University of Queensland Law Journal
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CHEE HO THAM[*]
Almost 250 years have elapsed since Lord Hardwicke’s seminal decision of Tomlinson v Gill.[1] In that case, Gill, the defendant, promised his uncle’s widow that in consideration for her acquiescence in his appointment as joint administrator of his uncle’s estate, he would make good any deficiency of assets to discharge his uncle’s debts to various creditors. Tomlinson, the plaintiff, was one of these creditors and sought to enforce Gill’s promise of payment. Tomlinson would not have been able to maintain an action at law because he was not the promisee, the person to whom the promise had been made. However, Lord Hardwicke maintained that Tomlinson could sue in equity. Although the promise was made to the widow, ‘the promise was for the benefit of the creditors, and the widow is a trustee for them.’ Thus it was that the doctrine of the trust of a chose in action came to be judicially recognised, thereby permitting the third party beneficiary of contractual promises as well as voluntary covenants[2] some degree of power to compel the performance of such choses in action in their own right.
Since then, the fortunes of the trust of a chose in action in the courts which first gave it form have waxed and waned. The general perception is that it reached its zenith in 1919 in Les Affréteurs SA v Leopold Walford (London) Ltd.[3] However, following Vandepitte v Preferred Accident Insurance Corporation of New York,[4] decided only a generation later, the common wisdom is that a retreat was made following Lord Wright’s cautionary words (in relation to a policy of insurance) that, ‘the intention to constitute the trust must be affirmatively proved: the intention cannot necessarily be inferred from the mere general words of the policy.’[5]
In the English Law Commission’s report on Privity of Contract: Contracts for the Benefit of Third Parties,[6] it was said that although the courts were once prepared to infer an intention to constitute a trust of the chose in action in a promise from the simple intention to benefit a third party (following Tomlinson v Gill,[7] Fletcher v Fletcher,[8] Lloyd’s v Harper,[9] Re Flavell[10] and Walford’s Case[11]), ‘in the majority of cases since then [the courts] have refused to draw that inference and have instead required a clear indication that a trust was intended.’[12] The cases cited as authority for the change in direction were Re Engelbach,[13] Vandepitte’s Case,[14] Re Clay’s Policy,[15] Re Foster,[16] Re Sinclair’s Life Policy[17] and Re Schebsman.[18] In consequence, it was the Law Commission’s pessimistic assessment that in recent times, the trust of a chose in action ‘exception’ had rarely been of assistance to third parties.[19] This pessimism arguably fuelled its proposal for Parliamentary intervention to reform this corner of the law, a recommendation which came to fruition with the enactment of the Contracts (Rights of Third Parties) Act 1999.[20]
Quite apart from the fact that application of the 1999 Act in England and Wales is beset by its own set of problems,[21] the overlap between the 1999 Act and the trust of a chose in action is not complete. On its face, the 1999 Act has no application to cases where a third party is seeking enforcement of the benefit of a voluntary covenant – it may be that it only applies to instances of contracts.[22] Nor does it apply to all contracts – some categories of contracts are expressly excluded from its ambit.[23] Furthermore, it is not mandatory – in some circumstances, parties may contract out of its application or prevent the statutory third party right from arising.[24] Pre-existing techniques to address the problem like the trust of a chose in action are therefore still eminently relevant insofar as third party enforcement of a chose in action is concerned.[25]
Although the 1999 Act does not do away with the trust of a chose in action, it is clear that the Law Commission was far from confident that this equitable doctrine could still be of general application in light of what appeared to it to be an apparently indistinguishable morass of case-law. However, on closer examination of the cases listed in its 1996 Report, one might take issue with the general view that the trust of a chose in action had become moribund. To some extent, this may have resulted from an overly reductionist approach to the fact-finding exercise in ascertaining the presence or absence of an intention to constitute the trust of the chose, which, needless to say, must be an express trust.[26]
If they are read closely and constructively, the cases relied upon by the Law Commission are wholly consistent with the statement in Vandepitte (which is, surely, self-evident) that the requisite intention to constitute a trust must be affirmatively proved. However, Lord Wright’s caution in Vandepitte does not necessarily indicate a growing antipathy to the trust of a chose in action. Indeed, Lord Wright’s warning may be read as an observation that trusts cannot be conjured out of thin air – sufficient evidence of the intention to constitute a trust of a chose in action must be brought before the courts.
The deeper question is whether this constitutive intention, where a trust has purportedly been constituted over a contractual promise, needs to be proved on the part of the promisor, the promisee, or, as will be suggested in this paper, both. Likewise, the same question needs to be considered where the chose in question takes the form of a voluntary covenant. It is submitted that the concept of the trust of a chose can be better understood once we draw the appropriate conclusions from the bilateral nature of a chose in action as a form of property.[27] In addition, further clarity may be achieved by appreciating that there may be more than one point in time at which the parties’ intentions may have to be ascertained. Lastly, the line of distinction between cases where a trust has been constituted over a contractual promise supported by consideration and those constituted over a voluntary covenant enforceable despite the lack of consideration may need to be re-drawn.
Parties seeking to prove the existence of an express trust must invariably[28] establish ‘the three certainties’, namely: (a) certainty of intention; (b) certainty of objects or beneficiaries; and (c) certainty of subject-matter or the ‘property’ that is to be subject to the trust. In the specific context of the trust of a chose in action, the English authorities do not appear to have been overly concerned in relation to certainty of objects[29] or subject-matter.[30] Instead, they have concentrated on the question as to whether there was certainty of intention to constitute a trust.
Admittedly, it is already the case that some distinction is drawn between trusts of a contractual promise, and trusts of a voluntary covenant. The mainstream position distinguishes between choses derived from contractual promises supported by consideration, in which case it is said that the promisee’s intention is determinative, and those derived from a voluntary covenant, in which case it is said that the covenantor’s intention is determinative.[31] The reason for the distinction is said to be that, in the case of a contractual chose, it is the promisee who has the right to sue the promisor. In a way, he may be taken to have the ‘legal title’ over the chose. By analogy with trusts of realty or other tangible personalty, it is the promisee who must be shown to have the intention to constitute a trust over the chose.[32] In such cases, it appears to have been assumed that the promisee will be the settlor of the trust. However, in the case of a chose derived from a voluntary covenant, since the right to sue is in the nature of a gift from the covenantor to the covenantee,
it is right that there should be an initial question whether the settlor-covenantor intended that the covenantee should be entitled to the benefit of the covenant beneficially or should hold it on trust for a third party. Just as the owner of a horse may transfer legal title to T and at the same time make clear that T is to hold the horse on trust for V, so a covenantor, S, may make a covenant with T and at the same time make clear that T is to hold the benefit of the covenant on trust for V.[33]
In such cases, it is assumed that the covenantor is the settlor.
This is not the only view. Professor Rickett puts forward the alternative that in cases of trusts of a chose in action (whether arising out of a contractual promise or a voluntary covenant), the determinative intention should be that of the promisor or the covenantor, not the promisee or covenantee.[34] In his view, this avoids the undesirable result where the putative trustee may be placed under temptation and pressure from the putative beneficiaries to constitute the trust. Further, the relevant intention must be manifested at the time of contract.[35] In Rickett’s view, this proviso is necessary to avoid allegations of unfairness to the promisee who has given value. As for the case of a covenantee, Rickett acknowledges that the argument is weaker since the covenantee will have given no value, but does not see why any different result should ensue.[36]
With respect, however, since Rickett’s analysis, like the mainstream view, focuses only on one of the parties to the chose in action, neither approach appears to have considered the impact of the inherently bilateral nature of a chose in action. In the case of a contractual promise, both promisor and promisee must reach a consensus as to the nature of the chose before it can come into existence. As for voluntary covenants, neither analysis appears to have taken the effect of a disclaimer of the office of trustee by a putative covenantee into consideration. Both of these incidents of ‘bilateralism’ will be explored below.[37]
Unlike realty or other forms of personalty, the contractual chose arises only when agreement is reached between promisor and promisee. In cases where there is no such consensus, there is no contract, no chose, no trust property, and therefore no possibility for a trust, even if the promisee was firmly in favour of constituting one. Thus, in the archetypal case where A contractually promises to confer a benefit on B in exchange for B’s assent to hold the benefit on trust for C, Professor Jaconelli noted, ‘both property and trust spring into existence at the same time, being created by the same event (namely, the formation of the contract between A and B).’[38]
This leads to a particular difficulty in cases where the facts are otherwise equivocal as to the constitutive intentions of the promisee. If the facts show that there is a lack of consensus ad idem as to the formation of the contract, no trust could thereby be formed.[39] If so, it is unlikely that any court would draw an inference that the promisee had intended to constitute a trust. Why should the court take part in an exercise in futility? Indeed, why should a promisee be taken to have intended to constitute a trust which could never have been constituted anyway, given the lack of any consensus between promisor and promisee? The presence or absence of the requisite consensus may therefore have a dual effect: it affects the question as to whether there is any present property over which a trust may be constituted, and it should also affect the process of inferring the presence or absence of constitutive intention on the part of the promisee. Consequently, it may be more accurate to say that one needs to look at the intentions of both promisor and promisee.
Support for this view may be derived from the case of Don King Productions v Warren.[40] In that case, the central issue was whether the defendant, who was in the business of managing and promoting professional boxers based in Europe, held the benefit of the management and promotion contracts which he had entered with the boxers, as well as various ‘associated agreements’ pertaining to exploitation of such representation in the form of broadcast rights, et cetera, on trust for a partnership which he had set up with the plaintiffs. After weighing the evidence, Lightman J found that the intention of the plaintiff and the defendants was that all the promotion, management and associated (‘PM&A’) agreements relating to European registered boxers, which were held by either partner during the subsistence of the partnership, should be assigned to or be held for the benefit of the partnership. However, although the wording of the partnership agreements expressed the relationship to be merely one of assignment of the various PM&A agreements to the partnership, this was plainly ineffective in both law and equity: either because the nature of these agreements involved a personal relationship of skill and confidence between the boxer in question and the defendant, or because it had been expressly prohibited by anti-assignment clauses. Nevertheless, in the absence of any clear wording in the PM&A agreements prohibiting the defendant from constituting himself as trustee of the choses in action in these contracts for the benefit of third party entities, such as the partnership it had formed with the defendants, Lightman J could see, ‘no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred.’[41] Accordingly, Lightman J held that the benefit of the PM&A agreements was held by the defendant on trust for the partnership.[42]
Don King was a case where the intention of the promisor boxers, broadcast and media agencies, was not made out. It was not sufficiently shown that the promisors had intended that the promisee (the defendant manager and promoter) was not to hold the benefit of the agreements on trust. There was no express prohibition against this, nor was it permissible to interpret anti-assignment clauses where these were present to impliedly have such effect. Nor was any evidence led as to the intentions of the boxers, or of the other parties to the associated agreements on this point. Consequently, the defendant promisee failed in his contention that, as a matter of law, he could not have held the PM&A agreements on trust.[43]
The tenor of the judgment, however, suggests that the outcome would have been very different if there had been, say, a contractual clause barring the promisors from constituting a trust over the benefit of the PM&A agreements. It therefore seems that Lightman J accepted that where the evidence shows that a promisor entered into the contract on the basis that his obligation is to be owed to the promisee and to none other, for example, where the contract is worded sufficiently clearly to bar not only assignment but also the constitution of a trust over the chose of the promise for the benefit of a third party, the promisee’s constitutive intention is ineffective. This must be so in cases where the basis for the promise was that the promise was for the promisee’s benefit and no other, since in effect, the promisee would never have had the benefit of the chose himself had it been apparent to the promisor that the ultimate beneficiary of his contractual performance would be someone other than the promisee. More broadly, since there would have been no consensus ad idem sufficient to form a contract in the first place, there would have been no trust property over which to constitute the trust. Don King is therefore fully consistent with the analysis put forward above.
The next question we need to consider is what the position would be if only one of the parties were to have an affirmative or negative intention as to the constitution of a trust over the chose, while the other party remained indifferent. If this happens, it is submitted that effect should be given to the affirmative or negative intentions of the one over the indifference of the other.[44] As on the facts of Don King itself, the court found from the partnership agreement with Don King Productions that the defendant promisee positively intended to hold the benefit of the PM&A agreements on trust for the partnership. As for the promisors to the PM&A agreements, there was no evidence that they also had such positive intentions. But this was irrelevant. What counted was that there was no evidence that they were opposed fundamentally or at all to such trusteeship by the promisees. At worst, the promisors could be said to have been indifferent to the possibility of the promisees constituting themselves as trustees over the chose. But, as Don King shows us, this does not override the promisees’ positive intentions. This must be correct: had the promisors been initially indifferent, they would have granted the right to enforce the benefit of the promise absolutely to the promisees. As such, there can be no reason to bar the promisees from subsequently constituting themselves as trustees of the benefit of the promise for a third party beneficiary.
Following from the observations above, it would appear that, first, the positive intention of the promisee to constitute a trust over the chose, whether he does so by constituting himself or a third party to act as trustee of the promise, is necessary, though is not sufficient, to justify the conclusion that a valid trust of a contractual promise has been constituted. That positive intention may be overridden where the evidence shows that the promisor was opposed to the constitution of such a trust, for example, by making his promise conditional upon its being held absolutely by the promisee. In practice, this might take the form of an ‘anti-trusteeship’ clause, as envisaged in Don King. Secondly, where the facts of the case are equivocal as to the intentions of the promisee, but where the facts show that the promisor is opposed to the constitution of a trust (as above), it is unlikely that the courts will be readily persuaded to infer that the promisee had, in fact, intended to constitute a trust which would, ultimately, be ineffectual.
In the case of voluntary covenants, the ‘consensus ad idem’ analysis above is inapplicable since a covenant is enforceable regardless of the covenantee’s knowledge or assent at the time of its execution. Indeed, it is this very characteristic which is said to lend support to the proposition that only the covenantor’s intention matters in the constitution of a trust over the voluntary covenant.
Trusts of a chose derived from a voluntary covenant will usually take the form of X executing a deed, covenanting to confer a benefit on Y which Y is to hold on trust for Z (who is not privy to the deed).[45] Since the covenant is effective upon execution, Y’s knowledge or assent to the trust is, in principle, irrelevant. If the deed clearly manifests X’s intention to constitute Y as trustee, the trust will, doubtless, have been validly constituted.[46] However, what happens if or when Y disclaims the office of trustee when the existence and content of the deed is made known to him?
Aside from constructive and resulting trustees, no one is bound to accept[47] the office of trustee.[48] So long as Y does not accept or has not accepted[49] the office of trustee, it may be disclaimed any time after the settlor has purportedly constituted the trust. Such disclaimer may be made by way of deed[50] or even by conduct.[51] Having done so, it is accepted that Y will have simultaneously disclaimed the property over which he was to have been trustee.[52]
Once the trust is disclaimed by the trustee, some might think that the transfer of trust assets to the trustee should be rendered void ab initio following disclaimer.[53] If so, the determination that the covenantor-settlor intended to constitute a trust becomes otiose since the subsequent disclaimer will prevail over the covenantor-settlor’s original intentions. In order to properly constitute a trust of a covenant at the time of its execution and which continues to be effective to bind the covenantees as trustees, the covenantees must not subsequently disclaim the office of trustee. On this analysis, we would clearly need to focus on both the covenantor’s intentions at the time of execution of the covenant, as well as the covenantee’s subsequent intentions.[54]
The logic of the above argument, however, faces the apparently contrary authority of Mallott v Wilson.[55] In Mallott v Wilson, a settlor conveyed his land to a trustee by deed for the benefit of his wife and children. The trustee was initially ignorant of this, but disclaimed upon finding out, one year later. The settlor then attempted to revoke the trust, and twenty years later, further attempted to constitute a different trust before he died. Byrne J rejected the contention that by disclaiming the trust, the initial trust had failed and was ‘void ab initio.’
Rather, the true meaning is that, not in regard to all persons and for all purposes is the case to be treated as though the legal estate had never passed, but that as regards the trustee and the person to whom the grant was made, he is, in respect of his liabilities, his burdens, and his rights, in exactly the same position as though no conveyance had ever been made to him. ... Under these circumstances I think that the trust was really created, and that the fact that the trustee subsequently disclaimed did not destroy the trust, but that upon the revesting the settlor himself held in trust; and I arrive at this conclusion ... by construing [the deed] as having created the trust, and the settlor as having subsequently become trustee of it by reason of the action which took place. It is really imposing the trust on the legal owner in whom by operation of law the estate is revested after the creation of the trust.[56]
Following Mallott v Wilson,[57] unless a settlor reserves the power to revoke the trust, the disclaimer by trustees of a trust following its constitution only has limited effect on the validity of the trust. Although the express trust fails, the trustee’s ‘title’ to the trust property is revested in the settlor by operation of law, whereupon a trust will be imposed by the courts upon the settlor in favour of the intended beneficiaries. In other words, upon revesting, the settlor finds that he has become a constructive trustee of the trust property.
Although the application of Mallott v Wilson seems straightforward[58] where the trust property is something other than a chose in action, some concern ought to arise from the conceptual impossibility of a covenantor holding the benefit of the right to sue himself along the lines suggested by Millett J in Re Charge Card Services Ltd.[59] How can the chose in action not fail to be extinguished if the ability to enforce it reverts back to the covenantor himself? How then can there be any trust over the benefits or proceeds of such a chose since the promisor can never be in a position to sue himself to enforce the chose? Therefore, there appears to be a fair argument that a trust of a covenant may be thwarted if the proposed trustee-covenantee subsequently disclaims the office of trustee. By disclaiming the office of trustee, the covenantee also disclaims the trust property, i.e. the chose. If the chose reverts to the covenantor, surely the chose (being a mere right to bring an action in court against the covenantor) must be discharged since one cannot have an action against oneself?[60] Accordingly, where there is a disclaimer, not only is the initial express trust of the chose in action extinguished, the constructive trust imposed by the court in Mallott v Wilson will also be conceptually impossible.[61]
In some senses, this is merely the corollary to the position where the trust is incompletely constituted. In such cases, since the covenantees are, ex hypothesi, holding the benefit of the chose as trustee, if the express trust is not constituted fully, they must hold the benefit of the chose on resulting trust for the covenantor. Since the covenant is under seal, the covenantees are entitled to bring an action at common law for damages, which, if recovered, would also be held on resulting trust for the covenantor as being the fruits of the chose. However, since the covenantor is an absolutely entitled beneficiary under the resulting trust, he is also entitled to terminate the trust on the basis of the principle in Saunders v Vautier[62] and to save the covenantee-trustees from the futility of suing him, only to hand the damages back.[63]
The extinction of the trust property arising from reversion upon disclaimer has a further subsidiary effect. Like the analysis in the previous section, our current examination of the effect of a disclaimer of trust also impacts upon the drawing of inferences as to the presence or absence of constitutive intentions when the facts of the case are otherwise equivocal. If the facts are unclear as to the covenantor’s constitutive intentions, but are revealing of the covenantee’s awareness of the circumstances (either contemporaneously or otherwise) and his plain and outright refusal to act as trustee, what reason is there for the courts to draw inferences that the covenantor had, nonetheless, constituted the covenantee as trustee? If the purported covenantor-settlor persists in executing a covenant in favour of the putative covenantee-trustee despite the latter’s clear and unequivocal refusal to accept such office, what inferences should a court draw? That the covenantor-settlor intended to constitute a trust despite the covenantee’s refusal to accept the office of trustee? Or would it be less formalistic to simply accept that such an inference cannot be drawn? As in the case of equivocal intentions in connection with a purported trust of a contractual promise, why should the court in connection with a purported trust of a voluntary covenant draw inferences which would ultimately end in futility?
The analysis put forward in the section above may appear to fly in the face of the result reached by the court in Fletcher v Fletcher.[64] Most commentators have taken the view that this case is a clear example of the trust of a covenant at work. For example, the editors of Jacob’s Law of Trusts in Australia take the view that:
In Fletcher v Fletcher, a settlor by a voluntary deed covenanted with trustees that, in case A and B (his natural sons) or either of them should survive him, his personal representatives would within 12 months pay ₤60,000 to the trustees upon trust for A and B or such one of them as should attain the age of 21 years. The settlor died and after his death it was held that, although the covenant was voluntary, it nevertheless created a trust of that covenant for the surviving natural son A. It was held that the refusal of the trustees to sue upon the covenant could not affect his rights because his rights once existing could not, as Wigram V-C expressed it, depend on the mere caprice of the trustees.[65]
On this analysis of Fletcher v Fletcher, it appears that despite the trustee’s refusal to sue on Ellis Fletcher’s voluntary covenant (which one would be hard put not to characterise as a disclaimer of the office of trustee) a trust of the voluntary covenant had nevertheless been constituted and was still in effect at trial. However, the contradiction with the position put forward in this paper is more apparent than real.
There are two ways in which the contradiction may be resolved. First, it is possible to view Fletcher v Fletcher to be an unjust enrichment case. This is the analysis taken in Scott on Trusts which draws on Fletcher v Fletcher as authority for the following proposition:
Suppose ... that A does not transfer property to B but makes a binding promise under seal to pay money to B as trustee. In such a case if B disclaims, the result is not to revest property in A but to relieve A of his liability upon the contract. It is impossible to charge A as constructive trustee, since as a result of the disclaimer he does not acquire any property, but is merely relieved of a liability. A court of equity, however, will protect the beneficiaries of the trust, not by imposing a constructive trust upon A, but by imposing a personal liability upon him coextensive with the legal liability of which he was relieved by the disclaimer. A trust arose when the promise was made, and equity will not permit the promisor to profit by the disclaimer of the trustee at the expense of the beneficiaries of the trust. The basis for imposing this equitable liability upon the promisor is the same as that which underlies the imposing of a constructive trust upon a settlor where the trustee disclaims; it is to prevent the settlor from profiting at the expense of the beneficiaries of the trust by the fortuitous circumstance that the trustee disclaims.[66]
In other words, Fletcher v Fletcher is simply a case of unjust enrichment.
By being relieved of an expenditure which it would otherwise have had to incur, Ellis Fletcher’s estate would have been swollen by ₤60,000. This would then have to be distributed in accordance with the provisions of Ellis Fletcher’s will. As such, the beneficiaries under the will would have been incontrovertibly enriched by the covenantee’s disclaimer of trust. Such ‘gain’ was at Jacob Fletcher’s expense, since but for the disclaimer, the estate’s liability would not have been extinguished and the estate would have had to pay the ₤60,000 to the trustees, depriving the beneficiaries under the will of this sum. In turn, the trustees would hold the ₤60,000 in trust for Jacob Fletcher. The gain would also be ‘unjust’ since it was not intended by the settlor that his beneficiaries under the will were to benefit to this extent. One might therefore say that here, the enrichment was unjust since Ellis Fletcher had not consented to distribution of this sum to the beneficiaries of his will.[67]
It may be noted that on the facts of Fletcher v Fletcher, nothing turned on the question whether the remedy ordered was real or personal. Even on the view that unjust enrichment only provides for a personal remedy,[68] this made no difference to Fletcher v Fletcher as the putative trustees were not insolvent and there was no need to consider any question of competing priorities. Accordingly, there is no reason to doubt that a cause of action in unjust enrichment had been made out on the facts of the case. Nor do the facts disclose any obvious defence to such a claim.
If this reanalysis of Fletcher v Fletcher proves too radical, an alternative is possible. On the facts, the trustees named in the deed did not know of their appointment as trustees until, presumably, shortly before Jacob Fletcher commenced legal proceedings. The trustees then unequivocally disclaimed the trust in their answer to Jacob Fletcher’s bill. It is significant, however, that Wigram VC doubted whether the trustees’ disclaimer would have any significant effect on the outcome of the case:
If the trustees have in this case accepted the trust I think the decision in Clough v Lambert[69] applies; and if they have not accepted the trust I scarcely think that fact can make a difference.[70]
But why ever not?
Jacob Fletcher was already 21 by the time the bill was filed. Because of his brother’s death, Jacob Fletcher had become the sole beneficiary of the trust purportedly constituted by his father. If we apply Mallott v Wilson, the trust property (i.e. the chose in the covenant) would have vested in the trustee pending any possible disclaimer. Therefore, by the time Jacob Fletcher filed his bill, the trustee’s right to sue upon the covenant in the deed had long been vested and perfected, since by this time, more than a year had elapsed from Ellis Fletcher’s death. By commencing the litigation and suing in his own name, could it not be said that Jacob Fletcher was relying on the principle in Saunders v Vautier[71] to terminate the trust which was clearly and obviously in his favour? After all, the trustees had no discretionary powers – they were bound to pay the sums realised upon enforcement of the chose in action to Jacob Fletcher once he turned 21. Those were the very terms of the trust – that upon the cestui que trust turning 21, he was to be paid the sums set out in the covenant. Perhaps this explains why the Vice-Chancellor thought that the trustees’ (attempted) disclaimer of office was irrelevant. By bringing the action prior to their disclaimer of trust, Jacob Fletcher had brought the trust to an end and caused the trust property (the right to sue on the covenant made by his father) to vest in himself absolutely, prior to any possible revesting and extinction of the chose. Arguably, therefore, Fletcher v Fletcher does not contradict the analysis set out in this paper.
In conclusion, once we fully appreciate the bilateral aspects of a chose derived from a covenant, it becomes clear that the intentions of a covenantor-settlor to constitute the covenantee as trustee of the chose in the covenant may be overridden by a disclaimer of the trust by the covenantee. As the disclaimer results in revesting and arguably extinction of the chose, from that point in time onwards, the express trust of the chose intended by the covenantor comes to an end. In order to constitute an express trust of a covenant with continued validity, both the covenantor’s intentions at the time of execution of the covenant, as well as the subsequent intentions of the covenantee, in particular, his willingness or otherwise to accept the office of trustee, must be taken into consideration.
Like trusts of a contractual promise, a bilateral approach is needed save that here, account should be taken of both the covenantor-settlor’s intentions at the time of the execution of the covenant[72] and the subsequent intentions of the covenantee-trustee as to his acceptance or disclaimer of the office of trustee. Where the initial intentions of the covenantor are unclear, but it is clear that the covenantees have subsequently disclaimed the trust, an inference in favour of constitutive intent at the time of the execution of the covenant would be trumped by the subsequent disclaimer. Consequently, to avoid taking part in an exercise in futility, it should be rare that a court will draw such an inference. The covenant will therefore either: (1) completely lapse and be ineffective, or (2) only have effect, if at all, insofar as it benefits the covenantee absolutely for his own benefit.
Given the observations above, logically, it would appear that the positive intention of a covenantor to constitute the covenantee as trustee of the promise is necessary though not sufficient for a valid trust of a contractual promise to have been constituted. That positive intention may be overridden where the evidence demonstrates that the covenantee was opposed to the constitution of such a trust, for example, by disclaiming the office of trustee as soon as he finds out about the covenant. Where there is such disclaimer, given the special nature of trust property in the form of a chose in a covenant, that trust property would be extinguished upon disclaimer. Where the facts of the case are equivocal as to the intentions of the covenantor, but where they also show that the covenantee is opposed to the constitution of a trust (as above), it is unlikely that the courts will be readily persuaded to infer that the covenantor had, in fact, intended to constitute a trust which would, ultimately, be ineffectual.
As Fullagar J observed in relation to a trust of a contractual promise in Wilson v Darling Island Stevedoring and Lighterage Co Ltd,[73] it is, ‘difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases.’ If one properly appreciates the full breadth of the fact-finding exercise needed to establish the requisite intentions to constitute a trust of a chose in action, Lord Wright’s caution in Vandepitte’s Case becomes no more than a statement of the obvious. Multiple view points have to be juggled and intentions may have to be ascertained at multiple points in time so as to determine both the nature of the promises made in the contract/deed and the manner in which the benefit therein was intended to be held or conferred. In light of the above analysis, Deane J may have rather understated the position when he noted that
the requisite intention [to constitute a trust] should be inferred if it clearly appears that it was the intention of the promisee that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity’s requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promisee.[74]
Given the bilateral nature of contractual promises (and voluntary covenants), the position ought to be that consideration of the intentions of both parties to the obligation is central to the issue as to whether a trust of the chose in the obligation has been constituted. Consideration of the intentions of the promisee (in the case of a contractual promise) or the covenantor (in the case of a voluntary covenant) alone can never be sufficient for the constitution of a trust over the chose. Consideration of the intentions of the promisor or the covenantee is also necessary.
These are all inferences to be drawn from the surrounding facts. Unsurprisingly, on apparently similar facts, different conclusions might sometimes be drawn. As noted in the High Court of Australia,
[t]his apparent uncertainty should be resolved by stating that the courts will recognize the existence of a trust when it appears from the language of the parties, construed in its context, including the matrix of circumstances, that the parties so intended. ... In divining intention from the language which the parties have employed the courts may look to the nature of the transaction and the circumstances, including commercial necessity, in order to infer or impute intention…[75]
If we stand back and reconsider the manner in which choses in action are made the subject of trusts, the conclusion which should be drawn is that there is, in fact, no judicial aversion to the doctrine, even when we confine our inquiry to English authorities. The need to approach the question of constitutive intention through a wider angled lens has, hitherto, been obscured because of an overly single-minded focus on the purported ‘settlor’ of the trust. Given this narrow focus, the bilateral nature of a chose in action was left out of view, thereby masking the precise elements as to what is actually involved: a consideration of the intentions of both promisor and promisee (in the case of a contractual promise) or covenantor and covenantee (in the case of a voluntary covenant) as well as how these intentions interact with the other requirements of certainty, in particular, certainty of subject-matter. Perhaps, then, the Law Commission’s pessimistic prognosis of the modern-day utility of the trust of a chose in actionshouldberevised.
[*] BCL (Oxon), LLB (National University of Singapore); Assistant Professor, Department of Law, Lee Kong Chian School of Business, Singapore Management University. Many thanks are owed to Professor Charles Rickett (TC Beirne School of Law) and Associate Professor Hans Tjio (National University of Singapore) for their help through the development of this paper. Thanks are also owed to the Singapore Management University Office of Research which provided a grant towards the completion of this paper. Nevertheless, all shortcomings are mine alone.
[1] [1756] EngR 124; (1756) Amb 330.
[2] For the purposes of this paper, all references shall be to English statutes unless the context indicates otherwise. In addition, all references to ‘voluntary covenants’ are limited to covenants which are enforceable at law despite the lack of consideration (eg inter alia, covenants under seal or for the marriage consideration; and post-1989, covenants complying with the requirements of s 1 of the Law of Property (Miscellaneous Provisions) Act 1989, c 34); or covenants complying with ss 36A(4) and (5) of the Companies Act 1985, c 6 (as inserted by Act 1989, c 40, s 130(1)).
[5] [1933] AC 70, 80 (PC).
[6] Law Commission, Privity of Contract: Contracts for the Benefit of Third Parties, Report No 242 (1996) (the ‘1996 Report’).
[7] [1756] EngR 124; (1756) Amb 330, 27 ER 221.
[8] [1849] EngR 360; (1844) 4 Hare 67, 67 ER 561.
[9] [1880] UKLawRpCh 264; (1880) 16 Ch D 290.
[10] [1883] UKLawRpCh 236; (1883) 25 Ch D 89.
[12] Law Commission, above n 6, [2.8].
[19] Law Commission, above n 6, [2.8].
[20] Contracts (Rights of Third Parties) Act 1999, c 31 (the ‘1999 Act’).
[21] Accounts of which may be found in R Stevens, ‘The Contracts (Rights of Third Parties) Act 1999’ (2004) 120 Law Quarterly Review 292; and CH Tham, ‘Trust, not Contract: Restoring Trust in the Contracts (Rights of Third Parties) Act 1999’, forthcoming, Journal of Contract Law (2005).
[22] There is a view that the 1999 Act also applies to third party beneficiaries under a covenant to create a trust since s 7 of the 1999 Act extends ss 5 and 8 of the Limitation Act 1980 (which deal with the limitation periods for actions brought on a simple contract and those brought on a specialty respectively) so as to limit the statutory third party action provided by 1999 Act s 1 – see, eg PH Pettit, Equity and the Law of Trusts (9th ed, 2001) 105. This, however, is doubtful. As Stevens has noted, the reference to specialties in s 8 of the Limitation Act 1980 includes contracts made by deed and therefore references in the 1999 Act to specialties should not be taken to include non-contractual deeds (ie the voluntary covenants under present discussion) – Stevens, above n 21, 313. Interestingly, in neither Law Commission Consultation Paper No 121, 1991, nor the 1996 Report is this issue discussed (save for a passing reference to contracts not supported by consideration at paragraph 3.33(iii) of the 1996 Report).
[23] 1999 Act, s 6.
[24] The 1999 Act came into force in England and Wales on 11 November 1999. It has no retrospective application. For contracts formed in the first six months following its enactment, the parties may choose to ‘opt in’ to the statutory third-party scheme set out by the 1999 Act – s 10(3). No such ‘opting in’ is necessary for contracts entered outside of the initial six months’ grace period. Nevertheless, even where the 1999 Act is applicable, it expressly provides that the statutory third party remedies therein are only available to a third party if the contract expressly provides for them (s 1(1)(a)); or, if the contract term which the third party is seeking to enforce, ‘purports to confer a benefit on him’ (s 1(1)(b)) and if the contract does not disclose an intention that the parties to the contract did not intend the party to have direct rights of enforcement (s 1(2)). Accordingly, even where the 1999 Act is applicable, it is open to the contracting parties to contractually exclude the third party’s statutory right of enforcement.
[25] And will, of course, be of particular interest to those jurisdictions which have yet to adopt similar legislative steps. So far as England and Wales are concerned, the 1999 Act does not legislatively overrule these techniques – see s 7(1).
[26] As opposed to a resulting or constructive trust. This appears to be the almost universal view taken in academic writing on the subject. A notable exception, however, may be found in MP Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (14th ed, 2001) 503-506, which takes the view that the modification of the privity rule has taken place by way of the ‘equitable doctrine of constructive trust.’ This, it is suggested, is untenable – the trust of a chose in action cannot be constructive since it cannot be imposed where the evidence clearly shows that the parties did not intend it. In focussing so strongly on giving effect to the parties’ intentions, the entire tenor of the cases in this area also suggests that the trust of a chose in action cannot be constructive. It should be noted though, that the reference to the trust of a chose in action as an ‘express’ trust is not intended to exclude instances where the trust might have been implied from the actions or words of the parties.
[27] This is most apparent in connection with a trust of a contractual promise. However, even in the case of a trust of a voluntary covenant, as the discussion below will show, even though the covenant is legally enforceable where the covenantee is ignorant of its existence, the covenantee’s acceptance of the gift of the covenant as trustee for a beneficiary is a necessary condition for a trust of a covenant to be effective.
[28] It must also be concluded that the chose is present property, ie that over which a trust may be constituted. Some difficulty may arise in instances where the promised performance under the chose is to arise in the future, or on the occurrence of some specified event which has yet to come to pass. But even in such cases, it should be noted that upon the formation of chose, the promisor (in the case of a contractual promise) or covenantor (in the case of a voluntary covenant), will be under an immediate obligation to the promisee or covenantee to hold himself or herself ready, willing and able to perform the promised or covenanted action. Conduct by the promisor or covenantor which is contrary to this, ‘is a breach of a presently binding promise, not an anticipatory breach of an act to be done in the future’ – Bradley v H Newsom, Sons & Co [1919] AC 16, 53–54 (Lord Wrenbury). Once the chose arises, it ought to be the rare case where one cannot cast this obligation as the ‘present property’ over which a trust may be properly constituted (although the analysis might be very different if the formation of the chose is itself subject to pre-conditions). The analysis may also be further complicated if the trust involves an assignment of the benefit of the chose to the putative trustee – in which case the rules as to assignment (whether equitable or statutory) will also have to satisfied. Nevertheless, even in instances where neither ‘present property’ nor ‘assignment’ is in issue, one must always address the ‘three certainties.’
[29] As Jaconelli notes, the fact that the beneficiaries in many of the trust of a chose in action cases were neither specifically identified nor enumerated at the time the trust was constituted does not appear to have prevented findings in favour of such trusts – see J Jaconelli, ‘Privity: The Trust Exception Examined’ [1998] The Conveyancer and Property Lawyer 88, 94–95.
[30] At least insofar as the chose pertains to a positive obligation. ‘Negative’ obligations such as a promise not to bring legal proceedings in the form of an exclusion clause are probably not apt to be classed as property which may be made the subject of a trust – see Southern Water Authority v Carey [1985] 2 All ER 1077 (Queen’s Bench Division).
[31] See, eg, JW Martin, Hanbury and Martin: Modern Equity (16th ed, 2001), 137; Law Commission, above n 6, [2.8].
[32] CEF Rickett, ‘The Constitution of Trusts: Contracts to Create Trusts’ (1979) 32 Current Legal Problems 1, 7.
[33] JD Feltham, ‘Intention to Create a Trust to Settle Property’ (1982) 98 Law Quarterly Review 17, 18.
[34] Rickett, above n 32, 7–8.
[35] Ibid.
[36] Ibid.
[37] Some appreciation of the ‘bilateralism’ explored in this paper is hinted at in a few Australian cases. Of particular note are the judgments delivered by Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 147; [1988] HCA 44; 80 ALR 574, 602; and Gummow J in Winterton Constructions Pty Ltd v Hambros Australia Ltd & Anor [1991] FCA 171; (1991) 101 ALR 363 (Federal Court of Australia), 370–371 and Re Australian Elizabethan Theatre Trust [1991] FCA 344; (1991) 30 FCR 491, 502-503; [1991] FCA 344; 102 ALR 681, 693.
[38] Jaconelli, above n 29, 90. As Jaconelli notes, this comes, ‘perilously close to contravening the basic rule that an immediate trust cannot be created over property that does not as yet exist.’ However, Re Ellenborough [1903] 1 Ch 698 does not go so far – it merely states that no trust can be constituted where the purported trust property only comes into existence after the purported time of constitution of the trust. Simultaneity of property and constitution is thus not rendered impermissible.
[39] Since there would be no trust property over which any trust could be constituted.
[41] Ibid 321.
[42] On appeal, counsel for the appellants avoided the lynchpin of Lightman J’s decision (that a trust of a chose in action operated distinctly from an equitable assignment of such chose and was therefore not barred by an anti-assignment clause – at [2000] Ch 321), choosing instead to focus on arguments that the various contracts which were the subject-matter of the dispute were not ‘property’ for the purposes of the Partnership Act 1980. These arguments were dismissed by the Court of Appeal without, perhaps, having fully considered Lightman J’s central argument. Nevertheless, both DJ Hayton, Underhill and Hayton – The Law Relating to Trusts and Trustees (16th ed, 2003) 183, n 6 and J Mowbray, L Tucker, N Le Poidevin, E Simpson, Lewin on Trusts (17th ed, 2000) §2-35, n 85; §3-33, n 42; §4-12, n 55 take the view that at [2000] Ch 335–336, the Court of Appeal affirmed Lightman J’s analysis on this point.
[43] Admittedly, there remains much academic disagreement over the legitimacy of Lightman J’s decision on this point (and its affirmation by the Court of Appeal). Leading the nay-sayers, we find Professors Tettenborn and McCormack, vide A Tettenborn, ‘Trusts of Unassignable Agreements’ [1998] Lloyd’s Maritime and Commercial Law Quarterly 498; A Tettenborn, ‘Trusts of Unassignable Agreements – Again’ [1999] Lloyd’s Maritime and Commercial Law Quarterly 353; and G McCormack, ‘Debts and Non-Assignment Clauses’ [2000] Journal of Business Law 422, 435–437. Yet more recent criticism of Don King may be found in PG Turner, ‘Charges of Unassignable Rights’ [2004] Journal of Contract Law 97. Nevertheless, most academic treatises do not appear to take the view that Don King is wrong: see, eg, JA McGhee (ed), Snell’s Equity (31st ed, 2005) [3-47], [20-21]; A J Oakley (ed), Parker and Mellows: The Modern Law of Trusts (8th ed, 2003) 23; Hayton, above n 42, 9–10, 183, 733; Pettit, above n 22, 46; Mowbray et al, above n 42, §2-35, §3-33, §4-12. Given the constraints of space, and given that there does not appear that there has been any judicial reconsideration of the point since then, this paper will proceed on the assumption that so far as the English courts are concerned, Lightman J’s decision in Don King is an authoritative statement of this area of the law.
[44] Or, to put it another way, both promisor and promisee have the power to veto the constitution of a trust over the chose, but that veto must be actively asserted for it to have any effect.
[45] If Z were party to the deed of covenant, of course, none of the subsequent discussion would be relevant since by virtue of being in privity with X, Z would be entitled to directly sue X at law for damages – Cannon v Hartley [1949] Ch 213.
[46] It will not be possible to examine the difficult case of Re Pryce [1917] 1 Ch 234 which analyses the position of a supposed trustee of trust property where the trust has yet to be completely constituted. The analysis below proceeds on the basis that a trust of the covenant will have been completely constituted once the settlor manifests his intention to constitute a trust thereof and executes the deed of covenant.
[47] Where the chose takes the form of a contractual promise, if a contractual offer by X (as promisor) has been accepted by Y (as promisee) on the basis that he, Y, is to hold it as trustee for Z, needless to say, such acceptance should also constitute acceptance of the office of trustee and it would not be possible for Y to disclaim it. The discussion in this section is therefore not applicable to the constitution of a trust over a contractual promise.
[48] Robinson v Pett [1734] EngR 54; (1734) 3 P Wms 249, 2 White & Tud LC 605.
[49] Re Lister [1926] Ch 149; Re Sharman’s Will Trusts [1942] Ch 311. Care should be taken, however, to distinguish this from cases where the purported trustee has merely agreed to accept the office. Mere agreement to accept the office at a future date is not the same as acceptance of the office, and in the former case, the purported trustee may be allowed to change his mind: see Dole v Blake (1804) 2 Sch & Lef 231; Stacey v Elph [1833] EngR 352; (1833) 1 My & K 195; Re Paradise Motor Co Ltd [1968] 1 WLR 1125. As for the manner of acceptance, it has been noted that, ‘[a] person may accept the office of trustee expressly, or he may do so constructively by doing such acts as are only referable to the character of trustee or executor, or he may do so by long acquiescence. In the absence of evidence to the contrary, acceptance will be presumed.’ – Hayton, above n 42, 451. A trustee who has accepted the office may, nevertheless, retire, the specifics as to which may be found at Hayton, above n 42, 743–750.
[50] Eg Re Schär [1951] Ch 280.
[51] Eg Stacey v Elph (1833)1 My & K 195, Townson v Tickell (1819) 3 B & Ald 31; Begbie v Crook [1835] EngR 747; (1835) 2 Bing NC 70; Bingham v Lord Clanmorris (1828) 2 Mol 253; In re Birchall [1889] UKLawRpCh 20; (1889) 40 Ch D 436.; D’hademar v Bertrand [1865] EngR 785; (1865) 35 Beav 19; 55 ER 801.
[52] Following In re Birchall [1889] UKLawRpCh 20; (1889) 40 Ch D 436 (CA).
[53] As was submitted by counsel for the principal defendants in the case of Mallott v Wilson [1903] UKLawRpCh 102; [1903] 2 Ch 494, relying on the authority of Sheppard's Touchstone of Common Assurances (7th ed, 1820-21) (including notes by Richard Preston) 285. For detailed criticism of Byrne J’s decision to reject these submissions in Mallott v Wilson, see P Matthews, ‘The Constitution of Disclaimed Trusts Inter Vivos’ [1981] The Conveyancer and Property Lawyer 141.
[54] Indeed, in the case of a disclaimer of a testamentary gift, Re Stratton’s Deed of Disclaimer [1958] Ch 42 clearly sets out the rule that the disclaimer will extinguish the inchoate right of a testamentary beneficiary to that property.
[55] [1903] UKLawRpCh 102; [1903] 2 Ch 494. See also Re Birchall [1889] UKLawRpCh 20; (1889) 40 Ch D 436.
[56] [1903] UKLawRpCh 102; [1903] 2 Ch 494, 501-503.
[57] Ibid.
[58] For a contrary view, see Matthews, above n 53.
[59] [1987] Ch 150. It may be noted that in In re Bank of Credit and Commerce International SA (No 8) [1998] AC 214, Lord Hoffmann only rejected Millett J’s application of conceptual impossibility of suing oneself in relation to a charge over a debt owed to oneself. In his Lordship’s opinion, given that the difference between the creditor having a charge over the debt and any other entity having a charge lay only in the manner the charge could be enforced, and in light of widespread commercial acceptance, Millett J’s analysis had to be rejected. On the facts here, though, the conceptual impossibility looms far larger. Given that assignment of a debt to the debtor functions as a release of the debt, it is difficult to avoid the conclusion that revesting of a chose in action to the obligor by operation of law must also operate as a release of the obligation underlying the chose.
[60] This appears to be the position taken in the United States – see AW Scott and WF Fratcher, The Law of Trusts (4th ed, 1987) vol 1, §35.4, 383-384. Such a result is also consistent with the doctrine of extinguishment of restrictive covenants following unity of seisin over the benefited and the burdened land – see In re Tiltwood, Sussex [1978] Ch 269, 280 which applied Lord Cross’ dicta in Texaco Antiles Ltd v Kernocham [1973] AC 609, 626 (PC) that, ‘[i]t is no doubt true that if the restrictions in question exist simply for the mutual benefit of two adjoining properties and both those properties are bought by one man the restrictions will automatically come to an end and will not revive on a subsequent severance unless the common owner then recreates them.’
[61] If the analogy to extinction of restrictive covenants is valid, it may be noted that such extinction only occurs where there is complete unity of seisin of all burdened lands with the benefited land – so long as there remains some burdened sub-parcels of land which are not brought into unity of seisin with the benefited land, the restrictive covenants are suspended (not extinguished) as between those portions of burdened lands which are now in common ownership with the benefited land. In such cases, the restrictive covenants may be revived should there be any subsequent separation of seisin – see, eg JDA Brooke-Taylor, ‘Perdurable Estates’ (1977) 42 The Conveyancer and Property Lawyer 107, 115–123. It is difficult to see, however, how a reversion of the chose following disclaimer of trust can be seen as resulting in anything other than complete ‘unity of seisin’ since the whole of the chose (being a right by the covenantee to sue the covenantor) must have reverted – nothing is left over, since by the rules of privity, the third party beneficiary would never have had the legal right to sue the covenantor in any event.
[62] [1841] EngR 629; (1841) 4 Beav 115.
[63] This analysis of the position in relation to an incompletely constituted trust of a covenant is not controversial – see, eg, Hayton, above n 42, 179.
[64] [1849] EngR 360; (1844) 4 Hare 67, 67 ER 564.
[65] RP Meagher and WMC Gummow, Jacob’s Law of Trusts in Australia (6th ed, 1997), [609], 99.
[66] Scott, above n 60, §35.4, Vol I, 383-384.
[67] Or, more simply, adopting the language suggested by Professor Birks in his summation of the law of unjust enrichment in P Birks, Unjust Enrichment (2nd ed, 2005), restitution would have to follow since there was simply no basis for the benefit gained by the beneficiaries under the will. That gain would be unjust since it was unintended by the deceased and arose only as a result of the fortuitous swelling in the value of Ellis Fletcher’s estate due to the saving of a necessary expense consequent upon the putative trustees’ disclaimer of office.
[68] Although it should also be noted that there continues to be vigorous debate (both in favour and against) that personal as well as real remedies are available in an unjust enrichment claim. For one eloquent argument that both types of remedies are so available, see Birks, above n 67, ch 8. In opposition, see G Virgo, ‘Restitution through the Looking Glass’ in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (2003), 100–101.
[69] [1839] EngR 842; (1839) 10 Sim 174; 3 Jur 672.
[70] [1849] EngR 360; 4 Hare 67, 75–76.
[71] [1841] EngR 765; (1841) Cr & Ph 240.
[72] The completist may wonder what relevance should be ascribed to a covenantor-settlor’s subsequent change of heart, after execution of the covenant. Unless the covenant reserves rights of variation or revocation to the covenantor-settlor, clearly, the covenantor-settlor’s subsequent intentions must be ineffectual and have no legal significance. If the covenantor-settlor initially intended to constitute the covenantee as trustee, so long as there is no subsequent disclaimer, the covenantor is not free to vary or revoke the covenant. Conversely, if the covenantor intended to grant the covenantee the benefits of the chose absolutely, a subsequent change of intention that the covenantee is to hold the benefit of the chose on trust must surely be irrelevant: the manner in which the chose is to be enforced is no longer his to decide.
[73] [1956] HCA 8; (1956) 95 CLR 43, 67.
[74] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 147; [1988] HCA 44; 80 ALR 574, 602.
[75] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 121; [1988] HCA 44; 80 ALR 574, 583 (Mason CJ and Wilson J).
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