charity lawyers, NGO managers, and scholars, Kerry O'Halloran identifies the concepts and the law underpinning charities and their profits by tracing legal developments in the field and identifying the resulting opportunities and challenges for the future. At a time when many leading nations are confronting economic recession, the threat of terrorism, and the retreat of the 'welfare state,' this book explores why governments are turning to charities in their quest to cultivate social capital, consolidate civil society, and promote civic engagement." -- publisher website

Australian paramedic graduates transitioning into UK NHS ambulance services: what are the potential challenges?

With United Kingdom (UK) Ambulance National Health Service (NHS) Trusts and Foundation Trusts actively recruiting Australian paramedic graduates, this article seeks to stimulate discussion by identifying differences existing between the two ambulance systems, as well as highlighting potential challenges that Australian graduates may face when transitioning to the UK ambulance service. It also identifies similarities between Australian and UK ambulance systems, which may assist new graduates to overcome the transition shock. This article suggests that transition shock is not solely related to Australian graduates moving to the UK, and may well be present for graduates moving to comparable international ambulance services in Canada, the Middle East, Ireland and South Africa.

Accountable to everyone, or to no one? Perspectives on the accountability of Australian private ancillary funds

This thesis explores perspectives on the accountability of Private Ancillary Funds (PAFs), a type of Australian endowed philanthropic foundation. Privately established for a public benefit purpose, with limited formal accountability requirements, there are differing and sometimes conflicting perspectives on the nature and scope of PAF accountability. Through in-depth interviews with managers and trustees of 10 PAFs, forms and relationships of PAF accountability are uncovered. Findings reveal accountability for PAFs does not necessarily include public disclosure or transparency. However, engagement with accountability for a PAF results in greater impact and satisfaction for those involved.

A-REIT seasoned equity offerings : determinants and market reaction

The paper examines the decision by Australian Real Estate Trusts (A-REITs) to issue seasoned equity offerings from 2000 - 2008 and stock market reaction to the offerings using panel data and event study methodologies, respectively. The global financial crisis has resulted in freezing of the Australian bond markets, with several A-REITs left with seasoned equity issuance and asset sales as the only viable modes of raising additional capital. The findings review that leverage and operating risk are negative significant determinants of seasoned equity offerings; profitability and growth opportunities are positive significant determinants. Of the structure and type of properties held by the A-REIT, only stapled management structure and international operations are significant determinants. Type of properties held by A-REITs show inconsistent results. Similar to previous studies of seasoned equity offerings, we find a significant negative abnormal return associated with their announcement and no evidence of excessive leakage of information. Cross-sectional regressions show that the issued amount raised and leverage are significant factors affecting abnormal returns.

Dislodgement of commercial property public debt markets : the case of U.S. and Australia

The paper investigates if there are any discernible trends in the U.S. and Australian commercial property public debt markets with the onset of the global financial crisis (GFC). Commercial mortgage-backed securities and unsecured bonds issued by real estate investment trusts for the period 2000 to Q3:2009 are reviewed. It is shown that events in the equity markets have an impact on the pricing of these two instruments. Furthermore, the impact of subdued activity in these financing instruments on the commercial property market is discussed.

Determinants and market impact of seasoned equity offerings : the case of A-REITs

The paper examines the decision by Australian Real Estate Trusts (A-REITs) to issue seasoned equity offerings from 2000 - 2008 and stock market reaction to the offerings. The findings reveal that highly leveraged A-REITs with variable earnings are less likely to issue seasoned equity offerings. Inconsistent results for structure and type of properties held by the A-REIT do not allow for inference to be drawn. Similar to previous studies of seasoned equity offerings, we find a significant negative abnormal return associated with their announcement and no evidence of excessive leakage of information. Furthermore, market reaction differences to announcements of SEOs for the pre-global financial crisis (GFC) (2000-2006) and GFC eras (2007-2008) are noted with GFC era shareholders incurring larger abnormal return losses at 1.13% in comparison to the pre-GFC era shareholder loss of 0.34% on the SEO announcement day. Cross-sectional regressions show that the issued amount, leverage and profitability are significant factors affecting abnormal returns. Growth opportunities, tangibility, operating risk, size of A-REIT and other variables capturing A-REIT structure and property types held do not have an impact on abnormal returns